Thomas v. State , 1995 Tex. App. LEXIS 1921 ( 1995 )

OPINION

OLIVER-PARROTT, Chief Justice.

Appellant, Robert Mont Thomas, was charged by indictment with the felony offense of engaging in organized criminal activity. Appellant pled no contest without a plea bargain agreement, and the trial court sentenced him to 16-years confinement. In a single point of error, appellant challenges the effectiveness of his trial counsel. We reverse and remand for a new punishment hearing.

Background

On June 3,1993, appellant was charged by indictment with the felony offense of engaging in organized criminal activity. Appellant pled no contest without a plea bargain agreement. During the punishment phase, testimony by several witnesses revealed many extraneous offenses and bad acts including prior convictions, pending charges, and current investigations into alleged criminal conduct by appellant. Both appellant and the State elicited evidence of these offenses. Counsel for appellant did not object to evidence of any of the extraneous offenses and bad acts. Appellant applied for and proved eligibility for probation. The trial court sentenced appellant to 16-years confinement.

Sole point of error

In his sole point of error, appellant argues that he was denied effective assistance of counsel at the punishment stage of his trial, because his trial counsel (1) did not object to evidence of unadjudieated extraneous offenses, and (2) elicited evidence of unadjudi-cated extraneous offenses.

The State urges us to apply the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Unlike allegations of ineffective assistance of counsel at the guilt-innocence stage, however, allegations of ineffective assistance at the punishment stage are governed by the “reasonably effective assistance of counsel” standard. Ex parte Graz, 739 S.W.2d 53, 58 (Tex.Crim.App.1987). This determination is to be made from the totality of the representation of the accused. Id. The constitutional right to effective assistance of counsel does not mean errorless counsel, or counsel whose competency is to be judged by hindsight. Id. Rather, the right to effective assistance of counsel entitles appellant to counsel “reasonably likely to render and rendering reasonably effective assistance.” Ex parte Duffy, 607 S.W.2d 507, 514, n. 14 (Tex.Crim.App.1980). In order for appellant to prevail, allegations of ineffective assistance of counsel must be “firmly grounded in the record.” Powers v. State, 727 S.W.2d 313 (Tex.App.— Houston [1st Dist.] 1987, pet. ref'd).

Appellant complains that at the punishment hearing, trial counsel either elicited or failed to object to evidence that appellant: had stolen a white Beretta automobile and a GMC pickup truck; was investigated for child pornography, solicitation to commit capital murder, and solicitation to injure police officers; had been charged with misdemean- or driving while intoxicated and numerous traffic offenses; was involved in the theft and interstate transport of other vehicles; was under investigation by both the DPS and FBI; and stalked and made threats against police officers.

In determining whether counsel rendered de&eient performance, the first issue we must decide is whether the extraneous offenses were objectionable, because an attorney’s failure to object to admissible testimony is not ineffective assistance. Cooper v. State, 707 S.W.2d 686, 689 (Tex.App.— Houston [1st Dist.] 1986, pet. ref'd).

Prior to September 1, 1993, evidence of unadjudicated extraneous offenses was not admissible during the punishment phase of trials for noncapital offenses. Grunsfeld v. State, 843 S.W.2d 521, 526 (Tex.Crim.App.1992). On September 1, 1993, the Texas Legislature amended article 37.07 to allow admission of unadjudicated extraneous offenses at the punishment trial of noncapital offenses. Tex.Code CRIM.Proc.Akn. art. 37.07, § 3(a) (Vernon Supp.1995). This amendment to article 37.07 applies only to trials for offenses committed on or after September 1,1993. Voisine v. State, 889 S.W.2d 371, 372 (Tex.App.— Houston [14th Dist.] 1994, no writ). Appellant committed the offense in the instant case in October 1992. Thus, the 1993 amendment to article 37.07 does not affect this case, and evidence of unadjudicated extraneous offenses was not admissible. Grunsfeld, 843 S.W.2d at 526; Voisine, 889 S.W.2d at 372.

Having determined that the extraneous offenses were objectionable, our next inquiry is whether counsel’s failure to object constituted plausible trial strategy. The State points out that most of the extraneous offenses were contained in the presentence investigation report. Thus, the State argues, it was plausible trial strategy for counsel to refrain from objecting to the offenses in the PSI. The State’s argument appears to be that if counsel had objected to the evidence, she “would have had no opportunity to cross examine the sources of information in the [PSI]_ In addition, ... there is no harm in that most of the information objected to was presented to the court in the form of the [PSI].” Contrary to the State’s argument, however, the mere fact that these offenses were contained in the PSI report did not reheve counsel from the duty of objecting. See Spriggs v. Collins, 993 F.2d 85, 89-90 (5th Cir.1993) (holding that trial counsel was deficient for failing to object to unadjudicated extraneous offenses in the PSI report).

We do not need to decide whether this could have constituted sound trial strategy, however, because we find that counsel was ineffective for not objecting to three particular offenses that were not in the PSI report: allegations that appellant was under investigation for solicitation to commit capital murder, for soliciting someone to injure police officers, and allegations that appellant had “stalked” officers and a prosecutor.

With regard to the allegation that appellant had been investigated for solicitation to commit capital murder, the State argues that the witness “did not go into the evidence of these cases.” However, the record contradicts the State’s position. On direct examination, Detective Robert Shaner testified as follows:

Q: Now, this other case, this conspiracy/solicitation case, what—what was that case in regard to?

A: It was in regards to solicitation to commit capital murder.

Q: And were you contacted by a witness or witnesses or—or, I guess, people that initiated that investigation?

A: Yes, I was.

Q: And what was the information that you had?

A: I had received information that the defendant was stalking a number of officers with the Alvin Police Department and one of the prosecutors of the District Attorney’s office.

Q: As a matter of fact, that prosecutor was me, wasn’t it?

A: Yes sir, it was.

The State also argues that “counsel gave herself the opportunity to cross examine this witness by not objecting.” We disagree that appellant’s trial counsel practiced effective trial strategy in allowing hearsay evidence of an offense as serious as solicitation to commit capital murder to be admitted. No competent trial counsel would allow such damaging testimony merely to impeach the witness in front of the judge.

The State also argues that appellant’s counsel could not effectively object to some of the evidence because the door had already been opened through prior testimony by other witnesses. Again, however, we must disagree. The record reflects that had counsel been diligent, a timely objection would have excluded the testimony regarding the alleged threats, solicitation of capital murder, and stalking.

Counsel for appellant had a duty to object to harmful, inadmissible evidence, and when she neglected that duty, appellant suffered. Although appellant applied for and proved his eligibility for probation, the trial judge assessed his punishment at 16 years of confinement. Counsel’s failure to object to inadmissible extraneous offenses allowed the trial court to consider allegations that appellant had threatened police officers, had stalked police officers and the prosecutor, and had solicited the murder of police officers. Clearly, the overwhelming prejudicial effect of these allegations outweighed any potential benefit of cross-examination.¹

Accordingly, we sustain appellant’s sole point of error.

We reverse appellant’s" sentence and remand for a new hearing on punishment.

1 . The dissent points out that counsel, relying on section 12.45 of the penal code, informed the trial judge that appellant wanted the court to consider the extraneous car thefts in assessing punishment. Tex.Penal Code Ann. § 12.45 (Vernon 1994). Our focus, however, is on appellant’s alleged solicitation of capital murder, solicitation to injure police officers, and alleged stalking of officers and a prosecutor. Appellant's trial counsel did not inform the judge that appellant wanted the court to consider these offenses when assessing punishment.