Scott Noah Santschi v. State ( 2017 )

Affirmed as Modified and Memorandum Opinion filed July 20, 2017.
In The
Fourteenth Court of Appeals
NO. 14-15-00771-CR
SCOTT NOAH SANTSCHI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1474591
MEMORANDUM OPINION
Appellant Scott Noah Santschi appeals from a conviction for felony assault
of a family member with punishment enhanced by two prior felony convictions.
See Tex. Penal Code Ann. §§ 12.42(d), 22.01(b)(2)(A) (West 2011). Appellant
challenges his conviction in eight issues. In his first two issues, appellant argues
that the trial court’s admission of the State’s pretrial motion to revoke appellant’s
jail communication privileges and the order granting the motion violated his
fundamental right to a fair trial because the decision (1) established the trial
judge’s partiality, and (2) constituted an improper judicial comment on the weight
of the evidence tainting his presumption of innocence. We overrule both issues
because appellant has not shown that the trial court’s ruling violated his
fundamental right to an impartial judge or tainted his presumption of innocence. In
his third issue, appellant argues the trial court’s admission of the motion and order
violated his Sixth Amendment confrontation rights. We overrule this issue
because the motion and order were non-testimonial hearsay covered by a firmly
rooted hearsay exception.
Appellant asserts in his fourth issue that the trial court erred when it refused
to allow him to stipulate to the prior convictions. We overrule this issue because
appellant failed to preserve it for appellate review. In his fifth and sixth issues,
appellant contends the trial court twice abused its discretion when it admitted
hearsay evidence. We overrule both issues because the challenged evidence is
covered by exceptions to the hearsay rule. Appellant next argues that his trial
counsel was ineffective due to an alleged failure to object to extraneous offense
evidence. Because appellant has not shown that his counsel’s performance was
deficient, we overrule this issue. In his eighth issue, appellant asks this court to
modify his judgment of conviction by deleting the deadly weapon finding.
Because a corrected judgment removing the deadly weapon finding is included in a
supplemental clerk’s record, we conclude this issue is moot.1
In a cross-issue, the State asks this Court to modify appellant’s judgment of
conviction to reflect the fact that appellant pled true to both punishment
1
Appellant, who is represented by appointed counsel on appeal, filed two pro se briefs in
this Court. Because appellant does not have a right to hybrid representation, we do not address
the arguments raised in those briefs. Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. Crim.
App. 2004).
2
enhancement paragraphs in the indictment and that the trial court found the
enhanced paragraphs true. We sustain this issue, modify the judgment as
requested, and affirm the judgment as modified.
BACKGROUND
Cynthia Todd, the complainant, is the wife or former wife of appellant.
Todd lived in her mother’s house with her two children by appellant. According to
Todd, her mother had forbidden appellant from being at the house. Late one
evening, Todd discovered appellant reaching his arm over a gate in an attempt to
gain entry into the house’s backyard. Appellant was yelling while attempting to
open the gate. In an effort to keep appellant out of the backyard, Todd got a
garden hoe from her garage and hit appellant’s arm. After appellant complained
that Todd had broken his arm, she opened the gate to help him. Appellant then
came into the backyard. Seeing appellant was not injured, Todd and appellant
began arguing. Todd then went into the house, leaving appellant on the back patio.
Appellant then told Todd that he was having chest pains. Once again believing
appellant, Todd opened the house door. Appellant grabbed Todd by the neck and
pushed her into a china cabinet inside the house. Appellant then went down a
hallway and into one of the home’s bedrooms where he remained until the next
day. Todd stayed in the house because she was concerned appellant would wreck
the house if she left.
The next morning, Todd asked appellant to leave the house. Todd was
concerned because her mother was due to arrive at the house in the early afternoon.
Appellant refused to leave and proceeded to move his work tools from the house’s
garage out onto the driveway. Noticing that appellant had left the garage, Todd
tried to shut the garage door. Appellant saw what Todd was trying to do and
turned to re-enter the garage, causing the door to hit him in the back. Todd later
3
saw appellant trying to get into her van. Thinking he was trying to break the back
window of the van, Todd jumped on appellant’s back. Appellant threw Todd off
of his back, hurting her elbow.
Ronald Tarvin was driving down the street where Todd lived when he saw a
man and woman screaming at each other. As he drove by, he saw the man hit the
woman and then push her headfirst into the side of a minivan parked in the
driveway. Tarvin called the police. Tarvin testified during appellant’s trial but
was unable to identify the man he saw hitting the woman.
Deputy Constable James Cessna was dispatched to investigate a report that
an assault was in progress. Todd was the only person Cessna saw when he arrived
at the scene about two minutes later. According to Cessna, Todd was crying,
breathing heavily, and appeared very scared. Cessna observed small lacerations on
Todd’s right forearm. Todd told Cessna that appellant had thrown her into a
vehicle. Todd also reported that she felt pain as a result of being thrown into the
vehicle. Todd told Cessna that there had been a shoving match as well. Cessna
called an ambulance for Todd, but she refused treatment once it arrived.
After talking to Todd, Deputy Cessna found appellant in a neighbor’s
backyard. Cessna detained appellant, handcuffed him, and then escorted him to the
backseat of his patrol car. Appellant shouted at Todd while he was being escorted
to the car. After Cessna completed his investigation, he told appellant he was
under arrest. Appellant then told Cessna that his chest hurt and he needed an
ambulance. Cessna called an ambulance for appellant and the EMT’s checked
appellant. After consulting with the EMT’s, Cessna transported appellant to jail.
At the completion of a one-day trial, the jury found appellant guilty.
Appellant elected to have the trial court determine his punishment and at the end of
4
the punishment phase of the trial, the trial court sentenced him to 25 years in
prison. This appeal followed.
ANALYSIS
I. Appellant has not established that the trial court’s admission of the
State’s motion to revoke appellant’s communication privileges and the
order granting the motion demonstrated a lack of impartiality.
During trial, appellant cross-examined Todd regarding communications
between herself and appellant. Appellant initiated most, but not all, of the
communications. Appellant’s communications included telephone calls from jail,
letters, and the mailing of numerous blank non-prosecution affidavits to Todd.
Todd testified that she eventually filled out one of the affidavits. She went on to
testify that she did not have the affidavit notarized before sending it back to
appellant. Todd further testified that after she sent appellant the unsworn affidavit,
appellant stopped sending her blank affidavits. Appellant continued sending her
other mail, however.
During a break in Todd’s testimony, the State notified the trial court that it
intended to introduce into evidence a certified copy of the motion seeking to
suspend appellant’s jail communication privileges and the trial court’s order
granting the motion. After Todd completed her testimony, the State offered the
motion and order. Appellant objected that “[t]hese things cut both ways.” The
trial court responded that appellant could argue that point, observed that the exhibit
was a certified document, and then noted appellant’s objection. Appellant then
objected that there was “nobody to cross-examine on the document.” The trial
court replied “[b]ut you can argue it.”
The motion provides:
Comes now the State of Texas by and through its Assistant
5
District Attorney and files this Motion to Order the Sheriff of Harris
County to segregate and revoke the Defendant’s ability to
communicate, either by phone, e-mail, or letter, outside the Harris
County Jail. The State makes this Motion for the witnesses’ safety
and to prevent any intimidation of said witnesses. The State moves
that the following Defendant be prevented from making phone calls,
sending e-mails, or writing letters:
(I) SCOTT SANTSCHI, SPN #01960256
The State moves that the above Defendant’s phone call and
writing privileges be suspended during the pendency of this case due
to the Defendant’s continued violation of the “no contact” order that
has been granted in relation to this prosecution.
The order granting the motion provides:
Having considered the State’s Motion to order the Sheriff of
Harris County Texas to suspend the following Defendant’s telephone
and writing privileges against the following Defendant:
(I) SCOTT SANTSCHI, SPN #01960256
The Court finds that, due to the Defendant’s violation of the no
contact order, that the State’s Motion be GRANTED.
The Court hereby ORDERS that the Sheriff of Harris County
and all its agents to suspend the Defendant’s phone, e-mail and
writing privileges during the pendency of this case.
In his first two issues, appellant argues that the trial court’s judicial act of
admitting the State’s motion and the resulting order into evidence demonstrated
judicial partiality and amounted to an improper comment on the weight of the
evidence. Appellant, who did not object to the trial court’s admission of the
motion and order on either ground, goes on to argue that the trial court’s action
constitutes fundamental, structural error requiring no contemporaneous objection
and no harm analysis. We address each contention in turn.
As a general rule, in order to preserve a complaint for appellate review, the
6
claimed error must have been presented in the trial court, thereby providing the
court an opportunity to correct any error during the trial. See Tex. R. App. P.
33.1(a); Luu v. State, 440 S.W.3d 123, 128 (Tex. App.—Houston [14th Dist.]
2013, no pet.). Absent an objection, a defendant waives error unless the alleged
error is fundamental—that is, it creates egregious harm. Luu, 440 S.W.3d at 128
(citing Powell v. State, 252 S.W.3d 742, 744 (Tex. App.—Houston [14th Dist.]
2008, no pet.)). Egregious harm is such harm that a defendant has not had a fair
and impartial trial. Powell, 252 S.W.2d at 744.
We need not decide whether appellant was required to object to the trial
court’s action. Even had appellant objected, the trial court would not have abused
its discretion in overruling the objection because the record contains no clear
showing of bias or partiality by the trial court. Luu, 440 S.W.3d at 128 (citing
Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)).
A defendant has a fundamental constitutional right to an impartial judge. Id.
A judge should not act as an advocate or an adversary for any party. Id. To
reverse a judgment on the ground of improper judicial conduct, we must find (1)
judicial impropriety was actually committed, and (2) probable prejudice to the
complaining party. Id. Absent a clear showing of bias, a trial court’s actions will
be presumed correct. Brumit, 206 S.W.3d at 645. The scope of our review is the
entire record. Luu, 440 S.W.3d at 129.
Appellant bases his argument that the trial court was biased against him
entirely on one evidentiary ruling: the admission of the State’s motion to revoke
his communication privileges and the resulting order. In appellant’s view, the trial
court, when it admitted the motion and order, signaled the jury that she had already
passed judgment on appellant. Judicial rulings almost never constitute a valid
basis for a bias or partiality challenge, however. Liteky v. United States, 510 U.S.
7
540, 555 (1994). These rulings “can only in the rarest circumstances evidence the
degree of favoritism or antagonism required” to make a fair trial impossible. Id.
Appellant has cited no case law for the proposition that a trial judge’s act of
admitting relevant evidence sufficed to show bias.2 Additionally, the motion and
order addressed only appellant’s communication privileges while in jail awaiting
trial. They did not mention the charge against appellant or the State’s evidence
against appellant, nor did they express the trial court’s opinion on appellant’s guilt
or innocence. We hold that appellant has not made a clear showing that the trial
court was biased against him and overrule his first issue. See Celis v. State, 354
S.W.3d 7, 24–25 (Tex. App.—Corpus Christi), aff’d 416 S.W.3d 419 (Tex. Crim.
App. 2013) (rejecting bias argument based in part on trial court’s evidentiary
rulings).
II. Appellant has not established that the trial court’s admission of exhibits
functioned as an improper comment on the weight of the evidence that
tainted his presumption of innocence.
Appellant contends in his second issue that the trial court commented on the
weight of the evidence by admitting three different types of documents into
evidence, thereby tainting his presumption of innocence in front of the jury.
Appellant specifically complains about the admission of blank affidavits of non-
prosecution, envelopes appellant addressed and mailed to Todd, and the previously
mentioned motion to suspend appellant’s communication privileges and
subsequent order. Conceding he did not object to the admission of these
documents on this basis, appellant asserts the error is fundamental error requiring
no contemporaneous objection.3
2
Appellant did not object in the trial court to the admission of the motion and order based
on lack of relevance.
3
Although he does not cite Gordon v. State, appellant appears to rely on the principle
8
Appellant cites no authority for the proposition that a trial court’s act of
admitting documents into evidence can constitute an improper comment on the
weight of the evidence, much less one that taints a defendant’s presumption of
innocence. Appellant instead relies on Blue v. State, 41 S.W.3d 129, 131 (Tex.
Crim. App. 2000), which addressed a trial court’s comment to the venire that the
defendant had attempted to enter into a plea bargain with the State and that the trial
court would have preferred a guilty plea. A plurality of the Court of Criminal
Appeals determined that this comment vitiated the presumption of innocence
before the venire, constituted fundamental error, and therefore required no
objection. Id. at 132–33.
The Court of Criminal Appeals has determined that the Blue decision has no
precedential value, but it can be considered for any persuasive value it might have.
Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013). We conclude Blue
does not support a reversal in this case because the circumstances in the present
case differ dramatically from those in Blue.
In the present case, the trial court exercised its discretion to admit evidence
the State offered in response to appellant’s cross-examination of Todd. The trial
court made no comments in front of the jury regarding the evidence, it merely
admitted the documents into evidence in response to the State’s offer. This ruling
is far different from the comments made by the trial judge in Blue that he would
prefer the defendant to plead guilty. 41 S.W.3d at 130. We hold that the trial
court’s act of admitting the evidence at issue here did not impermissibly tread on
appellant’s presumption of innocence. See Jasper v. State, 61 S.W.3d 413, 421
stated therein that “while there appears to be no explicitly stated rule or approach, courts tend to
determine whether or not the trial court’s comments impermissibly tread upon a defendant’s
presumption of innocence. If so, then no objection is necessary, and there is error; if not, then
there is no error regardless of whether appellant objected.” 191 S.W.3d 721, 726 (Tex. App.—
Houston [14th Dist.] 2006, no pet.).
9
(Tex. Crim. App. 2001) (rejecting contention trial court’s exercise of discretion to
maintain control and expedite trial negatively impacted defendant’s presumption of
innocence); Edmondson v. State, No. 14-14-00537-CR, 2015 WL 1735775, at *3
(Tex. App.—Houston [14th Dist.] April 14, 2015, no pet.) (mem. op., not
designated for publication) (rejecting argument that trial court’s comments
impermissibly tread upon defendant’s presumption of innocence because
defendant’s counsel had “opened the door to testimony about revocation of
[defendant’s] probation.”). We overrule appellant’s second issue.
III. The trial court’s admission of the State’s motion to revoke appellant’s
communication privileges and the order granting the motion did not
violate appellant’s confrontation rights.
In his third issue, appellant complains that the trial court’s admission of the
motion to suspend his communication privileges and the order granting the motion
violated his Sixth Amendment right to confrontation. The motion and order are
quoted above. The State responds that the trial court’s admission of certified
copies of these court records did not violate appellant’s confrontation rights
because they are non-testimonial. We agree with the State.
The Sixth Amendment provides that in all criminal prosecutions, the accused
shall have the right to be confronted by the witnesses against him. U.S. Const.
amend. VI. In Crawford v. Washington, 541 U.S. 36, 51, (2004), the Supreme
Court of the United States held that the Sixth Amendment right of confrontation
applies not only to in-court testimony, but also to out-of-court statements that are
testimonial in nature. Wood v. State, 299 S.W.3d 200, 207 (Tex. App.—Austin
2009, pet. ref’d) (citing Crawford, 541 U.S. at 51). The Confrontation Clause
forbids the admission of testimonial hearsay unless the declarant is unavailable to
testify and the defendant had a prior opportunity to cross-examine the declarant.
Id. Crawford did not extend this protection to non-testimonial hearsay. Ford v.
10
State, 179 S.W.3d 203, 209 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Whether a particular out-of-court statement is testimonial is a question of law. Lee
v. State, 418 S.W.3d 892, 895–96 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d).
Admission of evidence that falls within a firmly rooted exception to the
hearsay rule does not violate the Confrontation Clause. Ford, 179 S.W.3d at 209.
The public records exception applies to records of public offices or agencies
setting forth the activities of the agency. Id. This is a firmly rooted exception to
the hearsay rule. Id. We conclude the trial court’s admission of the certified copy
of the State’s motion and the trial court’s order did not violate appellant’s Sixth
Amendment right to confront the witnesses against him because the records are
non-testimonial hearsay. See id. (holding defendant’s disciplinary records
containing “sterile recitations of [defendant’s] offenses and the punishments he
received for those offenses” were non-testimonial and fell within a well-recognized
hearsay exception); see also Grant v. State, 218 S.W.3d 225, 232 n.3 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (concluding that “[o]ur holding in Ford”
governs admission of “[t]he portions of [school] records simply listing the alleged
disciplinary infraction, the punishment received, the dates of the offenses or
punishments, and the names of the school authorities involved”). We overrule
appellant’s third issue.
IV. Appellant failed to preserve his fourth issue for appellate review.
In his fourth issue, appellant argues that the trial court erred when it
allegedly refused to allow him to stipulate to his prior conviction for assault of a
family member. The State asserts appellant failed to preserve this issue because he
failed to bring his desire to stipulate to the trial court’s attention. We agree with
the State.
11
If a defendant stipulates to prior offenses used as jurisdictional
enhancements, a trial court should not permit the admission of evidence of the
prior convictions during the guilt/innocence phase because the danger of unfair
prejudice from the introduction of such evidence substantially outweighs its
probative value. Hernandez v. State, 109 S.W.3d 491, 494 (Tex. Crim. App.
2003). As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request,
objection, or motion. Tex. R. App. P. 33.1(a)(1). Having reviewed the record, we
have not found any indication appellant (1) made an unequivocal request to the
trial court to stipulate to his prior assault conviction; (2) sought a ruling from the
trial court on whether he could stipulate to the prior conviction; or (3) objected to
the State’s evidence of his prior conviction on this basis.4 There is also nothing in
the record showing that the trial court made a ruling denying appellant the
opportunity to stipulate to the prior conviction. We therefore conclude appellant
failed to preserve his fourth issue for appellate review, and we overrule that issue.
V. The trial court did not abuse its discretion when it admitted evidence
over appellant’s hearsay objection.
In his fifth and sixth issues, appellant contends the trial court abused its
discretion when it admitted two different items of evidence over his hearsay
objection. First, he challenges the admission of Deputy Cessna’s testimony that
Todd told him appellant threw her into a vehicle and that she felt pain as a result.
Second, appellant complains about the admission of the business records of the
4
Appellant cites to a statement by his counsel that if the State’s fingerprint expert
testified appellant’s fingerprint matched the print from the prior conviction, appellant would
stipulate to that fact. But counsel clarified that he “d[id]n’t have a problem with [testimony
about] the jurisdictional – the jury already knows about the jurisdictional allegation. So there are
no issues.”
12
West I-10 Fire Department, which sent an ambulance to the scene in response to
Cessna’s requests.
A. Standard of review and applicable law
We review a trial court’s decision to admit evidence for an abuse of
discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial
court abuses its discretion only if “the trial judge’s decision was so clearly wrong
as to lie outside that zone within which reasonable persons might disagree.” Cantu
v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). If the trial court’s
evidentiary ruling was correct on any theory of law applicable to that ruling, we
must affirm the ruling. Gomez v. State, 380 S.W.3d 830, 836 n.9 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (citing De La Paz v. State, 279 S.W.3d 336,
344 (Tex. Crim. App. 2009).
The Texas Rules of Evidence define hearsay as a statement, other than one
made by the declarant while testifying at the trial or hearing, offered into evidence
to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Although hearsay
is generally inadmissible, Rule 802 provides that inadmissible hearsay admitted
without objection may not be denied probative value merely because it is hearsay.
Tex. R. Evid. 802.
A record of an act, event, condition, opinion, or diagnosis—commonly
called a “business record”—is admissible hearsay if: (1) the record was made at or
near the time by—or from information transmitted by—someone with knowledge;
(2) the record was kept in the course of a regularly conducted business activity;
(3) making the record was a regular practice of that activity; (4) all of these
conditions are shown by the testimony, affidavit, or unsworn declaration of the
custodian or another qualified witness; and (5) the opponent fails to demonstrate
that the source of information or the method or circumstances of preparation
13
indicate a lack of trustworthiness. Tex. R. Evid. 803(6). “Business” includes
every kind of regularly organized activity whether or not conducted for profit. Id.
B. Appellant did not preserve his fifth issue for appellate review.
In his fifth issue, appellant argues that the trial court abused its discretion
when it admitted Deputy Cessna’s testimony that Todd told him she felt pain after
appellant threw her into a vehicle. Appellant asserts that he lodged a hearsay
objection to the testimony. Having reviewed the record, we disagree. To preserve
error, a party must object every time the allegedly inadmissible testimony is
offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).
Appellant did not object to the State’s question regarding Todd feeling pain, or to
Cessna’s answer that she did. Rather, he objected only to the State’s previous
question regarding what Todd told Cessna about what happened. Appellant’s
failure to object to the pain question and answer waives any hearsay challenge to
the challenged testimony. Id. We overrule appellant’s fifth issue.
C. The trial court did not abuse its discretion when it overruled
appellant’s hearsay objection to the fire department records.
Appellant complains in his sixth issue that the trial court abused its
discretion when it overruled his hearsay objection to the admission of the West I-
10 Fire Department records. Appellant objected at trial that the entire collection of
records at issue was inadmissible hearsay and could not be admitted through
Deputy Cessna.
As just discussed, records of regularly conducted business activity are
admissible as an exception to the hearsay rule. Tex. R. Evid. 803(6).5 Because the
5
See also Lee v. State, 779 S.W.2d 913, 917 (Tex. App.—Houston [1st Dist.] 1989, pet.
ref’d) (“Rules 803(6) and 902(10) operate together to permit a party to introduce admissible
business records without the testimony of a ‘live’ witness.”). Appellant did not complain in the
trial court and does not complain on appeal that the requirements for self-authentication
14
records and the accompanying records affidavit meet the requirements of Rule
803(6), we conclude the trial court did not abuse its discretion when it admitted the
records over appellant’s hearsay objection. To the extent appellant argues on
appeal that the records were inadmissible because they contained hearsay within
hearsay, he did not make this objection in the trial court and has not preserved that
argument for appellate review. Ponce v. State, 89 S.W.3d 110, 120 n.8 (Tex.
App.—Corpus Christi 2002, no pet.). We overrule appellant’s sixth issue.
VI. Appellant has not shown that his trial counsel performed deficiently by
failing to make certain objections.
Appellant contends in his seventh issue that his trial counsel rendered
ineffective assistance by failing to object, properly object, or request an instruction
to disregard a part of the State’s opening statement, certain portions of trial
testimony, and a single exhibit. The State responds that appellant has not shown
that his trial counsel’s performance was deficient. We agree with the State.
A. Standard of review and applicable law
We review a claim of ineffective assistance of counsel under the two-
pronged standard of Strickland v. Washington, 466 U.S. 668, 687 (1984).
Appellant must first establish that counsel’s performance was deficient. Id. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” the Sixth Amendment guarantees. Id. Second,
appellant must show that the deficient performance prejudiced the defense. Id.
This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial. Id.
Appellant has the burden to prove ineffective assistance of counsel by a
contained in Rule 902(10) were not met. His only objection was that the records themselves
were hearsay.
15
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). To defeat the strong presumption of reasonable professional
assistance, any allegation of ineffectiveness must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
An appellate court looks to the totality of the representation, rather than an
isolated act or omission, in evaluating the effectiveness of counsel. Ex Parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Although it is possible that
a single egregious error by counsel can constitute ineffective assistance, Texas
courts have been hesitant to “designate any error as per se ineffective assistance of
counsel as a matter of law.” Thompson, 9 S.W.3d at 813 (quoting Jackson v. State,
766 S.W.2d 504, 508 (Tex. Crim. App. 1985)). An appellate court should be
especially hesitant to declare counsel ineffective based upon a single alleged
miscalculation during what amounts to otherwise satisfactory representation,
especially when the record provides no discernible explanation of the motivation
behind counsel’s actions—whether those actions were of strategic design or the
result of negligent conduct. Id. at 814. Ordinarily, counsel should have an
opportunity to explain his or her actions or inactions before being held ineffective.
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Appellant’s claim is based on an omission: his counsel’s failure to object,
properly object, or request an instruction to disregard certain witness testimony and
exhibits. The record is silent as to why appellant’s trial counsel acted the way he
did because appellant did not file a motion for new trial. To satisfy the first prong
of Strickland on a silent record, it must be apparent “that counsel’s performance
fell below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify trial counsel’s acts or omissions, regardless
16
of his or her subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005) (conduct “so outrageous that no competent attorney would have
engaged in it”). As we explain below, this is not such a case, as it is possible the
alleged omissions by appellant’s trial counsel were based on a reasonable trial
strategy.
B. Appellant has not shown that the record is sufficient to overcome
the presumption of competence.
Appellant complains that the jury heard six times about extraneous acts by
appellant as a result of his trial counsel’s deficient performance. See Tex. R. Evid.
404(b). We address each contention in turn.
Appellant first complains about his trial counsel’s failure to object to the
State’s comment during its opening statement that Deputy Cessna is “going to tell
you that he knows [appellant] and Cynthia Todd.” Even if we assume that the
State’s comment was objectionable, we conclude on this record that appellant has
not overcome the strong presumption that his counsel’s failure to object fell within
the wide range of reasonable professional assistance. It is possible that trial
counsel was motivated by a reasonable trial strategy to not object to this comment
by the State because he did not want to draw additional, potentially negative,
attention to the ambiguous comment. See Orellana v. State, 489 S.W.3d 537, 550
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
Appellant next complains about his trial counsel’s alleged failure to object
properly to a statement found in the fire department records that “enforcement
states this is fairly normal behavior for [appellant]. They have a prior history of—”
Despite appellant’s contention otherwise, his trial counsel did object to this
17
statement and the trial court redacted the challenged phrase before it was sent back
to the jury.
In his third complaint, appellant argues that his trial counsel’s failure to
request an instruction to disregard Todd’s testimony that appellant “was paroled
out to my address” constitutes deficient performance. Appellant’s trial counsel did
object to this testimony by Todd and the trial court sustained the objection.
Appellant is correct, however, that his trial counsel did not ask the trial court to
instruct the jury to disregard the testimony. Appellant also complains about his
trial counsel’s failure to request an instruction to disregard Todd’s testimony that
appellant had dented her garage door on a different date by running his truck
through the garage. We conclude appellant’s trial counsel could have been
motivated by a reasonable trial strategy in both situations as he did not want to call
additional attention to challenged testimony. See Agbogwe v. State, 414 S.W.3d
820, 838 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (concluding failure to
request limiting instruction after trial court sustained objection could have been
motivated by reasonable trial strategy to prevent further attention being drawn to
objectionable testimony).
Appellant’s fifth complaint concerns his trial counsel’s alleged failure to
request an instruction to disregard Todd’s testimony: “It’s been too long ago.
There’s been too many fights.” Appellant misapprehends the record. His trial
counsel did object to this testimony, and the trial court sustained the objection and
instructed the jury to disregard the testimony in response to trial counsel’s request.
Trial counsel did exactly what appellant suggests on appeal he should have done;
there was no deficient performance.
Finally, appellant complains that his trial counsel’s performance was
deficient because of the admission of the State’s motion to suspend his
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communication privileges and the order granting the motion. Appellant’s trial
counsel objected to the admission of these two documents. Appellant offers no
specific argument on appeal as to how his trial counsel’s performance regarding
these documents was deficient.6
In sum, appellant has not met his burden to show that his counsel’s
performance fell below an objective standard of reasonableness. On this record,
therefore, we conclude appellant has failed to prove his claim of ineffective
assistance under Strickland. We overrule appellant’s seventh issue.
VII. The judgment of conviction should be modified to reflect the correct
enhancements.
In a cross-issue on appeal, the State asks this Court to modify the corrected
Judgment of Conviction by Jury dated August 26, 2015 to reflect that appellant
pled true to both punishment-enhancement paragraphs and the fact that the trial
court found the enhancement paragraphs true. A court of appeals may modify a
trial court’s judgment to correct an error when the matter has been called to the
court’s attention by any source. Barfield v. State, 464 S.W.3d 67, 84 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). Because the record establishes that
appellant pled true to both punishment-enhancement paragraphs and that the trial
court found both paragraphs true, we modify the trial court’s judgment
accordingly. Id.
6
Appellant’s argument, in its entirety, states: “In each case, appellant’s trial counsel
either did not properly object or did not request an instruction that the jury disregard the
evidence. There can be no strategic reasoning for this failure to object or failure to request an
instruction.”
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CONCLUSION
Having overruled all issues raised by appellant in this appeal, we affirm the
trial court’s corrected judgment as modified.
/s/ J. Brett Busby
Justice
Panel consists of Justices Busby, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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