Thomas Alonzo, Jr. v. State ( 2019 )

Opinion filed October 24, 2019
In The
Eleventh Court of Appeals
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No. 11-17-00303-CR
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THOMAS ALONZO, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 10487
MEMORANDUM OPINION
The jury convicted Appellant, Thomas Alonzo, Jr., of the state jail felony
offense of theft. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West 2019). Upon
Appellant’s plea of true to the enhancement allegations, the trial court assessed
Appellant’s punishment at confinement for a term of twenty years. See id.
§ 12.425(b). In his sole issue on appeal, Appellant contends that his trial counsel
was ineffective for failing to request a limiting instruction. We affirm.
Background Facts
As Appellant was walking out of Gebo’s in Snyder, Texas, he set off the
merchandise alarm. The manager of the store, Billy Smith, finished helping a
customer and went outside and observed Appellant entering his vehicle. Smith then
began reviewing the security cameras and called the Snyder Police Department.
After examining the security footage and taking a brief inventory of the store, Smith
determined that Appellant had stolen a pair of boots, several hats, a shirt, and a belt.
Though the security footage purportedly showed Appellant stealing multiple
items from Gebo’s, he was only indicted for theft of “hats, of the value of $100.00
or more but less than $750.00.” Nevertheless, at trial, the security footage was
played in its entirety, including the parts that suggested Appellant was stealing other
items. Appellant’s trial counsel objected to the portions of the footage that
seemingly depicted Appellant taking items other than the hats, arguing that it was
not probative of the State’s case. Each of trial counsel’s objections was overruled,
and the video was admitted into evidence. Despite making several objections,
however, trial counsel did not request a limiting instruction.
At the conclusion of Appellant’s trial, he was convicted. This appeal
followed.
Ineffective Assistance of Counsel
In Appellant’s sole issue, he contends that he received ineffective assistance
of counsel. We review a claim of ineffective assistance of counsel under the
Strickland standard, which is a two-part analysis that includes a performance prong
and a prejudice prong: “First, the defendant must show that counsel’s performance
was deficient. . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). A
failure to make a showing under either prong of the Strickland test defeats a claim
of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
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Ohio App. 2010). Appellate review of a defense counsel’s performance is highly
deferential, and we presume that counsel’s actions fell within the wide range of
reasonable and professional assistance. Strickland, 466 U.S. at 689; Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Walker v. State, 406 S.W.3d 590, 594
(Tex. App.—Eastland 2013, pet. ref’d).
To overcome this presumption, an appellant’s claim of ineffective assistance
must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). Importantly, “[d]irect appeal is usually an inadequate vehicle for raising such
a claim because the record is generally undeveloped.” Menefield v. State, 363
S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005)). A silent record that provides no
explanation for a counsel’s actions will not overcome the strong presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy. Thompson, 9 S.W.3d at 813–14; Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.—
Eastland 2005, pet. ref’d). Further, if trial counsel has not had an opportunity to
explain the challenged actions, then we will not conclude that those actions
constituted deficient performance unless they were so outrageous that no competent
attorney would have engaged in them. See Goodspeed, 187 S.W.3d at 392;
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Here, Appellant challenges only his trial counsel’s failure to request a limiting
instruction. The record, however, is silent as to any potential trial strategy that trial
counsel may have employed. Appellant did not assert his claim of ineffective
assistance in a motion for new trial. Accordingly, Appellant’s trial counsel has not
had an opportunity to explain his trial strategy. Therefore, on this record, Appellant
has failed to overcome the strong presumption of reasonable assistance. See
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Thompson, 9 S.W.3d at 814. Based on our review of the record, we cannot conclude
that Appellant’s trial counsel’s actions were so outrageous that no competent
attorney would have engaged in them. See Goodspeed, 187 S.W.3d at 392. Because
Appellant failed to meet his burden on the first prong of Strickland, we need not
consider the requirements of the second prong. Lopez v. State, 343 S.W.3d 137, 144
(Tex. Crim. App. 2011). We overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.
KEITH STRETCHER
JUSTICE
October 24, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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