Derek Lane Armstrong v. State ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00104-CR
DEREK LANE ARMSTRONG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 28130
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Derek Lane Armstrong pled guilty to, and was convicted of, the first-degree felony offense
of manufacture or delivery of a controlled substance, namely methamphetamine, in an amount of
four grams or more, but less than 200 grams. After Armstrong’s election of jury-assessed
punishment, he was sentenced, consistent with the jury’s determination, to twenty-five years’
confinement in prison. In his sole point of error on appeal, Armstrong maintains that he received
ineffective assistance of counsel at trial. Because we find that Armstrong failed to overcome the
strong presumption that his trial counsel provided adequate assistance, we affirm the trial court’s
judgment.
I. Background
At trial, Leigh Foreman, a detective with the Paris Police Department, testified that during
his extensive time with the department, his primary responsibilities centered on narcotics and
violent crime investigations. 1 He stated that he had received specialized training in those areas,
including at least forty hours of continuing education every two years. Foreman stated that it was
not at all uncommon for the department to work in unison with the Lamar County Sheriff’s Office
as well as federal agencies, explaining, “It’s just something we develop. It’s effective, and it seems
to do a better job of stopping the flow of drugs.” In February 2018, Foreman, along with Captain
Anson Amis, 2 interviewed Armstrong. At trial, portions of the recording of the interview were
1
Foreman had been a certified peace officer for about twenty years and worked on narcotics investigations for almost
seventeen of those years.
2
Amis was the case agent.
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admitted into evidence and published to the jury. Foreman also testified to, among other things,
what he learned during the interview with Armstrong.
On appeal, Armstrong contends that his trial counsel was ineffective because he failed to
object to much of Foreman’s testimony regarding the interview and failed to object to portions of
the content of the recording itself. The crux of the complained-of evidence centers on Foreman’s
belief that Armstrong was being deceitful and that he failed to cooperate with law enforcement
officers in their investigation.
For example, Armstrong complains of Foreman’s testimony regarding the relationship he
had with “Casper,” who was identified as a drug supplier and, specifically, whether Armstrong
was being honest about the length of their relationship:
Q. It is that sort of thing that -- there’s sort of a vetting process and a
test to see if this person is reliable before you can get that far into things?
A. Well, certainly it’s a test and you are vetted, but the vetting never
stops. If they never trust you, if they get hinkey, or they ever are scared of you,
then they will pull the plug on it. It’s a constant vetting, proving process. Either
[Armstrong] is lying about how long he’s been in it, trying to minimize, or he’s
actually been dealing with this guy quite a bit longer to get to that process, to meet
a roommate. The roommate asked him to make a carrying case for the dope like he
has. You don’t do that -- it just doesn’t happen in five or six trips -- five to six
contacts. It doesn’t happen.
According to Armstrong, Foreman’s testimony was “without any foundation of personal
knowledge, was not objected to, and was not challenged during cross[-]examination.” 3
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Armstrong contends that his counsel was ineffective because he failed to ask, among other things, the following
questions in an effort to challenge Foreman’s testimony: (1) “How do you know Casper ever reveals his true identity
to anyone that ranks below him?”; (2) “Have you ever met Casper?”; and (3) “Do you even know Casper’s real
name?” Armstrong argues that the answers to these types of questions could have significantly impacted the jury’s
assessment of punishment.
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In addition, Armstrong maintains that his trial counsel rendered ineffective assistance when
he failed to object to or challenge Foreman’s testimony regarding Armstrong’s refusal to cooperate
with investigators. For instance, when Foreman was asked if Armstrong was cooperative in
general, he responded, “Not very.” He also said, “I think it’s apparent he was untruthful through
the entire interview.” Foreman then went on to explain the reasoning for his opinions, most of
which were based on his experience with narcotics investigations.
Similarly, Armstrong also challenges the following portions of Foreman’s testimony:
Q. (By [the State]) Okay. We talked a little bit about the phone and the
importance of getting into a phone for investigations. Were you able to get into
[Armstrong]’s phone?
A. Captain Amis was able to get into it.
Q. Was he able to recover a full amount of information or just a little
bit that [Armstrong] was willing to share?
A. My understanding is just a little bit that [Armstrong] wanted to share
concerning Matt Dorey, he’s a narcotics dealer, user from the Blossom area.
Q. So did he limit his cooperation regarding his phone to that one
individual?
A. That’s my understanding; yes.
Q. And had he already given up that individual during the course of the
interview?
A. Correct.
According to Armstrong, his trial counsel failed to provide effective assistance of counsel because
he did not object to this portion of Foreman’s direct testimony and did not challenge his testimony
on cross-examination.
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II. Ineffective Assistance of Counsel Has Not Been Shown
In his sole point of error, Armstrong contends that his trial counsel rendered ineffective
assistance when he failed to object to or challenge Foreman’s testimony because his testimony
“was based on assumptions, not personal knowledge of the individuals or facts at issue in the case.”
Armstrong maintains that he was harmed by his counsel’s failure to object to or follow-up on
Foreman’s testimony because his testimony “gave the false impression that what [he] said could
be relied upon as gospel truth, when in fact it was not even admissible or, in the alternative, was
at least easily impeached.” According to Armstrong, this Court should vacate the jury’s
assessment of punishment, enter an order appointing new counsel, and remand the case to the trial
court for a new trial on punishment. We disagree.
As many cases have noted, the right to counsel does not mean the right to errorless counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “In order to prevail on a claim
of ineffective assistance of counsel, the defendant must satisfy the two-prong test set forth in
Strickland v. Washington.” Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—Texarkana 2015,
pet. ref’d) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Ex parte Imoudu, 284
S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding)). “The first prong requires a showing
that counsel’s performance fell below an objective standard of reasonableness.” Id. at 896–97
(citing Strickland, 466 U.S. at 688). “This requirement can be difficult to meet since there is ‘a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Id. at 897 (quoting Strickland, 466 U.S. at 689). “This measure of deference,
however, must not be watered down into a disguised form of acquiescence.” Profitt v. Waldron,
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831 F.2d 1245, 1248 (5th Cir. 1987) (finding ineffective assistance where counsel failed to request
medical records and relied on court-appointed competency examination when he knew client had
escaped from mental institution).
“When a claim of ineffective assistance of counsel is raised for the first time on direct
appeal, the record ‘is in almost all cases inadequate to show that counsel’s conduct fell below an
objectively reasonable standard of performance.’” Parmer, 545 S.W.3d at 725 (citing Andrews v.
State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005)). Moreover, where the reviewing court “can
conceive potential reasonable trial strategies that counsel could have been pursuing,” the court
“simply cannot conclude that counsel has performed deficiently.” Id. at 103. “[W]hen a defendant
raises an ineffective assistance of counsel claim for the first time on direct appeal, he must show
that ‘under prevailing professional norms,’ Strickland, 466 U.S. at 688, no competent attorney
would do what trial counsel did or no competent attorney would fail to do what trial counsel failed
to do.” Parmer, 545 S.W.3d at 728 (citing Andrews, 159 S.W.3d at 102).
“The second Strickland prong, sometimes referred to as ‘the prejudice prong,’ requires a
showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result
of the proceeding would have been different.” Lampkin, 470 S.W.3d at 897 (quoting Strickland,
466 U.S. at 694). “A reasonable probability” is defined as “a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, in order to establish prejudice,
An applicant must show “that counsel’s errors were so serious as to deprive
defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at
687 . . . . It is not sufficient for Applicant to show “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693 . . . . Rather, [he]
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must show that “there is a reasonable probability that, absent the errors, the
fact[-]finder would have had a reasonable doubt respecting guilt.” Id. at 695 . . . .
Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding).
The appellant has the burden to prove ineffective assistance of counsel by a preponderance
of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Allegations of
ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813). The Strickland test “of necessity requires
a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000)
(quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)). “A
failure to make a showing under either prong defeats a claim of ineffective assistance.” Parmer
545 S.W.3d at 728 (citing Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)).
The procedures to be followed at the punishment phase of the trial and the evidence that
may be considered in determining punishment are set out in Article 37.07 of the Texas Code of
Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07 (Supp.). 4 This statute authorizes
the admission of evidence in the punishment phase of trial as to any matter that the court deems
relevant to sentencing. Id. The circumstance of the offense is relevant to sentencing and may be
considered by the fact-finder in determining the punishment to be assessed. Eaves v. State, 141
S.W.3d 686, 692 (Tex. App.—Texarkana 2004, pet. ref’d). Yet, “the question at punishment is
4
Article 37.07, Section 3(a)(1), states,
[E]vidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant
to sentencing, including but not limited to the prior criminal record of the defendant, his general
reputation, his character, an opinion regarding his character, [and] the circumstances of the offense
for which he is being tried . . . .”
TEX. CODE CRIM. PROC. ANN. art 37.07, § 3(a)(1) (Supp.).
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not whether the defendant has committed a crime, but instead what sentence should be assessed.”
Thompson v. State, 425 S.W.3d 480, 491 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d)
(quoting Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). Article 37.07 authorizes
both character evidence in the form of opinion testimony and extraneous-offense evidence.
We first note that Armstrong filed an application for community supervision, asking the
jury to refrain from assessing a period of confinement in prison as his punishment and to, instead,
place him on community supervision. When considering whether community supervision is the
appropriate punishment, the jury is required to make “two determinations—(1) the truth or falsity
of the information in the defendant’s motion, and (2) whether to recommend that the defendant be
placed on community supervision instead of serving a term of confinement.” Ellison v. State, 201
S.W.3d 714, 718 (Tex. Crim. App. 2006). As stated in Pantoja v. State,
When evidence of a person’s character or character trait is admissible—as a
defendant’s character traits pertaining to his suitability for community supervision
are when the defendant requests community supervision—such character traits may
be proved by testimony about the person’s reputation or by testimony in the form
of an opinion.
Pantoja v. State, 496 S.W.3d 186, 190 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing TEX. R.
EVID. 405(a); Wilson v. State, 71 S.W.3d 346, 349–51 (Tex. Crim. App. 2002)).
Here, Foreman testified that, in his opinion as an officer specializing in drug enforcement
investigations, Armstrong failed to cooperate with officers and was being dishonest during his
interview. That information was relevant in determining whether Armstrong would be a suitable
candidate for community supervision. Certainly, a jury would be interested in knowing whether
Armstrong would likely cooperate with his community supervision officer, follow rules and
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conditions while on community supervision, and be honest about his circumstances when he
reported to his community supervision officer. Accordingly, Foreman’s testimony was relevant
and admissible pursuant to Article 37.07 of the Texas Code of Criminal Procedure.
Likewise, Armstrong has not overcome the presumption that his counsel’s failure to
challenge Foreman’s opinions was part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 713–
14 (Tex. Crim. App. 2000). It is reasonable to believe that Armstrong’s counsel would be
concerned that any responses he elicited from Foreman on cross-examination might result in
testimony that was contrary to his client’s benefit or that Foreman’s answers to his questions would
inadvertently open new avenues of inquiry by the State. Because we “can conceive [these]
potential reasonable trial strategies that counsel could have been pursuing,” we “simply cannot
conclude that counsel has performed deficiently.” Andrews, 159 S.W.3d at 103. Moreover,
because Armstrong has not shown that his trial counsel’s performance was deficient, he has failed
to satisfy the first Strickland prong. 5 We, therefore, overrule Armstrong’s point of error.
5
Because Armstrong failed to satisfy the first prong of Strickland, we need not address Strickland’s second prong.
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III. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: December 6, 2019
Date Decided: December 18, 2019
Do Not Publish
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