Gerald Dwayne Woods v. State ( 2010 )

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Opinion issued July 22, 2010



In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00892-CR

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Gerald Dwayne Woods, Appellant

V.

State of Texas, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1186613



MEMORANDUM OPINION

Appellant, Gerald Dwayne Woods, was charged by indictment with the felony offense of indecency with a child.[1] Appellant pleaded not guilty. A jury found appellant guilty as charged and assessed punishment at three years’ confinement. Appellant argues ineffective assistance of counsel based on his attorney’s failure to object to the introduction of extraneous offense evidence.

We affirm.

Background

At approximately 7:30 a.m. on October 6, 2008, M.T. saw a blue BMW approach while she was waiting at the bus stop on the corner of Quitman and Cochran for the bus to take her from Marshall Middle School to Hamilton Middle School. M.T. testified that a man, later identified as appellant, stopped the BMW on the side of the road in front of her with the passenger-side window rolled down. Appellant, remaining in the vehicle, masturbated his erect penis for a period of two to three minutes and attempted to summon M.T. to his car. M.T. ran to the other side of the fence and waited for appellant to drive away before returning to the bus stop. Appellant drove past M.T. at least two more times. To M.T.’s knowledge, there were no other eyewitnesses.

M.T. testified that, once she was on the bus in route to Hamilton Middle School, appellant pulled up behind the bus in the BMW before driving away. M.T. informed the bus driver of the incident, and the bus driver made a call over the bus radio. At the school, M.T. told a clerk what had happened, and the clerk notified the principal, assistant principal, and an officer for the school. On October 7, 2008, M.T. positively identified appellant from a photo lineup presented to her by Officer B. Davis, who worked for the Houston Independent School District at the time.

At trial during cross-examination of M.T., defense counsel sought to discredit M.T.’s identification of appellant as the man in the BMW through the following exchange:

Q:      Did they ask you for a description?

A:      Yeah. They asked me, and I just told them it was a black man. That’s all I said.

Q:      Did they ask you for anything such as any kind of facial hair?

A:      Yes, sir.

Q:      What did you say?

A:      I don’t remember.

Q:      You don’t remember what you said, or you don’t remember if you saw any facial hair?

A:      I don’t remember what I said.

Q:      Okay. Did they ask you if he had any earrings or anything like that?

A:      I told them I don’t remember.

Q:      So, I want to make sure. You told—when the police talked to you, you told them you didn’t remember if he had an earring or not?

A:      Yes, sir. I told them I don’t remember.

Q:      How about the length of hair?

A:      I told them he was baldheaded, like, you know.

Q:      He was baldheaded?

A:      Not, you know, like to the scalp or nothing, but…

Q:      Did you tell them anything about tattoos?

A:      Yes, sir.

Q:      What did you tell them?

A:      I told them I don’t remember.

Q:      Didn’t remember any tattoos?

A:      Huh-uh.

Q:      Did you tell them what kind of shirt he was wearing? If you know.

A:      No, I don’t remember.

At the conclusion of the testimony of its first two witnesses, the State argued defense counsel had put the identity of appellant at issue through the above cross-examination, and therefore, the State should be allowed to introduce evidence of appellant’s extraneous offense. The trial court then questioned defense counsel as follows:

Court: Okay. And what’s the defense’s position on the extraneous?

A:      Well, I think you’ve got to make a determination whether or not it’s admissible for a jury to make a finding beyond a reasonable doubt. And you’ve got one witness [who] identifies the wrong person, the other witness goes back between two other people, and I think you have to hear the police officer’s testimony because he basically comes and asks to see the photo spread. He says, “I know I can identify somebody,” and he identifies somebody. I think his identification is highly suspect.

To determine whether the State satisfied its burden to introduce the extraneous offense, the judge, outside the presence of the jury, heard testimony from G.S., A.S., Officer M. McClung from the Houston Independent School Police Department, and Officer Davis.   See Tex. R. Evid. 104(b). G.S. testified that on October 6, 2008, in the morning before school began, she saw a “black-ish, blue-ish color” BMW parked along the sidewalk outside of Jefferson Davis High School which is located next to Marshall Middle School. Appellant beckoned G.S. and her sister, A.S., to approach the vehicle. A.S. walked up to the parked BMW and appellant asked for directions. Appellant told A.S. to look down, at which time, A.S. observed appellant masturbating. The two girls ran to Mr. Diaz, an assistant principal, who then took note of the BMW’s license plate number. Officer McClung testified that he was called to the scene, that he ran after the vehicle, and that he recorded the license plate number of the vehicle. The license plate number led to the identification of appellant as the driver of the BMW.

On October 7, 2008, A.S. identified two men from a photo lineup presented to her by Officer Davis, one of whom was the appellant. G.S. did not identify appellant as the man in the BMW from the photo lineup.

The judge determined that “[t]he jury could find that there’s enough there to believe it beyond a reasonable doubt. And I believe it would be probative with regard to the issue of identity more than prejudicial.” Defense counsel requested a limiting instruction, which was granted.

Subsequently, appellant was found guilty of the felony offense of indecency with a child and sentenced to three years’ confinement. Appellant did not file a motion for a new trial.

Ineffective Assistance of Counsel

In his sole issue, appellant contends that he was denied effective assistance of counsel at the guilt/innocence phase of his trial because defense counsel failed to object to the admissibility of the extraneous offenses and such failure, appellant argues, materially contributed to the outcome of the trial.

A.      Standard of Review

Appellant was entitled to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10.       In considering whether counsel’s assistance was so defective that a reversal of the conviction is warranted, we follow the standard set forth by the United States Supreme Court in Strickland v. Washington. Thompson v. State, 9 S.W.3d 808, 812–13 (Tex. Crim. App. 1999); Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984). First, the defendant must show that counsel’s performance was deficient. Thompson, 9 S.W.3d at 812. Second, the defendant must affirmatively prove prejudice—that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. Id.

To prevail, the appellant must satisfy the two-pronged test set forth above by a preponderance of the evidence. Vong v. State, 186 S.W.3d 76, 80 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In addition, appellant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” or might reasonably be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. If an appellant fails to prove the second “prejudice” component, we need not address whether counsel’s performance was deficient. Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

As the reviewing court, we assess the adequacy of counsel’s assistance at the time of trial, not through hindsight. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983). We cannot speculate as to the motivations behind trial counsel’s behavior; rather, we must be highly deferential and presume that counsel’s actions fell within the wide range of reasonable and professional assistance. Vong, 186 S.W.3d at 80; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The Court of Criminal Appeals has held that, normally, trial counsel should be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

“Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813. As the appellate court, we must look at the “totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel.” Id. (citing Ex Parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991)). Otherwise, “the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Rylander, 101 S.W.3d at 110–11 (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). When the record is silent regarding counsel’s strategy, this Court can find ineffective assistance of counsel only if the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

B.      Rule 404(b)

Appellant contends that defense counsel was ineffective by failing to object to the admission of extraneous offense evidence that materially contributed to the outcome of the trial.

Evidence of extraneous offenses “is not admissible to prove the character of a person in order to show action in conformity therewith.” Tex. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts may be admissible, however, “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given . . . .” Id.

An extraneous offense may be admissible at trial to show identity only when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). When assessing whether evidence of an extraneous offense is admissible to prove identity, the trial judge has considerable latitude in determining that identity is in dispute. Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008). The issue of identity may be raised by defense counsel during cross-examination of a witness for the State. Lane, 933 S.W.2d at 519; Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). “When the State’s only identifying witness is impeached on cross-examination, raising the issue of identity, the extraneous offense becomes admissible.” Siqueiros, 685 S.W.2d at 71 (citing Ferrell v. State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968)). Impeachment may occur by cross-examination of the witness about a material detail of the identification. Id. (citing Redd v. State, 522 S.W.2d 890, 893 (Tex. Crim. App. 1975)).

Raising the issue of identity, however, will not automatically render the extraneous offense admissible. Lane, 933 S.W.2d at 519. To be admissible, an extraneous offense must be sufficiently similar to the offense charged that the offenses are marked as the defendant’s handiwork. Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993). Sufficient similarity may be established by proximity in time and place or by a common mode of committing the offenses. Jabari v. State, 273 S.W.3d 745, 752(Tex. App.—Houston [1st Dist.] 2008, no pet.); see also Johnson v. State, 68 S.W.3d 644, 650–51 (Tex. Crim. App. 2002) (holding that to determine similarity of offenses appellate courts should take into account specific characteristics of offenses and time interval between them).

C.      Counsel’s Performance

Here, appellant has not satisfied the second Strickland component. More precisely, appellant has not shown that there is a reasonable probability that the result of the proceeding would have been different had defense counsel objected to the extraneous offense testimony. Johnson v. State, 169 S.W.3d 223, 239-40 (Tex. Crim. App. 2005). To successfully argue that counsel’s failure to object amounted to ineffective assistance, appellant must show that the trial court would have committed error in overruling such an objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); see also Hernandez v. State, 799 S.W.2d 507, 509 (Tex. App.—Corpus Christi 1990, pet. ref’d) (explaining that failure to object does not establish ineffective assistance of counsel if no proper objection could have been made).

Appellant contends that defense counsel’s cross-examination of M.T. did not go beyond the bounds of the State’s direct examination; but rather, defense counsel’s “cross-examination brought to the jury’s attention only details and testimony” concerning those issues that were covered during the State’s direct examination. The State contends that the identity of appellant was put at issue by defense counsel’s cross-examination of M.T. The State further contends that, in addition to the closeness in time and location of the two offenses, the extraneous offense and the crime charged are sufficiently similar because “(1) both victims were school-age children; (2) the appellant was driving a dark BMW during each offense; (3) the appellant summoned both victims to come to his car; and (4) the appellant was masturbating his erect penis when each victim reached his car.”

It was within the trial court’s discretion to conclude that defense counsel’s cross-examination of M.T. called into question a material detail of her identification of appellant and, as a result, put appellant’s identity at issue. See Page v. State, 137 S.W.3d 75, 78–79 (Tex. Crim. App. 2004) (holding “[t]he question of whether defense counsel’s cross-examination of the victim raised the issue of identity may best be answered with another question: If it was not about identity, what was it about?”). Furthermore, the record shows that the extraneous offense and the instant offense were sufficiently similar to be marked as the defendant’s handiwork. Lane, 933 S.W.2d at 519. The record shows the extraneous offense and the offense charged were both acts of indecency towards a child; committed on the morning of October 6, 2008; committed between the hours of 7 a.m. and 8 a.m.; committed in the same kind of car; and occurred within a one block radius. It was within the trial court’s discretion to find that appellant’s identity was at issue as a result of defense counsel’s cross-examination of M.T. and that the extraneous offense was sufficiently similar to the crime charged under 404(b). See Tex. R. Evid. 404(b); Siqueiros, 685 S.W.2d at 71–72 (holding that existence of a mustache qualifies as a material detail of identification and defense’s cross-examination of State’s witness regarding existence of a mustache put identity at issue).

We cannot conclude that the trial court would have committed error in overruling an objection by defense counsel as to the extraneous offense. Under the second Strickland prong, appellant has failed to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. Accordingly, appellant has not met his burden to prove ineffective assistance of counsel by a preponderance of the evidence. See id. at 813. Therefore, we overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.



                                                                   Laura Carter Higley

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).

[1] See Tex. Pen. Code Ann. § 21.11(a) (Vernon Supp. 2009).