Terry, Cleon Lamone v. State ( 2004 )

Affirmed and Opinion filed July 1, 2004

Affirmed and Opinion filed July 1, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01180-CR

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CLEON LAMONE TERRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 932,867

M E M O R A N D U M   O P I N I O N

Appellant, Cleon Lamone Terry, appeals from his conviction for aggravated robbery. During the guilt/innocence phase of the trial, appellant changed his plea to guilty, and the trial proceeded into the punishment phase.  A jury found appellant guilty and assessed punishment at twenty-three years= imprisonment.  On appeal, appellant contends that (1) the trial court erred in overruling two hearsay objections, and (2) he was denied effective assistance of counsel by defense counsel=s failure to object to certain evidence.  We affirm.

Background

Complainant, Roxanne Matthews-Walker, testified that she was in her automobile with her finance, Daniel Walker, when appellant and another man, Terrance Mayes, approached them.  She recognized appellant from her apartment complex, where she knew him as AChucky.@  During this first encounter, Mayes ordered Mathews-Walker to give him the vehicle, but instead, she sped away.  Later, at Mathews-Walker=s apartment complex, appellant and Mayes again approached Mathews-Walker and Walker.  This time, appellant held a gun and told Mathews-Walker to A[g]ive up the car.@  Having retrieved and loaded his own weapon, Walker fired at the robbers, hitting Mayes in the mouth.  Appellant and Mayes ran away.

During trial, appellant changed his plea from not guilty to guilty, and the trial continued into the punishment phase.  The State then presented evidence regarding various extraneous offenses. It is this evidence, along with defense counsel=s failure to object to portions of it, that forms the basis of this appeal.

Hearsay Objections

In his first issue, appellant contends that the trial court erred in overruling two objections to Abackdoor hearsay.@  We review a trial court=s rulings regarding the admissibility of evidence under an abuse of discretion standard.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted.  Tex. R. Evid. 801(d).  Out-of-court statements do not have to be directly quoted to implicate the hearsay rules.  Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999).  The determination of whether inBcourt statements constitute hearsay involves deciding how easy it is to infer the content of statements made outside the courtroom.  Id.  A[W]here there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly.@ Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989).

The first instance of alleged hearsay occurred when the prosecutor was eliciting testimony from Officer Willie Sam regarding his investigation of an aggravated assault, an extraneous offense to the one charged in the present case. Appellant specifically points to the following exchange:

Q:        Did you have a suspect?

A:        Yes sir, I did.

Q:        Was [the complainant] able to tell you who the suspect was?

A:        By an alias only.

Q:        She knew him by a nickname?

A:        Yes, sir.

Q:        What was that nickname?

[Defense counsel]:  Objection, Your Honor.  That calls for hearsay.

The Court:  Sustained.

Q:        How did you determine who to look for after that?

A:        By running that alias in the database.

Q:        What alias name did you run?

[Defense counsel]: Objection, Your Honor.  That=s back-door hearsay.

The Court: Overruled.

Q:        Well, you ran some name in the computer, right?

A:        Yes, sir.

Q:        What was it?

A:        Chucky.

As mentioned above, there was evidence that appellant sometimes went by the nickname AChucky.@  Appellant argues that Officer Sam=s testimony, that he ran the alias AChucky@ in the computer, lead to the inescapable conclusion that the complainant had identified him as the assailant.  Appellant contends that this was Abackdoor hearsay.@

Generally, testimony by a police officer offered to show how the defendant became a suspect in an investigation is not hearsay.  E.g., Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1998); Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); see also Ortiz v. State, 93 S.W.3d 79, 95 (Tex. Crim. App. 2002) (discussing hearsay evidence related to investigation of extraneous offense).  Hearsay is avoided because the testimony was offered not to Aprove the truth of the matter asserted@ (here, that appellant committed an aggravated assault) but rather to explain how the defendant became a suspect.  See Dinkins, 894 S.W.2d at 347.  Officer Sam=s testimony was not hearsay.  Appellant=s first hearsay argument is without merit.

The second instance of alleged hearsay occurred when the prosecutor asked a witness about a break-in at a house that the witness owned and where the witness=s daughter lived.  The witness testified that appellant broke into the house.  The following exchange then occurred:

Q:        Were you aware of anything that had been stolen?

A:        I was told by my daughter B

[Defense counsel]:  Objection to hearsay, Your Honor.

The Court:  Sustained.

Q:        Were you aware of whether or not your daughter had any clothingC

                        [Defense counsel]:  Objection, Your Honor.  Just back-door hearsay on the part of this prosecutor.

Court:  Wait for his question.  Rephrase the question, please.

Q:        Did you know whether or not your daughter had any clothing in her attic?

The witness went on to testify that her daughter kept clothes in the attic for a friend and that, after appellant had broken into the house and had fallen through the ceiling from the attic, the clothes were gone.

Appellant appears to be complaining that the witness=s testimony was hearsay because it was based on information she could only have learned from her daughter.  This argument is unavailing for two reasons: (1) defense counsel failed to object and obtain an adverse ruling on hearsay grounds and (2) based on this record, the testimony was not hearsay.  To preserve evidentiary error for appellate review, a complaining party must not only object but must also obtain an adverse ruling on the record.  Tex. R. App. P. 33.1;  Cienfuegos v. State, 113 S.W.3d 481, 488 (Tex. App.CHouston [1st Dist.] 2003, pet. struck).  As the excerpt above demonstrates, defense counsel made a hearsay objection that was sustained, the prosecutor attempted to ask a different question but was interrupted by a premature objection, the trial court told defense counsel to A[w]ait for his question,@ and the prosecutor finished his question.  Defense counsel did not then object, and in fact, did not object again on hearsay grounds during the remainder of the witness=s testimony.  No hearsay objection preserved error, if any, for review.  See Tex. R. App. P. 33.1; Cienfuegos, 113 S.W.3d at 488.

Even if the second objection had been adversely ruled on, and thus preserved, there is no showing in the record that the witness based her knowledge of the clothing in the attic on information told to her by her daughter.  Indeed, except for the beginning of her earlier answer, AI was told by my daughterC@ the witness made no further mention of being told anything by her daughter. Appellant=s contentions are without merit. Accordingly, we overrule appellant=s first issue.

Assistance of Counsel

In his second issue, appellant contends that he received ineffective assistance of counsel because defense counsel failed to object to the admission of certain evidence.  The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions.  U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To obtain reversal of a conviction on the ground of ineffective assistance, an appellant must demonstrate that (1) defense counsel=s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel=s unprofessional conduct, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  In reviewing an ineffective assistance claim, an appellate court Amust indulge a strong presumption that counsel=s conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.@  Id. at 689.  Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel acted in the way that he did.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of evidence regarding counsel=s reasons for the challenged conduct, Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@  Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003) (quoting Thompson v. State, 9 S.W.3d 808, 813‑14 (Tex. Crim. App. 1999)).^[1]

Here, appellant did not allege ineffective assistance in a motion for new trial, and the record contains no explanation for counsel=s conduct. We may therefore reverse only if Athe conduct was so outrageous that no competent attorney would have engaged in it.@  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).  Appellant complains that his trial counsel failed to object in three particular instances: (1) when a witness testified that

appellant was frequently at an apartment complex selling drugs, (2) when Officer Sam testified that he knew the gun he discovered in a vehicle belonged to appellant because appellant=s girlfriend told him so, and (3) when the prosecutor asked appellant=s step-father if he knew appellant was a drug dealer.^[2]  Appellant contends that defense counsel should have objected in these three instances on the grounds, respectively, of (1) improper extraneous offense evidence, (2) inadmissible hearsay, and (3) relevance and not properly based on fact.

There may have been strategic reasons for not objecting in these instances, but we may not speculate on counsel=s motives in the face of a silent record.  See Thompson, 9 S.W.3d at 812, 814 (declining to speculate on counsel=s failure to object to hearsay in light of silent record); Ortiz, 93 S.W.3d at 95 (suggesting strategic reasons for failure to object to hearsay); Young v. State, 10 S.W.3d 705, 713 (Tex. App.CTexarkana 1999, pet. ref=d) (suggesting strategic reason for failure to object to extraneous offense evidence); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (declining to speculate on various failures to object to admission of evidence); Wylie v. State, 908 S.W.2d 307, 309 (Tex. App.CSan Antonio 1995, pet. ref=d) (suggesting strategic reason for failure to object to character evidence).  Furthermore, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Garcia v. State, 106 S.W.3d 854, 860 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d), cert. denied, 24 S. Ct. 2076 (2004). Accordingly, we cannot say that defense counsel=s conduct was Aso outrageous that no competent attorney would have engaged in it.@  See Garcia, 57 S.W.3d at 440.  We overrule appellant=s second issue. 

The trial court=s judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed July 1, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Because the record on direct appeal typically provides no evidence regarding defense counsel=s motivations, it is usually preferable to bring ineffective assistance claims in habeas corpus proceedings.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

^[2]  Appellant=s step-father responded Ano@ to the question of whether he knew appellant was a drug dealer.