McCray, Ray Anthony v. State ( 2004 )

Affirmed and Memorandum Opinion filed March 30, 2004

Affirmed and Memorandum Opinion filed March 30, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00104-CR

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RAY ANTHONY MCCRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 928,955

M E M O R A N D U M   O P I N I O N

A jury found appellant guilty of possession of more than one and less than four grams of crack cocaine and assessed punishment at four years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $2,000 fine.  On appeal, appellant complains he was denied effective assistance of counsel at both the guilt‑innocence and punishment phases of his trial.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Around 1:30 a.m. on June 13, 2002, Sergeant Casko of the Houston Police Department saw a car carrying five people turn into the parking lot of a motel without signaling.  The car also lacked a front license plate.  As Sergeant Casko approached it, the driver and a back‑seat passenger jumped out and tried to walk away.  Sergeant Casko stopped both.  While questioning them, Sergeant Casko saw appellant, the front‑seat passenger, place a matchbox between his seat and the center console.  After checking the rear license plate and discovering the car was stolen from Georgia, Sergeant Casko retrieved the matchbox. It contained six rocks of crack cocaine. Sergeant Casko placed appellant under arrest and discovered a crack pipe in his pocket.  Subsequent tests found trace amounts of cocaine in the pipe and confirmed that the matchbox contained cocaine weighing between 1.01 and 1.15 grams.

Appellant testified during the guilt‑innocence phase of his trial.  On cross‑examination, appellant admitted to four prior convictions: two for theft, one for Awelfare fraud,@ and one for possession of a controlled substance.  At the time his prior convictions were admitted into evidence, appellant=s counsel failed to request a limiting instruction, thus waiving his right to an instruction later.  Nevertheless, the court included a limiting instruction in the jury charge.

During the punishment phase of his trial, appellant pleaded Atrue@ to an enhancement paragraph alleging he had been convicted of the felony of Awelfare fraud@ when in fact he had been convicted of the felony of Asecuring execution of a document by deception.@  The offense of Awelfare fraud@ does not exist in Texas.

DISCUSSION

Appellant raises two points of error.  First, appellant contends he received ineffective assistance of counsel during the guilt‑innocence phase of his trial because his counsel failed to timely request a limiting instruction at the time his prior convictions were admitted into evidence.  Second, appellant contends he received ineffective assistance of counsel during the punishment phase of his trial because his counsel allowed him to plead true to an enhancement paragraph alleging he committed Awelfare fraud,@ an offense not recognized under Texas law, and an offense for which he had not been convicted.  Instead, appellant had been convicted of the felony of Asecuring execution of a document by deception.@

To establish ineffective assistance of counsel, appellant must show by a preponderance of evidence (1) that his counsel=s representation fell below the objective standard of reasonableness under prevailing professional norms, and (2) a reasonable probability that, but for the counsel=s deficient representation, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687B88 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  This two‑prong test for ineffective assistance applies to both the guilt‑innocent and punishment phases of a trial.  Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). Judicial review of trial counsel=s representation is highly deferential; we presume counsel=s decisions fell within a wide range of reasonable and professional assistance.  Bone, 77 S.W.3d at 833; Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). 

To rebut the presumption of reasonable assistance, allegations of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate any alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Absent a specific explanation in the record, an appellate court may not reverse a conviction on ineffective assistance of counsel grounds when counsel=s act or omissions may have been based on sound trial strategy. Bone, 77 S.W.3d at 830.

I.        Failure to Timely Request a Limiting Instruction

In his first point of error, appellant contends his trial counsel was ineffective during the guilt‑innocence phase of his trial because she failed to timely request a limiting instruction when his prior convictions were admitted into evidence.  Appellant claims her failure to do so could not have been strategy and was deficient because the record from the jury selection shows counsel was aware of the importance of limiting instructions, yet failed to request an instruction when appellant=s prior convictions were admitted. 

The record below, however, does not reflect a specific reason why counsel did not request a limiting instruction.  What appears as a failure in hindsight may have been sound trial strategy.  Courts have recognized as reasonable strategy the decision not to request a limiting instruction in order to avoid reminding the jury of incriminating evidence.  See, e.g.,  Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994); Beheler v. State, 3 S.W.3d 182, 186 (Tex. App.CFort Worth 1999, no pet.); Abbott v. State, 726 S.W.2d 644, 649 (Tex. App.CAmarillo 1987, pet. ref=d).  Absent record evidence explaining trial counsel=s strategy, we cannot speculate as to whether a valid strategy existed, and thus appellant cannot rebut the strong presumption of reasonable assistance. 

Additionally, appellant did not file a motion for new trial that alleged ineffective assistance of counsel.  Therefore, the record does not reflect trial counsel=s reasons for opening the door to evidence of the extraneous offense.  The Court of Criminal Appeals has repeatedly cautioned appellate courts to Abe 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.@  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).  In such situations, ineffective assistance of counsel claims are better presented within the framework of a post‑conviction writ of habeas corpus under article 11.07 of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. art. 11.07; Bone v. State, 77 S.W.3d 828, 833B34 (Tex. Crim. App. 2002); Ex parte Torres, 943 S.W.2d 469, 475B76 (Tex. Crim. App. 1997).  We overrule appellant=s first point of error.

II.       Pleading ATrue@ to AWelfare Fraud@

In his second point of error, appellant contends his trial counsel was ineffective during the punishment phase of his trial because she allowed him to plead Atrue@ to an enhancement paragraph alleging he had a prior felony conviction for Awelfare fraud@ when in fact appellant had been convicted of the felony of Asecuring execution of a document by deception.@ 

Again, the record below reflects no specific reason explaining this decision sufficient to rebut the presumption of reasonable assistance.  Since appellant had already admitted to a prior conviction for welfare fraud during the guilt‑innocent phase of his trial, it may well have been reasonable strategy not to deny the enhancement allegation during the punishment phase.  Absent record evidence explaining trial counsel=s strategy, we simply do not know, nor may we speculate. We overrule appellant=s second point of error.

The judgment of the trial court is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed March 30, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

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