Wesley Arnold Fingers v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-356-CR



WESLEY ARNOLD FINGERS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 92-096-K277, HONORABLE BURT CARNES, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing twenty-eight grams or more of cocaine with intent to deliver. Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.112 (West 1992). ⁽¹⁾ The jury assessed punishment at imprisonment for ninety years and a $10,000 fine.

Appellant was stopped by a Department of Public Safety trooper for traffic offenses. During a subsequent pat-down search, a plastic bag containing approximately one hundred rocks of crack cocaine was found in appellant's coat pocket. Appellant testified that the cocaine was not his and that he was surprised by its discovery. Appellant stated that he loaned his coat to another man the night before, and that this man must have left the cocaine in the pocket.

In his first two points of error, appellant complains that the State was erroneously permitted to impeach him with proof of an unadjudicated extraneous offense. Ordinarily, neither the defendant nor any other witness may be impeached with proof of an arrest or criminal charge that does not result in a conviction. Tex. R. Crim. Evid. 608(b), 609. But a defendant who testifies may be impeached by evidence of an unadjudicated offense if, in his direct testimony, he creates a false impression with respect to his prior trouble with the law. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988); Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App. 1972).

During his direct testimony, appellant was questioned as follows:

Q You've been in trouble with the law before, haven't you?

A Yes, I have.

Q You were picked up in Austin for an offense. What was it?

A For unlawfully carrying a weapon.

Q What sort of a weapon was that?

A It was .357.

Later, during cross-examination and over objection, the prosecutor adduced the testimony that is the subject of these points of error.

Q Mr. Fingers, do you recall earlier when you and your lawyer were talking, you stated that you had been in trouble with the law before and that was for a carrying a weapons case in Austin. Do you remember stating that?

A Yes.

Q Well, isn't it also true that you have been in trouble with the law before in Killeen, Texas, in September of '91 when you were arrested for possessing crack cocaine?

A Yes, I have been convicted on that.

Q Isn't that case still pending?

A Yes, I think so.

The district court correctly ruled that appellant's direct testimony left the false impression that his Austin arrest was his only previous trouble with the law and thus opened the door to the State's cross-examination. See Bell v. State, 620 S.W.2d 116, 126 (Tex. Crim. App. 1981) (opinion on motion for rehearing); Reese v. State, 531 S.W.2d 638, 641 (Tex. Crim. App. 1976). Point of error one is overruled.

We find no merit in appellant's argument that the probative value of the extraneous drug arrest was substantially outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. 403. Appellant's testimony regarding the extent of his criminal record opened the door to an inquiry by the State as to the accuracy of that testimony. Prescott, 744 S.W.2d at 131. The unadjudicated offense was the only evidence available to the State to correct the false impression left by appellant's direct testimony. Point of error two is overruled.

In his third and fourth points of error, appellant contends that he was not afforded his state and federal constitutional right to effective assistance of trial counsel. To succeed in this claim, appellant must demonstrate that counsel was guilty of acts or omissions that were outside the wide range of professionally competent assistance, and that there is a reasonable probability that but for counsel's errors the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 690-92 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

Appellant first complains that his trial attorney should have adduced evidence concerning the propriety of the initial traffic stop. The officer testified that he stopped appellant's car because it was speeding and because a brake light was not functioning. At the hearing on appellant's motion to suppress evidence, appellant testified that he was not speeding and that his brake lights were not defective. Appellant urges that this same testimony should have been presented at trial, thereby entitling him to an instruction on probable cause. Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 1993).

When evaluating an ineffective assistance of counsel claim, we must review the totality of counsel's representation and, in so doing, avoid the distorting effects of hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986); Ex parte Burns, 601 S.W.2d 370, 371 (Tex. Crim. App. 1980). That another attorney would have pursued a different course of action at trial does not constitute a showing of ineffectiveness. Walston v. State, 697 S.W.2d 517, 519 (Tex. App.--San Antonio 1985, pet. ref'd). In this cause, the decision was made to base appellant's defense on his claim that the cocaine had been left in his coat pocket without his knowledge or consent. The success of this defensive strategy depended on the jury believing appellant's exculpatory testimony. Trial counsel could reasonably believe that it would be counterproductive to attack the credibility of the arresting officer with regard to probable cause, thereby forcing the jury to weigh appellant's credibility against that of the officer. If, as was likely, the jury believed the officer and not appellant on this point, the jury might be less inclined to believe appellant's other defensive testimony. Appellant has failed to demonstrate that counsel's tactical decision to abandon the probable cause issue at trial was not the result of sound trial strategy.

Appellant next complains that counsel did not cross-examine Bill Ginn, the Department of Public Safety chemist who analyzed the cocaine. Ginn testified that the rocks weighed 35.60 grams. Based on his analysis of sixteen of the rocks, Ginn determined that the rocks contained 28.48 grams of pure cocaine. Appellant notes that Ginn based his testimony as to the total amount of pure cocaine on the assumption that all of the rocks were identical to those tested. Appellant argues that Ginn should have been cross-examined concerning the accuracy of that assumption, noting that only a small decrease in the purity of the remaining rocks would result in appellant possessing less than the twenty-eight grams of cocaine required for an aggravated offense. §§ 481.112(c), 481.115(c). Appellant concludes that because trial counsel failed to cross-examine the chemist, the charge did not include instructions on the lesser included offenses of possession of less than twenty-eight grams of cocaine with and without intent to deliver. §§ 481.112(b), 481.115(b). ⁽²⁾

It is not at all clear that, through cross-examination, trial counsel could have laid the basis for instructions on the lesser included offenses. Ginn testified that all of the rocks of cocaine appeared to be identical. Appellant's belief that the chemist would have conceded the possibility that the untested rocks contained less cocaine than the others does not appear to be well-founded. Furthermore, as with the probable cause issue previously discussed, the amount of cocaine found in appellant's pocket was irrelevant to the defensive strategy pursued at trial. Trial counsel could reasonably believe that it was tactically sounder to focus on the one defensive theory that was consistent with the State's evidence rather than engage in a fruitless attack on the credibility of the State's expert witness.

Finally, appellant contends that trial counsel failed to preserve a jury selection error. This contention is premised on appellant's belief that his challenge for cause to venire member Robert Gutierrez was erroneously denied by the district court. Defense counsel asked the panel, "Now, if Mr. Fingers chooses not to testify, what does that mean to you?" Gutierrez, a county constable, responded, "In my opinion if an individual does not offer an explanation for their charge, then I feel that they have something to hide." Outside the hearing of the other venire members, Gutierrez also stated, "[W]hen a person just completely remains silent either by advice or choice in all the cases that I've been involved with, they've got something to hide." But when asked by the prosecutor if he could follow the court's instruction not to consider the defendant's failure to testify in determining guilt or innocence, Gutierrez said, "I would certainly abide by that, absolutely, but that was not the question that was asked." In response to further questions by defense counsel, Gutierrez repeated his assurance that he would not consider the failure to testify as evidence of guilt. Appellant challenged Gutierrez on the ground that "he disqualified himself based on the questions." The district court denied the challenge because Gutierrez "said he could follow the law."

Appellant argues that the court's ruling on his challenge for cause was erroneous and that defense counsel was ineffective because he failed to request an additional peremptory challenge. Appellant reasons that if the additional challenge had been granted, the error would have been cured. If the additional challenge had been refused, the erroneous ruling would have been preserved for appellate review. See Harris v. State, 790 S.W.2d 568, 581 (Tex. Crim. App. 1989) (how to preserve error based on denial of defendant's challenge for cause). The flaw in this argument is that Gutierrez was not shown to be challengeable for cause. Although the venire member personally believed that silence was a sign of guilt, he unequivocally stated that he would put that belief aside and follow the law if selected as a juror. The district court did not err by overruling appellant's challenge for cause. Moody v. State, 827 S.W.2d 875, 886 (Tex. Crim. App. 1992). It follows that trial counsel was not ineffective for failing to request an additional peremptory strike. Points of error three and four are overruled.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: September 15, 1993

[Do Not Publish]

1. Unless otherwise indicated, all statutory references in this opinion are to the Texas Controlled Substances Act.

2. The court did charge the jury on the included offense of possession of more than twenty-eight grams of cocaine. § 481.115(c). The range of punishment for this offense is the same as for the charged offense.