Jonathan Germaine Perkins v. State

Opinion issued December 12, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00479-CR
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JONATHAN GERMAINE PERKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1316854
MEMORANDUM OPINION
A Harris County grand jury indicted Perkins for the felony offense of
burglary of a habitation with the intent to commit assault. See TEX. PENAL CODE
ANN. § 30.02 (West 2011). The indictment also contained an enhancement
paragraph for sentencing purposes. After trial, the jury found Perkins guilty, found
the enhancement paragraph to be true, and assessed a sentence of nineteen years’
imprisonment.
On appeal, Perkins complains that his trial counsel rendered ineffective
assistance in violation of his rights under the sixth amendment to the United States
Constitution as recognized in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). Finding that Perkins has failed to meet his burden under Strickland,
we affirm.
Background
Steve Allen became acquainted with Perkins at a club, and the two began a
dating relationship in the spring of 2011. In late May, Allen was disturbed when
he heard Perkins remark that he would seek revenge against a group who had
broken into his apartment and stolen some of his belongings. Perkins told Allen
that he liked to beat people in the head with a baseball bat, intimating that he had
done so in the past, and that he would like to do it to the thieves. He also
mentioned that he had a sawed-off shotgun. After Perkins made these remarks,
Allen distanced himself from Perkins.
Perkins and Allen spoke on the phone and saw each other a few times during
the next couple of months. On two occasions, Perkins helped Allen with tire
repairs. One morning in mid-August, at about 4:30 A.M., Allen awoke to his
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ringing cell phone. When Allen saw that the call was from Perkins, he decided not
to answer it and went back to sleep. When he arose four hours later, he discovered
that Perkins had called his cell phone thirteen times and left two voice messages
during that period. In the first call, Perkins demanded, “You need to get here and
help me change this flat tire.” In the second, Perkins took an accusatory tone,
saying, “You’re just a racist. I always knew you were a racist.” Alarmed by the
tone Perkins used in the messages, Allen decided to ignore them.
Perkins called Allen’s cell phone another twenty-seven times that day. After
the last call, which occurred at about 11:00 PM, Allen noticed Perkins’ SUV pull
into his driveway and saw Perkins approach his front door. Perkins began ringing
the doorbell repeatedly. When Allen did not answer, Perkins banged the door with
his fist, and then started to kick the door. Unable to break the door down with his
foot, Perkins picked up a paving stone and began to beat the lock.
While Perkins focused his attention on breaking down the door, Allen called
9-1-1. Before the police could arrive, Perkins managed to break the doorframe,
and the door swung open. Allen was still speaking with the 9-1-1 operator when
he encountered Perkins on the staircase leading up from the foyer. Perkins
exclaimed, “Why didn’t you come help me change the flat tire?” He appeared
agitated and told Allen not to call the police. When Allen responded that he
already had, Perkins punched Allen in the mouth hard enough to knock Allen
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down onto the stairs and puncture his upper lip. Perkins ran for the door and fled.
Allen sought help from his neighbors. Paramedics arrived and transported Allen to
the hospital for medical treatment, where he received thirteen stitches to his lip.
Ineffective Assistance of Counsel
Perkins complains his trial counsel’s assistance was ineffective because he
interposed an unsuccessful hearsay objection to the testimony concerning Perkins’
comments to Allen, made two-and-a-half months before the charged offense, that
Perkins liked to beat people in the head with a baseball bat and owned a sawed-off
shotgun. The trial court initially sustained trial counsel’s hearsay objection, but
when the State responded that the comments constituted an admission by a party-
opponent that contextualized and explained the party’s relationship, the trial court
reversed its ruling. See TEX. R. EVID. 801(e)(2)(A). Trial counsel then again
objected to the statement based on Rule 404(b). The trial court overruled that
objection, but granted the defense a running objection to the State’s evidence on
that issue. Perkins claims that his counsel’s failure to seek exclusion of the
evidence under Rules 402 and 403 rendered his assistance constitutionally
ineffective.
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Standard of review and governing law
To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable
probability that the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Mitchell v. State,
68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). A reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068; Mitchell, 68 S.W.3d at 642. A failure to make a showing under either
prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003).
In analyzing an ineffective assistance claim, courts apply a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Robertson v. State, 187 S.W.3d 475, 482 (Tex. Crim.
App. 2006) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2052).
Rule 402 relevance
The testimony about Perkins’s remarks to Allen is relevant in that it reveals
Allen’s motive for distancing himself from Perkins and helps to explain Allen’s
reticence to involve himself with Perkins even though Perkins had previously
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assisted Allen with two tire repairs. See Garcia v. State, 201 S.W.3d 695, 705
(Tex. Crim. App. 2006) (concluding that evidence of prior incident in which
defendant pushed wife out of car and drove away without her had probative value
to explain nature of the relationship between defendant and wife at time of the
offense, wife’s decision to file for divorce, husband’s hostility toward his wife, and
circumstances surrounding their relationship immediately preceding wife’s
murder). Perkins has not shown that his trial counsel rendered ineffective
assistance by failing to raise a relevance objection under Rule 402.
Rule 403 prejudice
The record is silent as to why trial counsel did not expand on his objections
to include a Rule 403 objection. Isolated instances of a failure to object to
inadmissible argument or evidence do not presumptively render counsel
ineffective. See Robertson, 187 S.W.3d at 483. We will not “engage in
retrospective speculation” to decide whether counsel’s actions or omissions
resulted from trial strategy or merely from questionable competence. Lopez v.
State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); see Mata v. State, 226 S.W.3d
425, 430 (Tex. Crim. App. 2007). A Rule 404(b) analysis—which the trial court
undertook following Perkins’s trial counsel’s Rule 404(b) objection—includes a
Rule 403 evaluation as a principal component. It alerts the trial court of the need
to determine whether evidence of an extraneous misconduct has relevance apart
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from character conformity, which, according to Perkins, is the very harm that
occurred from the evidence’s admission. See Montgomery v. State, 810 S.W.2d
372, 387 (Tex. Crim. App. 1990) (“[I]f evidence of ‘other crimes, wrongs, or acts’
has only character conformity value, the balancing test otherwise required by Rule
403 is obviated, the rulemakers having deemed that the probativeness of such
evidence is so slight as to be ‘substantially outweighed’ by the danger of unfair
prejudice as a matter of law.”) (emphasis in original). We hold that Perkins has
not shown that his trial counsel was ineffective for failing to specifically include a
Rule 403 objection in his objection to the testimony, which trial counsel reasonably
could have concluded described past criminal behavior and not just inchoate
statements.
Reasonable probability of a different result
Perkins likewise fails to prove the second prong of Strickland, that it is
“reasonabl[y] probab[le] that, but for his counsel’s unprofessional errors, the result
of the proceeding would have been different.” Bone, 77 S.W.3d at 833 (quoting
Mitchell, 68 S.W.3d at 642); see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064
(“[T]he defendant must show that the deficient performance prejudiced the
defense,” and that “counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.”). Putting aside the evidence concerning
Perkins’s remarks to Allen, the record contains ample proof that Perkins forcibly
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entered Allen’s residence without Allen’s consent and then assaulted him. See
TEX. PENAL CODE ANN. § 22.01; id. § 30.02 (West Supp. 2013).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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