Opinion
No. 05-03-01210-CR.
Opinion Filed March 31, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 6, Dallas County, Texas Trial Court Cause No. MA02-60676-G. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
A jury convicted Richard Keith Davis of burglary of a coin-operated machine and assessed punishment at 180 days in the county jail. In a sole point of error, appellant complains he received ineffective assistance of counsel. We affirm. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). In reviewing an ineffective assistance of counsel claim, we indulge a strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Generally, before we can conclude counsel's performance was deficient, we must have a record showing the reasons for counsel's actions. Id. at 813-14; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994). Because the trial record is directed to the issues of guilt or innocence and punishment, a record focused specifically on the conduct of counsel, such as a record of a hearing on an application for writ of habeas corpus or motion for new trial in which ineffective assistance of counsel was raised, is generally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Only when "counsel's ineffectiveness is so apparent from the record" will an appellant prevail on direct appeal without a motion for new trial asserting ineffective assistance of counsel and a hearing on that motion. Freeman v. State, 125 S.W.3d 505, 505 (Tex.Crim.App. 2003); Kemp, 892 S.W.2d at 115. Appellant's complaint in this case stems from evidence adduced during the State's cross-examination of appellant. Prior to trial, appellant filed several motions seeking permission to testify at the guilt-innocence stage free from impeachment by prior convictions as well as a hearing outside the jury's presence to determine the admissibility of any evidence of other crimes or extraneous offenses. Appellant did not obtain rulings on these motions and, at trial, admitted to having been arrested for and pleading guilty to "a lot of" burglaries of coin-operated machines. Upon further questioning, appellant stated he had not "wanted to fight" those cases but was "fighting" this one because he was not guilty. When asked why the arresting officer, who testified in the State's case-in-chief, would say he saw appellant taking money from a coin-operated machine if he had not, appellant replied "to cover himself." Appellant later explained he had filed complaints against the arresting officer. On cross-examination, appellant testified the officer had arrested him before, "ha[d] a conspiracy against [him]," and simply "fabricated the whole story." At that point, the State confirmed with appellant that he had "been convicted before" and offered into evidence exhibits 1 through 8, records of seven prior convictions for burglary of a coin-operated machine and one prior conviction for evading arrest. The court admitted these exhibits without objection. Appellant now complains his counsel was ineffective by failing to obtain a ruling on his pretrial motions concerning the prior convictions, failing to object to his impeachment by those convictions, failing to request a limiting instruction as to the jury's use of those convictions, and reminding the jury at closing of the convictions. Although recognizing he did not raise this ineffective assistance of counsel claim in a motion for new trial, appellant explains he was not able to do so because appellate counsel was appointed thirty-eight days after appellant was sentenced and the trial record was not available until twenty-two days after the appointment. Relying on Ex parte Menchaca, 854 S.W.2d 128 (Tex.Crim.App. 1993), appellant maintains the record before us is sufficient to show counsel's representation was deficient. In Menchaca, Menchaca filed an application for writ of habeas corpus after being convicted of delivery of a controlled substance. Id. at 128. Menchaca had testified at trial and during cross-examination was questioned, without objection, concerning a prior rape conviction. Id. at 129. In his habeas application, Menchaca maintained his trial counsel was ineffective in failing to file a motion in limine to prohibit introduction of that conviction, object to the prosecutor's examination regarding that conviction, and request or object to the omission of an instruction limiting the jury's consideration of that conviction; and, reminding the jury of that conviction during closing argument. Id. Concluding counsel was in fact ineffective, the court noted that counsel had explained he did not file a motion in limine because he did not "believe" the State would offer evidence of the rape; he did not object to the admission of the testimony concerning the rape because he did not know what objection to make; and, he did not request a limiting instruction because he "hoped `some of the jurors did not hear it or did not understand it.'" Id. at 131-33. Because of the seeming similarities between Menchaca and the case at hand, appellant maintains his conviction should be reversed. We disagree. Menchaca involved a post-conviction application for writ of habeas corpus and the record contained trial counsel's testimony concerning the reasons for his inactions. Id. at 128. Here, the case is on direct appeal and there is no record showing the reasons behind counsel's actions. Moreover, counsel's ineffectiveness is not "so apparent from the record." See Freeman, 125 S.W.3d at 505 (declining to find ineffectiveness apparent from the record where counsel failed to move to recuse allegedly impartial trial judge without "more guidance" from United States Supreme Court as to what "so apparent from record" is); see also Ramos v. State, 45 S.W.3d 305, 312 (Tex. App.-Ft. Worth 2001, pet. ref'd) (overruling claim that counsel ineffective for, among other actions, admitting or stipulating to prejudicial evidence where record silent as to counsels' strategy); Jones v. State, 38 S.W.3d 793, 795 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (overruling claim that counsel ineffective for, among other actions, failing to file motion to preclude State from cross-examining appellant with prior convictions, object to use of prior convictions during cross-examination, seek instruction limiting jury's consideration of prior convictions, and object to prosecutor's final argument were record silent as to counsel's strategy). Although we are sympathetic to appellate counsel's inability to develop a record concerning trial counsel's strategy on direct appeal, we must follow precedent which prohibits us from speculating as to the reasons behind counsel's actions. See Ex parte Varelas, 45 S.W.3d 627, 632-35 (Tex.Crim.App. 2001) (noting that on direct appeal Varelas's claim that counsel was ineffective in failing to request certain instructions in conjunction with extraneous acts admitted during guilt-innocence failed because "bare record did not reveal nuances of trial strategy;" however, on application for writ of habeas corpus, with record of counsel's reasons for omission, claim successful). Because the record is silent as to counsel's strategy and counsel's ineffectiveness is not so apparent from the record, we cannot conclude counsel was deficient. We overrule appellant's sole point of error. We affirm the trial court's judgment.