Opinion
No. 05-03-01495-CR
Opinion Filed October 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-71399-KU. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Wayne Edward Barker of arson and assessed punishment at eighteen years in prison. In four points of error, appellant complains about the admission of extraneous offense evidence, denial of his motion for mistrial, charge error, and ineffective assistance of counsel. We affirm. Because appellant does not challenge the sufficiency of the evidence to support his conviction, we will only briefly recount the facts. Appellant is married to Debra Barker, and Joyce Mayberry is his mother-in-law. Appellant and Mayberry had problems that led Mayberry to obtain a protective order against him. Despite that order, on January 31, 2003, Mayberry and her daughter saw appellant around Mayberry's house several times throughout the day. Each time, Mrs. Barker, who was living with her mother, called the police. Also, a neighbor saw appellant wearing gloves and carrying a plastic oil bottle with a rag in it walking near Mayberry's house. Appellant told the neighbor, "[i]f I was you I wouldn't hang around the Mayberrys today." The neighbor told Mayberry about the remark. At about 3:00 a.m., Mrs. Barker was watching out the window when she saw appellant go behind her mother's car and bend down. Mrs. Barker told her mother to call the police. Mayberry walked outside and saw appellant rising from behind her car. She then saw a fire under her car. When Mayberry tried to extinguish the fire with the water hose, she found the hose had been cut. Mrs. Mayberry and her daughter used buckets and pans to put out the fire. Mayberry moved the car and found a burning bottle with a wick in it under her car. In his first point of error, appellant argues the trial court erred in admitting evidence of the protective order because it was an extraneous offense and its admission violated rule 404(b) of the Texas Rules of Evidence. Rule 404(b) disallows evidence of other crimes, wrongs, or acts to prove a person acted in conformity with their character by committing the charged offense. See Tex.R.App.P. 404(b). However, extraneous offense evidence is admissible for other purposes, such as to show motive, intent, or plan. See id. In this case, Mayberry testified she had obtained a protective order against appellant because of problems between the two. This evidence had a purpose apart from character conformity: it was relevant to show that appellant harbored ill will toward Mayberry and had a history of harassing her. As such, it was circumstantial evidence of motive, intent, and plan. See Foy v. State, 593 S.W.2d 707, 708-09 (Tex.Crim.App. [Panel Op.] 1980) (holding that evidence defendant threatened complainants with gun just weeks before their house burned down indicated defendant's ill will or hostility and was admissible in State's case in chief as circumstantial evidence of motive to commit arson). To the extent appellant challenges the evidence under rule 403, we conclude this complaint is inadequately briefed. See Tex.R.App.P. 38.1(h). We overrule the first point of error. In his second point of error, appellant contends the trial court erred in denying his motion for mistrial after Mrs. Barker "introduced an extraneous offense in a non-responsive answer." Appellant was cross-examining Mrs. Barker, who was explaining what she was doing right before the fire:
[DEFENSE COUNSEL]: What room were you in?
[WITNESS]: I was in the dining room.
[DEFENSE COUNSEL]: The dining room?
[WITNESS]: In the dining room.
[DEFENSE COUNSEL]: Where was the dining room?
[WITNESS]: The dining room is right there in front of the house.
[DEFENSE COUNSEL]: What were you doing at that time?
[WITNESS]: Sitting there, looking out the window, watching for anything that moved because this had happened before.Appellant objected to the last part of the answer as being nonresponsive. The trial court sustained the objection, instructed the jury to disregard, but denied appellant's motion for mistrial. On appeal, appellant argues the trial court should have granted a mistrial because the "only reasonable interpretation" of the above statement is that "the instant case was not the first attempt at arson" by him and the instruction did not cure the error. We disagree. We review the trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). When objectionable testimony is elicited, inadvertently or deliberately, we presume the jury will follow instructions to disregard the evidence. See id. A trial court's instruction to disregard can render harmless testimony referring to extraneous offenses "unless is appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992). Contrary to appellant's "interpretation" of the nonresponsive answer, we conclude the answer is vague and could have been interpreted by jurors to mean that appellant had previously shown up at the house at all hours of the night. Nothing was said about a prior arson. Under these circumstances, we conclude the response was not so inflammatory as to be incurable by an instruction to disregard. We overrule the second point of error. In his third point of error, appellant contends trial counsel was ineffective because he failed to object to inadmissible prejudicial evidence at punishment. In particular, he complains trial counsel allowed in (1) evidence of two prior misdemeanor convictions and (2) exhibits that contained information on offenses for which he was charged but never convicted. To succeed on an ineffective assistance of counsel claim, an appellant must show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 446 U.S. 688 (1980)). We presume defense counsel's conduct falls within the wide range of reasonable, professional assistance, i.e., that the challenged action might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Appellant first complains that his two misdemeanor convictions were inadmissible pursuant to article 37.07, section 3(i) of the Texas Code of Criminal Procedure. Article 37.07, section 3(i) provides:
Evidence of an adjudication for conduct that is a violation of a penal law of the grade of misdemeanor punishable by confinement in jail is admissible only if the conduct upon which the adjudication is based occurred on or after January 1, 1996.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(i) (Vernon Supp. 2004-05). This provision, however, applies to juvenile adjudications; it does not apply to adult convictions. See Hooks v. State, 73 S.W.3d 398, 401 (Tex.App.-Eastland 2002, no pet.). Here, the misdemeanor convictions of which appellant complains are adult convictions. Consequently, the evidence was admissible and trial counsel was not ineffective for making a futile objection. Appellant's second complaint is directed at evidence of offenses for which he was charged but never convicted. The information was contained in exhibits proving his past criminal convictions. Initially, we note that appellant offers no law or analysis to support his position that this information was inadmissible. Regardless, even if we assume the evidence was inadmissible, appellant did not raise the issue in a motion for new trial. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. An application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Without a record to explain the motivation behind counsel's action or inaction and whether it resulted from strategic design or negligent conduct, we cannot conclude appellant has met his burden of demonstrating by a preponderance of evidence that counsel's performance was deficient. We overrule the third point of error. In his fourth point of error, appellant complains the trial court reversibly erred at punishment in failing to instruct the jury sua sponte it could consider evidence of extraneous offenses only if it believed beyond a reasonable doubt that appellant committed those offenses. Under article 37.07, extraneous bad acts and offenses may not be considered in assessing punishment until the fact finder is satisfied beyond a reasonable doubt that defendant committed the acts. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05); see Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App. 2000) (op. on reh'g). A trial court must instruct the jury on the "beyond a reasonable doubt" burden of proof regarding extraneous offenses and bad acts. See Huizar v. State, 12 S.W.3d at 483-84. A trial court, however, is not required to give such an instruction on prior convictions. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004). To the extent appellant asserts the trial court was required to give the instruction on his prior convictions, he is incorrect. See Bluitt, 137 S.W.3d at 54. We will, however, address his complaint that there was evidence of an "allegation" of aggravated assault with a deadly weapon against his wife and an "unsubstantiated charge of unlawfully carrying a weapon" for which an instruction was required. At punishment, appellant stipulated to seven prior convictions: unlawfully carrying a weapon, misdemeanor theft, three violations of protective order, criminal mischief, and kidnaping. The only evidence of the complained-of extraneous offenses is a one-page document included as part of the exhibits establishing the protective order violations. We have reviewed the document, entitled "State's Sentence Recommendation," and question whether a jury could ascertain from the abbreviations that appellant had been charged with aggravated assault with a deadly weapon (clearly, there is no mention of his wife) or unlawfully carrying a weapon. Even assuming it could, we would not conclude appellant was egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on mot. for reh'g) (concluding that appellant who does not object to charge must show egregious harm to obtain reversal). First, the jury had evidence of a history of appellant's continuing harassment and violent behavior toward his wife and mother-in-law apart from any unadjudicated offenses. Appellant stipulated to seven prior convictions, including kidnaping his wife, trying to burn down Mayberry's house, repeatedly violating orders intended to protect Mayberry, and unlawfully carrying a weapon. Second, the jury had the facts of the instant offense to consider: appellant tried to blow up Mayberry's car. Despite a protective order, he stalked Mayberry's house throughout the day and threatened to kill his wife when she would not talk to him. Then, in the middle of the night, he put a Molotov cocktail under the car parked on the driveway and cut the water hose in an effort to prevent the fire from being put out. Finally, the eighteen-year sentence is two less than the minimum sought by the State and is within the range of punishment for arson. See Huizar v. State, 29 S.W.3d 249, 251 (Tex.App.-San Antonio 2000, pet. ref'd) (en banc) (op. on remand). Reviewing the record as a whole, we fail to see how appellant could have been denied a fair and impartial trial by the trial court's failure to provide a reasonable doubt instruction to jurors. We overrule the fourth point of error. We affirm the trial court's judgment.