Opinion
No. 05-08-00409-CR
Opinion Filed October 22, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-81830-06.
Before Justices O'NEILL, FRANCIS, and FILLMORE.
MEMORANDUM OPINION
Appellant Joe Nell Boyd pleaded not guilty to burglary of a building. A jury found him guilty, and the trial court assessed punishment at two years' confinement, suspended for six months. At a subsequent punishment hearing, the court sentenced him to two years' confinement, suspended for eighteen months. In two issues, appellant argues he received ineffective assistance of counsel, and the trial court erred by allowing extraneous offense testimony. We affirm the trial court's judgment.
Background
In March 2006, Kevin Hannam, the manager of a Discount Tire Store in Plano, confronted appellant several times in the "dead room." The "dead room" is a shed attached to this and other Discount Tire Stores where used tires and other products are stored. In subsequent testimony, the dead room is also referred to as the "dead bin." Although no sign is posted warning people to keep out of the area, it is not open to the public. Each time Hannam saw appellant in the area, he was driving a bluish/gray truck. On one occasion, Hannam saw appellant taking items from the dead room and warned appellant to put the items back and leave, or he would call the police. Appellant did as he was told. Hannam informed Mitch Michaels, a co-worker, of these encounters and Michaels received a brief description of the man. When Michaels saw a man matching the description loading rims and wheel weights into the back of a Ford Taurus on March 17, 2006, he immediately wrote down the license plate number. Michaels gave police the license plate number, and they determined the car was registered to appellant. Michaels also later identified appellant as the man he saw taking items from the dead room. The State charged appellant with burglary of a building, and the jury found him guilty. This appealed followed.Ineffective Assistance of Counsel
In his first issue, appellant contends he received ineffective assistance of counsel because defense counsel called him to testify without admonishing him of his right not to testify. He further asserts counsel was ineffective when he allowed the jury to hear him call appellant as a witness prior to appellant changing his mind and deciding not to testify. Appellant contends this left an impression in the jury's mind that defense counsel wanted appellant to testify, but appellant did not want to testify. To prevail on a claim of ineffective assistance of counsel, appellant must show counsel's representation fell below an objective standard of reasonableness, and a reasonable probability exists the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy behind counsel's actions at trial, the reviewing court will presume sound trial strategy. Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Nothing in the record supports appellant's ineffective assistance claim. First, appellant failed to file a motion for new trial; therefore, we have no record showing counsel had an opportunity to explain himself or his actions. Further, appellant argues "the fact that Appellant decided not to testify after the trial court admonished [him] of his right not to testify makes it clear that Appellant did not know he had the right not to testify prior to being informed of his right by the trial court." We disagree with appellant's assertion. The record does not support his argument, and in fact, shows appellant heard discussions of his right not to testify during voir dire. Specifically, his counsel stated "Will any of you take it, because he doesn't testify, as a sign of his guilt? If he does not testify, will you assume that he's guilty and just doesn't want to get on the stand and lie about it?" He further said, "He does not have to testify. You can't hold it against him because he doesn't." After this discussion, a venireperson asked why lawyers advise their clients not to testify and defense counsel provided a lengthy explanation. Further, the record contains appellant's reasons for not testifying, and it was not because defense counsel failed to inform him of his right not to do so. Rather, during a hearing outside the presence of the jury, defense counsel said appellant "was scared to death" to testify because "he's the only black man in the room. He's over 60. He is concerned about the prejudice against blacks that exist. . . ." Thus, we cannot say the record firmly establishes that appellant was unaware of his right not to testify and defense counsel's actions fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. We conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 813; Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.). We resolve appellant's first issue against him.Extraneous Offense Testimony
In his second issue, appellant claims the trial court abused its discretion by allowing the introduction of an extraneous offense. Specifically, the court allowed Chris Vann, a senior assistant manager at another Discount Tire Store, to testify he saw appellant in the dead room of his Discount Tire Store a year after the charged offense. The State argued below the testimony was relevant for identity and knowledge that appellant should not be in the dead room. The court held a hearing outside the presence of the jury and determined the State could not elicit evidence of any extraneous offenses but could question Vann about seeing appellant near the dead room. The court's specific ruling was as follows:Now then, the part about the pickup ties in because it's been, at least in the questioning of Mr. Oldner, that Mr. Boyd, the Defendant, doesn't have anything-at least trying to put in our minds, that he doesn't have anything to do with this pickup or they misidentified it. Now, you can ask him questions about that because that goes to identity in this case. But you can't ask questions about him breaking and entering a place of business after that because that is an extraneous offense that's, at least at this point, the Defendant hasn't testified, is not proper to come in before the jury.The State clarified the court's ruling by asking if it was acceptable to ask Vann whether he saw appellant near the dead room, confronted him, and appellant left. When Vann followed appellant, he identified the pickup truck. The court said it would allow this questioning, but reiterated the State was not to go into any extraneous offenses. When the State questioned Vann before the jury, it asked "did you confront this Defendant around your dead bin in . . . August `07, approximately?" Vann answered, "Inside the dead bin, that's correct." Appellant did not object to the witness's answer, and the State did not press the issue of Vann finding appellant inside the room. On cross-examination, defense counsel elicited more specific and damaging testimony about appellant's presence in the dead room. When Vann said he found appellant holding a chrome wheel, counsel followed up by asking whether it belonged to appellant or the store. Vann answered it belonged to the store. Counsel also made reference to Vann's suspicions that appellant was "stealing stuff" from the store. However, Vann never said he had any such suspicions and when asked if appellant left with anything he said, "not that I'm aware." We review the admission of evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Tapps v. State, 257 S.W.3d 438, 446 (Tex. App.-Austin 2008), aff'd, 2009 WL 3103785 (Tex. Crim. App. 2009). Evidence concerning an extraneous offense is inadmissible if it has no relevance to a fact of consequence apart from its tendency to show conduct in conformity with character. Tapps, 257 S.W.3d at 447; see also Tex. R. Evid. 404(b). The State first responds the issue is not preserved for review and alternatively, any error was harmless. We agree. The State stayed within the court's ruling by asking Vann whether he saw appellant around the dead bin. It was the witness who provided the damaging testimony by stating he saw appellant in the dead bin. At this point, defense counsel should have objected to the testimony and requested an instruction to disregard, but this he failed to do. See Tex. R. App. P. 33.1(a) (to preserve a complaint for appellate review, the record must show a timely and specific objection); Noble v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (holding the inadvertent reference by a witness to an extraneous offense is generally cured by a prompt instruction to disregard). Further, it was defense counsel's questioning about the details of the encounter that introduced additional evidence concerning the extraneous offense and invited any alleged error. See Jenkins v. State, 948 S.W.2d 769, 776 (Tex. App.-San Antonio 1997, pet. ref'd) (noting issue not preserved when defense counsel invited error by eliciting much of the complained-of testimony). Therefore, he failed to preserve the issue. However, even if we concluded this issue was properly preserved for review and assuming without deciding that the evidence was improperly admitted, any error was harmless. Because appellant does not make a constitutional challenge to the trial court's ruling, the error must have affected substantial rights to warrant reversal. See Tex. R. App. P. 44.2(b). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect on its verdict. Tapps, 257 S.W.3d at 447. In assessing the likelihood the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Here, appellant concedes there is "likely" sufficient evidence, apart from the extraneous offense, to support the jury's verdict. We agree. The jury heard testimony that appellant had been warned on several occasions he was not allowed in the dead room of the Discount Tire Store. It also heard testimony from Michaels, who identified appellant in a photo lineup as the man he saw inside the dead room putting items in the back of a Ford Taurus. After giving police the license plate number, the Ford Taurus was linked to appellant. Thus, based on this evidence, we have fair assurance the error, if any, did not influence the jury's decision or had but a slight effect on the verdict. Tapps, 257 S.W.3d at 447. Further, we cannot conclude the introduction of a possible extraneous offense, brought out by defense counsel's questioning, was harmful. Thus, we overrule appellant's second issue.