No. 14-06-00723-CR
Opinion filed February 26, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(B).
On Appeal from the 149th District Court Brazoria County, Texas, Trial Court Cause No. 48491.
Panel consists of Justices FOWLER, FROST, and SEYMORE.
CHARLES W. SEYMORE, Justice.
In this appeal from his conviction for possession of a controlled substance weighing at least one gram but less than four grams, appellant, Robert Earl Elkins, contends he received ineffective assistance of counsel. Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. BACKGROUND
On July 8, 2004, Pearland Police Officer Eric Morton stopped appellant for a routine inspection of the semi-trailer truck he was driving. After Officer Morton conducted the inspection, he walked appellant around the tractor and trailer to explain various infractions. While Officer Morton and appellant were walking, appellant lifted his shirt to wipe sweat from his brow. When appellant lifted his shirt, Officer Morton observed a small bag of cocaine fall from appellant's waistband area. A jury found appellant guilty of possession of a controlled substance weighing at least one gram but less than four grams, and he was sentenced to thirty-five years' confinement. II. ANALYSIS
Appellant contends his counsel was ineffective in six instances during trial: (1) voir dire; (2) cross-examination of Officer Morton; (3) direct examination of appellant; (4) motion for directed verdict; (5) closing argument of the guilt/innocence phase; and (6) punishment phase. We disagree To prevail on an ineffective assistance claim, an appellant must prove (1) counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). There is a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. Id. at 814. When the record is silent regarding trial counsel's strategy, we will not find the performance was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 180 S.W.3d 793, 797 (Tex.Crim.App. 2005). A. VOIR DIRE
Appellant first contends his counsel was ineffective by failing to strike a venireperson who stated he would "lean toward law enforcement" when evaluating credibility of witnesses. However, we presume counsel is better positioned than an appellate court to determine appropriate trial strategy in the particular case, and that counsel "made all significant decisions in the exercise of reasonable professional judgment." See Delrio v. State, 840 S.W.2d 443, 447 (Tex.Crim.App. 1992) (citing Strickland, 466 U.S. at 690). Without additional evidence in the record concerning trial counsel's reasons for not challenging or striking a venireperson, we cannot conclude the performance was deficient. Tello v. State, 138 S.W.3d 487, 496 n. 2 (Tex.App.-Houston [14th Dist.] 2004), aff'd, 180 S.W.3d 150 (Tex.Crim.App. 2005). The record contains no evidence reflecting counsel's reasons for not striking the venireperson. Consequently, appellant has failed to overcome the presumption his counsel acted within the wide range of reasonable professional judgment. B. CROSS-EXAMINATION
Appellant further contends his counsel's cross examination of Officer Morton was deficient. Specifically, appellant argues that two lines of inquiry constituted ineffective assistance: (1) counsel's questions regarding Officer Morton's knowledge of appellant's parolee status; and (2) counsel's questions regarding Officer Morton's memory of details surrounding appellant's arrest. 1. PAROLEE STATUS
In his cross-examination of Officer Morton, appellant's counsel inquired whether Officer Morton knew appellant was on parole at the time of his arrest. Appellant argues that such questioning was deficient because it informed the jury of his parolee status. However, the reasons for counsel's inquiry do not appear in the record. During his trial testimony, appellant essentially claimed Officer Morton framed him by planting the cocaine near him. Counsel may have intended to suggest that, if Officer Morton had known about appellant's parolee status, he had a motive to frame appellant. Therefore, counsel could have asked Officer Morton about his knowledge of appellant's parolee status to strengthen appellant's defense. We acknowledge that we do not and cannot know whether appellant's counsel employed this or any other strategy. However, counsel's questions could have been reasonable trial strategy. Accordingly, we cannot conclude counsel was functioning below prevailing professional norms in questioning Officer Morton regarding appellant's parolee status. 2. BOLSTERING
Appellant's counsel also questioned Officer Morton regarding his recall of the facts surrounding appellant's arrest. Appellant contends counsel was deficient because he bolstered Officer Morton's credibility by highlighting his knowledge of the facts. Cross-examination that bolsters rather than challenges the prosecution's case may amount to ineffective assistance. See Ex Parte Walker, 777 S.W.2d 427, 431-32 (Tex.Crim.App. 1989). However, proper trial strategy may consist of cross-examination that attempt to discredit a witness by pointing out inconsistencies. See Josey v. State, 97 S.W.3d 687, 696 (Tex.App.-Texarkana 2003, no pet.). Although appellant's counsel did elicit more detail regarding Officer Morton's discovery of the cocaine, Officer Morton admitted during cross-examination that he did not see exactly where the cocaine came from. Consequently, appellant has not overcome the presumption that trial counsel acted within the range of reasonable and effective assistance. C. MOTION FOR DIRECTED VERDICT
Additionally, appellant contends his counsel was ineffective when moving for a directed verdict. Appellant's counsel admitted the State's evidence demonstrated appellant possessed some amount of cocaine, but he argued that the State failed to prove appellant possessed one to four grams of cocaine, as alleged in the indictment. However, even assuming his counsel's performance when moving for directed verdict was deficient, appellant has failed to demonstrate that the result of the proceeding would have been different. Thompson, 9 S.W.3d at 812. When appellant's counsel made his motion, the trial court had removed the jury from the courtroom. Consequently, counsel's admissions to the court could not have influenced the jury's verdict. D. DIRECT EXAMINATION OF APPELLANT
Next, appellant contends his counsel's questions to him undermined his credibility. During direct examination, counsel's questioning informed the jury that appellant had been incarcerated since his arrest. Moreover, counsel elicited testimony that appellant had multiple convictions for possession or delivery of cocaine. However, the record is silent regarding counsel's reasons for eliciting this testimony from appellant. Counsel may have been attempting to draw sympathy for appellant by showing the jury that he had been incarcerated for almost two years while awaiting trial. Further, by being open and honest about appellant's past criminal record, his counsel may have believed it would be easier to develop his frame-up theory. See Robinson v. State, 85 S.W.3d 338, 342 (Tex.App.-Texarkana 2002, pet. ref'd) (finding strategy of being honest about past crimes to show complainant lied was legitimate strategy). Although we cannot know whether appellant's counsel employed this particular strategy, we conclude that his effort to elicit such testimony was within the range of reasonable professional assistance. E. CLOSING ARGUMENT DURING GUILT/INNOCENCE PHASE
Appellant further complains regarding his counsel's statement, made during closing arguments of the guilt/innocence phase: "I want you to test each and every [rock of cocaine] and tell me before you send me to prison for 25 years up to life." Appellant contends his counsel acknowledged to the jury that he anticipated a guilty verdict. However, counsel's statement was not an admission of guilt. His strategy may have been to impress upon the jury the gravity of the decision it was about to make. Regardless, counsel's strategy is not reflected in the record. Consequently, appellant has failed to overcome the presumption that counsel's performance was reasonable. F. PUNISHMENT PHASE
Lastly, appellant contends his counsel was ineffective in two instances during the punishment phase of trial: (1) failing to present mitigating evidence; and (2) presenting an "understated" closing argument. 1. MITIGATING EVIDENCE
Counsel's failure to present mitigating evidence, without more, is insufficient to prove ineffective assistance. See Bone v. State, 77 S.W.3d 828, 834-35 (Tex.Crim.App. 2002). Appellant must identify mitigating evidence that was available, but not mentioned. See id. (finding the record failed to demonstrate mitigating evidence was available and appellant did not bring forth any mitigating evidence). Appellant has failed to demonstrate any mitigating evidence was available for his counsel to present at trial. Therefore, we cannot conclude counsel's actions were unreasonable. 2. CLOSING ARGUMENT
Finally appellant claims that his counsel's "understated" closing argument during the punishment phase of trial constituted ineffective assistance. In his closing argument, counsel informed the jury that it was "going to decide what happens with the rest of [appellant's] life." Counsel also asserted the only victim of appellant's crime was appellant himself, and he emphasized that there was no evidence appellant possessed any violent tendencies. Counsel asked the jury to consider these facts as it contemplated sentencing. Closing argument is where strategy is most evident. Thompson v. State, 915 S.W.2d 897, 904 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Here, we are limited to determining whether an attorney's actions are without any plausible basis. Id. It is plausible that counsel believed the best strategy might be brevity and openness in an attempt to mitigate punishment. See Flemming v. State, 949 S.W.2d 876, 881 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (finding counsel may have believed the best strategy in the closing argument was to be brief and appear open and honest). The record in this case is silent regarding counsel's strategy with respect to the content of his closing argument. Consequently, we cannot conclude appellant has shown that his counsel was ineffective. In sum, we find appellant has not overcome the presumption that trial counsel's actions were within the wide range of reasonable professional assistance or demonstrated there was a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Appellant's sole issue is overruled. Accordingly, we affirm the judgment of the trial court.