Opinion
No. 10-03-00265-CR
Opinion delivered and filed November 10, 2004. DO NOT PUBLISH.
Appeal from the 77th District Court, Limestone County, Texas, Trial Court # 9876-A. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Appellant, Trever Robertson, was convicted by a jury of aggravated assault. TEX. PEN. CODE. ANN. § 22.02(a)(2) (Vernon Supp. 2004-05). The jury assessed punishment of fourteen years' confinement. Robertson appeals on two issues: (1) the trial court erred in failing to grant his motion for new trial; and (2) trial counsel was ineffective. We will overrule the issues and affirm the judgment.
Background
The alleged victim, Manual Bluitt, testified that he and Michael Berry went to Robertson's motel room to retrieve some compact discs and clothing that Robertson had borrowed. Robertson and a lady friend testified that they were engaging in sexual activity in the room when Bluitt and Berry knocked repeatedly on the door. Robertson testified that after a verbal argument with the two, he agreed to go downstairs to get the compact discs and clothing out of the car. He also testified that Bluitt wanted him to accompany Bluitt to get some methamphetamine and that he refused. Bluitt testified that once the three men were in the parking lot, Robertson refused to give Bluitt and Berry their belongings and continued to argue with them. Bluitt testified that he pushed Robertson in the face with his open hand, that Robertson fell back laughing, and that Robertson then stabbed him with a knife. Robertson testified that Bluitt hit him in the face, that they "tussled," that Berry held one of his arms, and that he pulled out his knife and stabbed Bluitt.Motion for New Trial
Robertson makes no argument in his brief in support of his first issue. The Rules of Appellate Procedure require a brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(h). Robertson cites only the standard of review regarding motions for a new trial. He presents us nothing for review. We overrule this issue.Ineffective Counsel
Robertson complains that he did not receive effective assistance of counsel. To establish a claim of ineffective assistance of counsel, he must show that counsel's assistance fell below an objective standard of reasonableness and that counsel's deficient performance, if any, prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). The appellant must overcome the presumption that counsel's actions might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). Robertson argues that trial counsel's decision to introduce Robertson's two non-final convictions constitutes ineffective assistance of counsel. The Rules of Evidence provide that the "[p]endency of an appeal renders evidence of a conviction inadmissible." TEX. R. EVID. 609(e). Robertson testified in his own defense. Trial counsel elicited testimony from Robertson that he was currently incarcerated, that he had been convicted in two cases for possession of cocaine and possession of methamphetamine, and that he was in possession of a knife at the time of the arrests. At Robertson's motion for new trial, the trial court found that the submission of extraneous offenses had not been raised by Robertson's pro se motion for new trial. In a bill of exception to that ruling, Robertson's appellate counsel elicited testimony from Robertson's trial counsel regarding his decision to introduce evidence of Robertson's convictions. Robertson now asks us to consider that testimony in reviewing this issue. Trial counsel testified that he recommended that Robertson accept a plea bargain and told Robertson that he did not think his case met the criteria of self-defense. He testified that he recommended that Robertson tell the jury that there was a prior conviction. On cross-examination, the following exchange occurred:State: One of the important things, with respect to trying to defend Mr. Robertson on the self-defense theory, was trying to convince the jury he was up there telling the truth, wasn't it?
Trial Counsel: Yes
State: So, as part of your trial strategy, you felt it was appropriate to have Mr. Robertson let the jury know about this case.
Trial Counsel: Yes.Trial counsel's strategy was to introduce the evidence of his client's drug convictions in the hope of convincing the jury that his client was telling the truth, and thereby convince the jury to believe his client's self-defense claim. Under these circumstances, we cannot say that trial counsel's actions cannot be considered sound trial strategy. Stafford, 813 S.W.2d at 506. We overrule this issue