Walker v. State

Full title: STEVEN LEE WALKER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Jun 23, 2010

No. 09-09-00338-CR (Tex. App. Jun. 23, 2010)

Opinion

No. 09-09-00338-CR

Submitted on May 20, 2010.

Opinion Delivered June 23, 2010. DO NOT PUBLISH.

On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 08-07-07201 CR.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

MEMORANDUM OPINION

HOLLIS HORTON Justice.

A jury convicted Steven Lee Walker of driving while intoxicated, his third or more offense, a third-degree felony. See TEX. PEN. CODE ANN. § 49.04 (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2009). After pleading "true" to four enhancement paragraphs, the trial court determined that Walker was an habitual felony offender and sentenced him to twenty-five years in prison. See TEX. PEN. CODE ANN. § 12.42 (Vernon Supp. 2009). Walker contends that the trial court erred by refusing to admit evidence showing that the State's witness had been previously convicted of three crimes, in 1985, 1986, and in 1988. Walker also asserts that he received ineffective assistance of counsel. We affirm the trial court's judgment.

Background

After noticing a truck being driven rather erratically, including swerving into a ditch and hitting mailboxes, R.V.¹ noted the truck's license plate number and then backed up to the first damaged mailbox. Walker also returned to the mailbox where R.V. had parked. Walker then stepped from the driver's side of his truck and asked R.V. what he was doing. R.V. noticed that Walker had doubled his fist, staggered, slurred his speech, and smelled of alcohol. Walker told R.V. that if he wanted trouble, he had come to the right place. Walker then drove off and pulled into what R.V. thought was a driveway. At that point, R.V. "dialed 911." Sergeant Eric Ward with the Montgomery County Sheriff's Office was sent in response to R.V.'s call. When Sergeant Ward approached the scene, he noticed a truck parked partially in a driveway and partially in the roadway. Sergeant Ward approached the truck and saw Walker sitting in the driver's seat with the keys in the ignition. Sergeant Ward requested Walker step out of the truck. At first, Walker did not cooperate, but then Walker finally exited the truck. Sergeant Ward noticed that Walker smelled of alcohol, had bloodshot eyes, and swayed as he stood. Deputy Tom Thompson arrived a short time after Sergeant Ward had been sent to the scene. When Deputy Thompson arrived, he noticed that Walker smelled of alcohol; had bloodshot, glassy eyes; and that Walker was "very unstable on his feet." After speaking with R.V., Deputy Thompson conducted field sobriety tests. According to Deputy Thompson, the field sobriety tests revealed several clues that Walker was intoxicated. Deputy Thompson noticed scratches on Walker's truck "where he had hit the mailboxes." Deputy Thompson also noticed some knocked down mailboxes. After completing the field sobriety tests, Deputy Thompson arrested Walker for driving while intoxicated. Following his arrest, Walker took a breath test; at trial, Walker stipulated that the results showed Walker's blood alcohol concentration at 0.123. According to Deputy Thompson, Walker told him that he was driving the truck, and that he was under the influence of alcohol. During the trial, and to impeach R.V.'s credibility, Walker offered evidence to show that R.V. had three prior criminal convictions, two for burglary of a building and one for criminal trespass. The three convictions, dated 1985, 1986, and 1988, each occurred more than ten years prior to the trial. The trial court refused to admit the convictions. Walker re-urged his request after the State recalled R.V., but the trial court again refused to allow him to introduce evidence about R.V.'s prior criminal record. We abated the appeal to allow the trial court to clarify the evidence that it had decided to exclude. After a hearing, the trial court supplemented the reporter's record with copies of judgments of the convictions at issue, as well as with a copy of a civil judgment against R.V. for failure to pay his child support. During Walker's trial, the trial court had also excluded evidence showing that R.V. had been held in contempt of court for failing to pay his child support.

Evidence of Witness's Prior Criminal Convictions

In his first issue, Walker contends that "the trial court committed reversible error in refusing to admit into evidence criminal conviction judgments of a critical State's witness that were more than ten years old[.]" We review a trial court's ruling about whether to admit prior convictions to determine if the trial court clearly abused its discretion. Yanez v. State, 199 S.W.3d 293, 304 (Tex. App.-Corpus Christi 2006, pet. ref'd) (citing Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992)). Trial courts have "wide discretion" in deciding whether to admit prior convictions, and we will reverse only if the trial court's discretion lies outside the zone of reasonable disagreement. Theus, 845 S.W.2d at 881 (quoting United States v. Oaxaca, 569 F.2d 518, 526 (9th Cir.), cert. denied, 439 U.S. 926, 58 L.Ed.2d 319, 99 S.Ct. 310 (1978)). Still, we need not reverse unless the error affects the defendant's substantial rights. TEX. R. APP. P. 44.2(b). Stated differently, we need not reverse if, after examining the record as a whole, we have fair assurance that the error did not influence the jury's deliberations to the defendant's detriment or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). With respect to prior criminal convictions, the Texas Rules of Evidence allow a witness's prior criminal convictions to be admitted for purposes of impeachment if the crime was a felony, or if the conviction was for a crime of moral turpitude, when the court determines that the probative value of admitting the evidence of the conviction outweighs its prejudicial effect. TEX. R. EVID. 609(a). However, the Rules of Evidence further provide:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

TEX. R. EVID. 609(b). In Walker's case, more than ten years had elapsed from the date of each of R.V.'s prior criminal convictions. It was reasonable for the trial court to determine that more than ten years had also elapsed from the date of R.V.'s release from the confinements that had been imposed for the convictions. Thus, R.V.'s convictions, if admissible, were admissible only under Texas Rule of Evidence 609(b). A party seeking to introduce convictions for impeachment purposes under Rule 609(b) must demonstrate that the probative value of the conviction at issue substantially outweighs its prejudicial effect. See Yanez, 199 S.W.3d at 305. Walker contends that the record shows the "trial court did not, and could not possibly have, conducted the required balancing test" required by Rule 609(b). However, "[a] record of such a test is not necessary. When considering the probative effect of evidence versus its possible prejudicial effect, [we] may presume that the trial judge conducted the balancing test, which need not be shown in the record." Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.). The trial court's refusal to allow the evidence of R.V.'s prior criminal convictions implies that the trial court rejected the "`interest of justice' exception in rule 609(b)." See Yanez, 199 S.W.3d at 306. Other than the fact that the two burglary convictions were crimes of moral turpitude, Walker offers no argument showing that R.V.'s convictions would be probative with respect to R.V.'s testifying about what he had seen in an incident involving an intoxicated driver. Moreover, there was strong direct and circumstantial evidence from other witnesses introduced during the trial that corroborated R.V.'s account that he had seen Walker driving erratically and that Walker was intoxicated. Given the remoteness of R.V.'s prior convictions, and corroborating evidence of other witnesses, Walker fails to demonstrate that the probative value of admitting R.V.'s prior convictions substantially outweighs the prejudicial effect of doing so. See Yanez, 199 S.W.3d at 304-05; see also TEX. R. EVID. 906(b). We hold the trial judge did not clearly abuse its discretion in excluding R.V.'s prior convictions. See Theus, 845 S.W.2d at 881; Yanez, 199 S.W.3d at 304. Even if we were to conclude that the trial court abused its discretion in deciding to exclude R.V.'s prior convictions, Walker fails to demonstrate any harm. See TEX. R. APP. P. 44.2(b). Deputy Thompson's testimony that he saw damaged mailboxes and damage to Walker's truck that would be consistent with the truck's hitting the mailboxes supports R.V.'s account that he saw Walker driving. According to Deputy Thompson, Walker also admitted to him that he had been driving, and Walker stipulated at the trial that his intoxilyzer test reflected a blood alcohol level of 0.123. Thus, even were we to assume that the prior convictions were admissible, we are unable to conclude that the trial court's decision to exclude the evidence of R.V.'s three prior convictions had a substantial and injurious effect or influence in determining the jury's verdict. See TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.W.2d at 417. In his supplemental brief, Walker argues that a 2006 order in a family law case holding R.V. in contempt for failing to pay child support allowed the jury to also consider the evidence of R.V.'s more remote criminal convictions. We are not persuaded that Walker presented this argument to the trial court. Walker's "tacking" argument was not made in the trial court; thus, he did not preserve it for appeal. See TEX. R. APP. P. 33.1. Because Walker has not demonstrated that the trial court abused its discretion, nor shown that the trial court's exclusion of the evidence of R.V.'s prior convictions was harmful, we overrule Walker's first issue.

Effective Assistance of Counsel

Walker's second issue asserts that he received ineffective assistance of counsel because his counsel "failed to protect and perfect the record on the trial court's denying the admissibility of prior convictions to impeach a critical State's witness." In his brief, Walker sets forth seven specific instances that he claims demonstrates that his counsel was not effective. Three of these are moot because the trial court supplemented the record with copies of the judgments of convictions. Walker cites two instances complaining of his trial counsel's failure to request the trial court perform a balancing test regarding the admission of R.V.'s prior convictions. The remaining two instances relate to trial counsel's failure to make arguments that Walker alleged would have supported the admission of evidence about R.V.'s prior convictions. A two-pronged test is applied to resolve ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish the ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland, 466 U.S. 687; Garza, 213 S.W.3d at 347-48; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is "highly deferential" to trial counsel, as we presume "that counsel's actions fell within the wide range of reasonable and professional assistance." 213 S.W.3d at 348. When faced with complaints about a trial counsel's alleged deficiencies in a trial, any judicial review must "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Trial counsel's decisions are viewed with great deference when trial counsel's reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Absent a record that contains the trial counsel's explanation of his strategy, appellate courts are not at liberty to find trial counsel's conduct ineffective, unless the challenged conduct was "`so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must be "`firmly founded in the record' and `the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 814) (declining to speculate on counsel's failure to object to hearsay in light of a silent record). Here, Walker did not file a motion for new trial. Trial counsel's decisions may have been grounded on a reasonable appreciation of a reasonable trial strategy given the specific facts and circumstances attendant to this trial. Because trial counsel's explanation of his strategy is absent from the record, we may not, on this record, conclude that the performance of Walker's trial attorney was deficient.<sup>2</sup> See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (noting that in the majority of cases on a direct appeal, the trial court record is not sufficiently developed to adequately reflect the failings of trial counsel). Moreover, having reviewed the record, we cannot conclude that the challenged conduct was `"so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440). We conclude Walker's ineffectiveness claim is without merit. We overrule Walker's second issue and affirm the trial court's judgment. AFFIRMED.