Court of Appeals Fifth District of Texas at DallasJan 27, 2016
No. 05-15-00379-CR (Tex. App. Jan. 27, 2016)

No. 05-15-00379-CR



On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-80668-2013


Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill

This case involves the direct appeal of an ineffective assistance of counsel claim where defense counsel solicited inadmissible evidence and the record is silent as to the reason for counsel's conduct.

Appellant, an independent contractor for a roofing company, claimed that the owner of the company agreed that appellant and two others could open a "business within [the] business." They set up a d/b/a and a bank account in the company's name and deposited checks for thousands of dollars that were made out to the company into the d/b/a account. The company's owner denied that such an agreement existed, and the company was eventually forced out of business.

A jury convicted appellant of engaging in organized criminal activity, money laundering of an amount greater than $20,000 but less than $100,000, and forgery of a financial instrument. The trial court sentenced him to four years' imprisonment for the first two offenses and two years' confinement in the state jail for the forgery, with all sentences to run concurrently.

In a single issue, appellant asserts that his trial counsel was ineffective because he introduced otherwise inadmissible evidence of appellant's prior drug and DWI offenses. We conclude that even if counsel's performance was deficient, appellant has not demonstrated that there is a reasonable probability the result would have been different. We therefore affirm the trial court's judgment.

I. Background

Jason Earnhardt owned a business, Earnhardt Restoration and Roofing ("ERR"), that primarily replaced roofs damaged by hail. ERR entered into independent project manager agreements with its salespeople that paid the salespeople 50% of the profit realized for a particular job. Ron Robey, Brian White, and appellant were ERR salespeople.

In July 2012, ERR experienced what is known as a "denial of service attack" where false web advertisements generated so many telephone calls that the business number was useless. The company was also inundated with "spam" emails.

Earnhardt learned that appellant, Robey, and White had filed a d/b/a as Earnhardt Restoration and Roofing and had opened a bank account in that name. During the denial of service attack, insurance payments for at least three roofing jobs were deposited in the d/b/a account.

Earnhardt also learned that appellant, Robey, and White caused the denial of service attack. Shortly thereafter, the ERR office was burglarized, but a file cabinet with all of the information necessary to complete over 100 roofing jobs and information on prospective clients and two computer towers were the only items taken. The burglary, coupled with the denial of service attack, put ERR out of business.

Robey and White's cases were severed from the instant case, and neither Robey nor White testified at appellant's trial. But a recording of Robey and White laughing about orchestration of the denial of service attack was admitted into evidence and played for the jury.

Appellant testified at trial. He did not deny filing the d/b/a or establishing the bank account. But he claimed that he, Roberts, and White agreed with Earnhardt that the trio would open a "business within a business" by filing the d/b/a/ and opening the account, and that the trio would receive 50% of the profit.

According to appellant, none of the money from the d/b/a account was ever paid to ERR because Earnhardt changed his mind about the arrangement before there was any profit. Appellant also claimed he was unaware of the denial of service attack when it was perpetrated.

At the beginning of appellant's direct examination, his attorney asked him about a previous drug charge in Georgia and a prior DWI conviction in Collin County. Specifically, the testimony was as follows:

Q. All right. Now, Mr. Roberts, let's get this out of the way. You have a previous criminal record; is that correct?

A. Yes, sir.

Q. You were -- you pleaded guilty in Georgia to the felony possession of Cyclobenzaprine; is that correct?

A. Yes, sir.

Q. What the heck is Cyclobenzaprine?

A. It's a muscle relaxer.

Q. What happened in that case?

A. I was working a job, big school job, and we were working 12, 15 hours a day. I hurt my harm, and I just got some to keep going working.

Q. And you didn't have a prescription for it?

A. I did not.

Q. And it was a type of drug that the possession of which is a felony?

A. Yes, sir.

Q. And were you sent to prison, or did you get placed on probation?

A. I got placed on probation.

Q: And are you still on probation in that case?

A. No. I completed that.

Q. When was that?

A. February 4th.

Q. 2015?

A. Yes, sir.

Q. So, 22 days ago?

A. Yes, sir.

Q. And you also have a misdemeanor in Collin County for driving while intoxicated?

A. Yes, sir.

Q. When was that?

A. That was after a Cowboys game two years ago.

Q. And what happened with that case?

A. I just drank too much and pled guilty to a DUI.

Q. Were you placed on probation?

A. Yes, sir.

Q. Are you still on probation in that case?

A. No, sir.

Q. Those where your only two previous criminal cases?

A. Yes, sir.

The State referred to the above testimony in closing argument, characterizing the Georgia offense as a "felony conviction," and suggesting that the conviction was motivation for appellant to lie. The State argued:

There's a paragraph in here that says that you've heard evidence of other crimes, wrongs, or bad acts by the defendant. They brought that out when the defendant testified. They told you he's a convicted felon. What you use that information for is essentially this: If you believe that he's got a motivation to lie because he has a felony conviction already on his record, and he wants to try to save his own hide by telling you guys some story that is not true, then you can use it for that purpose. You can say that gives him a motive to be dishonest. That same rule holds true with any person who testifies. Any person who testified, if they have a prior felony on their record, then you get to hear about it. And, of course, that was the only one you heard about. Does it mean anything to you? Maybe it does. Maybe it doesn't. It matters to me. He's got a motivation to lie.

The jury found appellant guilty of engaging in organized criminal activity, money laundering, and three counts of forgery of a contract or other commercial instrument. The trial court sentenced him to four years' imprisonment for engaging in organized criminal activity, four years' imprisonment for money laundering, and two years' confinement in the state jail for the forgery.

Appellant filed a motion for new trial that did not raise ineffective assistance of counsel. Then, new counsel was appointed, and filed an amended motion for new trial that argued counsel was ineffective for raising the Georgia deferred adjudication offense. The motion was amended again to include the assertion that trial counsel was also ineffective for introducing evidence of the DWI. The motion was not supported by trial counsel's affidavit, and trial counsel did not testify at a hearing. The trial court denied the motion.

The amended motion was supported by appellant's affidavit. In essence, appellant said trial counsel told him that the Georgia offense would be admissible if he elected to testify.

The record does not include a transcript of a hearing on the motion for new trial. There is no dispute, however, that trial counsel did not testify. Appellant erroneously references a hearing on April 7, 2015. But the court's docket sheet does not show that a hearing was conducted on that date. It does, however, reflect that the second amended motion was filed and taken under advisement on May 7, 2015.

II. Analysis

Appellant argues that he received ineffective assistance of counsel because trial counsel introduced evidence of the drug case and the DWI during appellant's direct testimony, and evidence concerning those cases was inadmissible for impeachment purposes. We conclude that regardless of whether counsel's performance may have been deficient, appellant has not on this record demonstrated a reasonable probability that the result would have been different but for defense counsel eliciting testimony about appellant's prior offenses. See Strickland v. Washington, 446 U.S. 668, 687-88 (1984).

A. Standard of Review and Applicable Law.

The United States and Texas Constitutions guarantee a criminal defendant the effective assistance of counsel. See U.S. CONST. amend VI; TEX. CONST. art. 1 §10. Under the Strickland standard announced by the Supreme Court, an appellant must show by a preponderance of the evidence both "deficient performance of trial counsel and harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome of the trial." Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013). Failure to make either showing defeats the ineffective assistance claim. See id.

"Deficient performance occurs when an attorney's performance falls below "an objective standard of reasonableness" under prevailing professional norms and according to the necessity of the case. Strickland, 446 U.S. at 687-88. Our review of counsel's representation is highly deferential, with a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689. Courts will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). As a result, the Texas Court of Criminal Appeals has often held that the record on direct appeal was not sufficiently developed to enable an appellate court to adequately determine whether an appellant was provided ineffective assistance of counsel. Id. at 814-15.

Without direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous no competent attorney would have engaged in it. Id.

Appellant points to the fact that the State did not call trial counsel to testify at the hearing on the motion for new trial. It is appellant's burden, however, to establish ineffective assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. --------

Strickland's presumption of strategy, however, does not exist when the record clearly confirms that no reasonable counsel would have engaged in the complained-of conduct or omission. See Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (finding counsel's performance clearly deficient on silent record); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.—Dallas 1994, no pet.) (noting that it is not speculation to find counsel ineffective when cold record clearly confirms no reasonable attorney could have made such decisions).

Appellant contends that this exception applies here because no reasonable attorney would have introduced evidence of prior convictions that the State would not be permitted to use for impeachment.

B. Does the record show ineffective assistance of counsel?

It is well-settled that a witness may not be impeached with cases where probation has been successfully completed with no subsequent felony conviction or misdemeanor DWI convictions. See TEX. R. EVID. 609; see also, Stone v. State, 17 S.W.3d 348, 350 (Tex. App.—Corpus Christi 2000, pet. denied) (silent record showed ineffective assistance because no competent attorney would have introduced evidence of defendant's prior murder conviction that the State could not have introduced).

Although the drug offense on which probation had been completed and the DWI offense at issue here were not admissible for impeachment, we need not determine whether counsel's performance was deficient. See Ex Parte Menchaca, 854 S.W.2d 128 (Tex. Crim. App. 1993) (prior offense for which probation completed is inadmissible); TEX. R. EVID. 609 (a)(c). Strickland requires a showing of both deficient performance and prejudice, and appellant has not established prejudice. See My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (deficiency determination not necessary if appellant can't satisfy second Strickland prong); Strickland, 466 U.S. at 697.

When addressing the second Strickland prong, we examine counsel's errors not as isolated incidents, but in the context of the overall record. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Appellant contends that he was harmed because the criminal history evidence was damaging, and his credibility was critical. We agree that credibility was important in this case turning on Earnhardt's consent for appellant to engage in the challenged conduct. But even if the jury believed appellant's testimony in its entirety, that testimony established that he exceeded the scope of any consent and was guilty of the charged offenses.

Specifically, appellant testified that Earnhardt's agreement to the opening of a "business within a business" meant that he and his colleagues were able to do side work. Appellant said that, "Side work is anything that's not on the insurance scope of work that the customer may also want." But he admitted that he accepted payment for regular roofing jobs that he had solicited for ERR, and took money that was supposed to go to ERR and put it into the "business within a business." He further admitted that did this for the three jobs that were listed in the indictment. Appellant claimed that he did so because he was the one completing the jobs and Earnhardt was mismanaging the business. Thus, by his own admission, appellant acted outside the scope of any agreement he may have had with Earnhardt.

Under these circumstances, we cannot conclude that there is a reasonable probability the result would have been any different but for any deficiency of counsel.

We resolve appellant's issue against him. The trial court's judgment is affirmed. Do Not Publish
TEX. R. APP. P. 47

/Bill Whitehill/




On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-80668-2013.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered January 27, 2016.