No. 10-06-00335-CR
Opinion delivered and filed November 28, 2007. DO NOT PUBLISH.
Appeal from the 54th District Court McLennan County, Texas Trial Court No. 2005-995-C.
Before Chief Justice GRAY, Justice VANCE, and, Justice REYNA. (Chief Justice Gray concurs in the judgment with a note. "Contrary to the last, and unnecessary, sentence in the opinion, we are not overruling the issue because an ineffective assistance of counsel claim is better raised through an application for writ of habeas corpus. That sentence is the majority's effort to tell the defendant what to do next. We are overruling the issue because the defendant has met neither prong necessary to sustain an ineffective assistance of counsel point of error.")
FELIPE REYNA, Justice.
A jury convicted John Dee Gill, Jr. of possession of cocaine with intent to deliver and sentenced him to forty years in prison. On appeal, Gill argues that: (1) the trial court erred by not sua sponte including a limiting instruction on extraneous offenses in the guilt-innocence charge; and (2) trial counsel rendered ineffective assistance. We affirm.
LIMITING INSTRUCTION ON EXTRANEOUS OFFENSES
In his first issue, Gill argues that the trial court had a sua sponte duty to include a limiting instruction on extraneous offense evidence in the guilt-innocence charge. The Court of Criminal Appeals recently rejected the position that a trial court has a sua sponte duty to include a limiting instruction on extraneous offenses: [A] limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted. When the defendant has properly requested a limiting instruction in the jury charge, the trial court must also include an instruction on the State's burden of proof at that time.
Delgado v. State, No. PD-0203-07, 2007 Tex. Crim. App. Lexis 1235, at *16-17 (Tex.Crim.App. Sept. 26, 2007). Gill did not object to the complained of evidence, request a limiting instruction when the evidence was offered, or request a limiting instruction in the jury charge. Accordingly, even if a limiting instruction would have been proper, the trial court did not err by failing to include a limiting instruction in the guilt-innocence charge. See id. at *27. We overrule Gill's first issue. INEFFECTIVE ASSISTANCE
In his second issue, Gill argues that his trial counsel rendered ineffective assistance by failing to request a limiting instruction on extraneous offenses. To prove ineffective assistance, an appellant must show that: (1) counsel's performance was deficient; and (2) the defense was prejudiced by counsel's deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). There is "a strong presumption that counsel's conduct fell within a wide range of reasonable representation." Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). "[A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Gill did not file a motion for new trial alleging ineffective assistance. The record is silent as to trial counsel's reasons for not requesting a limiting instruction. It is possible that trial counsel did not request a limiting instruction in order to avoid drawing further attention to the extraneous offense evidence. See Rodriguez v. State, 974 S.W.2d 364, 372 (Tex.App.-Amarillo 1998, pet. ref'd) (counsel may have chosen not to request a limiting instruction "because he did not want to bring further attention to the evidence"); see also Ryan v. State, 937 S.W.2d 93, 104 (Tex.App.-Beaumont 1996, pet. ref'd) (failure to request limiting instruction may have been "trial strategy" to avoid "draw[ing] further attention to the extraneous offenses"). However, we are not permitted to speculate as to trial counsel's reasons for failing to request a limiting instruction on extraneous offenses. See McNeil v. State, 174 S.W.3d 758, 760 (Tex.App.-Waco 2005, no pet.); see also Bone, 77 S.W.3d at 835; Thompson, 9 S.W.3d at 814. Absent a record revealing trial counsel's strategy or motivation, Gill has not defeated the strong presumption that trial counsel's actions fell within the wide range of reasonable professional assistance. See McNeil, 174 S.W.3d at 760 (citing Thompson, 9 S.W.3d at 814). Because Gill's ineffective assistance claim is better raised through an application for a writ of habeas corpus, we overrule his second issue. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); see also Bone, 77 S.W.3d at 837 n. 30. Having overruled Gill's two issues, we affirm the trial court's judgment.