Opinion
No. 10-06-00283-CR
Opinion delivered and filed June 27, 2007. DO NOT PUBLISH.
Appeal from the 40th District Court Ellis County, Texas Trial Court No. 27404CR/A.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Hammer appeals his conviction for sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011(a)(2)(C) (Vernon Supp. 2006). We affirm. Admission by Party-Opponent. In Hammer's first issue, he contends, "The Trial Court erred by allowing a law enforcement officer to testify regarding statements allegedly made by Appellant to the officer." (Br. at 13.) In particular, Hammer argues, "The Trial Court's decision violates the rules of impeaching a defendant, as a defendant must be allowed to first deny the crime before he is impeached based upon a prior inconsistent statement or prior confession." (Br. at 14.) "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court. . . ." TEX. R. APP. P. 33.1(a). "To preserve error for review on appeal, a defendant's complaint on appeal must comport with the objection raised at trial." Montoya v. State, 43 S.W.3d 568, 571 (Tex.App.-Waco 2001, no pet.); see Swain v. State, 181 S.W.3d 359, 367 (Tex.Crim.App. 2005), cert. denied, 127 S. Ct. 145 (2006). Hammer objected as follows:
Object, Judge. Apparently these are statements of my client. In discovery there has been no statements of my client that have been turned over to me.
I would object at this time that the — pursuant to the standing order of this Court, those statements are mandated without request to be turned over to me, and they have not been. So ask that it be excluded.(4 R.R. at 56.)
Renew my objection on the basis that the witness has already testified that he knew that this was a —(4 R.R. at 58.) Hammer's complaint on appeal does not comport with his objections at trial. Hammer forfeits his complaint on appeal. We overrule Hammer's first issue. Effective Assistance of Counsel. In Hammer's second issue, he contends, "Appellant received ineffective assistance of counsel because Appellant's trial counsel failed to request an extraneous offense instruction as to Appellant's alleged flight after Appellant was charged with the offense." (Br. at 15.) "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI; see Rompilla v. Beard, 545 U.S. 374, 380 (2005); Strickland v. Washington, 466 U.S. 668 (1984). "Ineffective assistance under Strickland [ v. Washington] is deficient performance by counsel resulting in prejudice, with performance being measured against an 'objective standard of reasonableness,' 'under prevailing professional norms.'" Rompilla at 380 (quoting Strickland at 687, 688). "[T]o establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland at 694); see Rompilla at 390. "[C]ounsel is 'strongly presumed' to make decisions in the exercise of professional judgment." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland, 466 U.S. at 690). "That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court 'may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.'" Id. at 5-6 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)) (internal citation omitted). "A Strickland claim must be 'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)); accord Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). "In the absence of anything in the record affirmatively demonstrating otherwise, we presume that . . . counsel made a reasonable and strategic decision. . . ." Salinas at 740.
Direct appeal is usually an inadequate vehicle for raising [an ineffective-assistance] claim because the record is generally undeveloped. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record.Goodspeed at 392 (internal footnotes omitted); see Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 689; Thompson at 814. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)); accord Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). In particular, a silent record does not establish ineffective assistance in not objecting to evidence or not requesting a limiting instruction. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001); Tong v. State, 25 S.W.3d 707, 713-14 (Tex.Crim.App. 2000) (op. on orig. submission). The record does not contain the reasons for trial counsel's conduct. Hammer does not establish that his trial counsel failed to render the effective assistance of counsel. We overrule Hammer's second issue. Evidence of Prior Conviction. In Hammer's third issue, he contends, "The Trial Court erred by allowing evidence of Appellant's prior conviction" for impeachment. (Br. at 18.) An objection only on the basis of relevance does not preserve for appellate review an issue of improper impeachment with a prior felony conviction. Shook v. State, 172 S.W.3d 36, 42 (Tex.App.-Waco 2005, no pet.); cf. Dixon v. State, 2 S.W.3d 263, 269 (Tex.Crim.App. 1998) (op. on reh'g). Hammer objected only "to relevance." (4 R.R. at 87.) Hammer's complaint on appeal does not comport with his objection at trial. Hammer forfeits his complaint on appeal. We overrule Hammer's third issue. CONCLUSION. Having overruled Hammer's issues, we affirm.
Moreover, the record establishes that the trial court would not have erred in denying an instruction limiting the jury's consideration of evidence of Hammer's flight, which was admissible to prove Hammer's guilt. See Johnson v. State, 510 S.W.2d 944, 948 (Tex.Crim.App. 1974); Jones v. State, No. 01-04-00181-CR, 2005 Tex. App. LEXIS 4136, at *12 (Tex.App.-Houston [1st Dist.] May 26, 2005, pet. ref'd) (not designated for publication) (mem. op.).