Opinion
Nos. 05-02-00976-CR, 05-02-00977-CR.
Opinion Filed March 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-60037-T and F01-60038-T. AFFIRMED.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
OPINION
A jury convicted Gary Lynn West, also known as Antonio Curtis West, Jr., of evading arrest using a vehicle and theft, and the trial court assessed punishment in each case at fourteen months in the state jail and a $1500 fine. In two issues, appellant asks that the judgment in cause number 05-02-00977-CR be reformed to reflect the offense for which the jury convicted him. In thirty-seven remaining issues, he argues he was denied effective assistance of counsel. Mary Villa reported to the Dallas police that her 2000 Toyota Celica was stolen. That night, police saw appellant driving the stolen car. Police activated their lights and siren, but appellant would not stop. After about two miles, appellant jumped out of the moving car. Police arrested appellant, who insisted he was not the driver of the stolen vehicle but a pedestrian who was nearly hit by the car once its driver bailed. Appellant testified at trial to this same version of events. The jury convicted appellant of theft and evading arrest. In his first and second issues, appellant complains the trial court's judgment in the evading arrest case does not comport with the jury's verdict. In particular, the judgment reflects appellant was convicted of "evading arrest-detention facility using a vehicle previous conviction-enhanced." The indictment alleged appellant evaded arrest using a vehicle; it did not contain an allegation of a detention center or a previous conviction. The jury convicted appellant of evading arrest as alleged in the indictment. The State agrees the judgment does not conform with the verdict. We sustain these issues and reform the judgment in cause number 05-02-00977-CR to reflect a conviction for evading arrest using a vehicle. See Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, pet. ref'd). However, we reject appellant's suggestion that, because the judgment does not recite the correct offense, we must reverse for a new punishment hearing. Appellant asserts the trial judge believed he was guilty of a more serious offense and therefore assessed a greater sentence. This argument is not only unsupported by the record but is contrary to it. The reporter's record shows the trial court read the jury's verdict in open court and on the very same day assessed punishment that was recommended by the State and agreed to by appellant. Nothing in this sequence of events supports an assertion the trial judge was confused as to the offense of which appellant was convicted. In issues three through thirty-nine, appellant complains he was denied effective assistance of counsel at trial. Appellant's complaints can be generally characterized as follows: trial counsel (1) failed to request a hearing on the admissibility of appellant's prior convictions, (2) put on evidence of his past criminal history at guilt-innocence when some of the offenses would not have been admissible, (3) failed to object to the State's argument concerning these prior convictions, and (4) failed to object for various reasons to State's Exhibit 3, which was offered to prove appellant's prior conviction for failure to ID. The standards for reviewing ineffective assistance of counsel claims are well-established. In brief, it is an appellant's burden to show by a preponderance of evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), citing Strickland v. Washington, 466 U.S. 688 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance, i.e., that the challenged action might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any 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, 812 (Tex.Crim.App. 1999). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See id. at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). We note that all of counsel's complaints stem from evidence or argument that resulted from appellant testifying at trial. Before appellant took the stand, trial counsel advised him that he should not testify, explaining that appellant's past criminal history "almost surely will be brought up." Trial counsel further advised that he would have to bring up the matters "to mitigate the damage it will cause" and explained that, if appellant testified, his "argument to the jury will probably be changed and compromised and be made ineffective." Despite counsel's advise, which was made on the record, appellant took the stand in his own defense. We cannot say that trial counsel's decision to offer evidence of appellant's entire criminal history was an "implausible trial strategy." While some of the convictions may not have been admissible in the first instance, counsel had to plan for the event that appellant opened the door to these convictions and did so by questioning appellant about his prior criminal history in an attempt to demonstrate candor. Moreover, counsel advised appellant that he would be forced to engage in such a strategy, if appellant testified. Once the evidence came in, the State was free to use it in closing arguments. Finally, we note that appellant filed a motion for new trial but did not raise ineffective assistance of counsel grounds. Thus, the record is silent as to any other strategies employed by trial counsel. Based on the record before us, we cannot say that appellant has demonstrated by preponderance of the evidence that counsel was deficient or that, if he was, the outcome of his trial would have been different. We resolve issues three through thirty-nine against appellant. We reform the judgment in cause number 05-02-00977-CR to reflect a conviction for evading arrest using a vehicle and affirm as reformed. We affirm the trial court's judgment in 05-02-00976-CR.