Opinion
No. 11-03-00121-CR
June 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Collin County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
The jury convicted Richard L. Woods of the offense of evading arrest while using a vehicle, which is a state jail felony under TEX. PENAL CODE ANN. § 38.04 (Vernon 2003). The jury then assessed punishment at confinement for two years in a state jail facility. We affirm. In his sole issue on appeal, appellant argues that he was denied the right to effective assistance of counsel at trial. Appellant specifically complains that this was trial counsel's first felony jury trial and that trial counsel failed to file any pretrial motions, failed to ask any questions during voir dire, failed to request a limiting instruction with respect to extraneous acts used to impeach appellant, failed to ensure that the jury be required to find beyond a reasonable doubt that appellant committed the extraneous acts, failed to file a motion for a hearing under TEX.R.EVID. 404(b), failed to file an application for probation, failed to inform appellant that the jury could not probate his sentence, failed to investigate the case, failed to subpoena witnesses, and failed to explain the State's plea offer to appellant. In order to determine whether appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In order to assess counsel's performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time. We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App. 1991). The record does not reflect that any pretrial motions were filed by trial counsel. However, there is nothing in the record to suggest that appellant would have benefitted from any such motions. Next, the record from voir dire shows that trial counsel did not individually question the members of the voir dire panel but that he did ask some questions to which he requested a "show of hands." Trial counsel stated during voir dire that his voir dire was relatively short because the prosecutor "asked a lot of the same questions" that he wanted to ask. Additionally, although trial counsel did not subpoena any witnesses in this case, appellant has not demonstrated what witnesses should have been subpoenaed, what their testimony would have shown, or even that there were any witnesses who could have testified favorably for appellant. The record reveals that the State did not introduce evidence of any extraneous acts during its case-in-chief but that, during the cross-examination of appellant, the State impeached appellant by eliciting testimony that he had previously been convicted of various crimes. Such impeachment is permitted by TEX.R.EVID. 609. Although no limiting instruction or an instruction regarding the burden of proof for extraneous acts was given or requested, we are unable to conclude from the record on direct appeal that trial counsel's failure to request such instruction constituted ineffective assistance of counsel. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Cr.App. 2001); Gone v. State, 54 S.W.3d 27 (Tex.App.-Texarkana 2001, pet'n ref'd). Like the records on direct appeal in Varelas and Gone, the appellate record in the present case does not reveal why trial counsel failed to request such instructions. Therefore, we cannot conclude that trial counsel's conduct fell below an objective standard of reasonable professional assistance. Moreover, appellant has not shown that the result of the proceeding would have been different if a limiting instruction or burden-of-proof instruction had been given. Finally, the record on direct appeal also does not support appellant's remaining contentions regarding trial counsel's actions or lack thereof with respect to probation, the State's plea offer, and trial counsel's investigation of this case. The record does reflect that trial counsel conducted voir dire, made an opening statement, cross-examined the State's witnesses, lodged objections to the prosecutor's questions, questioned appellant on direct and redirect examination, and made a closing argument to the jury. During the entire trial, counsel presented appellant's defense of duress. Appellant initially pulled over to the side and stopped the vehicle he was driving when the police turned on their lights. According to appellant, he drove away only after one of the passengers pulled out a gun, pointed it at appellant, and said: "Drive or I'm gonna blow your head off." We hold that appellant has failed to show that trial counsel did not render reasonably effective assistance or that the result of the proceeding would have been different but for trial counsel's conduct. Appellant's issue is overruled. The judgment of the trial court is affirmed.
See TEX. PENAL CODE ANN. § 12.35 (Vernon 2003).