                                     NO. 12-09-00251-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

EVERSON JEROME VICTOR,                             §                APPEAL FROM THE 7TH
APPELLANT

V.                                                 §                JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §                SMITH COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Everson Jerome Victor appeals his conviction for aggravated assault with a deadly
weapon against a public servant. In his sole issue on appeal, Appellant argues that his trial
counsel rendered ineffective assistance of counsel. We affirm.


                                               BACKGROUND
       Appellant was charged by indictment with the offense of aggravated assault with a deadly
weapon against a public servant, a first degree felony.1               The indictment also alleged that
Appellant used or exhibited a deadly weapon – a motor vehicle that in the manner and means of
its use and intended use was capable of causing death and serious bodily injury, during the
commission of or immediate flight from the offense. Appellant entered an open plea of guilty to
the offense charged in the indictment. Appellant and his counsel signed an agreed punishment
recommendation, an acknowledgment of admonishments, a waiver of jury trial, an agreement to
stipulate testimony, and a written stipulation of evidence in which Appellant swore that such
stipulation constituted the evidence in the case. After a punishment hearing, the trial court
adjudged Appellant guilty of the offense of aggravated assault with a deadly weapon against a

       1
           See TEX. PENAL CODE ANN. § 22.02(a), (b)(2)(B) (Vernon Supp. 2009).
public servant,2 made an affirmative deadly weapon finding, and assessed his punishment at
thirty years of imprisonment. This appeal followed.


                                  INEFFECTIVE ASSISTANCE OF COUNSEL
         In his sole issue on appeal, Appellant argues that his trial counsel rendered ineffective
assistance of counsel by failing to object to impermissible impeachment evidence offered by the
State against a key mitigation witness. Further, Appellant contends that this testimony adversely
affected the punishment assessed by the trial court and, thus, he was prejudiced. The State
disagrees.
Standard of Review
         In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court=s two pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel=s performance
was Adeficient.@ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). AThis requires showing that counsel made errors so serious that
counsel was not functioning as the >counsel= guaranteed the defendant by the Sixth Amendment.@
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must Ashow that
counsel=s representation fell below an objective standard of reasonableness.@ Id., 466 U.S. at
688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
         Under the second prong, an appellant must show that the Adeficient performance
prejudiced the defense.@ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to Ashow that there is a
reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding
would have been different.@ Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712.    A reasonable probability is a probability sufficient to undermine confidence in the


         2
           In the indictment, Appellant was charged with “intentionally, knowingly, or recklessly” causing bodily
injury with a deadly weapon against a public servant. However, in the stipulation of evidence, Appellant admitted
only to “recklessly” causing bodily injury with a deadly weapon against a public servant. Thus, at the conclusion of
the punishment hearing, the trial court found Appellant guilty of the offense as set forth in the indictment as to the
“recklessly” portion of the charge.
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outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standard applies to
ineffective assistance of counsel claims alleging a deficiency in attorney performance at
noncapital sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App.
1999) (overruling Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980)).
       Review of a trial counsel=s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a Astrong presumption that counsel=s conduct falls within the wide range of
reasonable professional assistance.@ Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is the
appellant=s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;
Tong, 25 S.W.3d at 712. Moreover, 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, 813 (Tex. Crim. App. 1999). Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.
Id. Appellant must prove both prongs of the Strickland test by a preponderance of the evidence
in order to prevail. Tong, 25 S.W.3d at 712.
Application
       A witness may be impeached with evidence that the witness has been convicted of a
crime, “but only if the crime was a felony or involved moral turpitude, regardless of
punishment.” TEX. R. EVID. 609(a). The witness’s conviction must be admitted if the court
determines that the probative value of admitting this evidence outweighs its prejudicial effect to
a party. Id.
       At the punishment hearing, Appellant offered two witnesses on his behalf, his pastor and
his father. Appellant’s father, Eric Victor, testified regarding Appellant’s character, schooling,
mental health problems, previous arrests, and juvenile probation. He also testified that he
believed Appellant was “salvageable,” and that his son realized that he had made a mistake.
However, Eric blamed Appellant’s criminal history on other people, or his son’s mental health
problems, and also described it as a “phase” his son was going through. He stated further that he
knew Appellant had no “intention” of hurting the public servant. On recross examination, the
State questioned Eric regarding his own arrest for resisting arrest. Eric responded that he did not
resist arrest, that he was “kind of manhandled,” and that it was because of his medication. He
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stated that he paid a fine and was sentenced to probation for that offense. Eric also stated that he
“believed” he was convicted for failure to identify because his identification was stolen.
       Appellant asserts that the offense of resisting arrest is not an offense involving moral
turpitude and that his trial counsel failed to determine whether the offense was a felony. See
TEX. PENAL CODE ANN. § 38.03 (a), (c), (d) (Vernon 2003) (providing that the offense is a
misdemeanor unless the actor uses a deadly weapon to resist the arrest); Williams v. State, 449
S.W.2d 264, 265 (Tex. Crim. App. 1970). Moreover, he states that while the offense of failure to
identify by giving a false or fictitious name is an offense involving moral turpitude, committing
the same offense by simply refusing to provide the requested information to an officer is not.
See TEX. PENAL CODE ANN. § 38.02 (Vernon Supp. 2009) (providing that an actor commits an
offense if he intentionally refuses to give his name, residence address, or date of birth to a peace
officer who has lawfully arrested the person and requested the information); Lape v. State, 893
S.W.2d 949, 958 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d) (stating that lying to a police
officer involves moral turpitude). Thus, Appellant argues, his trial counsel rendered ineffective
assistance when he permitted the State to impeach Eric without determining if the evidence of
his prior convictions was admissible or the crimes involved moral turpitude.
       In this appeal, we have no record, usually developed in a motion for new trial or on writ
of habeas corpus, explaining trial counsel=s thought processes and trial strategy in not objecting
to the admission of Eric’s testimony about his own prior convictions. See Redmond v. State, 30
S.W.3d 692, 698-99 (Tex. App.–Beaumont 2000, pet. ref’d).              It is Appellant=s burden to
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25
S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9
S.W.3d at 813. Because the record does not show deficient performance, we conclude that
Appellant has failed to meet the first prong of the Strickland test. See id.
       Even if Appellant had met the first prong of the Strickland test, he has failed to show
that, without the evidence of Eric’s prior convictions, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. In
sentencing Appellant, the trial court stated that Appellant’s history did not justify a deferred
                                                 4
finding of guilt. Further, the trial court stated that Appellant’s “father got up and testified to
numerous things, all of which are really suspect to me, based upon what I see in your history.”
At that point, the trial court briefly summarized Appellant’s criminal history since September
2005, which included evading arrest, possession of marijuana, aggravated assault, driving while
intoxicated, unlawful carrying of a weapon, and two charges each of assault family violence and
possession of a controlled substance. The trial court also enumerated how many times Appellant
had been sentenced to probation for these charges. The trial court noted that Eric’s testimony did
not “make or break the issues in this case because the issues . . . were created long before y’all
ever got here to give testimony.” Then, the trial court found Appellant guilty of the offense as
set forth in the indictment as to the “recklessly” portion of the charge, made an affirmative
finding of the use of a deadly weapon, and assessed his punishment at thirty years of
imprisonment.
       Appellant asserts that Eric’s prior convictions influenced the trial court’s comment that
Eric’s testimony was “suspect” and difficult to believe. As such, Appellant argues that he was
harmed because the evidence regarding Eric’s prior convictions may have reasonably contributed
to Appellant’s punishment and that, but for Eric’s testimony, he would have received a different
sentence. However, the trial court found that Eric’s testimony regarding Appellant’s brushes
with the law to be of dubious character, not because of Eric’s criminal history, but because of
Appellant’s own criminal history that the trial court had before it. In fact, the trial court pointed
out that Eric’s testimony did not “make or break” the issues in the case because Appellant’s
criminal history was created long before the punishment hearing. Further, we cannot speculate
as to whether the trial court would have assessed a lesser sentence absent the challenged
testimony. See Schaired v. State, 786 S.W.2d 497, 499 (Tex. App.–Houston [1st Dist.] 1990, no
pet.). Because Appellant failed to show that the result of the proceeding would have been
different without the evidence of Eric’s prior convictions, he also has failed to meet the second
prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25
S.W.3d at 712. Therefore, even if he had met the first prong of Strickland, he still could not
prevail. Appellant=s sole issue is overruled.




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                                                    DISPOSITION
         The judgment of the trial court is affirmed.



                                                                  SAM GRIFFITH
                                                                     Justice



Opinion delivered March 24, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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