Affirmed as Modified and Opinion filed July 26, 2016.




                                      In The

                     Fourteenth Court of Appeals

                              NOS. 14-15-00782-CR
                                   14-15-00783-CR

                MATTHEW BLEVINS SWANNER, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 212th District Court
                           Galveston County, Texas
                Trial Court Cause Nos. 14CR2151 & 14CR2152

                                 OPINION


      In four issues, appellant Matthew Blevins Swanner appeals his assault
convictions, complaining that (1) the trial court erred in admitting information and
complaint documents for several prior convictions during the punishment phase of
appellant’s trial; (2) the trial court erred when it allowed the State to recall a
witness during the punishment phase after the State had rested; (3) appellant’s trial
counsel rendered ineffective assistance of counsel in failing to present any
mitigation evidence during the punishment phase; and (4) the trial court’s
judgment should be amended to properly reflect that appellant pleaded “not
guilty.” We amend the trial court’s judgment to reflect that appellant pleaded “not
guilty” and affirm the judgment.

                                         Discussion

       Appellant assaulted his girlfriend, EP, twice. Appellant was charged under
two separate indictments with felony assault causing bodily injury involving a
dating relationship enhanced by a previous conviction for family violence.1 Both
indictments alleged multiple prior convictions involving family violence.
Appellant pleaded “not guilty,” waived his right to a jury, and stipulated to one of
the prior family violence convictions. The trial court found appellant guilty of both
charges, sentenced him to six years’ imprisonment for each, and ordered that the
sentences were to run concurrently.

       During the punishment phase of trial, the State introduced information and
complaint documents germane to several of appellant’s prior convictions. The trial
judge admitted the documents over appellant’s objection.

       The trial court considered evidence during the punishment phase of trial,
both sides rested, and the trial court recessed the trial awaiting the presentence
investigation report. Appellant filed a motion to strike part of the presentence
investigation report including an offense report and photographs from an earlier
assault case involving EP. The trial court granted the motion but allowed the State
to recall EP to discuss the incidents described in the offense report. Appellant’s

       1
         A person commits an assault if he intentionally, knowingly, or recklessly causes bodily
injury to another. Tex. Penal Code § 22.01(a)(1). The offense is elevated from a class A
misdemeanor to a third degree felony if it is committed against a person with whom the
defendant had a dating relationship and the defendant has been convicted previously of an assault
involving family violence. Tex. Fam. Code § 71.0021(b); Tex. Penal Code § 22.01(b)(2)(A).

                                               2
counsel objected “to the reopening of the evidence on this to recall the witness or
to consider the Offense Report.” The trial court overruled the objection.

       I.    No Abuse of Discretion in Admitting Information and Complaint
             Documents
       In his first issue, appellant argues that the trial court abused its discretion
during the punishment phase of trial in admitting information and complaint
documents relating to four prior convictions. Appellant complains that these
documents contain hearsay and “facts surrounding the commission of the noted
offense.” At trial, appellant did not object to the admission of the evidence on the
basis of hearsay. Thus, he has not preserved error on his hearsay argument. Tex. R.
App. P. 33.1(a); see also Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App.
2009) (“A specific objection is necessary to inform the trial judge of the issue and
basis of the objection, and to allow the judge a chance to rule on the issue at
hand.”).

       We address only whether the trial court abused its discretion in admitting the
documents on the basis that they included facts surrounding commission of the
offenses. We review a trial court’s admission of extraneous offense evidence for an
abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009). If the trial court’s ruling is within the “zone of reasonable disagreement,”
there is no abuse of discretion, and we will uphold the trial court’s ruling. Id. at
344.

       Relying on several cases from the 1970s, appellant argues only that during
the punishment phase of trial, “the State is not permitted to allude to or in any way
bring before the [factfinder] the facts surrounding the commission of the offense
forming the basis” for a prior conviction. See, e.g., Lege v. State, 501 S.W.2d 880,
882 (Tex. Crim. App. 1973); Mullins v. State, 492 S.W.2d 277, 279 (Tex. Crim.

                                          3
App. 1973); Cain v. State, 468 S.W.2d 856, 861 (Tex. Crim. App. 1971) (op. on
rehearing), overruled on other grounds by Littles v. State, 726 S.W.2d 26 (Tex.
Crim. App. 1984). However, that is no longer the law.

      Under the current version of Texas Code of Criminal Procedure article
37.07, section 3, the trial court has broad discretion during the punishment phase of
trial to admit whatever evidence it deems relevant to sentencing, including the
details of prior offenses. Umana v. State, 447 S.W.3d 346, 358 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (citing Tex. Crim. Proc. Code art. 37.07,
§ 3(a)(1)). The Court of Criminal Appeals in fact has held that “Article 37.07
allows the details of any bad act to be considered during sentencing.” Davis v.
State, 968 S.W.2d 368, 373 (Tex. Crim. App. 1998) (emphasis added). Appellant
has not argued that the details surrounding his prior offenses were not relevant to
sentencing and has not demonstrated that the trial court abused its discretion in
admitting such evidence. We overrule appellant’s first issue.

      II.    No Abuse of Discretion in Allowing State to Recall Witness
      In his second point of error, appellant contends the trial court abused its
discretion by allowing the State to recall EP during the punishment phase of trial
after the State had rested, which appellant contends violated article 36.02 of the
Texas Code of Criminal Procedure. Article 36.02 reads: “The court shall allow
testimony to be introduced at any time before the argument of a cause is
concluded, if it appears that it is necessary to a due administration of justice.” Tex.
Code Crim. Proc. art. 36.02.

      The parties dispute whether article 36.02 applies outside of the context of a
jury trial. Courts of appeals have reached differing conclusions on this issue. See
Smith v. State, 290 S.W.3d 368, 372 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d) (citations omitted). This Court has not decided whether article 36.02 applies

                                          4
to bench trials, although we have held that it applies to probation revocation
hearings. See id. at 373. We need not decide whether article 36.02 applies to bench
trials, however, because even if it does, the trial court did not abuse its discretion in
allowing the State to put EP on the stand at a time before argument had been
concluded.2

       Ordinarily, we review a trial court’s decision on a motion to reopen for
abuse of discretion. Id. (citing Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App.
2003)). Article 36.02 limits the trial court’s discretion to reopen a proceeding and
hear more evidence only once argument has concluded. Id.

       Relying on Peek, appellant argues the trial court abused its discretion in
allowing the State to recall EP because the State did not establish that her
testimony was material to its case. In Peek, the defendants argued that the trial
court abused its discretion in refusing to reopen a case. Id. at 72-74. The Court of
Criminal Appeals noted that article 36.02 mandates certain circumstances in which
a trial court is required to reopen a case. Id. at 75. The court concluded that prior
case law, the statute’s purpose in granting judges greater discretion in reopening
cases, and statutory construction all indicate that a judge is required to reopen the
case only if the evidence would materially change the case in the proponent’s
favor. Id. at 79. Peek thus addresses only how a trial court could abuse its
discretion in refusing to reopen a case. Article 36.02 does not limit a trial court’s

       2
          The Court of Criminal Appeals has intimated that article 36.02 does not apply to bench
trials. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012). In a footnote, the court
noted:
       On the face of it, then, it would seem that the reach of Article 36.02 would be
       limited to regulating the admission of evidence proffered at the jury trial itself.
       This is not to say, however, that the Court has never suggested it might apply in
       principle, at least analogously, in other criminal-law contexts.
Id. at 634 n.38.

                                               5
discretion to reopen a case at any time before argument has concluded. See Smith,
290 S.W.3d at 373. The statute merely mandates certain circumstances in which a
trial court is required to reopen the evidence before argument is concluded. See
Tex. Code Crim. Pro. art. 36.02; Peek, 106 S.W.3d at 75.

      Here, the trial court considered evidence during the punishment phase of
trial, and both sides rested.3 But the trial court recessed the trial awaiting the
presentence investigation report. Trial resumed one month later, and the trial court
granted appellant’s motion to strike the offense report and photographs in the
presentence investigation report. The trial court instead allowed the State to
“reopen” and recall EP. At that point, argument had not commenced or, obviously,
concluded. We conclude that the trial court did not abuse its discretion in allowing
the State to recall EP to the stand after the State rested but before closing
arguments had commenced or concluded. Cf. Smith, 290 S.W.3d at 375 (holding
that argument had concluded for purposes of article 36.02 because “both sides had
rested, closed, and delivered closing arguments” and thus trial court abused its
discretion in reopening proceeding to allow testimony after argument had
concluded (emphasis added)). We overrule appellant’s second issue.

      III.   Ineffective Assistance of Counsel Not Established
      In his third issue, appellant complains that he received ineffective assistance
of counsel during the punishment phase of his trial because his trial counsel
presented no mitigation evidence and simply rested. We review claims of
ineffective assistance of counsel under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Hernandez v. State, 726 S.W.2d 53, 57 (Tex.
Crim. App. 1986). Under Strickland, an appellant must prove that his trial

      3
        The State introduced information, complaint, and judgment documents during the
punishment phase prior to the recess, but neither party called any witnesses.

                                          6
counsel’s representation was deficient and that the deficient performance was so
serious that it deprived appellant of a fair trial. 466 U.S. at 687. To establish the
first prong, an appellant must show that counsel’s performance fell below an
objective standard of reasonableness. Id. at 688. Regarding the second prong, an
appellant must demonstrate that counsel’s deficient performance prejudiced his
defense. Id. at 692. To demonstrate prejudice, an appellant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694; see also Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011) (explaining that “reasonable probability,”
as used in the prejudice prong, is “probability sufficient to undermine confidence
in the outcome” of the proceeding) (citing Strickland, 466 U.S. at 687)). Failure to
make the required showing of either deficient performance or sufficient prejudice
defeats the claim of ineffectiveness. Strickland, 466 U.S. at 700.

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). Rarely will the trial record contain
sufficient information to permit a reviewing court to fairly evaluate the merits of a
claim of ineffective assistance of counsel. Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). In the majority of cases, the appellant is unable to meet the first
prong of the Strickland test because the record on direct appeal is undeveloped.
Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When the record is
silent as to trial counsel’s strategy, we will not conclude that appellant received
ineffective assistance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). A sound trial strategy may be imperfectly


                                          7
executed, but the right to effective assistance of counsel does not entitle a
defendant to errorless or perfect counsel. Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006). Finally, “[i]t is not sufficient that the appellant show, with
the benefit of hindsight, that his counsel’s actions or omissions during trial were
merely of questionable competence.” Mata, 226 S.W.3d at 430. Rather, to establish
that the attorney’s acts or omissions were outside the range of professionally
competent assistance, appellant “must show that counsel’s errors were so serious
that he was not functioning as counsel.” Patrick v. State, 906 S.W.2d 481, 495
(Tex. Crim. App. 1995).

       Appellant contends that his trial counsel was ineffective for failing to present
mitigating evidence during the punishment phase of his trial. Both the record and
appellant’s brief, however, are silent as to whether any mitigating evidence was
available for presentation.4 See Bone, 77 S.W.3d at 834–35. Appellant’s trial
counsel reasonably could have determined that the potential benefit of additional
witnesses was outweighed by the risk of unfavorable counter-testimony. See id. at
835. We will not speculate as to how mitigating evidence might have prejudiced
the outcome of the case.5 See id. In this connection, we may not assume a lack of
sound trial strategy on the part of defense counsel merely because we are unable to
discern any particular strategic or tactical purpose in counsel’s trial presentation.

       4
          Appellant cites a number of cases for the proposition that “[t]he failure to present
mitigation evidence at the punishment phase of the trial has been held by numerous courts to be a
classic example of ineffective assistance of counsel.” However, all of the cases cited by appellant
included an analysis of one or more of the following items that were included in the record:
(1) the mitigating evidence that was available for presentation; (2) admissions from defense
counsel that they failed to investigate the available mitigating evidence; or (3) admissions from
defense counsel that their failure to investigate was not based on any trial strategy. There is no
such information in the record on appeal here.
       5
          Engaging in pure speculation can be a double-edged sword. See Bone, 77 S.W.3d at 835
(“If a reviewing court can speculate about the existence of further mitigating evidence, then it
just as logically might speculate about the existence of further aggravating evidence.”).

                                                8
See id. at 836 (“A vague, inarticulate sense that counsel could have provided a
better defense is not a legal basis for finding counsel constitutionally
incompetent. . . . [A] defendant must prove, by a preponderance of the evidence,
that there is, in fact, no plausible professional reason for a specific act or
omission.”). We therefore overrule appellant’s third issue.

                  IV.   Amendment of Judgment of Conviction

      In his fourth issue, appellant correctly notes that the trial court’s judgment
improperly reflects that he pleaded “guilty,” although appellant entered a not guilty
plea at trial. We may modify a trial court’s judgment to correct an error. See Tex.
R. App. P. 43.2(b); see also Barfield v. State, 464 S.W.3d 67, 84 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). Accordingly, we sustain appellant’s fourth
issue and modify the trial court’s judgment to reflect that appellant pleaded “not
guilty.”

                                 V.     Conclusion

      We modify the judgment to reflect that appellant pleaded not guilty at trial
and affirm the judgment of the trial court.



                                       /s/       Martha Hill Jamison
                                                 Justice


Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — Tex. R. App. P. 47.2(b).




                                             9
