                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                             NOS.       2-08-104-CR
                                        2-08-105-CR
                                        2-08-106-CR
                                        2-08-107-CR
                                        2-08-108-CR

RADFORD ROY PANNELL                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Radford Roy Pannell appeals his five fifteen-year sentences for

theft under $1,500 and evading arrest or detention using a vehicle, alleging in

one point that he received ineffective assistance of counsel at punishment. We

affirm.


      1
          … See Tex. R. App. P. 47.4.
                               Background Facts

      Appellant entered an open plea of guilty to four counts of theft against

four separate people; each count was enhanced with two prior theft

convictions, a prior conviction for robbery causing bodily injury, and a prior

conviction for forgery. Appellant also entered an open plea of guilty to evading

arrest, enhanced by a prior conviction for robbery causing bodily injury and a

prior conviction for forgery. The trial court ordered a presentence investigation

report (PSI) and set a hearing on punishment.

      At punishment, the State offered evidence that while appellant was on

bond for the offenses to which he pled guilty, appellant wrote fifteen checks

to a store owner in the amount of around $6,000 for cigarettes. The owner

contacted appellant’s bank and discovered that appellant did not have sufficient

funds to cover the checks. When appellant later returned to the same store,

the owner locked the door and told him she knew he did not have the money

to cover the checks. He asked her what she wanted, and then he pushed her

so hard she fell to the ground. After she fell, he took her keys. As appellant

was going out the door, the owner activated an alarm to call the police,

grabbed a can of mace, and tried to spray appellant with it. He nevertheless

was able to flee outside. The owner tried to follow appellant, but he pulled her

hand, making her fall down a second time, and drove off. The owner testified

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that she was afraid she would lose her store because she could not repay loans

she had to take out to cover her losses from appellant’s bad checks.

        When appellant committed this extraneous conduct, he was out on bond

for the offenses to which he had pled guilty and was awaiting the preparation

of a PSI and the assessment of punishment. Appellant was in jail when the

detective investigating the extraneous offenses interviewed him; appellant

admitted to the detective that he knew the checks were bad when he wrote

them.

        Appellant testified, acknowledging that he committed the offenses of

theft by check, but he contended that he wanted to make restitution to the

store owner and all the other victims. According to appellant, he had a drug

problem that caused him to commit all of these crimes. Appellant testified that

he was finally tired of hurting people and that he wished to make amends; as

a result, he offered to submit to drug treatment and make restitution.

        The defense also called two of appellant’s friends and his wife. They all

testified that appellant was a drug addict but that he was a good candidate for

community supervision and would be able to make restitution to his victims.

Defense counsel stressed appellant’s drug problems and willingness to make

restitution and urged the trial court to grant appellant community supervision;

however, the State stressed appellant’s repeated criminal convictions spanning

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at least twenty-five years and recommended the maximum sentence, twenty

years.

      The trial court sentenced appellant to fifteen years in each case. On the

record, the court listed appellant’s past criminal convictions in Tarrant County

and noted that he had been in drug treatment twice before, that in one year he

had incurred restitution costs of $60,000, and that he had committed theft by

check while on bond for the same type of crime. Before sentencing appellant,

the judge specifically stated,

      And it’s just difficult for me to understand, sir, why is this
      happening to someone with your education, with your ability, with
      your degree of articulateness, with the people that you have in the
      courtroom who are supporting you and will support you. And I just
      cannot give you a chance based on your criminal history and based
      on what you’ve been willing to do even when I’ve had you out on
      my bond. I just can’t take a chance on you, sir, and I won’t.

      In a single point, appellant contends that his attorney was ineffective by

failing to discover, investigate, and prepare a defense regarding the thefts by

check that he committed while out on bond.         He bases this allegation on

counsel’s objections at the beginning of punishment to the State’s witnesses

to the cigarette thefts by check, to which counsel stated that he had not

received notice of the unfiled case and objected to the relevance of it to “the

cases he’s pled guilty to.”      Counsel repeatedly objected to the extraneous

offenses’ relevance, later stating specifically that “[i]t’s a case that I’m not

                                         4
familiar with, hasn’t been filed, and I would – certainly wouldn’t be representing

him on this case. I haven’t been appointed on it or anything.” According to

appellant, “there is a reasonable probability that the trial court would have at

least backed off to some degree” on the fifteen year sentences “had counsel

made an effort to discover, investigate, and prepare to defend against the

extraneous offense presented at punishment.”

                              Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

                                        5
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.        Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”    Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).        To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,   and   the    record   must   affirmatively   demonstrate    the     alleged

ineffectiveness.”      Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, appellant must show there is a reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.      A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in

which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.

                                    Analysis

      Here, there is no motion for new trial record showing the extent of

counsel’s knowledge or lack thereof regarding the theft by check extraneous

offenses. However, counsel’s initial objection seems to indicate that he was

made aware of the extraneous conduct evidence the morning before the

hearing:

      Your Honor, I object to these witnesses being called. As we
      discussed, it’s apparent in the case that we did not receive any
      notice about it until today’s hearing, and I note this is a case that
      has not been filed - - there was no formal notice, I should say. The
      prosecution did discuss it, but there’s been no case filed on these
      charges, so, therefore, I would object to the relevance to this case.

The State responded,

      And, Your Honor, for the record, the State brought it up with
      defense counsel previous to Mr. Hernandez, as soon as the State
      received notice that these cases had - - were being developed by
      the police, and that was previous attorney, Jerry Wood,[2 ] and as



      2
       … Wood’s motion to withdraw, dated about a month before sentencing,
notes that appellant had “since been charged with a new offense.”

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      soon as we had a copy of the offense report ready, and it’s case
      number 080019825, that was provided. It is on ECFS, and it is
      part of the State’s open file.

Appellant’s counsel then stated, “I was provided the checks this morning and

was not aware that these had been put on ECFS, Your Honor.”

      Regardless, counsel was able to elicit on cross-examination of the

investigating officer for the theft by check offenses that appellant had offered

to provide restitution, that he gave the officer the name of someone who would

contact the officer regarding restitution, that appellant was “forthcoming with

information and . . . appeared to want to be very helpful” with the case, that

appellant was calm and did not make excuses for his actions, and that appellant

was atypical for someone with his criminal history because “[m]ost people with

the type criminal history that he has that [the officer] ha[s] dealt with . . .

usually make up excuses for what they’ve done and are not very forthcoming

with information.” He also elicited testimony from the officer that drug addicts

can reform and become contributing members of society.

      On cross-examination of the victim of the extraneous theft by check

offenses, counsel elicited testimony that although she was scared of appellant,

he never hit her. Also, he elicited testimony that she would rather be paid back

through having the court order restitution, which she understood would be

impossible if appellant were sent to prison. Thus, counsel was able to elicit

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testimony favorable to his defensive theories—that appellant deserved a second

chance due to his drug addiction and willingness to make restitution—from both

of the theft by check witnesses.

      In judging the defense’s investigation, as in applying Strickland generally,

hindsight is discounted by pegging adequacy to “counsel’s perspective at the

time” investigative decisions are made. Rompilla v. Beard, 545 U.S. 374, 381,

125 S. Ct. 2456, 2462 (2005); Aldrich v. State, No. 02-05-00303-CR, 2008

WL 5057647, at *16 (Tex. App.—Fort Worth Nov. 26, 2008, no pet. h.) (en

banc). Strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable, and strategic choices

made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation. Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066; Aldrich,

2008 WL 5057647, at *16; Hale v. State, 140 S.W.3d 381, 393 (Tex.

App.—Fort Worth 2004, pet. ref’d). In other words, counsel has a duty to

make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary. Strickland, 466 U.S. at 690–91, 104 S.

Ct. at 2066; Aldrich, 2008 WL 5057647, at *16.

      Here, counsel was appointed a month before the hearing at which the trial

court assessed appellant’s punishment. He did not request a continuance upon

                                        9
learning of the extraneous offense evidence. But he did object to the admission

of the evidence and was able to elicit testimony favorable to his defensive

theories in the case from the witnesses. Further, there is no evidence as to the

reasonableness of counsel’s decision to investigate to the extent he did, or did

not. Thus, based on this undeveloped record, we cannot say that counsel was

deficient with regard to investigating the extraneous theft by check conduct.

See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Salinas v.

State, 274 S.W.3d 256, 261–62 (Tex. App.—Houston [14th Dist.] 2008, pet.

filed); Rodriguez v. State, 103 S.W.3d 460, 461–62 (Tex. App.—San Antonio

2002, pet. ref’d), cert. denied, 541 U.S. 1044 (2004).

      Moreover, even assuming that counsel’s performance fell below an

objective standard of reasonableness, appellant has not shown that but for

counsel’s errors, there is a reasonable probability that the result of the trial

would have been different. Appellant’s counsel was able to elicit testimony

favorable to his defensive theories, and appellant has not alleged anything that

counsel could have done differently or what additional investigation would have

uncovered that would have changed the trial court’s assessment of punishment.

See Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005) (“To establish that an

attorney was ineffective for failure to investigate, a petitioner must allege with

specificity what the investigation would have revealed and how it would have

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changed the outcome of the trial.”); Ex parte Nailor, 105 S.W.3d 272, 279

(Tex. App.—Houston [14th Dist.] 2003), aff’d, 149 S.W.3d 125 (Tex. Crim.

App. 2004); Haight v. State, Nos. 02-05-00163–65-CR, 2007 WL 176487, at

*4 (Tex. App.—Fort Worth Jan. 25, 2007, pet. ref’d) (mem. op., not

designated for publication). The trial court specifically stated on the record that

its decision was based on appellant’s past history, not just his engaging in the

theft by check offenses while out on bond. Based on appellant’s admitted drug

addiction and over twenty-year history of committing robbery and theft, the trial

court could have concluded that his offer to make restitution was too little, too

late. Based on this record, we cannot conclude that appellant has shown that

the outcome of his trial would have been different but for his counsel’s

performance.

      We overrule appellant’s sole point and affirm the trial court’s judgments.




                                             TERRIE LIVINGSTON
                                             JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 23, 2009

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