      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00430-CR



                                      Joseph Smith, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
       NO. D-1-DC-06-904057, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Joseph Smith of burglary of a habitation and assessed

punishment at thirty-two years in prison. On appeal, Smith contends that he was denied effective

assistance of counsel. We affirm.

               At approximately 4 a.m. on September 17, 2005, Austin Police Officers Earl Garrison

and Bryan Pietrowski responded to a 911 call reporting a family disturbance in progress at an

apartment on 6409 Springdale Road. Officer Pietrowski testified, “[w]e were told by 911 that they

could hear—they had an open line. They could hear males and a female yelling back and forth.”

Officer Garrison testified, “[w]hile en route to this call, we were getting updates that the male inside

the house was saying to the female that—words to the effect of once the cops get here, I’m going to

stab you, go ahead and let the cops show up, I got something for them.”

               According to Officer Garrison, when they arrived at the apartment, “we could hear
screaming from the apartment.” He testified that the door to the apartment, which was cracked open

approximately six to eight inches, looked as though it had been forced open. Both officers looked

through the door and saw Smith standing inside the apartment with a knife in his hand. As the

officers tried to push open the door, Smith pushed back on the door from inside. According to

Officer Garrision, “[w]e shoved on the door, the door flew open, the male [Smith] dropped the knife

and ran toward the kitchen.” The officers followed Smith into the kitchen, placed him into custody,

and handcuffed him.

                 After Smith had been placed in the patrol car, Officer Pietrowski took a statement

from Patrice Smith, the victim of the assault who placed the call to 911. According to Officer

Pietrowski, Patrice was “very upset” and “very fearful” as she gave the statement. Patrice told

Officer Pietrowski that Smith had kicked in the locked door, held a knife above his head, threatened

to kill her if the police came, grabbed her right bicep, and shoved her down. She also told Officer

Pietrowski that Smith was her husband, but that they were separated and that Smith did not live in

the apartment.

                 Smith was charged by a three-count indictment with three felony offenses. Count I

alleged burglary of a habitation.1 Count II alleged aggravated assault, and Count III alleged assault

family violence.     The indictment contained three enhancement paragraphs, which alleged,




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         The indictment alleged four alternative ways that Smith committed the offense of burglary
of a habitation: (1) Smith entered the habitation of Patrice without her consent and attempted to
commit and committed aggravated assault; (2) Smith entered the habitation of Patrice without her
consent with the intent to commit aggravated assault; (3) Smith entered the habitation of Patrice
without her consent and attempted to commit and committed assault; and (4) Smith entered the
habitation of Patrice without her consent with the intent to commit assault.

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respectively, that Smith had been previously and finally convicted of the felony offenses of

possession of heroin, possession of phencyclidine (PCP), and possession of pentazocine (CDS).

               Smith was tried before a jury on his plea of not guilty. The State presented four

witnesses and numerous exhibits, including photographs of the crime scene, a recording of the 911

call, a transcript of the 911 call, and several documents relating to Smith’s previous conviction of

Class A misdemeanor assault in August 2005. Neither Smith nor Patrice testified. The submitted

jury charge mirrored the indictment, and the jury found Smith guilty of burglary of a habitation

(aggravated assault) and assessed punishment at thirty-two years in prison.

               On appeal, Smith contends that his trial counsel rendered ineffective assistance

because he (1) failed to object to the admission of Patrice’s out-of-court statement to Officer

Pietrowski on the grounds that the statement was hearsay and violated Smith’s right to confront

witnesses against him under the Sixth Amendment of the United States Constitution, (2) failed to

object to the admission of the recording and transcript of the 911 call or, alternatively, failed to

request a limiting instruction with respect to that evidence, and (3) failed to “properly stipulate” to

Smith’s prior conviction for Class A misdemeanor assault, thereby allowing the State to introduce

evidence of that conviction.

               The right to counsel guaranteed by the Sixth Amendment is the right to the effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The proper standard for

attorney performance is that of reasonably effective assistance. Id. at 687. To show ineffective

assistance of counsel, Smith must demonstrate both (1) that his counsel’s performance fell below

an objective standard of reasonableness, and (2) that 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

687-88; Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59,

63 (Tex. Crim. App. 2001). Smith has the burden to establish both of these prongs by a

preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness

claim. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mitchell v. State, 68 S.W.3d

640, 642 (Tex. Crim. App. 2002).

               We presume that counsel’s conduct falls within the wide range of reasonable

professional assistance, and we will find counsel’s performance deficient only if the conduct is so

outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. We

cannot speculate beyond the record provided, so 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). In most cases, an undeveloped

record on direct appeal is insufficient to satisfy the dual prongs of Strickland because the

reasonableness of counsel’s decisions often involves facts not appearing in the appellate record.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Without evidence of the strategy

and methods involved concerning counsel’s actions at trial, an appellate court should presume a

sound trial strategy. See Thompson, 9 S.W.3d at 814. If no reasonable trial strategy could justify

trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness

as a matter of law, regardless of whether the record adequately reflects trial counsel’s subjective

reasons for acting as he did. Andrews, 159 S.W.3d at 102.



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                We first address Smith’s contention that his counsel rendered ineffective assistance

by failing to object to the admission of Patrice’s out-of-court statement to Officer Pietrowski on the

grounds that the statement was hearsay and violated Smith’s confrontation rights under the Sixth

Amendment of the United States Constitution. “To show ineffective assistance of counsel for the

failure to object during trial, the applicant must show that the trial judge would have committed error

in overruling the objection.” Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).

                We conclude that the trial judge would not have committed error in overruling

an objection to Patrice’s statement to Officer Pietrowski on the basis of hearsay. Hearsay is defined

as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Texas Rule of Evidence

802 provides: “[h]earsay is not admissible except as provided by statute or these rules . . . .” Tex. R.

Evid. 802. The rules of evidence provide an exception to the hearsay rule for excited utterances,

described as “[a] statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2). To qualify

as an excited utterance, (1) the statement must be the product of a startling occurrence, (2) the

declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and

(3) the statement must be related to the circumstances of the startling occurrence. Couchman

v. State, 3 S.W.3d 155, 159 (Tex. App.—Fort Worth 1999, pet. ref’d) (citing McFarland v. State,

845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State,

915 S.W.2d 9 (Tex. Crim. App. 1994)). The critical factor in determining whether a statement is an

excited utterance is whether the emotions, excitement, fear, or pain of the event still dominated the



                                                   5
declarant at the time of the statement. Oveal v. State, 164 S.W.3d 735, 740 (Tex. App.—Houston

[14th Dist] 2005, pet. ref’d), cert. denied, 547 U.S. 1116 (2006).

               In this case, Officer Pietrowski testified that he had Patrice complete an “assault

victim statement” after Smith was handcuffed and placed in the patrol car. He also gave the

following testimony concerning the circumstances under which Patrice gave the statement:


       [Prosecutor]:                  Will you describe Patrice’s demeanor? Was she calm
                                      or was she upset or emotional or how was she?

       [Officer Pietrowski]:          She was very upset and very—she seemed very
                                      fearful.

       [Prosecutor]:                  Okay. Did it appear to you that she was upset and
                                      fearful about this event that just happened?

       [Officer Pietrowski]:          Most definitely.

       [Prosecutor]:                  And what was it about her that you observed in her
                                      face or her voice that made you think she was upset?

       [Officer Pietrowski]:          She had that kind of faraway look in her eyes and
                                      she—it was kind of like she was crying at some point.

       [Prosecutor]:                  Okay. And it appeared to you that that was relating to
                                      what had just happened?

       [Officer Pietrowski]:          Yes.


Based on this testimony, the trial court could have reasonably concluded that Patrice was dominated

by the emotions, excitement, fear, or pain of the event at the time she gave the statement to Officer

Pietrowski. Because Patrice’s statement to Officer Pietrowski was admissible as an excited

utterance, Smith has failed to demonstrate that his counsel’s failure to object to the statement as



                                                 6
hearsay fell below an objective standard of reasonableness as required by the first prong of

Strickland. See 466 U.S. at 687-88.

               We also conclude that the trial judge would not have committed error in overruling

an objection to the challenged statement on the basis that the statement violated Smith’s

confrontation rights under the Sixth Amendment of the United States Constitution. In all criminal

prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution, “to be confronted with the witnesses against him.” U.S. Const. amend.

VI; Shuffield v. State, 189 S.W.3d 782, 790 (Tex. Crim. App. 2006) (citing Pointer v. Texas,

380 U.S. 400 (1965) (applying the Confrontation Clause to the states via the 14th Amendment)).

The United States Supreme Court has held that testimonial statements of witnesses absent from trial

are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant

is unavailable and only where the defendant has had a prior opportunity to cross-examine

the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). However, under the doctrine of

forfeiture by wrongdoing, a defendant is precluded from objecting to the introduction of hearsay

statements on Confrontation Clause grounds if it was his own criminal conduct that rendered

the witness unavailable for cross-examination. See Gonzalez v. State, 155 S.W.3d 603, 610

(Tex. App.—San Antonio 2004, pet. dism’d).

               In this case, several recorded phone calls between Smith and Patrice were admitted

into evidence for the purpose of showing that Smith repeatedly asked Patrice not to testify against

him. In his brief, Smith “reluctantly concedes” that he may have waived his right to confrontation

under the doctrine of forfeiture by wrongdoing. The trial court could have reasonably concluded



                                                7
that the admission of Patrice’s statement to Officer Pietrowski did not violate Smith’s confrontation

rights under the doctrine of forfeiture of wrongdoing. Therefore, Smith has failed to demonstrate

that his counsel’s failure to object to the statements on Confrontation Clause grounds fell below

an objective standard of reasonableness as required by the first prong of Strickland. See 466 U.S.

at 687-88.

               We next address Smith’s contention that his counsel rendered ineffective assistance

by failing to object to the recording and transcript of the 911 call. “A lawyer may well choose not

to object to hearsay or other inadmissible evidence if it potentially enhances his client’s defense or

at least does not seriously prejudice it.” Thompson, 9 S.W.3d at 813. In this case, it appears

that Smith’s counsel may have decided, as a sound defensive strategy, not to oppose the admission

of the recording or transcript of the 911 call. During closing arguments, Smith’s attorney relied on

both the recording and the transcript of the 911 call as evidence raising a reasonable doubt as to

whether Smith threatened Patrice with a knife. He told the jury, “did you notice when you listen to

this [the recording]—and I believe you have—I gave you each a copy of the transcripts that was [sic]

introduced into evidence. . . . [T]here’s nothing in this transcript to indicate that he’s [Smith]

threatening her [Patrice] of anything.” This defensive strategy may have also influenced Smith’s

counsel not to request a limiting instruction with respect to that evidence.            Under these

circumstances, Smith has failed to demonstrate that his counsel’s failure to object to the admission

of the recording or transcript of the 911 call or to request a limiting instruction fell below

an objective standard of reasonableness as required by the first prong of Strickland. See 466 U.S.

at 687-88.



                                                  8
               Lastly, we address Smith’s contention that his trial counsel rendered ineffective

assistance by failing to “properly stipulate” to Smith’s previous conviction for Class A misdemeanor

assault. The record reflects that, near the close of evidence and outside the presence of the jury, both

Smith and his counsel indicated to the trial judge that Smith wanted to stipulate to this previous

conviction for the purpose of establishing one of the elements of assault family violence as alleged

in Count III of the indictment. Smith’s counsel stated, “[w]e’ll stipulate that it was he [Smith] who

pled last year to assault family violence and it was—looks like a reduction from a felony to a Class

A misdemeanor.” Shortly after this exchange and in the presence of the jury, the State offered

State’s Exhibit No. 16, which included the indictment and judgment on the plea of guilty relating

to Smith’s previous conviction, into evidence without objection. The prosecutor then gave the

following explanation to the jury without objection:


       State’s Exhibit 16 is a judgment entitled State of Texas versus Joseph Anthony
       Smith, . . . in which the defendant was convicted of assault with bodily injury, . . .
       and the victim in that case—there’s a copy of the indictment in State’s Exhibit 16
       that shows that the defendant was originally charged with aggravated assault, that the
       victim in the case is Patrice Smith, the same Patrice Smith who was the victim in this
       case. And there’s a photograph and fingerprints of the person who was convicted,
       who was arrested in that case and who was convicted in that case and you can
       compare the photograph to the person in the courtroom as the same Joseph Smith
       who is on trial in this case.


At this point, the evidence was closed. The State subsequently requested to reopen the evidence to

“do that stipulation.” The evidence was reopened, and the prosecutor stated:


       [w]e have an agreement between the parties that the defendant, Joseph Smith, is one
       in the same person who was convicted in Cause No. D1-DC-05-202560 . . . on



                                                   9
       August 15th, 2005, in the 147th District Court of Travis County, Texas and that he
       is the same person whose conviction is set out in State’s Exhibit 16.


Smith’s counsel then stated that he agreed to the stipulation.

               On appeal, Smith argues that if his counsel had “properly stipulated” to the previous

conviction when it was first discussed outside the presence of the jury, the State would not have

been allowed to show or explain State’s Exhibit No. 16 to the jury. In support of this argument,

Smith cites several felony DWI cases holding that when a defendant agrees to stipulate to

prior convictions that constitute jurisdictional elements of the charged offense, the State may not

present evidence of those convictions during its case in chief. See Hernandez v. State, 109 S.W.3d

491, 495 (Tex. Crim. App. 2002); Robles v. State, 85 S.W.3d 211, 212-14 (Tex. Crim App. 2002);

Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000). In felony DWI cases, proof of the

convictions is necessary in that the prior convictions are elements of felony DWI. Hernandez,

109 S.W.3d at 494; see Tex. Penal Code Ann. § 49.09(b) (West Supp. 2006). This Court has

recently declined to address whether a prior assault conviction is a sentence enhancement or

an element of the felony offense of assault family violence and whether a defendant’s stipulation to

a prior conviction in the context of an assault family violence case has the same preclusive

effect on evidence of that prior conviction as in the Tamez line of cases. See Zavala v. State, No. 03-

05-00051-CR, 2007 Tex. App. LEXIS 361, at *2-5 (Tex. App.—Austin, Jan. 22, 2007, no pet.)

(mem. op., not designated for publication) (declining to resolve conflict between Sheppard v. State,

5 S.W.3d 338, 340 (Tex. App.—Texarkana 1999, no pet.) (holding that prior conviction is element

of felony assault family violence) and State v. Cagle, 77 S.W.3d 344, 346 n.2 (Tex. App.—Houston



                                                  10
[14th Dist.] 2002, pet. ref’d) (holding that prior conviction is sentence enhancement rather than an

element of felony assault family violence due to operative statutory language in Tex. Penal Code

Ann. § 22.01(b)(2))).

               We are of the view that this is not the appropriate case to resolve those issues. Even

if a “proper stipulation” would have prevented the admission of the evidence of Smith’s

prior conviction, and the failure to “properly stipulate” constituted deficient performance, Smith

has not demonstrated that he received ineffective assistance of counsel. To show ineffective

assistance of counsel, Smith must demonstrate both (1) that his counsel’s performance fell below

an objective standard of reasonableness, and (2) 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 687-88. Here, the submitted jury charge allowed the jury to find that Smith committed

burglary of a habitation if Smith entered the habitation of Patrice without her consent with the intent

to commit aggravated assault. At trial, Patrice’s neighbor, Larry Bell Jr. testified that he saw

Smith kick in the door to Patrice’s apartment. Officer Garrison testified, “[w]hile en route to this

call, we were getting updates that the male inside the house was saying to the female that—words

to the effect of once the cops get here, I’m going to stab you, go ahead and let the cops show up, I

got something for them.” The jury listened to the recording of the 911 call and read a transcript of

the call indicating that Smith said “I got a knife.” Both Officer Pietrowski and Officer Garrison

testified that Smith had a knife in his hand when they pushed open the door to the apartment. Officer

Pietrowski testified that Patrice told him that Smith had kicked in the locked door, held a knife above

his head, and threatened to kill her if the police came. Furthermore, aside from the aforementioned



                                                  11
comment explaining State’s Exhibit No. 16 to the jury, the prosecutor only mentioned Smith’s

prior conviction as it pertained to Count III of the jury charge alleging felony assault family violence.

He stated, “you cannot consider that judgment and sentence to prove—to make it more likely that he

did any of the rest of it. The purpose of that judgment is only to satisfy this element of Count 3

[assault family violence].” On this record, Smith’s counsel’s failure to “properly stipulate” to

the prior conviction probably did not affect the outcome of the jury’s guilty verdict. Smith has

not demonstrated that there is a reasonable probability that, but for counsel’s unprofessional

error, the result of the proceeding would have been different as required by the second prong of

Strickland. Id.

                  Affirmed.



                                                __________________________________________

                                                G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 18, 2007

Do Not Publish




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