                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00798-CR

                                           Eric C. MARS,
                                              Appellant

                                                v.
                                             The State
                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR9994
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 9, 2014

AFFIRMED

           Eric Mars was convicted by a jury of burglary of a habitation and sentenced to 10 years’

imprisonment. On appeal, Mars contends that he received ineffective assistance of counsel. We

affirm the trial court’s judgment.

                                            BACKGROUND

           Ann Pruski observed Mars sitting on the curb of her driveway. Pruski approached Mars

and asked if he needed anything; however, Mars did not respond. Later in the morning, Pruski left

her home but notified the San Antonio Police Department of the suspicious person. Upon returning
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to her home, Pruski found a broken window and an open door. Upon inspection of her home with

SAPD, Pruski found her jewelry box missing. A car impound receipt, signed by Mars, was found

inside Pruski’s home by the broken window. During the investigation, a detective discovered Mars

pawned Pruski’s jewelry with his Texas driver’s license. After Pruski identified Mars, Mars was

arrested. Mars chose to testify at trial and asserted that he was never at Pruski’s home, but had

lent his vehicle to a friend who placed the receipt next to the broken window in an attempt to frame

Mars as the burglar. The jury found Mars guilty of the charged offense.

                                     STANDARD OF REVIEW

       The right to effective assistance of counsel is guaranteed through the Sixth Amendment to

the United States Constitution and its counterpart in the Texas Constitution. See U.S. CONST.

amend. VI; TEX. CONST. art. I, § 10. An appellant may prevail on a claim for ineffective assistance

of counsel if: 1) defense counsel’s performance was deficient; and 2) counsel’s deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both

prongs must be proven by a preponderance of the evidence in order for an appellant to prevail on

an ineffective assistance of counsel claim. See McFarland v. State, 845 S.W.2d 824, 843 (Tex.

Crim. App. 1992). “Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700.

       To demonstrate trial counsel’s performance was deficient, Mars must show that the

“representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.

There is a presumption that trial counsel’s representation was reasonable. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). To overcome this presumption, Mars must establish

ineffectiveness that is “firmly founded” and affirmatively demonstrated in the record. Thompson,

9 S.W.3d at 813. Trial counsel should ordinarily be given an opportunity to refute the claim before

being denounced as ineffective. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
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Absent such an opportunity, a reviewing court should not find deficient performance unless

counsel’s conduct was “so outrageous that no competent attorney would have engaged in it.”

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

       Deficient performance is prejudicial to an accused when there is a “reasonable probability

that the outcome of the trial would have been different” but for counsel’s deficiency. Ex parte

LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). A reasonable probability is defined as “a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

                                            DISCUSSION

       Mars contends that trial counsel provided ineffective assistance by: 1) affirmatively

eliciting on direct examination Mars’ criminal history; 2) failing to request a hearing to exclude

evidence of prior convictions under Texas Rule of Evidence 609(f); and 3) failing to request a

limiting instruction at the time of the testimony.

                        A. Affirmative Elicitation of Mars’ Criminal History

       “[I]t is common practice for defense attorneys to elicit testimony [regarding a defendant’s

prior convictions] because doing so removes the sting from an attack that would otherwise come

from the state.” Huerta v. State, 359 S.W.3d 887, 891–92 (Tex. App.—Houston [14th Dist.] 2012,

no pet.); see also Stone v. State, 17 S.W.3d 348, 349 (Tex. App.—Corpus Christi 2000, pet. ref’d).

In this case trial counsel may have elicited Mars’ criminal history as part of a sound trial strategy

to avoid later impeachment by the State. The record, however, is silent regarding the trial counsel’s

motivation for eliciting Mars’ criminal history. “If counsel’s reasons for his conduct do not appear

in the record and there is at least the possibility that the conduct could have been legitimate trial

strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on

direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002). Because the record


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is silent as to the counsel’s trial strategy, we presume that counsel performed reasonably.

Strickland, 466 U.S. at 689. Therefore, Mars has failed to show trial counsel’s performance was

deficient in eliciting his criminal history.

                                    B. Failure to Request a Hearing

        Mars next contends his trial counsel provided ineffective assistance by failing to request a

hearing under Texas Rule of Evidence 609(f). Rule 609(f) states:

        Notice. Evidence of a conviction is not admissible if after timely written request by the
        adverse party specifying the witness or witnesses, the proponent fails to give to the adverse
        party sufficient advance written notice of intent to use such evidence to provide the adverse
        party with a fair opportunity to contest the use of such evidence.

TEX. R. EVID. 609(f).

        In this instance, Mars was the proponent of his prior convictions. As a result, the State was

not required to provide Mars notice under Rule 609(f). Moreover, because trial counsel decided

to elicit Mars’ prior criminal history rather than await the State’s use of Mars’ history for purposes

of impeachment, trial counsel had no reason to request a hearing to exclude the evidence of Mars’

prior convictions. Therefore, Mars has not met his burden of proof to establish that trial counsel

performed deficiently by failing to request a hearing under Rule 609(f).

                              C. Failure to Request Limiting Instruction

        Finally, Mars contends his trial counsel performed deficiently by failing to request a

limiting instruction at the time of Mars’ testimony. Although it is proper for a limiting instruction

to be requested at the time of testimony, see Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim.

App. 2001); see also TEX. R. EVID. 105, the record is silent regarding trial counsel’s reasons for

not requesting such an instruction. Although “‘hindsight speculation may suggest a limiting

instruction’” should have been requested, trial counsel may have had a reason not to request the



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instruction. Agbowe v. State, 414 S.W.3d 820, 837 (Tex. App.—Houston [1st Dist.] 2013, no pet.)

(quoting Webb v. State, 995 S.W.3d 295, 300-01 (Tex. App.—Houston [14th Dist.] 1999, no pet.));

see also Ali v. State, 26 S.W.3d 82, 88 (Tex. App.—Waco 2000, no pet.). Because the record is

silent, we must presume trial counsel acted reasonably. Thompson, 9 S.W.3d at 813. Moreover,

because the jury charge contained a limiting instruction and we presume the jury followed the

charge, Mars would not likely be able to show that he was prejudiced by counsel’s failure to request

the instruction at the time the testimony was elicited. See Lemons v. State, 426 S.W.3d 267, 275

(Tex. App.—Texarkana 2013, pet. ref’d).

                                          CONCLUSION

       Because Mars has not met his burden of overcoming the strong presumption that his trial

counsel performed reasonably, we overrule his issue and affirm the trial court’s judgment.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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