Opinion filed March 7, 2013




                                               In The


           Eleventh Court of Appeals
                                             __________

                                       No. 11-11-00056-CR
                                            _________

                        EPHRAM JEROME SINCERE, Appellant

                                                  V.

                                 STATE OF TEXAS, Appellee


                             On Appeal from the 350th District Court

                                        Taylor County, Texas

                                   Trial Court Cause No. 9485-D


                              MEMORANDUM OPINION
          The jury convicted Appellant, Ephram Jerome Sincere, of burglary of a habitation with intent
to commit theft. Appellant pleaded true to the enhancement allegations, and the jury assessed
punishment at confinement for fifty-five years. The trial court sentenced Appellant accordingly. We
affirm.
                                           Issues on Appeal
          Appellant challenges his conviction and sentence in two issues. Appellant first complains
that trial counsel was constitutionally ineffective because he failed to prepare, he failed to understand
the applicable law, and his physical disability limited his ability to communicate with Appellant.
Appellant also contends that the trial court erred when it denied his motion for new trial because the
cumulative deficiencies of trial counsel deprived Appellant of his right to a fair trial. Because
Appellant raised his claim of ineffective assistance of counsel in a motion for new trial, we address
Appellant’s issues together.
                                         Background Facts
       Amy Freeman was at her condo in Caton Place on May 2, 2010, when a man knocked on her
door and asked for Dustin Williams. Freeman told the man that there was no one by the name of
Dustin Williams at her address. Freeman then saw the man walk toward a white Suburban. Shortly
thereafter, Freeman heard noises in her neighbor’s condo. She knew that her neighbor, Jodi Thomas,
was out of town, and Freeman looked out a window and saw the same man walk alongside Thomas’s
home with a duffle bag and then drive off in the white Suburban. Freeman identified Appellant from
a photo lineup as the man who came to her door and whom she saw walking outside Thomas’s
home. While on her way back to town, Thomas received a phone call regarding a burglary at her
condo. She later discovered that several items were missing from her condo.
       Detective Mike Moschetto of the Abilene Police Department investigated the Caton Place
burglary. As the investigation progressed, Detective Moschetto noticed similarities to other
burglaries. Patricia Ray was the victim of one of those burglaries. She was at home when a man
came to her door and asked for Dustin Williams. When Ray left for work, she saw the same man
standing near a white car in her apartment complex parking lot. When Ray returned home from
work, her apartment had been burglarized. Ray testified that several pieces of luggage were missing.
She identified Appellant in a photo lineup as the man who came to her door.
       A third victim of a similar burglary, Sue Young, was not called to testify. Although she
provided the license plate of the vehicle used, Young was unable to identify Appellant in a photo
lineup. However, Detective Moschetto testified that Young provided the temporary license plate
number on a white Suburban used in the burglary. Using a police database, Detective Moschetto
discovered that the Suburban was registered to Wyester Sincere, Appellant’s wife. Detective
Moschetto identified Appellant as a possible suspect who matched eyewitnesses’ descriptions of the
burglar.
       Appellant was indicted for burglary of a habitation with intent to commit theft in connection
with the Caton Place burglary. At trial, Appellant and his wife, Wyester, testified that, on May 2,
2010, they were coming home from Wyester’s daughter’s house in Carrollton, Texas. Appellant

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testified that the permanent metal license plates were on the Suburban prior to the date of the alleged
burglary at Young’s home.
        Treva Bowsher was a title clerk at Frontier Motors. Frontier Motors operated Second Chance
Motors where Wyester purchased the white Suburban. Bowsher testified that temporary tags, which
are used for recently purchased vehicles, are unique to both a buyer and a vehicle. Temporary tags
are used until permanent license plates are received.
        Appellant filed a motion for new trial. In his motion, Appellant claimed that his trial counsel
rendered ineffective assistance because (1) he failed to adequately prepare for trial; (2) he failed to
understand the law applicable to a testifying defendant; and (3) trial counsel’s malfunctioning
hearing aids limited his ability to effectively defend Appellant. After a hearing on the motion, the
trial court denied it.
                                  Ineffective Assistance of Counsel
        Appellant argues that his trial counsel’s deficient performance constituted ineffective
assistance of counsel and violated his constitutional right to due process. Where an appellant
initially raises his claim of ineffective assistance of counsel in a motion for new trial, we review the
trial court’s denial of the motion for an abuse of discretion. Riley v. State, 378 S.W.3d 453, 457
(Tex. Crim. App. 2012). A trial court abuses its discretion when no reasonable view of the record
could support the trial court’s denial of a new trial. Id. The trial court is the sole judge of the
credibility of the witnesses and the weight given to their testimony. Melton v. State, 987 S.W.2d 72,
75 (Tex. App.—Dallas 1998, no pet.).
        The benchmark for evaluating an ineffective assistance of counsel claim is whether counsel’s
conduct “so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
The Strickland test has two prongs: (1) a performance standard and (2) a prejudice standard. Id. at
687.
        For the performance standard, we must determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness. Id. Second, we then
determine whether there is a reasonable probability that the outcome would have differed but for
counsel’s errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland, 466 U.S. at 686; Andrews v.
State, 159 S.W.3d 98 (Tex. Crim. App. 2005). The reasonable probability must rise to the level that
it undermines confidence in the outcome of the trial. Isham v. State, 258 S.W.3d 244, 250 (Tex.

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App.—Eastland 2008, pet. ref’d). A failure to make a showing under either prong of the Strickland
test defeats a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 893 (Tex.
Crim. App. 2010); Andrews, 159 S.W.3d at 101; Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.
Crim. App. 2003).
       A. Deficient Performance
       The first prong of Strickland requires Appellant to establish that trial counsel provided
deficient assistance of counsel. There is a strong presumption that trial counsel’s conduct fell within
the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Isham, 258
S.W.3d at 250. To overcome this deferential presumption, an allegation of ineffective assistance
must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In most cases, a
silent record that provides no explanation for counsel’s actions will not overcome the strong
presumption of reasonable assistance. Id. Under normal circumstances, the record on direct appeal
will not be sufficient to show that trial counsel’s representation was so deficient and so lacking as to
overcome the presumption that counsel’s representation was reasonable and professional. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
             1. Failure to Prepare
       Appellant contends his counsel was deficient by not preparing for trial sufficiently, not
calling trial witnesses and failing to bring materials to trial. During the hearing on Appellant’s
motion for new trial, Appellant testified that trial counsel did not begin preparing for trial until
December 3, 2010, three days before trial. Because of this alleged procrastination, Appellant asserts
he was unable to have two alibi witnesses present during the guilt/innocence phase of his trial.
       A claim of ineffective assistance based on trial counsel’s failure to call witnesses cannot
succeed absent a showing that the witnesses were available to testify and that their testimony would
have benefited the defendant. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007);
Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref’d); Johnston v. State, 959
S.W.2d 230, 236 (Tex. App.—Dallas 1997, no pet.). Appellant has failed to present evidence that
the testimony of his witnesses would have aided his defense. Appellant did not present these
witnesses at the hearing on the motion for new trial, nor did he provide sworn affidavits authored by
these witnesses. We cannot speculate what these witnesses might have said.



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        At the hearing on the motion, Appellant and his wife both testified that his stepdaughters
would attest to his alibi. Their testimony is conclusory and insufficient to show what the
stepdaughters’ testimony would have been. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App.
1994). Additionally, we note that both Appellant and his wife testified at trial to his alibi; the
stepdaughters’ testimony would have been cumulative. Wong v. Belmontes, 558 U.S. 15, 130 S. Ct.
383, 388 (2009) (failing to introduce cumulative evidence at trial does not give rise to Strickland
prejudice). Thus, Appellant has not established that trial counsel was deficient for failing to present
cumulative alibi testimony.
        While trial counsel ably cross-examined the State’s witnesses and called seven defense
witnesses, excluding Appellant, it is apparent the jury was not convinced by the alibi testimony
given by both Appellant and his wife. At the guilt/innocence phase of the trial, the jury was the sole
judge of the credibility of the witnesses and the weight given to their testimony; it was within the
jury’s province to resolve the conflicting testimony. Cain v. State, 958 S.W.2d 404 (Tex. Crim.
App. 1997); Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).
        Appellant further complained that trial counsel did not have his trial materials at trial.
However, on cross-examination, he admitted that he had discussed the case with counsel during the
five-month period before trial and that trial counsel had prepared several motions on his behalf.
Trial counsel called seven witnesses during the guilt/innocence phase of the trial, not including
Appellant or the State’s eyewitnesses whom Appellant’s attorney recalled. Appellant also admitted
that trial counsel thoroughly cross-examined the State’s witnesses, pointing out inconsistencies in
their testimony. Trial counsel objected to the State’s cross-examination of Appellant regarding his
prior convictions and moved for a mistrial. The record does not reflect that trial counsel’s
representation was “so deficient and so lacking . . . as to overcome the presumption” that it was
within the wide range of reasonable professional assistance. Bone, 77 S.W.3d at 833.
             2. Misunderstanding the Rules of Evidence
        Appellant next contends that trial counsel was ineffective when he questioned Appellant
about his prior criminal history during the guilt/innocence phase of the trial. Appellant testified at
the motion for new trial that trial counsel initially advised him not to testify. Appellant testified that,
a few days prior to trial, his trial counsel changed his mind. Appellant took his trial counsel’s new
advice and decided to testify during the guilt/innocence phase.



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       As a result, on cross-examination, the State elicited testimony from Appellant that he had
four prior felony convictions for burglary of a habitation with intent to commit theft and was on
parole at the time of trial. Counsel’s actions in advising Appellant to testify and in eliciting such
testimony do not constitute sufficient proof that he lacked a valid trial strategy. Mata v. State, 226
S.W.3d 425, 430 (Tex. Crim. App. 2007).
       The decision to testify ultimately rests with a defendant. See Sapata v. State, 574 S.W.2d
770, 771 (Tex. Crim. App. 1978); Harper v. State, 930 S.W.2d 625, 630 (Tex. App.—Houston [1st
Dist.] 1996, no pet.). Once Appellant took the stand, he was subject to the same rules as any other
witness. Harper, 930 S.W.2d at 630. The record does not reflect that Appellant was coerced or
forced to testify. The record is similarly silent on trial counsel’s strategy in advising Appellant to
testify. We note that trial counsel did not testify at the hearing on the motion for new trial. Where
the record is silent, we cannot speculate on trial counsel’s strategy. Thompson, 9 S.W.3d at 814.
       Appellant’s claim that, absent trial counsel’s deficiencies, he would not have been exposed to
the State’s cross-examination is unsupported. The record reflects that, although Appellant took his
trial counsel’s advice to testify, Appellant made the ultimate decision to testify. Having taken the
stand, Appellant opened the door to impeachment with his prior convictions. TEX. R. EVID. 609.
       Rule 609 governs the admissibility of prior convictions for the purpose of impeachment. The
relevant portions of Rule 609 are as follows:
              (a) General Rule. For the purpose of attacking the credibility of a witness,
       evidence that the witness has been convicted of a crime shall be admitted if elicited
       from the witness or established by public record but only if the crime was a felony or
       involved moral turpitude, regardless of punishment, and the court determines that the
       probative value of admitting this evidence outweighs its prejudicial effect to a party.

               (b) Time Limit. Evidence of a conviction under this rule is not admissible if
       a period of more than ten years has elapsed since the date of the conviction or of the
       release of the witness from the confinement imposed for that conviction, whichever
       is the later date, unless the court determines, in the interests of justice, that the
       probative value of the conviction supported by specific facts and circumstances
       substantially outweighs its prejudicial effect.

The prior convictions elicited from Appellant on cross-examination were four felony convictions
involving crimes of moral turpitude. The dates of conviction were over ten years ago; however,
Appellant testified that he was still on parole for his crimes. Because the record is silent as to
Appellant’s release from confinement, we assume the trial court found that the time limit of Rule


                                                  6
609 was satisfied, and the evidence’s probative value substantially outweighed the prejudice. See
Rule 609(b); Strickland, 466 U.S. at 694–95; De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009) (a trial court has broad discretion in determining the admissibility of evidence). Thus,
Appellant’s prior convictions were admissible for impeachment purposes.
        This case is distinguishable from Ex parte Menchaca where the court found ineffective
assistance of counsel when inadmissible convictions were, nonetheless, admitted at trial. Ex parte
Menchaca, 854 S.W.2d 128, 133 (Tex. Crim. App. 1993). The Menchaca court held that there could
be no strategic basis for allowing the jury to hear that the defendant had previously been convicted of
the same offense for which he stood trial where such offenses were inadmissible under Rule 609. Id.
at 131–33.
        Similarly, in Robertson v. State, the Court of Criminal Appeals found that defense counsel
performed deficiently for the same reasons found in Ex parte Menchaca. Robertson v. State, 187
S.W.3d 475, 485–86 (Tex. Crim. App. 2006). In Robertson, defense counsel “opened the door” by
eliciting testimony on otherwise inadmissible prior convictions. Id. at 477–79. On remand, the court
of appeals found that the deficiencies prejudiced the defendant. Robertson v. State, 214 S.W.3d 665,
668 (Tex. App.—Waco 2007, no pet.).
        After a thorough review of the record, we cannot say that it was trial counsel’s deficiencies
that exposed Appellant to the State’s cross-examination regarding his prior convictions. Nor can we
say, upon this record, that the trial court abused its discretion when it denied the motion for new trial.
             3. Physical Infirmity
        Although the record supports the conclusion that trial counsel was hard of hearing, this in and
of itself does not constitute deficient performance. Aldrich v. State, 296 S.W.3d 225, 250 (Tex.
App.—Fort Worth 2009, pet. ref’d). The record reflects that trial counsel typically asked the
witnesses or the trial court to repeat themselves if he could not hear them. We cannot hold that trial
counsel’s physical infirmity constitutes deficient performance. This challenged conduct fails to meet
the first prong of Strickland.
        B. Prejudice to Appellant
        Because Appellant has failed to establish that trial counsel was deficient, we do not reach the
prejudice prong of Strickland. The trial court did not abuse its discretion when it denied the motion
for new trial. We overrule Issue One and Issue Two.



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                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             MIKE WILLSON
                                                             JUSTICE


March 7, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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