Opinion issued December 12, 2013.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                            NO. 01-12-00479-CR
                          ———————————
              JONATHAN GERMAINE PERKINS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 339th District Court
                          Harris County, Texas
                      Trial Court Case No. 1316854



                        MEMORANDUM OPINION

      A Harris County grand jury indicted Perkins for the felony offense of

burglary of a habitation with the intent to commit assault. See TEX. PENAL CODE

ANN. § 30.02 (West 2011).     The indictment also contained an enhancement
paragraph for sentencing purposes. After trial, the jury found Perkins guilty, found

the enhancement paragraph to be true, and assessed a sentence of nineteen years’

imprisonment.

      On appeal, Perkins complains that his trial counsel rendered ineffective

assistance in violation of his rights under the sixth amendment to the United States

Constitution as recognized in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984). Finding that Perkins has failed to meet his burden under Strickland,

we affirm.

                                   Background

      Steve Allen became acquainted with Perkins at a club, and the two began a

dating relationship in the spring of 2011. In late May, Allen was disturbed when

he heard Perkins remark that he would seek revenge against a group who had

broken into his apartment and stolen some of his belongings. Perkins told Allen

that he liked to beat people in the head with a baseball bat, intimating that he had

done so in the past, and that he would like to do it to the thieves. He also

mentioned that he had a sawed-off shotgun. After Perkins made these remarks,

Allen distanced himself from Perkins.

      Perkins and Allen spoke on the phone and saw each other a few times during

the next couple of months. On two occasions, Perkins helped Allen with tire

repairs. One morning in mid-August, at about 4:30 A.M., Allen awoke to his

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ringing cell phone. When Allen saw that the call was from Perkins, he decided not

to answer it and went back to sleep. When he arose four hours later, he discovered

that Perkins had called his cell phone thirteen times and left two voice messages

during that period. In the first call, Perkins demanded, “You need to get here and

help me change this flat tire.” In the second, Perkins took an accusatory tone,

saying, “You’re just a racist. I always knew you were a racist.” Alarmed by the

tone Perkins used in the messages, Allen decided to ignore them.

      Perkins called Allen’s cell phone another twenty-seven times that day. After

the last call, which occurred at about 11:00 PM, Allen noticed Perkins’ SUV pull

into his driveway and saw Perkins approach his front door. Perkins began ringing

the doorbell repeatedly. When Allen did not answer, Perkins banged the door with

his fist, and then started to kick the door. Unable to break the door down with his

foot, Perkins picked up a paving stone and began to beat the lock.

      While Perkins focused his attention on breaking down the door, Allen called

9-1-1. Before the police could arrive, Perkins managed to break the doorframe,

and the door swung open. Allen was still speaking with the 9-1-1 operator when

he encountered Perkins on the staircase leading up from the foyer.         Perkins

exclaimed, “Why didn’t you come help me change the flat tire?” He appeared

agitated and told Allen not to call the police. When Allen responded that he

already had, Perkins punched Allen in the mouth hard enough to knock Allen

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down onto the stairs and puncture his upper lip. Perkins ran for the door and fled.

Allen sought help from his neighbors. Paramedics arrived and transported Allen to

the hospital for medical treatment, where he received thirteen stitches to his lip.

                         Ineffective Assistance of Counsel

      Perkins complains his trial counsel’s assistance was ineffective because he

interposed an unsuccessful hearsay objection to the testimony concerning Perkins’

comments to Allen, made two-and-a-half months before the charged offense, that

Perkins liked to beat people in the head with a baseball bat and owned a sawed-off

shotgun. The trial court initially sustained trial counsel’s hearsay objection, but

when the State responded that the comments constituted an admission by a party-

opponent that contextualized and explained the party’s relationship, the trial court

reversed its ruling. See TEX. R. EVID. 801(e)(2)(A). Trial counsel then again

objected to the statement based on Rule 404(b). The trial court overruled that

objection, but granted the defense a running objection to the State’s evidence on

that issue.    Perkins claims that his counsel’s failure to seek exclusion of the

evidence under Rules 402 and 403 rendered his assistance constitutionally

ineffective.




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      Standard of review and governing law

      To prevail on a claim of ineffective assistance of counsel, an appellant must

show that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). A reasonable probability is “a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Mitchell, 68 S.W.3d at 642. A failure to make a showing under either

prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003).

      In analyzing an ineffective assistance claim, courts apply a “strong

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

professional assistance.” Robertson v. State, 187 S.W.3d 475, 482 (Tex. Crim.

App. 2006) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2052).

      Rule 402 relevance

      The testimony about Perkins’s remarks to Allen is relevant in that it reveals

Allen’s motive for distancing himself from Perkins and helps to explain Allen’s

reticence to involve himself with Perkins even though Perkins had previously

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assisted Allen with two tire repairs. See Garcia v. State, 201 S.W.3d 695, 705

(Tex. Crim. App. 2006) (concluding that evidence of prior incident in which

defendant pushed wife out of car and drove away without her had probative value

to explain nature of the relationship between defendant and wife at time of the

offense, wife’s decision to file for divorce, husband’s hostility toward his wife, and

circumstances surrounding their relationship immediately preceding wife’s

murder).       Perkins has not shown that his trial counsel rendered ineffective

assistance by failing to raise a relevance objection under Rule 402.

      Rule 403 prejudice

      The record is silent as to why trial counsel did not expand on his objections

to include a Rule 403 objection.      Isolated instances of a failure to object to

inadmissible argument or evidence do not presumptively render counsel

ineffective.     See Robertson, 187 S.W.3d at 483.        We will not “engage in

retrospective speculation” to decide whether counsel’s actions or omissions

resulted from trial strategy or merely from questionable competence. Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); see Mata v. State, 226 S.W.3d

425, 430 (Tex. Crim. App. 2007). A Rule 404(b) analysis—which the trial court

undertook following Perkins’s trial counsel’s Rule 404(b) objection—includes a

Rule 403 evaluation as a principal component. It alerts the trial court of the need

to determine whether evidence of an extraneous misconduct has relevance apart

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from character conformity, which, according to Perkins, is the very harm that

occurred from the evidence’s admission. See Montgomery v. State, 810 S.W.2d

372, 387 (Tex. Crim. App. 1990) (“[I]f evidence of ‘other crimes, wrongs, or acts’

has only character conformity value, the balancing test otherwise required by Rule

403 is obviated, the rulemakers having deemed that the probativeness of such

evidence is so slight as to be ‘substantially outweighed’ by the danger of unfair

prejudice as a matter of law.”) (emphasis in original). We hold that Perkins has

not shown that his trial counsel was ineffective for failing to specifically include a

Rule 403 objection in his objection to the testimony, which trial counsel reasonably

could have concluded described past criminal behavior and not just inchoate

statements.

      Reasonable probability of a different result

      Perkins likewise fails to prove the second prong of Strickland, that it is

“reasonabl[y] probab[le] that, but for his counsel’s unprofessional errors, the result

of the proceeding would have been different.” Bone, 77 S.W.3d at 833 (quoting

Mitchell, 68 S.W.3d at 642); see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064

(“[T]he defendant must show that the deficient performance prejudiced the

defense,” and that “counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.”). Putting aside the evidence concerning

Perkins’s remarks to Allen, the record contains ample proof that Perkins forcibly

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entered Allen’s residence without Allen’s consent and then assaulted him. See

TEX. PENAL CODE ANN. § 22.01; id. § 30.02 (West Supp. 2013).

                                   Conclusion

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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