                                       In The

                                 Court of Appeals
                      Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-11-00598-CR
                             ____________________

   COLUMBUS WRIGHT SCOGGINS A/K/A COLUMBUS SCOGGINS,
                       Appellant

                                         V.

                        THE STATE OF TEXAS, Appellee
_______________________________________________________           _____________ _

                      On Appeal from the 284th District Court
                           Montgomery County, Texas
                         Trial Cause No. 11-08-09497-CR
________________________________________________________           ____________ _

                            MEMORANDUM OPINION

      Columbus Wright Scoggins 1 appeals his conviction for the offense of

assault. See Tex. Penal Code Ann. § 22.01(b-1) (West 2011); Tex. Fam. Code Ann.

§ 71.0021(b) (West Supp. 2012),2 § 71.005 (West 2008). Scoggins raises two


      1
          The indictment alleges that Scoggins is also known as Columbus Scoggins.
      2
       We cite to the current version of the statute, which the Legislature amended
in 2011, as the amendment does not affect the outcome of Scoggins’ appeal.

                                          1
issues in his appeal. In issue one, Scoggins argues that he received ineffective

assistance of counsel because his trial attorney failed to request an instruction on

the defense of consent. In issue two, Scoggins asserts that he was improperly

punished as a habitual offender. Because the record does not demonstrate that

Scoggins received ineffective assistance of counsel or that he was improperly

punished as a habitual offender, we affirm the trial court’s judgment.

                                     Background

      In November 2010, S.A. and Scoggins were in a dating relationship and

living together. The police went to S.A.’s house after receiving a 9-1-1 call from

one of her friends. When they arrived, S.A. told the police that Scoggins had

choked her. In 2011, the State indicted Scoggins for an assault involving family

violence, alleging that Scoggins had choked S.A. The State further alleged that

Scoggins had previously been convicted for assaulting a family member. See Tex.

Penal Code Ann. § 22.01(b-1) (making a crime of assault involving family

violence a second-degree felony if the defendant has a prior conviction for an

assault that involved family violence). In addition to the prior conviction for an

assault involving family violence, Scoggins’ indictment also alleges that he had

been convicted of three felonies in other states.




                                          2
      When S.A. testified during the trial, she changed the account she gave police

about what Scoggins did to her on the day of the alleged assault. At trial, S.A.

testified that she panicked when Scoggins put his hand behind her neck and pulled

her hair, which made her feel as if she could not breathe, but she explained that she

no longer believed that Scoggins had choked her. However, the State established

that on the day of the incident, S.A. told police that Scoggins choked her.

Following the guilt phase of the trial, the jury found Scoggins guilty of assaulting

S.A. and that Scoggins had committed three prior felonies. Following the

punishment phase of the trial, the jury found that Scoggins should serve a life

sentence and assessed a fine of $10,000. See id. § 12.42(d) (West Supp. 2012).3

The trial court rendered a judgment based on the jury’s verdict.

                                      Analysis

      In issue one, Scoggins asserts that he received ineffective assistance of

counsel because his counsel failed to request an instruction on the defense of

consent. See Tex. Penal Code Ann. § 22.06 (West 2011). We apply a two-pronged

test to resolve ineffective assistance of counsel claims. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9

      3
       We cite to the current version of the statute, which the Legislature amended
in 2011, as the amendments that were made to section 12.42(d) are not relevant to
Scoggins’ appeal.
                                         3
S.W.3d 808, 812 (Tex. Crim. App. 1999). Under the first prong of Strickland,

Scoggins must prove that he received ineffective assistance under a preponderance

of the evidence standard. See Strickland, 466 U.S. at 687. To establish that counsel

provided ineffective assistance, Scoggins must show that trial counsel performed

below the standard expected of counsel under an objective standard of

reasonableness and that a reasonable probability exists that the result in his case

would have been different had counsel not been deficient. See id. at 687-88, 694;

Thompson, 9 S.W.3d at 812. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Thompson, 9 S.W.3d at 812. Our review of

ineffective assistance claims is highly deferential to trial counsel; generally, we

begin with the presumption “that counsel’s actions fell within the wide range of

reasonable and professional assistance.” Garza v. State, 213 S.W.3d 338, 348 (Tex.

Crim. App. 2007).

      In reviewing a complaint that trial counsel provided ineffective assistance,

we are to “avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813.

When trial counsel has not provided an explanation for the strategies that trial

counsel decided to employ, the decisions counsel made are reviewed with great

deference. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Generally, when faced with a record that is silent about why counsel chose to

                                         4
undertake a given strategy, appellate courts are not at liberty to find trial counsel’s

conduct ineffective, unless the challenged conduct was “‘so outrageous that no

competent attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must

be “‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’

the meritorious nature of the claim.” Id. (quoting Thompson, 9 S.W.3d at 813).

      Scoggins argues on appeal that the evidence raised the defense of consent

and that his trial counsel rendered ineffective assistance by failing to request an

instruction on what he characterizes in his appeal as the central issue in the case.

See Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992) (concluding

that trial counsel’s failure to request an instruction on necessity was ineffective

assistance where the defendant “had nothing to lose by requesting a defensive

instruction”). In Scoggins’ case, his counsel chose to argue that the State had failed

to meet its burden of proving beyond reasonable doubt that Scoggins choked S.A.

In final argument, Scoggins’ counsel argued that reasonable doubt existed because

S.A.’s account about what occurred was unreliable. Given that S.A.’s account

about the assault at issue changed, trial counsel’s strategy is one that is objectively

reasonable.




                                          5
      Under the circumstances, relying solely on what counsel might reasonably

have believed was Scoggins’ strongest argument was an objectively reasonable

strategy. Trial counsel could have believed that pursuing a defensive issue of

consent might have risked nudging any equivocal jurors to view relying on a

consent defense as a tacit concession that Scoggins choked S.A. A reasonable

attorney may choose to avoid stacking weaker arguments onto what may be

perceived as a stronger argument in the belief that such a strategy improves their

client’s chance of prevailing at trial.

      Without a record that shows why trial counsel made the choice not to request

an instruction on the defense of consent, Scoggins has failed to rebut the strong

presumption that no reasonable counsel would have employed the strategy now at

issue. See Goodspeed, 187 S.W.3d at 392. Because the record does not rebut the

presumption that trial counsel’s decisions regarding trial strategy were reasonable,

we overrule issue one.

      In issue two, Scoggins complains that he was improperly punished as a

habitual offender. Scoggins makes two arguments in support of his issue. He

argues that his prior misdemeanor conviction for a crime classified as a crime of

family violence cannot be used to enhance a third-degree felony to a second-degree

felony. Additionally, Scoggins argues that the evidence is insufficient to support

                                          6
the jury’s findings that he had previously been convicted of committing three other

felonies.

      First, we address Scoggins’ argument that a misdemeanor is not “an offense”

available to elevate his offense to a third-degree felony. See Tex. Penal Code Ann.

§ 22.01(b-1)(2). Section 22.01(b-1) of the Penal Code provides that assault is a

felony of the second degree if:

   (1) the offense is committed against a person whose relationship to or
       association with the defendant is described by Section 71.0021(b),
       71.003, or 71.005, Family Code;

   (2) it is shown on the trial of the offense that the defendant has been
       previously convicted of an offense under this chapter, Chapter 19, or
       Section 20.03, 20.04, or 21.11 against a person whose relationship to
       or association with the defendant is described by Section 71.0021(b),
       71.003, or 71.005, Family Code; and

   (3) the offense is committed by intentionally, knowingly, or recklessly
       impeding the normal breathing or circulation of the blood of the
       person by applying pressure to the person’s throat or neck or by
       blocking the person’s nose or mouth.

Id. § 22.01(b-1).

      The plain language of subsection two defeats Scoggins’ argument. The

phrase “under this chapter” refers to Chapter 22 of the Penal Code. See id. §

22.01(b-1)(2). Misdemeanor assault is included in Chapter 22. Compare id. §

22.01(b) (punishing most assaults, such as those not involving family violence, as

misdemeanors), with id. §§ 22.01(b)(2), 22.01(b-1) (punishing other assaults, such
                                        7
as those involving family violence, as felonies). Additionally, other types of crime

punished as misdemeanors are also found in Chapter 22. See id. §§ 22.05(a), (e)

(deadly conduct), 22.07(a)(1)-(3) (terroristic threats), 22.08 (aiding suicide), 22.10

(leaving a child in a vehicle) (West 2011). Thus, under the statute’s plain language,

the offenses referred to in subsection two are not limited to felonies. See id. §

22.01(b-1)(2). We conclude that Scoggins’ prior misdemeanor conviction for

assault, which includes a finding of family violence, is one of the types of

convictions that can be used to elevate the crime with which he was charged to a

second-degree felony.

      Scoggins also argues that he was improperly punished as a habitual offender

because the evidence does not support two of three jury findings that concern his

prior felony convictions. Under the Penal Code, a defendant’s punishment may be

increased to a life sentence if it is shown that the defendant has two previous

felony convictions, other than state jail felonies. See id. § 12.42(d). Scoggins

argues the evidence does not support the jury’s finding that he was convicted of

burglary in Mississippi; he also argues the evidence does not support the jury’s

finding that he was convicted for unlawfully using a motor vehicle in Louisiana.

      We view the evidence in the light most favorable to the State to determine

whether the evidence is legally sufficient to support the jury’s findings based on

                                          8
the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App.

2010) (plurality op.). “If the State alleges more than two convictions for habitual

offender purposes the terms of Sec. 12.42(d), supra, will be met if there is

sufficient evidence for at least two of the convictions.” Tomlin v. State, 722

S.W.2d 702, 705 (Tex. Crim. App. 1987).

      “To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists, and

(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007). “There is no ‘best evidence’ rule in Texas that

requires that the fact of a prior conviction be proven with any document, much less

any specific document.” Id. To prove that the defendant has a prior conviction, the

State is not necessarily required to introduce a certified copy of the defendant’s

final judgment and sentence, as the State may use other documents to establish the

existence of the prior conviction if those documents contain sufficient information

about the conviction. See id. at 921-22. Documents that serve as “‘the functional

equivalent’” of the judgment and sentence may be sufficient evidence of a prior

conviction even in the absence of a true and correct copy of the judgment and

sentence from the prior conviction. See id. at 920; Langston v. State, 776 S.W.2d

                                         9
586, 588 (Tex. Crim. App. 1989); see also Tex. Code Crim. Proc. Ann. art. 42.01

(West Supp. 2012). Additionally, with respect to defendant’s prior convictions

from criminal proceedings in other states, courts are allowed to assume, in the

absence of proof otherwise, that the laws of the other state are the same as the laws

of the State of Texas. See Langston, 776 S.W.2d at 587-88.

      We first address Scoggins’ arguments that are directed to his Louisiana

conviction, using a motor vehicle without its owner’s authorization. According to

Scoggins, the Louisiana pen packet the trial court admitted into evidence contains

no signed judgment. Scoggins also contends the certification accompanying the

pen packet is defective. However, Scoggins failed to object during the trial when

the State introduced the pen packet, nor did he object when a fingerprint analyst

used the fingerprints in the pen packet to identify Scoggins as the person who the

pen packet showed had served time in the penitentiary for using a motor vehicle

without proper authorization.

      The Louisiana pen packet includes an affidavit executed by the custodian of

records for the Louisiana Department of Public Safety and Corrections. The

custodian’s affidavit certifies that the documents in the pen packet are true copies

of the records of the Louisiana Department of Public Safety and Corrections

regarding Scoggins. The pen packet also contains a document signed by the

                                         10
Deputy Clerk of Calcasieu Parish and dated November 26, 2001, certifying that the

document is a “TRUE COPY[.]” The November 26 document bears no title, but is

styled “State Vs. COLUMBUS SCOGGINS[,]” and the document includes the

name of the presiding judge, the city and parish of conviction, the case number, the

charge (unauthorized use of a motor vehicle), Scoggins’ plea (guilty), the sentence

(six years), and the credit that Scoggins received for the time that he served. Thus,

the November 26 document contains several of the items that would be found in a

judgment rendered by a court in Texas. See Tex. Code Crim. Proc. Ann. art. 42.01.

While Scoggins complains that the document is not signed by a judge, the Court of

Criminal Appeals has held that such a failure does not render a conviction void for

enhancement purposes. See Emerson v. State, 476 S.W.2d 686, 688 (Tex. Crim.

App. 1972). Additionally, the pen packet contains a document charging Scoggins

with using a motor vehicle without authorization, as well as another document

showing the projected date of Scoggins’ release based on the sentence Scoggins

received on the conviction for using a motor vehicle without proper authorization.

In the light most favorable to the judgment and the evidence admitted during the

trial, we conclude the pen packet provides legally sufficient evidence to support the

jury’s finding that Scoggins was convicted in Louisiana for using a motor vehicle

without authorization.

                                         11
      Scoggins also complains that the State did not provide legally sufficient

evidence to show that the crime of unauthorized use of a motor vehicle is a felony

under Louisiana law. However, the documents in the pen packet in evidence show

that Scoggins was sentenced to the penitentiary. “For the purpose of enhancing

punishment, an out-of-state conviction is classified as a third degree felony when

‘confinement in a penitentiary is affixed to the offense as a possible punishment.’”

Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet. ref’d) (citing

Tex. Penal Code Ann. § 12.41(1) (West 2011)); see Golden v. State, 874 S.W.2d

366, 368 (Tex. App.—Beaumont 1994, pet ref’d). We conclude that Scoggins’

Louisiana conviction qualifies as a felony offense and that it was properly used to

enhance his punishment. See Tex. Penal Code Ann. §§ 12.41(1), 12.42(d).

      Scoggins’ remaining complaint concerns his claim that the evidence did not

show he was convicted of burglary in Mississippi on May 8, 2006; instead,

Scoggins asserts that the evidence shows that he was convicted for that burglary on

March 11, 1998. The State concedes the jury’s finding regarding the date of the

conviction for the burglary is inconsistent with the evidence. However, the State

contends that Scoggins’ conviction was properly enhanced to a life sentence based

on his Mississippi conviction for aggravated assault, a conviction that Scoggins has

not challenged, and his Louisiana conviction for using a motor vehicle without its

                                        12
owner’s authorization. See id. § 12.42(d) (authorizing an enhanced life sentence

where the defendant is shown to have previously been finally convicted of two

prior felony offenses). We conclude there is legally sufficient evidence to support

the jury’s findings that Scoggins was convicted of aggravated assault in

Mississippi, that he was convicted of unlawfully using a motor vehicle in

Louisiana, and that both of these crimes were felonies. We also agree with the

State’s argument that the jury’s findings regarding these two prior felonies

authorized the jury to assess a life sentence. See id.

      Since Scoggins has not demonstrated that he is being improperly punished as

a habitual offender, we overrule issue two. Having overruled both of Scoggins’

issues, we affirm the trial court’s judgment.

      AFFIRMED.




                                       ________________________________
                                                   HOLLIS HORTON
                                                       Justice


Submitted on December 27, 2012
Opinion Delivered June 26, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

                                          13
