Opinion issued March 27, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00286-CR
                             NO. 01-13-00287-CR
                          ———————————
               CHRISTIAN EUGENE WHEELER, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                 On Appeal from the 221st District Court
                       Montgomery County, Texas
    Trial Court Case Nos. 12-09-09602-CR-CTI & 12-09-09602-CR-CTII



                                OPINION

      Appellant, Christian Eugene Wheeler, pleaded guilty without an agreed

recommendation as to punishment to the first-degree felony offense of possession
with intent to deliver between four and two hundred grams of a controlled

substance, methamphetamine, and to the state jail felony offense of theft of a

firearm. 1 The trial court assessed punishment at confinement for twenty years and

confinement for six months, respectively, to run concurrently.           In one issue,

appellant contends that his trial counsel rendered constitutionally ineffective

assistance at his sentencing hearing by (1) failing to object to the State’s repeated

use of leading questions when examining one of the detectives and (2) failing to

object to the State’s and the detective’s characterization of one of the firearms

recovered during the search of appellant’s residence as a machine gun.

      We affirm.

                                     Background

      The State charged appellant with the offenses of possession of a controlled

substance with intent to distribute and theft of a firearm, arising out of a raid of his

trailer home by Montgomery County Sheriff’s Department (“MCSD”) officers. 2


1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (Vernon 2010) (providing
      that possession with intent to deliver between four and two hundred grams of
      controlled substance in penalty group one is first-degree felony); id. § 481.102(6)
      (Vernon 2010) (providing that methamphetamine is penalty group one substance);
      TEX. PENAL CODE ANN. § 31.03(e)(4)(C) (Vernon Supp. 2013) (providing that
      theft of firearm is state jail felony).
2
      The Texas Supreme Court transferred this appeal from the Court of Appeals for
      the Ninth District of Texas to this Court pursuant to its docket equalization
      powers. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (“The supreme
      court may order cases transferred from one court of appeals to another at any time
      that, in the opinion of the supreme court, there is good cause for the transfer.”).
                                           2
Appellant pleaded guilty to both offenses without an agreed recommendation on

punishment. The trial court accepted appellant’s guilty plea and set the sentencing

hearing for a later date to allow for the preparation of a presentence investigation

report.

      MCSD Detective S. Spiller testified at the sentencing hearing. Detective

Spiller testified that in the course of investigating appellant officers discovered that

he was trafficking narcotics from his residence.         On August 23, 2012, after

approximately six months of investigation, officers executed a search warrant for

appellant’s trailer. Detective Spiller testified that ten people, including appellant,

were inside the trailer at the time of the search. According to Detective Spiller,

officers recovered approximately thirty-five grams of methamphetamine, pills,

drug paraphernalia, cash, cell phones, surveillance cameras, and multiple firearms

from the trailer.

      Defense counsel did not object to the State’s use of allegedly improper

leading and argumentative questions throughout the examination of Detective

Spiller. For example, the State asked Detective Spiller:

      [The State]:         And was [the search] done in midafternoon on a
                           hot Thursday afternoon in Montgomery County,
                           Texas?
      [Det. Spiller]:      That is correct.
      [The State]:         Was this done at a time where most people should
                           have been working or doing something other than
                           laying in a trailer getting high on meth?
                                              3
      [Det. Spiller]:     That is correct.

The State later asked, “And were the ten people that you observed [in the trailer] in

various physical states, no shirts on, consistent with what you had seen, people

laying around, multiple people on couches, beds, et cetera, consistent with a den—

a dope house?”      Detective Spiller responded, “That is correct.”      On appeal,

appellant identified over thirty other instances in which the State asked Detective

Spiller leading and argumentative questions yet defense counsel did not object.

      When asked by the prosecutor what types of firearms the officers recovered

during the search, Detective Spiller stated, “There were several long guns, which

were rifles, sawed-off shotguns. We came across a machine gun, handgun, several

handguns, ammunition in various places.          The firearms were loaded, most of

them.” The prosecutor then showed Detective Spiller State’s Exhibit 24, which

depicted several of the recovered firearms, and asked her, “[D]oes this look like an

Uzi here in the top left corner?” Detective Spiller responded, “Yes. That’s a

machine gun.” Both of these statements referred to a Cobray M-11 firearm.

Defense counsel did not object to the State and Detective Spiller characterizing this

weapon as a “machine gun.”

      During closing argument, defense counsel argued that the prosecutor wanted

to put appellant in prison instead of allowing him to complete a drug rehabilitation

program. The prosecutor responded,

                                             4
      It ain’t about me. I don’t want it to be about me. I want it to be about
      the people of this county. I want it to be about law enforcement when
      they risk their necks to go into a house where everybody—or at least
      this Defendant—is armed to the hilt with automatic machine guns.

Defense counsel did not object to this reference to “machine guns.”                The

prosecutor did not mention “machine guns” again during the remainder of his

closing argument. The only other reference to a machine gun occurred when the

trial court mentioned the presence of a machine gun as it addressed appellant

before assessing his punishment.

      The trial court ultimately assessed punishment at twenty years’ confinement

for the possession with intent to distribute offense and six months’ confinement for

the theft of a firearm offense, to run concurrently. Appellant filed a motion for

new trial but did not raise ineffective assistance of counsel as a basis for granting a

new trial. Appellant’s motion for new trial was overruled by operation of law, and

this appeal followed.

                         Ineffective Assistance of Counsel

      In his sole issue, appellant contends that his trial counsel rendered

constitutionally ineffective assistance by failing to object to (1) the State’s repeated

use of leading questions when questioning one of the detectives and (2) the State’s

and the detective’s characterization of one of the firearms recovered during the

search of appellant’s residence as a machine gun.



                                           5
      A. Standard of Review

      To establish that trial counsel rendered ineffective assistance, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient and (2) a reasonable probability exists that the result of

the proceeding would have been different but for his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010); Cannon

v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure

to make either of the required showings of deficient performance and sufficient

prejudice defeats the claim of ineffective assistance.       Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of

the Strickland test negates a court’s need to consider the other prong.”).

      The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The second prong of Strickland requires the appellant to demonstrate

prejudice—“a reasonable probability that, but for his counsel’s unprofessional

error, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable

                                          6
probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To

prevail on an ineffective assistance claim, the appellant must provide an appellate

record that affirmatively demonstrates that counsel’s performance was not based

on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);

Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate

alleged ineffectiveness).

      In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65

S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct.

1690, 1694 (2003) (“If the alleged error is one of commission, the record may

reflect the action taken by counsel but not the reason for it. The appellate court

may have no way of knowing whether a seemingly unusual or misguided action by

counsel had a sound strategic motive or was taken because the counsel’s

                                         7
alternatives were even worse. The trial record may contain no evidence of alleged

errors of omission, much less the reason underlying them.”).            Because the

reasonableness of trial counsel’s choices often involves facts that do not appear in

the appellate record, the Court of Criminal Appeals has stated that trial counsel

should ordinarily be given an opportunity to explain his actions before a court

reviews the record and concludes that counsel was ineffective. See Rylander, 101

S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002).

      B. Failure to Object to Leading Questions

      Unless a witness is a hostile witness, an adverse party, or a witness identified

with an adverse party, leading questions should not be used on direct examination

“except as may be necessary to develop the testimony of the witness.” TEX. R.

EVID. 611(c); Young v. State, 10 S.W.3d 705, 713 (Tex. App.—Texarkana 1999,

pet. ref’d). “Leading questions are questions that suggest the desired answer,

instruct the witness how to answer, or put words into the witness’s mouth to be

echoed back.” Tinlin v. State, 983 S.W.2d 65, 70 (Tex. App.—Fort Worth 1998,

pet. ref’d). Leading questions may, however, be acceptable at the discretion of the

trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000) (construing

former Texas Rule of Criminal Evidence 610(c)); see also Hernandez v. State, 643

S.W.2d 397, 400 (Tex. Crim. App. 1982) (stating, prior to adoption of Rules of

                                          8
Evidence, that “[u]nless a defendant can show that he was unduly prejudiced by

virtue of such [leading] questions, no reversal of his conviction will result”).

      Despite the general rule disfavoring the use of leading questions on direct

examination, “it is sound trial strategy for opposing counsel to choose not to object

to leading questions when the evidence will come in anyway.” Young, 10 S.W.3d

at 713. When the record is silent concerning why defense counsel failed to object

to the State’s use of leading questions, the appellant fails to rebut the presumption

that this conduct constitutes reasonable trial strategy. See id.; see also Wert v.

State, 383 S.W.3d 747, 757 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(“Appellant has not carried his burden of rebutting the presumption that counsel’s

[failure to object to leading questions] might be considered sound trial strategy.

The record is silent as to why counsel did not make these objections, and we may

not speculate on this issue.”); Malone v. State, 935 S.W.2d 433, 440 (Tex. App.—

Tyler 1996, no pet.) (holding that appellant failed to establish that defense

counsel’s failure to object to leading questions constituted ineffective assistance

when he did “not explain how this omission hurt his case or fell below an objective

standard of reasonableness”). Moreover, when, as here, the trial court is the trier

of fact, the court “would not consider inadmissible evidence or be affected by

leading questions.” Posey v. State, 763 S.W.2d 872, 877 (Tex. App.—Houston

[14th Dist.] 1988, pet. ref’d).

                                           9
      Here, appellant argues that his trial counsel rendered ineffective assistance

by failing to object to the State’s repeated use of leading and argumentative

questions when examining Detective Spiller, the State’s primary fact witness. On

appeal, appellant identifies more than thirty instances in which the State asked

Detective Spiller a leading question.        As an example, appellant points to the

following exchange between the State and Detective Spiller:

      [The State]:        And was [the raid on appellant’s trailer] done in
                          midafternoon on a hot Thursday afternoon in
                          Montgomery County, Texas?
      [Det. Spiller]:     That is correct.
      [The State]:        Was this done at a time where most people should
                          have been working or doing something other than
                          laying in a trailer getting high on meth?
      [Det. Spiller]:     That is correct.

Defense counsel never objected on leading or argumentative grounds during

Detective Spiller’s testimony. Appellant argues that “it was never apparent that

Det. Spiller was capable of testifying to many of the ‘facts’ that the prosecution

provided for her.”

      Even if the State asked Detective Spiller improper leading and

argumentative questions to which defense counsel did not object, appellant has not

established that the testimony sought in the questioning was inadmissible or would

not have otherwise come into evidence if defense counsel had objected, the trial

court had sustained the objection, and the State had rephrased its questions. “[I]t is

                                         10
sound trial strategy for opposing counsel to choose not to object to leading

questions when the evidence will come in anyway.” Young, 10 S.W.3d at 713.

Appellant filed a motion for new trial but did not raise ineffective assistance as a

basis for granting a new trial, and, therefore, the record is silent as to why defense

counsel did not object to the State’s questions. We will not speculate on the

reasons for trial counsel’s failure to object. See Wert, 383 S.W.3d at 757; Young,

10 S.W.3d at 713.      Moreover, the State questioned Detective Spiller at the

sentencing hearing following appellant’s guilty plea, and this hearing was held

before the trial court. When the trial court is the fact finder, the court “would not

consider inadmissible evidence or be affected by leading questions.” Posey, 763

S.W.2d at 877.

      We conclude that appellant has not met his burden to establish, by a

preponderance of the evidence, that his trial counsel rendered ineffective assistance

by failing to object to the State’s leading and argumentative questioning of

Detective Spiller.

      C. Failure to Object to Characterization of Recovered Firearm as
         Machine Gun

      Appellant also contends that his trial counsel rendered ineffective assistance

when he failed to object to the State’s and Detective Spiller’s characterization of

one of the weapons recovered during the search of appellant’s residence as a

machine gun because this particular firearm, a Cobray M-11, did not meet the
                                         11
statutory definition of “machine gun,” as defined in Penal Code section 46.01(9).

See TEX. PENAL CODE ANN. § 46.01(9) (Vernon Supp. 2013) (defining “machine

gun” as “any firearm that is capable of shooting more than two shots automatically,

without manual reloading, by a single function of the trigger”).

      During the sentencing hearing, Detective Spiller testified that officers

discovered several firearms during the search of appellant’s trailer. Specifically,

she stated, “There were several long guns, which were rifles, sawed-off shotguns.

We came across a machine gun, handgun, several handguns, ammunition in

various places. The firearms were loaded, most of them.” The State then showed

Detective Spiller Exhibit 24, a photograph that depicted several firearms recovered

during the search, and asked, “[D]oes this look like an Uzi here in the top left

corner?” Detective Spiller replied, “Yes. That’s a machine gun.” During closing

argument, the State made a reference to everyone in appellant’s trailer, “or at least

this Defendant,” being “armed to the hilt with automatic machine guns.” Defense

counsel did not object to any of these references to a “machine gun.”

      On appeal, appellant argues that the particular Cobray M-11 recovered by

police officers in the search of his trailer is a semi-automatic weapon, and not a

submachine gun, and therefore the firearm does not meet the statutory definition of

“machine gun.” Although he cites no authority to support his contention, appellant

argues that trial counsel rendered ineffective assistance when he “never challenged

                                         12
the [State’s] assertion that the Cobray M11 was a ‘machine gun.’” He further

argues that this failure prejudiced him because the trial court specifically

mentioned the fact that appellant possessed a machine gun “as a factor in his

sentencing.”

      As the State points out, this case did not require the State to prove that the

Cobray M-11, or any other firearm recovered during the search, met the statutory

definition of a “machine gun.” Appellant was not charged with committing, for

example, the offense of possessing a prohibited weapon. See TEX. PENAL CODE

ANN. § 46.05(a)(2) (Vernon Supp. 2013) (“A person commits an offense if the

person intentionally or knowingly possesses, manufactures, transports, repairs, or

sells . . . a machine gun.”). Appellant was instead charged with possession of a

controlled substance with intent to distribute and theft of a firearm. The charging

instrument for the theft of a firearm offense did not require the State to establish

that appellant stole a particular type of firearm.

      Even if defense counsel’s representation fell below an objective standard of

reasonableness when he failed to object to the State’s characterization of the

Cobray M-11 as a “machine gun,” we agree with the State that appellant has not

demonstrated prejudice—that is, that a reasonable likelihood exists that, but for

trial counsel’s failure in this regard, the result of the proceeding would have been




                                           13
different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d

at 812. The trial court made the following statements before sentencing appellant:

      Your comments to the presentence report writer did not help you.
      Your testimony did not help you very much either. Your attorney is
      trying to defend you, and there’s not a lot of good things to say about
      you. It’s not as if when you got out on bond you started paying child
      support, you started doing the right thing, you got a job. No, what you
      did on bond is you went and you used. And you came to this Court
      and tested positive. And, so, I really believe that the past behavior is a
      really good predictor of future behavior. Your past behavior is not
      good.
      One of the highlights of the presentence investigation report was when
      you were asked about employment you said, I’m not going to lie to
      you, quote, I’ve never had a job, I don’t have an employment history,
      I’ve always had women take care of me. That went over really well
      with me. Not. Okay? The fact that you’re in a place and you’re
      having your cousin go and get you things because you don’t want to
      leave, the surveillance cameras, the fact that you had a machine gun,
      that just—it [is] indicative of—I’m thankful that there was no
      violence. I will give you credit for that. But the fact that you had
      nine—I heard from this testimony—nine firearms in the house—you
      had money—you had $1,000 in cash, you had pills. You had
      numerous cell phones which were gifts and surveillance cameras
      which were gifts—I don’t have friends bringing me surveillance
      cameras. Your testimony was not credible to me. And the fact that
      you have a fiancée who apparently is trying to get better and get over
      her addiction—last I heard one of the tools they teach you is to not
      hang out with drug users and drug dealers. And that, sir, is what you
      are. You may use, but you also deal.
      And I—I am concerned about the danger that you pose to our
      community, and I’m concerned about the fact that you talked about
      your problem and how you would be benefited. Well, I have to think
      about the county’s benefit. And I don’t think you deserve probation.
      I think the last thing we need is for you to be out there. You had an
      opportunity the last 32 years to live your life in a certain way, and you
      made choices that put you here. And so I’m going to sentence you to
      20 years in prison in TDC.
                                         14
Appellant is correct that the trial court mentioned the fact that he possessed a

machine gun in the trailer at the time of the search, but the trial court also outlined

numerous other facts from the testimony presented at the sentencing hearing and

from the presentence investigation report that influenced its sentencing decision.

The trial court sentenced appellant to twenty years’ confinement, which is well

within the statutory punishment range for a first-degree felony. See TEX. HEALTH

& SAFETY CODE ANN. § 481.112(d) (Vernon 2010) (providing that possession with

intent to distribute between four and two hundred grams of controlled substance in

penalty group one is first-degree felony); TEX. PENAL CODE ANN. § 12.32(a)

(Vernon 2011) (providing that punishment range for first-degree felony is

confinement for five to ninety-nine years or life).

      Appellant has not established that, had his trial counsel objected to the

characterization of the Cobray M-11 as a “machine gun,” and thus required the

State to refer to the firearm as a “semi-automatic” weapon instead, a reasonable

probability exists that the trial court would have assessed a less severe punishment.

See Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000,

pet. ref’d) (stating, in case in which jury assessed punishment, that question was

“whether there is a reasonable probability that the jury’s assessment of punishment

in this case would have been less severe in the absence of counsel’s deficient

performance”).
                                          15
      We therefore hold that appellant has not establish that his trial counsel

rendered constitutionally ineffective assistance when he failed to object to the

State’s (1) use of leading and argumentative questions and (2) characterization of

one of the weapons recovered as a “machine gun.”

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




                                        16
