                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-19-00017-CR



                                ROY DEAN JONES, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee



                             On Appeal from the 5th District Court
                                    Bowie County, Texas
                                Trial Court No. 16F-1126-005




                         Before Morriss, C.J., Stevens and Carter,* JJ.
                        Memorandum Opinion by Chief Justice Morriss


_______________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                       MEMORANDUM OPINION
         While Roy Dean Jones led officers on a two-state motorcycle chase in Texarkana, Texas,

and Texarkana, Arkansas, in mid-2016, a Texas-side police officer saw Jones’ face sufficiently to

identify him and an Arkansas-side police officer read the license plate on his motorcycle. In the

post-event investigation, officers from both states shared information, including the license

number, allowing officials to “run” the plate, to determine Jones’ ownership of the motorcycle,

and to arrest him after the fact. 1 That led to Jones’ conviction for evading arrest with a vehicle 2

and this appeal, in which Jones claims that his trial counsel was ineffective in failing to make a

hearsay or Rule 602 objection to officers’ testimony concerning the license on his motorcycle,

originally identified only by the nontestifying Arkansas-side officer. Because Jones’ counsel was

not ineffective in not so objecting, we affirm Jones’ conviction and sentence.

         As many cases have noted, the right to counsel does not mean the right to errorless counsel.

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prevail on a claim of


1
 Texarkana, Texas, police officer Bo Carter observed a white man with long, white hair and a white beard unsteadily
operating a motorcycle the night of July 15, 2016. Carter then saw the rider fail to completely stop at an intersection
controlled by a stop sign. Concerned the rider could be intoxicated, Carter tried to conduct a traffic stop, but the rider
failed to yield or pull over. Carter pursued, but called for another officer to take over the pursuit. Officer Colten
Johnson was in the area and took over for Carter. The rider still would not yield and crossed into the Arkansas side
of Texarkana. Police departments on both sides of the city use a common channel, and Arkansas officer Josh Jones
took over the chase. Eventually, the rider went back to the Texas side, but continued to elude officers from both sides.
At one point, the rider turned around, and Texas-side officer Johnson testified that, for the brief moment the rider
drove toward Johnson, he saw the rider’s face. At trial Johnson identified Jones as the rider. None of the three police
officers who testified could read the motorcycle’s license plate number. Arkansas officer Jones testified that another
Arkansas officer named Hagan was able to read the plate number; but apparently it was not shared until after the chase.
The rider was not apprehended the night of the chase. Law enforcement ran the license plate number obtained by
Hagan, which reported ownership in Richard Turner. Several officers went to Turner’s home, where Turner reported
having sold the bike to Jones. Law enforcement obtained a driver’s license photo of Jones. Johnson, who briefly had
passed the motorcycle rider face to face on the night of the chase, identified that license photo as the driver.
2
 See TEX. PENAL CODE ANN. § 38.04. Though Jones pled not guilty to the charge, he pled true to two enhancement
allegations and was sentenced to thirty-five years’ incarceration and ordered to pay a $10,000.00 fine.

                                                            2
ineffective assistance of counsel, the defendant must satisfy the two-pronged Strickland test.

Strickland v. Washington, 466 U.S. 668, 687–88 (1984); see also Ex parte Imoudu, 284 S.W.3d

866, 869 (Tex. Crim. App. 2009).

        The first prong requires a showing that counsel’s performance fell below an objective

standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet

since there is “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. “This measure of deference, however, must not

be watered down into a disguised form of acquiescence.” Profitt v. Waldron, 831 F.2d 1245, 1248

(5th Cir. 1987) (finding ineffective assistance where counsel failed to request medical records and

relied on court-appointed competency examination when he knew client had escaped from mental

institution).

        The second Strickland prong, sometimes referred to as “the prejudice prong,” requires a

showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result

of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable

probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.

Thus, to establish prejudice,

        an applicant must show “that counsel’s errors were so serious as to deprive
        defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at
        687 . . . . It is not sufficient for Applicant to show “that the errors had some
        conceivable effect on the outcome of the proceeding.” Id. at 693 . . . . Rather, [he
        or she] must show that “there is a reasonable probability that, absent the errors, the
        fact[-]finder would have had a reasonable doubt respecting guilt.” Id. at 695 . . . .

        ....


                                                   3
       The applicant has the burden to prove ineffective assistance of counsel by a
       preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
       App. 1999). Allegations of ineffectiveness must be based on the record, and the
       presumption of a sound trial strategy cannot be overcome absent evidence in the
       record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d 263,
       269 (Tex. Crim. App. 1999). The reviewing court must look to the totality of the
       representation, and its decision must be based on the facts of the particular case,
       viewed at the time of counsel’s conduct so as to eliminate hindsight bias.
       Strickland, 466 U.S. at 690 . . . . In all cases, the “ultimate focus of inquiry must
       be on the fundamental fairness of the proceeding.” Id. at 696 . . . .

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

       A failure to make a showing under either prong defeats a claim for ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). Allegations of ineffectiveness

“must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.

2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). The Strickland

test “of necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529

U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring

in judgment)).

       “Trial counsel should generally be given an opportunity to explain his actions before being

found ineffective.” Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). Where an

appellate record is silent as to why trial counsel failed to take certain actions, the appellant has

“failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable

or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson

v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

       Jones complains trial counsel should have objected to the witnesses who referred to or

testified about the license plate number that was obtained by a witness who did not testify at trial.
                                                 4
Jones claims this testimony was inadmissible as hearsay and under Rule 602 of the Texas Rules

of Evidence, which requires a witness to have personal knowledge of the matter to which the

witness testifies. See TEX. R. EVID. 602. 3

         Jones’ chase involved various pursuing officers who had to trade off pursuit as he crossed

back and forth between states. Necessarily, the various officers were communicating with each

other via radio. The pursuit happened after dark. Where some officers could not read the license

plate on Jones’ motorcycle, one did. That officer, logically, shared the information with his fellow

officers in the post-pursuit investigation.

         Even if trial counsel had voiced a hearsay objection or had objected under Rule 602 to the

testimony regarding the license plate number, the State could have introduced the same evidence

under the notion that witnesses may answer questions to furnish the jury with background

information. 4      For example, in Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995),

the court found that an appointment book and patient application with the defendant’s name were

offered to show how Dinkins became a suspect, not for the truth of the matter asserted in their

contents. While Dinkins used a suppression motion to challenge testimony he claimed was

hearsay, his situation was analogous to the complaint lodged here by Jones. In neither case was

the State required to prove how the accused became a suspect. Rather, the information was elicited



3
 “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” TEX. R. EVID. 602.
4
  How Jones came to be a person-of-interest, or suspect, in this case was not an element of the offense of evading arrest
or detention with a vehicle. Even if trial counsel successfully made an objection that the testifying officers did not of
their own personal knowledge know the license plate of the motorcycle Jones was riding, Jones’ counsel would not
have excluded from the jury’s consideration the other evidence of Jones’ identity as the runaway biker.
                                                           5
in each case to give the jury a fuller sense of how law enforcement developed the accused as a

suspect. Faced with a record silent as to counsel’s reasons for the trial choices, we must conclude

it could have been a reasonable strategy not to challenge evidence that was not part of the State’s

case-in-chief and could have been introduced through another theory.

       Even had Jones shown his counsel’s performance to have been deficient, he has not

demonstrated a substantial chance that the proceeding would have had a different outcome had

counsel lodged an objection under Rule 602. As described above, such a successful objection

would not have resulted in the exclusion of any evidence needed to prove the State’s case beyond

a reasonable doubt. The State still would have proven that Jones was the motorcycle rider who

evaded officers’ lawful attempts to stop him. It still would have been able to introduce evidence

that Officer Johnson saw Jones’ face at one point during the chase, that Jones was the rider as

established by comparison to a driver’s license photograph, and that Turner identified Jones as the

man to whom Turner sold the motorcycle used in the effort to evade officers.

       Jones fails to establish either element of the Strickland standard for showing ineffective

assistance of counsel. We affirm the trial court’s judgment.



                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:       September 17, 2019
Date Decided:         October 9, 2019

Do Not Publish




                                                6
