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


                  No. 06-19-00104-CR



        DEREK LANE ARMSTRONG, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 6th District Court
               Lamar County, Texas
               Trial Court No. 28130




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                     MEMORANDUM OPINION
           Derek Lane Armstrong pled guilty to, and was convicted of, the first-degree felony offense

of manufacture or delivery of a controlled substance, namely methamphetamine, in an amount of

four grams or more, but less than 200 grams. After Armstrong’s election of jury-assessed

punishment, he was sentenced, consistent with the jury’s determination, to twenty-five years’

confinement in prison. In his sole point of error on appeal, Armstrong maintains that he received

ineffective assistance of counsel at trial. Because we find that Armstrong failed to overcome the

strong presumption that his trial counsel provided adequate assistance, we affirm the trial court’s

judgment.

I.         Background

           At trial, Leigh Foreman, a detective with the Paris Police Department, testified that during

his extensive time with the department, his primary responsibilities centered on narcotics and

violent crime investigations. 1 He stated that he had received specialized training in those areas,

including at least forty hours of continuing education every two years. Foreman stated that it was

not at all uncommon for the department to work in unison with the Lamar County Sheriff’s Office

as well as federal agencies, explaining, “It’s just something we develop. It’s effective, and it seems

to do a better job of stopping the flow of drugs.” In February 2018, Foreman, along with Captain

Anson Amis, 2 interviewed Armstrong. At trial, portions of the recording of the interview were




1
 Foreman had been a certified peace officer for about twenty years and worked on narcotics investigations for almost
seventeen of those years.
2
    Amis was the case agent.
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admitted into evidence and published to the jury. Foreman also testified to, among other things,

what he learned during the interview with Armstrong.

        On appeal, Armstrong contends that his trial counsel was ineffective because he failed to

object to much of Foreman’s testimony regarding the interview and failed to object to portions of

the content of the recording itself. The crux of the complained-of evidence centers on Foreman’s

belief that Armstrong was being deceitful and that he failed to cooperate with law enforcement

officers in their investigation.

        For example, Armstrong complains of Foreman’s testimony regarding the relationship he

had with “Casper,” who was identified as a drug supplier and, specifically, whether Armstrong

was being honest about the length of their relationship:

                 Q.       It is that sort of thing that -- there’s sort of a vetting process and a
        test to see if this person is reliable before you can get that far into things?

                A.     Well, certainly it’s a test and you are vetted, but the vetting never
        stops. If they never trust you, if they get hinkey, or they ever are scared of you,
        then they will pull the plug on it. It’s a constant vetting, proving process. Either
        [Armstrong] is lying about how long he’s been in it, trying to minimize, or he’s
        actually been dealing with this guy quite a bit longer to get to that process, to meet
        a roommate. The roommate asked him to make a carrying case for the dope like he
        has. You don’t do that -- it just doesn’t happen in five or six trips -- five to six
        contacts. It doesn’t happen.

According to Armstrong, Foreman’s testimony was “without any foundation of personal

knowledge, was not objected to, and was not challenged during cross[-]examination.” 3



3
 Armstrong contends that his counsel was ineffective because he failed to ask, among other things, the following
questions in an effort to challenge Foreman’s testimony: (1) “How do you know Casper ever reveals his true identity
to anyone that ranks below him?”; (2) “Have you ever met Casper?”; and (3) “Do you even know Casper’s real
name?” Armstrong argues that the answers to these types of questions could have significantly impacted the jury’s
assessment of punishment.
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       In addition, Armstrong maintains that his trial counsel rendered ineffective assistance when

he failed to object to or challenge Foreman’s testimony regarding Armstrong’s refusal to cooperate

with investigators. For instance, when Foreman was asked if Armstrong was cooperative in

general, he responded, “Not very.” He also said, “I think it’s apparent he was untruthful through

the entire interview.” Foreman then went on to explain the reasoning for his opinions, most of

which were based on his experience with narcotics investigations.

       Similarly, Armstrong also challenges the following portions of Foreman’s testimony:

              Q.     (By [the State]) Okay. We talked a little bit about the phone and the
       importance of getting into a phone for investigations. Were you able to get into
       [Armstrong]’s phone?

               A.       Captain Amis was able to get into it.

                Q.    Was he able to recover a full amount of information or just a little
       bit that [Armstrong] was willing to share?

              A.    My understanding is just a little bit that [Armstrong] wanted to share
       concerning Matt Dorey, he’s a narcotics dealer, user from the Blossom area.

              Q.        So did he limit his cooperation regarding his phone to that one
       individual?

               A.       That’s my understanding; yes.

               Q.       And had he already given up that individual during the course of the
       interview?

               A.       Correct.

According to Armstrong, his trial counsel failed to provide effective assistance of counsel because

he did not object to this portion of Foreman’s direct testimony and did not challenge his testimony

on cross-examination.

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II.    Ineffective Assistance of Counsel Has Not Been Shown

       In his sole point of error, Armstrong contends that his trial counsel rendered ineffective

assistance when he failed to object to or challenge Foreman’s testimony because his testimony

“was based on assumptions, not personal knowledge of the individuals or facts at issue in the case.”

Armstrong maintains that he was harmed by his counsel’s failure to object to or follow-up on

Foreman’s testimony because his testimony “gave the false impression that what [he] said could

be relied upon as gospel truth, when in fact it was not even admissible or, in the alternative, was

at least easily impeached.”     According to Armstrong, this Court should vacate the jury’s

assessment of punishment, enter an order appointing new counsel, and remand the case to the trial

court for a new trial on punishment. We disagree.

       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). “In order to prevail on a claim

of ineffective assistance of counsel, the defendant must satisfy the two-prong test set forth in

Strickland v. Washington.” Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—Texarkana 2015,

pet. ref’d) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Ex parte Imoudu, 284

S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding)). “The first prong requires a showing

that counsel’s performance fell below an objective standard of reasonableness.” Id. at 896–97

(citing 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 897 (quoting Strickland, 466 U.S. at 689). “This measure of deference,

however, must not be watered down into a disguised form of acquiescence.” Profitt v. Waldron,

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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).

       “When a claim of ineffective assistance of counsel is raised for the first time on direct

appeal, the record ‘is in almost all cases inadequate to show that counsel’s conduct fell below an

objectively reasonable standard of performance.’” Parmer, 545 S.W.3d at 725 (citing Andrews v.

State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005)). Moreover, where the reviewing court “can

conceive potential reasonable trial strategies that counsel could have been pursuing,” the court

“simply cannot conclude that counsel has performed deficiently.” Id. at 103. “[W]hen a defendant

raises an ineffective assistance of counsel claim for the first time on direct appeal, he must show

that ‘under prevailing professional norms,’ Strickland, 466 U.S. at 688, no competent attorney

would do what trial counsel did or no competent attorney would fail to do what trial counsel failed

to do.” Parmer, 545 S.W.3d at 728 (citing Andrews, 159 S.W.3d at 102).

       “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.” Lampkin, 470 S.W.3d at 897 (quoting Strickland,

466 U.S. at 694). “A reasonable probability” is defined as “a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, in order 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]


                                                  6
         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 . . . .

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

         The appellant 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 firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813). 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)). “A

failure to make a showing under either prong defeats a claim of ineffective assistance.” Parmer

545 S.W.3d at 728 (citing Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)).

         The procedures to be followed at the punishment phase of the trial and the evidence that

may be considered in determining punishment are set out in Article 37.07 of the Texas Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07 (Supp.). 4 This statute authorizes

the admission of evidence in the punishment phase of trial as to any matter that the court deems

relevant to sentencing. Id. The circumstance of the offense is relevant to sentencing and may be

considered by the fact-finder in determining the punishment to be assessed. Eaves v. State, 141

S.W.3d 686, 692 (Tex. App.—Texarkana 2004, pet. ref’d). Yet, “the question at punishment is



4
 Article 37.07, Section 3(a)(1), states,
          [E]vidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant
          to sentencing, including but not limited to the prior criminal record of the defendant, his general
          reputation, his character, an opinion regarding his character, [and] the circumstances of the offense
          for which he is being tried . . . .”
TEX. CODE CRIM. PROC. ANN. art 37.07, § 3(a)(1) (Supp.).
                                                           7
not whether the defendant has committed a crime, but instead what sentence should be assessed.”

Thompson v. State, 425 S.W.3d 480, 491 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d)

(quoting Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). Article 37.07 authorizes

both character evidence in the form of opinion testimony and extraneous-offense evidence.

       We first note that Armstrong filed an application for community supervision, asking the

jury to refrain from assessing a period of confinement in prison as his punishment and to, instead,

place him on community supervision. When considering whether community supervision is the

appropriate punishment, the jury is required to make “two determinations—(1) the truth or falsity

of the information in the defendant’s motion, and (2) whether to recommend that the defendant be

placed on community supervision instead of serving a term of confinement.” Ellison v. State, 201

S.W.3d 714, 718 (Tex. Crim. App. 2006). As stated in Pantoja v. State,

       When evidence of a person’s character or character trait is admissible—as a
       defendant’s character traits pertaining to his suitability for community supervision
       are when the defendant requests community supervision—such character traits may
       be proved by testimony about the person’s reputation or by testimony in the form
       of an opinion.

Pantoja v. State, 496 S.W.3d 186, 190 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing TEX. R.

EVID. 405(a); Wilson v. State, 71 S.W.3d 346, 349–51 (Tex. Crim. App. 2002)).

       Here, Foreman testified that, in his opinion as an officer specializing in drug enforcement

investigations, Armstrong failed to cooperate with officers and was being dishonest during his

interview. That information was relevant in determining whether Armstrong would be a suitable

candidate for community supervision. Certainly, a jury would be interested in knowing whether

Armstrong would likely cooperate with his community supervision officer, follow rules and

                                                8
conditions while on community supervision, and be honest about his circumstances when he

reported to his community supervision officer. Accordingly, Foreman’s testimony was relevant

and admissible pursuant to Article 37.07 of the Texas Code of Criminal Procedure.

            Likewise, Armstrong has not overcome the presumption that his counsel’s failure to

challenge Foreman’s opinions was part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 713–

14 (Tex. Crim. App. 2000). It is reasonable to believe that Armstrong’s counsel would be

concerned that any responses he elicited from Foreman on cross-examination might result in

testimony that was contrary to his client’s benefit or that Foreman’s answers to his questions would

inadvertently open new avenues of inquiry by the State. Because we “can conceive [these]

potential reasonable trial strategies that counsel could have been pursuing,” we “simply cannot

conclude that counsel has performed deficiently.” Andrews, 159 S.W.3d at 103. Moreover,

because Armstrong has not shown that his trial counsel’s performance was deficient, he has failed

to satisfy the first Strickland prong. 5 We, therefore, overrule Armstrong’s point of error.




5
    Because Armstrong failed to satisfy the first prong of Strickland, we need not address Strickland’s second prong.
                                                            9
III.   Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:       December 6, 2019
Date Decided:         December 18, 2019

Do Not Publish




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