                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-253-CR


CHRISTOPHER SCHROEDER                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                STATE

                                   ------------

          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

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                                I. Introduction

     Christopher Schroeder pleaded guilty to two offenses, assault and

aggravated assault, and was sentenced by the jury to concurrent nine-year

sentences and a $1,000 fine for each of the two counts.    In two points,




     1
         … See Tex. R. App. P. 47.4.
Schroeder asserts that he received ineffective assistance of counsel. We affirm.

                      II. Factual and Procedural History

      On November 29, 2007, Schroeder was indicted in Denton County on

two felony counts, second degree assault and first degree aggravated assault,

against his wife, Brandy Schroeder. On June 23, 2008, Schroeder pleaded

guilty to both felony counts, filed an application for probation, and requested

a jury to assess punishment. During the punishment phase, the jury heard

details of the two charged offenses from the arresting officer, the back-up

officer, Brandy, and Schroeder. It also heard about several prior convictions,

as well as several unadjudicated assaultive crimes and bad acts against Brandy

that were not reported to the police.

      Under the appropriate sections of the penal code, the jury was allowed

to sentence Schroeder to ten years for the assault conviction and twenty years

for the aggravated assault conviction. See Tex. Penal Code Ann. §§ 12.33–.34

(Vernon 2003), §§ 22.01, 22.02 (Vernon Supp. 2008).               The jury set

punishment at nine years for each count and assessed a $2,000 fine.

      Following sentencing and an unheard amended motion for new trial,

Schroeder filed his notice of this appeal.




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                     III. Ineffective Assistance of Counsel

      In two points, Schroeder argues that he was denied effective assistance

of counsel because his trial counsel (1) failed to properly object to evidence of

past convictions in accordance with article 37.07(3)(i) of the Texas Code of

Criminal Procedure and (2) failed to properly object to highly prejudicial evidence

of Schroeder’s extraneous misconduct in accordance with rule 403 of the

Texas Rules of Evidence.

A. Standard of Review

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

                                        3
was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.        Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”    Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).        To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,   and   the    record   must   affirmatively   demonstrate    the     alleged

ineffectiveness.”      Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

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words, an appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.     A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id., 104 S. Ct.

at 2068. The ultimate focus of our inquiry must be on the fundamental fairness

of the proceeding in which the result is being challenged. Id. at 697, 104 S.

Ct. at 2070.

B. The First Prong of Strickland

      We first note that if counsel’s reasons for his conduct do not appear in

the record and there is at least the possibility that the conduct could have been

grounded in legitimate trial strategy, we will defer to counsel’s decisions and

deny relief on an ineffective assistance claim on direct appeal. Garza v. State,

213 S.W.3d 338, 348 (Tex. Crim. App. 2007). Although counsel’s reasons for

his actions or intentions with regard to the complained-of stipulations and

unadjudicated bad acts do not appear in the record, it is apparent from the

record that at least one of counsel’s trial strategies was to get Schroeder

probation by showing that Schroeder had accepted responsibility for and was

sorry for his past misconduct.2 Therefore, on the record presented here, we



      2
       … In response to his counsel’s question about whether he wanted to tell
his version of what happened the night of the assault and aggravated assault

                                       5
cannot say that Schroeder received ineffective assistance. See Salinas, 163

S.W.3d at 740; Thompson, 9 S.W.3d at 813.

C. The Second Prong of Strickland

      1. Article 37.07(3)(i) of the Texas Code of Criminal Procedure

      In his first point, Schroeder complains that his trial counsel stipulated to

the admission of State’s Exhibits 15, 16, and 17, which were evidence of two

convictions for driving while license suspended and one conviction for evading

arrest, that he asserts are inadmissible under article 37.07(3)(i) of the code of

criminal procedure because they were time-barred.3

      The State initially argues that, although not apparent on its face, this

article only applies to juvenile convictions when considered in light of its

legislative history. We need not address this argument to dispose of this issue.

During cross-examination, Schroeder admitted that State’s Exhibits 15 and 16

were his convictions and sentences for driving while his license was suspended

and that State’s Exhibit 17 was his conviction and sentence for evading arrest.


charged here, Schroeder replied, “I would rather just accept responsibility for
the charges at hand. I know that I did wrong, and I know I’ve done a lot of
wrong things.”
      3
       … Section 3(i) states that “[e]vidence of an adjudication for conduct that
is a violation of a penal law of the grade of misdemeanor punishable by
confinement in jail is admissible only if the conduct upon which the adjudication
is based occurred on or after January 1, 1996.” See Tex. Code Crim. Proc.
Ann. art. 37.07(3)(i) (Vernon Supp. 2008).

                                        6
He also admitted to an assault charge against him as to Cheryl Bradshaw (his

stepmother), Exhibit 18; a conviction for disorderly conduct, Exhibit 19; a

conviction for evading arrest, Exhibit 20; a charge of driving while license

suspended, Exhibit 21; guilt for possession of marijuana, Exhibit 22; guilt for

family violence, Exhibit 23 4 (Schroeder pushed Brandy down and kicked her in

the neck with his steel-toe boots); probation completion for two driving while

license suspended offenses, Exhibits 24 and 25; and a conviction for family

violence, Exhibit 26 (Schroeder punched, choked, and pushed Brandy so hard

that she had to go to the hospital).         Therefore, Schroeder admitted to his

conduct contained in Exhibits 15, 16, and 17 about which he now complains

and to a series of other guilty pleas, convictions, and sentences.

      Schroeder’s complaint centers on two convictions for driving with a

suspended license and a conviction for evading arrest.         The same type of

charges were contained in exhibits that are not the subject of this appeal, as

were more serious charges, such as assault and family violence. Therefore, we

cannot say that there is a reasonable probability that but for these exhibits,

even if it was professional error to stipulate to their admission, which we do not

decide, a different outcome would have resulted. We hold that the second




      4
          … Schroeder testified that he pleaded guilty but that he really was not.

                                         7
prong of Strickland is not met, that is, if the stipulation to the admission of the

Exhibits was error, it was not so serious as to deprive the defendant of a fair

trial.

         2. Rule 403 of the Texas Rules of Evidence

         In his second point, Schroeder asserts that his counsel was ineffective for

not objecting to four specific unadjudicated bad acts from 1998 under rule 403

of the Texas Rules of Evidence. 5 Those acts were that Schroeder (a) would

“get physical” with his fists with Brandy on a weekly basis while she was

pregnant; (b) would drag Brandy on the ground while she was eight months

pregnant; (c) locked Brandy out of their house keeping her away from her

newborn as a result of a fight; and (d) choked Brandy so hard while she held

their newborn baby that she passed out and dropped the baby to the floor.

         We would first note that the four incidents above are only a portion of the

unadjudicated bad acts testified to at trial. Others included Schroeder choking

Brandy while she was on the floor and tearing the skin on her hand while she

tried to defend herself; punching and hitting Brandy in the head and slapping her

down to the floor to the extent she went to the hospital with three broken ribs;



         5
       … “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” Tex. R. Evid. 403 (emphasis supplied).

                                          8
trying to push her and her car into the house with his Surburban to keep her

from leaving; punching Brandy in the head “alot” because he liked to; pushing

Brandy into the wall hard enough to dent the wall; waving a “big knife” around

and cutting the purse straps off Brandy’s arm with her daughter standing “right

there”; hitting Brandy with a “big heavy drill,” which caused the drill bit to go

into her arm and caused profuse bleeding and a scar; and being mean to

Brandy’s children.

      As in our analysis above, we will concentrate on the second prong of

Strickland, that is, the “focus of our inquiry must be on the fundamental

fairness of the proceeding in which the result is being challenged.” Strickland,

466 U.S. at 697, 104 S. Ct. at 2070. Schroeder pleaded guilty to assault and

aggravated assault.    Several exhibits were introduced concerning previous

charges and convictions.      Numerous other unadjudicated bad acts were

introduced into evidence through testimony. Under these circumstances, we

hold once again that even if the failure to object to these four unadjudicated

bad acts was error, which we do not decide, the error was not so serious as to

deprive the defendant of a fair trial. Schroeder’s second point is overruled.




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                               IV. Conclusion

      Having held that both prongs of the Strickland test are not met by either

of Schroeder’s two points, we overrule his points and affirm the trial court’s

judgment.

                                           PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 16, 2009




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