
Opinion issued September 20, 2007








 



In The
Court of Appeals
For The
First District of Texas



NO. 01-05-01184-CR



ARCHIE DOYLE MARTIN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1006695



O P I N I O N

	Appellant, Archie Doyle Martin, Jr., was charged by indictment with the felony
offense of driving while intoxicated ("DWI"), having been twice previously convicted
of DWI. (1)  Appellant pleaded not guilty.  A jury found him guilty as charged and the
trial court assessed punishment at two years' confinement.
	In one issue, appellant contends that he was denied his Sixth Amendment right
to effective counsel based on his trial counsel's failure to investigate, failure "to
object or limine prior convictions" of appellant, and "bizarre and unprofessional
actions" during trial.
	We affirm.
Background
	During the evening rush hour on November 8, 2004, Danielle Guessman was
traveling along a two-lane road outside of Crosby, Texas, when she noticed appellant
driving erratically in front of her.  Guessman's passenger, Toni Alford, called 911 and
reported that appellant was swerving and had nearly collided with oncoming traffic
several times.  Guessman and Alford saw appellant hit a concrete barricade and then
saw him hit a Ford Explorer at an intersection, where appellant finally came to a stop. 
	Guessman, who had stopped to check on the driver of the Explorer, testified
that appellant got out of his vehicle and staggered as he walked to the Explorer. 
Alford testified that appellant was dressed in work clothes, that he smelled of sweat
and alcohol, and that he had urinated on himself.  In addition, Alford testified that
appellant seemed disoriented, could not hold his head up, and hung onto his vehicle
for balance. 
	Another driver at the intersection, Tiffany Hargrove, testified that she was
stopped at the light behind the Explorer, that she saw appellant coming, and that she
swerved to get out of the way just before appellant hit the Explorer.  Hargrove said
that, when she got out of her car, she heard the driver of the Explorer say to appellant,
"You're drunk."  Hargrove testified that appellant responded, "I am not drunk," and
that the driver insisted, "Yes, you are drunk."  Hargrove also observed that appellant
seemed to have trouble keeping his balance.
	Harris County Deputy Sheriff Travis Kirkley arrived at the scene moments after
the accident occurred.  Deputy Kirkley testified that appellant seemed disoriented,
was slurring his speech, was hanging onto his vehicle for stability, had urinated on
himself, and had a strong odor of alcohol on his breath and person.  Deputy Kirkley
testified that appellant admitted he had taken "three sips of a beer."  Deputy Kirkley
learned that appellant's license had been suspended and saw an open container of
beer on the driver's side of the bench seat in appellant's truck.  Deputy Kirkley
testified that, based upon his observations and upon the witnesses' statements, he
formed the opinion that appellant was intoxicated.  Deputy Kirkley arrested appellant
and found an un-labeled pill bottle containing white pills in appellant's pocket, later
determined to be muscle relaxers.  Deputy Kirkley did not perform field sobriety tests
at the scene because of the backup of traffic caused by the accident. 
	Deputy Kirkley transported appellant 10-15 miles to the police station, where,
normally, field sobriety tests would have been administered in front of a video
camera.  However, in this case, Deputy Kirkley testified that he was not sure if field
sobriety tests had been performed and that any video created could not be found. 
	Appellant disputes that he was intoxicated.  Appellant testified that he had just
left work and was driving to Crosby.  Appellant admitted that he stopped and
purchased a beer at a convenience store, that he opened it, and that he took "a couple
of big swallows" before he set it beside him in his lunch cooler on the seat.  Appellant
testified that he was driving along until the Explorer made a sudden move at the
intersection and he could not avoid the collision. 
	Appellant further testified that his truck sways because it is a 1983 model with
major problems in the steering box and tie rods.  Appellant, who is a pipe fitter, said
that he was very sweaty and dirty, but that at no time did he urinate upon himself. 
Appellant explained that he has had multiple back surgeries and that the bottle of pills
was an old prescription of his that he had found in his tool box that day and he was
taking the medication home to get it off of the job site.  Appellant testified that there
were no field sobriety tests administered, but that he submitted two samples for breath
testing.  Appellant claimed that his results were "0.00" both times.  There are no
breath test results in evidence.
	On November 10, 2004, Natasha Sinclair was appointed as counsel for
appellant.  At appellant's request, Sinclair moved for blood testing to establish that
appellant was not under the influence of a controlled substance, which the trial court
granted.  Sinclair also moved for the appointment and payment of an investigator to
assist with the preparation of appellant's defense, which the trial court granted.  The
results of any testing or investigation, however, are not in the record.  On December
16, 2004, Sinclair withdrew as counsel and the trial court substituted Walter Boyd,
whose representation is the subject of this appeal.
	Trial in the matter was held on July 18, 2005.  The State presented evidence
that appellant previously had been convicted of DWI, in years 2000 and 2001.  The
trial court instructed the jury that it could find appellant guilty of having operated a
motor vehicle in a public place while intoxicated by alcohol, by an unknown drug, or
by a combination of both.  The jury returned a general verdict of guilty.  On
September 19, 2005, Boyd withdrew as appellant's counsel.  On December 15, 2005,
the trial court assessed punishment at 2 years' confinement, signed the judgment, and
appointed appellate counsel.  There was not a motion for new trial.  This appeal
followed.
Ineffective Assistance of Counsel
	In one issue, appellant contends that he was denied his Sixth Amendment right
to effective counsel because his trial counsel, Walter Boyd, (1) failed to investigate
and failed to conduct discovery with regard to the results of his breath tests; (2) failed
"to object or limine prior convictions" of appellant; and (3) engaged in "bizarre and
unprofessional" conduct at trial. 
	Appellant was entitled to reasonably effective assistance of counsel.  See U.S. 
Const. amend. VI; Tex. Const. art. I, § 10.  The right to counsel, however, does not
mean the right to errorless counsel.  Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006).  To prove ineffective assistance of counsel, appellant must show
that (1) counsel's performance fell below an objective standard of reasonableness,
and (2) but for counsel's unprofessional error, there is a reasonable probability that
the result of the proceeding would have been different.  Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98,
102 (Tex. Crim. App. 2005).  "Reasonable probability" means a "probability
sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at
2068.  
	To prevail, appellant must prove ineffective assistance by a preponderance of
the evidence and must overcome the strong presumption that counsel's conduct falls
within the wide range of reasonably professional assistance or might reasonably be
considered sound trial strategy.  Robertson, 187 S.W.3d at 482-83; Gamble v. State,
916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).  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).
	As the reviewing court, we consider the totality of the representation. 
Robertson, 187 S.W.3d at 483.  Isolated instances of errors of commission or
omission will not render counsel's performance ineffective.  Id.  We consider the
adequacy of assistance as viewed at the time of trial, not through hindsight.  Id.  
	Allegations of ineffectiveness must be firmly founded in the record.  Bone v.
State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002).  Generally, the record on
appeal is undeveloped, and a silent record that provides no explanation for counsel's
actions will not overcome the strong presumption of reasonable assistance.  Rylander,
101 S.W.3d at 110-11.  In those rare cases in which the record is sufficient to prove
that counsel's performance was deficient, we will address the claim.  Bone, 77
S.W.3d at 833 & n.7.
	1.	Failure to Investigate or Conduct Pre-Trial Discovery
 In his first sub-issue, appellant contends that Boyd failed to investigate and
failed to conduct discovery with regard to the results of his breath tests. Appellant
contends that his breath tests would have "conclusively" shown that he was not
intoxicated. 
 An attorney representing a criminal defendant has a duty to make reasonable
investigations.  Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 2535
(2003); McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overuled
on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).  A
"decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's judgments." Id.
at 521-22, 123 S. Ct. at 2535.  "We will not reverse a conviction unless the
consequence of the failure to investigate is that the only viable defense available to
the accused is not advanced . . . [and] there is a reasonable probability that, but for
counsel's [failure to advance the defense], the result of the proceeding would have
been different."  McFarland, 928 S.W.2d at 501; see also Johnson v. State, 172
S.W.3d 6, 12 (Tex. App.--Austin 2005, pet. ref'd) (considering impact of failure to
discover audiotape incriminating appellant).
	Here, appellant's defense at trial was that he was not intoxicated.  Appellant
contends that he gave two samples for breath testing, that he saw the test results, and
that his blood-alcohol level was ".000 [sic] percent." Appellant contends that Boyd
failed to make any attempt to obtain the breath-test results, as indicated by the lack
of pre-trial motions in the record.  Appellant contends that, had Boyd conducted
"proper investigation and pre-trial discovery, [Boyd] would have discovered scientific
testing results that were conclusive and exculpatory on the issue of intoxication."  
Appellant contends that, without the test results, the only evidence appellant was able
to present in his defense was his own testimony that he was not intoxicated.
	The record before us does not contain any pre-trial motions with regard to
breath test results.  An order for blood testing appears, but there are no results in the
record.  The record shows that an investigator was appointed to assist appellant's
previous counsel in the preparation of appellant's defense; however, any findings of
such an investigation do not appear in the record.  The only evidence at trial that
breath testing was conducted was appellant's testimony that he was tested and that
he saw the results attached to the State's file at the probable cause hearing. At trial,
Boyd asked the State if it had a copy of the results.  The State replied that it did not
and stated that appellant's testimony concerning the breath tests was false.
	The record does not reflect whether Boyd sought the breath test results or, if
not, the reasons that Boyd did not seek the results through pre-trial motions.  As the
State contends, Boyd may have adopted a strategy to allow the jury to believe that the
State had "conveniently lost" exculpatory evidence.  We cannot speculate as to what
evidence may have been available and, if available, whether Boyd found it to be as
favorable as appellant recalled.  Bone, 77 S.W.3d at 834-35 & n.21.  Appellant did
not file a motion for new trial and no hearing was held on the ineffectiveness claim,
during which the matter could have been developed in the record.  As a result,
appellant has not overcome the presumption that counsel could have acted pursuant
to sound trial strategy.  See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App.
2002); Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.] 1999, pet.
ref'd). 
	Moreover, as the State contends, the jury was charged that it could find
appellant guilty on any one of three theories of intoxication; namely, by reason of
alcohol, an unknown drug, or a combination of both.  The jury returned a general
verdict which could have been based solely upon the introduction of an unknown
drug.  Although breath test results reflecting a 0.00 percent blood-alcohol level would
have supported appellant's defense to the theory of intoxication by alcohol, the breath
test results would not have provided a defense to the theory of intoxication by an
unknown drug.  Hence, appellant has not shown that, had the breath test results been
made available and admitted into evidence, there is a reasonable probability that the
result of the proceeding would have been different.  
	Accordingly, appellant's first sub-issue is overruled.
 2.	Appellant's Prior Convictions
	Appellant next contends that he was denied effective assistance of counsel
because his trial counsel permitted the jury to hear evidence of appellant's prior
convictions that were inadmissible under Theus v. State, 845 S.W.2d 874 (Tex. Crim.
App. 1992).  Specifically, contends appellant, counsel failed to request notice from
the State regarding its intent to use his prior convictions, failed to file a motion in
limine regarding the admissibility of his prior convictions, elicited testimony from
appellant at trial concerning his prior convictions, and failed to object to the State's
cross-examination of appellant regarding his prior convictions.
	The mere failure to file pretrial motions does not categorically constitute
ineffective assistance.  Autry v. State, 27 S.W.3d 177, 182 (Tex. App.--San Antonio
2000, pet. ref'd).   Here, appellant has not stated what he would have done differently
had his counsel requested and had he received notice of the State's intent to use his
prior convictions.  See id.  In addition, because there was no motion for new trial or
hearing on the ineffective assistance claim, the record does not reflect counsel's
motivations behind his decision not to file a motion in limine.  However, any failure
to file a motion in limine became moot once appellant introduced his prior
convictions through his own testimony.  
	Appellant elected to testify during the guilt phase of the trial.  The record
shows that, at the beginning of direct examination, appellant's counsel elicited the
following testimony: 
	[Counsel]:		All right.  I think we've heard a little bit about you already. 
Let's get this behind us.  Now, what's your dog-gone
criminal record about?  What is it?  Tell the jury.
	[Appellant]:	It goes back some years to approximately 1981, I think. 
There is a theft by receiving case back when I was 19 years
old.  There was a couple of drug cases later on, a couple of
DWIs that I plea-bargained to DWI [sic] to keep from
spending a lot of money and sitting a lot of time in jail
awaiting to go to trial like this.  And, then this crime that
I'm being accused for now.
	[Counsel]:		Well, are you guilty of driving while intoxicated on the
case that we're on trial for today?
	[Appellant]:	No, I am not.
	. . . . 
	[Counsel]:		 . . . regardless of whether you were guilty before of DWI,
you're saying you're not guilty this time?
	[Appellant]:	This is correct.  I am not guilty this time.
	On cross-examination, the State elicited testimony from appellant concerning
his prior convictions for theft in 1981 and 1982, for DWI in 1984, twice for felony
possession of controlled substances in 1997, for felony delivery of a controlled
substance in 1999, and for failure to identify himself to a police officer by giving a
false name and birthdate in 2004.  Appellant's counsel did not object.
	Appellant contends that counsel was ineffective because he permitted the jury
to hear evidence of prior convictions, which created a danger that the jury would
convict appellant based on a perceived pattern of past conduct rather than on the facts
of the instant offense.  The State contends that appellant's counsel clearly made a
tactical decision to have appellant acknowledge his faults before the jury to build
credibility to support appellant's assertion of innocence in the instant offense. 
	This court has held that eliciting testimony from the accused as to his own prior
convictions can be a matter of sound trial strategy, if the prior convictions are
admissible.   Rodriguez v. State, 129 S.W.3d 551, 558-59 (Tex. App.--Houston [1st
Dist.] 2003, pet. ref'd).  However, if prior convictions are inadmissible, the Court of
Criminal Appeals has held that there can be no reasonable trial strategy for bringing
them to light.  Robertson, 187 S.W.3d at 485-86; Rodriguez, 129 S.W.3d at 559.  
	Rule of Evidence 609, which governs the admissibility of prior convictions,
provides: 
	(a) General Rule: For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime shall be
admitted . . . only if the crime was a felony or involved moral turpitude,
regardless of punishment, and the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect to a
party.
	(b) Time Limit: Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date
of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court
determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect.

Tex. R. Evid. 609.

 Applying rule 609(b) and considering only the dates of each conviction
because appellant has not provided many of the attendant facts, it appears that only
appellant's 1982 and 1983 thefts could be considered too remote to be admissible
because all (2) of the other offenses occurred within the 10-year period prior to the
instant offense.  See id.  Because appellant was convicted in 2004 of a crime of moral
turpitude--lying to the police, the 2004 conviction can remove the taint of the
remoteness of the thefts.  See Rodriguez, 129 S.W.3d at 559 (explaining that 
appellate court may find that, although crime is remote under rule 609(b), later
convictions for felonies or misdemeanors involving moral turpitude can be "tacked
onto" remote convictions, which removes taint of remoteness); Lape v. State, 893
S.W.2d 949, 958 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd) (stating that
lying to police is crime of moral turpitude).  Thus, the remoteness alone of the thefts
would not have rendered them inadmissible.  See id.
 Applying rule 609(a), appellant's 1984 DWI, which was a misdemeanor, was
not admissible.  See Tex. R. Evid. 609(a).  Because appellant's drug convictions are
felonies, and his thefts and failure to properly identify himself to a police officer are
crimes involving moral turpitude, these prior convictions are admissible if the
probative value of admitting the evidence outweighs its prejudicial effects.  See Tex.
R. Evid. 609(a); Rodriguez, 129 S.W.3d at 559 (stating that theft is crime of moral
turpitude); Lape, 893 S.W.2d at 958 (stating that lying to police is crime of moral
turpitude).  
	The Court of Criminal Appeals has set out a test for determining whether the
probative value of a conviction outweighs its prejudicial effect under rule 609. 
Theus, 845 S.W.2d 880.  Under Theus, we consider (1) the impeachment value of the
prior offense; (2) the temporal proximity of the past crime relative to the charged
offense and the witness's subsequent history; (3) the similarity between the past crime
and the offense being prosecuted; (4) the importance of the defendant's testimony;
and (5) the importance of the credibility issue.  Id. 
	First, we consider the impeachment value of the prior offense.  Id. at 881;
Rodriguez, 129 S.W.3d at 559.  Offenses involving moral turpitude carry a higher
impeachment value. Theus, 845 S.W.2d at 881. Appellant's 1997 and 1999 drug
convictions are not crimes of deception.  See Denman v. State, 193 S.W.3d 129, 136
(Tex. App.--Houston [1st Dist.] 2006, pet. ref'd).  However, appellant's thefts
involve deception.  See Rodriguez, 129 S.W.3d at 559.  In addition, appellant's 2004
conviction for failure to identify himself to police involved deception because he
gave a false name and birthdate.  This first Theus factor weighs in favor of
admissibility of the thefts and the failure to identify. 
	Second, temporal proximity favors admissibility if the past crimes are recent
and the witness has demonstrated a propensity for running afoul of the law.  Theus,
845 S.W.2d at 881.  Appellant's drug convictions and failure to identify himself to
police were recent, having occurred within the prior 10 years.  As discussed above,
the theft convictions are not recent, having occurred over 20 years prior to the instant
offense.  However, appellant has demonstrated "a propensity for, and a history of,
running afoul of the law" because his record includes multiple prior convictions
spanning over 20 years.   See  Rodriguez, 129 S.W.3d at 560.  This factor weighs in
favor of the admissibility of appellant's prior convictions.  See id.
	Third, we consider the similarity of the past convictions to the current crime. 
See id.  If the past crime is similar to the charged crime, this factor will "militate
against admission" for impeachment purposes because there is a greater danger that
the jury will convict on a perception of a pattern of past conduct. Theus, 845 S.W.2d
at 881.  Here, appellant's 1997 and 1999 drug convictions relate to his current charge
of intoxication by an unknown drug; thus, this factor weighs against  admissibility. 
However, as to the two thefts and failure to identify, which are not similar to the
charged offense, this factor weighs in favor of admissibility.  See id.; Rodriguez, 129
S.W.3d at 559.
 Finally, under the fourth and fifth factors, we consider the importance of
appellant's testimony and of his credibility.  Theus, 845 S.W.2d at 881.  We consider
the defendant's defense and the means at his disposal to prove that defense.  Id.  Here,
having chosen to testify and as the only witness for the defense, appellant's credibility
was important.  The evidence that appellant claims would have empirically refuted
the State's claims was either not available or was not introduced (breath tests, blood
tests, video).  Hence, appellant had a heightened need to establish his credibility,
while the State had a need to impeach appellant's credibility.  See id.  Thus, the fourth
and fifth factors favor admission to impeach appellant's credibility.  See id.
	We conclude that appellant's prior theft convictions, prior felony drug
convictions, and his conviction for lying to the police were likely admissible. 
Because it also appears that appellant's candor before the jury concerning his prior
convictions was a strategic attempt to appear open and honest, and to lessen the
impact of any impeachment on the issue, we cannot conclude that his counsel
provided ineffective assistance with regard to the introduction of these convictions. 
See Rodriguez, 129 S.W.3d at 558, 560. 
	Although appellant's 1984 misdemeanor conviction for DWI was not
admissible under Rule 609, appellant has not shown that there is a reasonable
probability that, but for his counsel having permitted the jury to hear inadmissible
evidence of the 1984 DWI conviction, the outcome of the proceeding would have
been different.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
	In a subpoint, appellant complains that his counsel failed to object to the
State's cross-examination of appellant as to his prior convictions.   However, once the
door was opened to appellant's prior convictions by his counsel, the State was
entitled to develop testimony to fully explain these convictions, even if such evidence
might ordinarily have been inadmissible.  See King v. State, 773 S.W.2d 302, 303
(Tex. Crim. App. 1989); Paita v. State, 125 S.W.3d 708, 713 (Tex. App.--Houston
[1st Dist.] 2003, pet. ref'd).  Counsel is not ineffective for failing to make objections
that have no legal basis. 
	Accordingly, appellant's second sub-issue is overruled.
"Bizarre" Conduct of Counsel at Trial	In his third sub-issue, appellant contends that he was denied effective
assistance of counsel because his trial counsel "acted in a bizarre and unprofessional
manner many times during trial."  Specifically, appellant contends that "[t]he trial
record is full of instances where trial counsel either acted in a non-adversarial
manner, or acted in a bizarre, highly unusual way, all of which prejudiced Appellant." 
 Appellant cites three specific instances, as follows:
	First, appellant complains of the following exchange that took place outside the
presence of the jury concerning appellant having fallen asleep during portions of his
attorney's voir dire:
	[Trial Court]:	I'm foreseeing--I mean, if your client gets convicted and
the case gets appealed, the record is replete with evidence
of your client being asleep during jury selection and no
effort was made to kind of remedy the prejudicial impact
that may have on the jury.  You know, I'm concerned about
this case being set up for a reversal, for, you know, your
client being asleep during jury selection and no effort was
made to remedy it, and as a result of his counsel not
making any effort to make sure the jurors would not hold
it against him, you know.
	[Boyd]:		Well, I am not worried about the reflection it may have on
me.
	[Trial Court]:	Maybe ineffective assistance of counsel.
	[Boyd]:		I know when I'm effective and when I am not.
	[Trial Court]:	Well, unfortunately, you don't get to decide that, the Court
of Appeals gets to decide that.
	[Boyd]:		Well, they can take a flying leap, if they want to.  I just
know I've already assessed the thing, it's gone through my
brilliant mind as to how I want to handle this, and I would
prefer that it just be left alone. . . .

	Appellant does not state any specific argument or cite any authority to support
his contention that this example demonstrates ineffective assistance of counsel.   We
note that it has been held that a defendant's choice to sleep through portions of his
trial does not render his counsel's assistance ineffective.  Carter v. State, 99 S.W.3d
772, 772-73 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (holding that choosing
to sleep waives right to be present); see also Hawkins v. State, 660 S.W.2d 65, 79
(Tex. Crim. App. 1983) (concluding that commenting on fact that defendant slept
during his trial amounts to little more than directing the jury's attention to that which
jurors had already witnessed).
	Second, appellant complains of the following exchange that took place during
direct examination of appellant:
	[Defense counsel]:	Well, [appellant], your life is a dad-gum mess.  Do
you admit that?
	[Appellant]:		I admit I've made some mistakes, yes, sir.
	[Defense counsel]:	You're not only--like the prosecutor says--and I'd
have to agree--you're a liar, you've covered up,
you're a thief, you're a drug dealer, you're all of
those things, and you've committed so many dad-gum crimes you cannot even remember them all.  Is
that right or not?
	[Appellant]:		No, that's not correct.
	[Defense counsel]:	Well, I'm probably exaggerating a bit.
	[Appellant]:		No, that's not correct.
	[Defense counsel]:	But you've got a lot of them.  And now you
say--and by the way, you know--I'm going to bring
this up because I think I'm doing it with your
permission.  I advised you not to testify, didn't I?
	[Appellant]:		Yes, you did.
	[Defense counsel]:	Now, I told you your personality sucks, didn't I?
(Emphasis by appellant.)  In addition, appellant complains that his counsel improperly
characterized appellant as an arrogant, audacious, spoiled brat.  
	The United States Supreme Court has examined a similar case in which defense
counsel mentioned a host of details concerning his client's character and in which
defense counsel referred to the defendant as "a bad person, lousy drug addict, stinking
thief, [and a] jail bird." Yarborough v. Gentry, 540 U.S. 1, 9, 124 S. Ct. 1, 9 (2003). 
In refusing to find counsel ineffective, the Court explained that "[t]his is precisely the
sort of calculated risk that lies at the heart of an advocate's discretion.  By candidly
acknowledging his client's shortcomings, counsel might have built credibility with
the jury and persuaded it to focus on the relevant issues in the case."  Id. 
	Here, as discussed above, appellant had already testified, both on direct and on
cross-examination, to a host of prior convictions, including theft and selling drugs. 
In addition, appellant testified that he had been convicted of having lied to the police
and that he had once lied to a trial court judge.  Appellant has not demonstrated that
his counsel, by acknowledging the shortcomings that appellant had already placed
before the jury through his own testimony, was deficient in his performance.  See id.
 Moreover, as in Yarborough, the case turned on whether the jury believed the
appellant's version of the events.   Here, as in Yarborough, at issue are statements by
the appellant's counsel enumerating his client's faults.  In Yarborough, the Court
explained that "[w]hile confessing a client's shortcomings might remind the jury of
facts they otherwise would have forgotten, it might also convince them to put aside
facts they would have remembered in any event."  Id.  In addition, in explaining that
there is nothing wrong with a rhetorical device that personalizes the doubts that
anyone might have, the Court commented that "[w]inning over an audience by
empathy is a technique that dates back to Aristotle."  Id. at 11.  Like Yarborough, we
cannot conclude that acknowledging and identifying with the negative impressions
the jury was likely to harbor rendered counsel's performance deficient.
	Finally, appellant complains of his counsel's attempt to have included in the
jury charge that "the defendant's bad personality from the stand cannot be used
against him as any evidence of guilt," "[t]hat his lawyer's obnoxious personality
cannot be used as any evidence of guilt," and that "[t]he prosecutor's wonderful
personality cannot be used as any evidence of guilt."  Not surprisingly, the trial court
denied these requests.  See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App.
2005) ("Requesting a jury instruction to which one is not legally entitled, merely for
the sake of making the request, is not the benchmark for a competent attorney."). 
However, taken in the full context of counsel's apparent strategy to gain credibility
with the jury, we cannot conclude that these statements constituted ineffective
assistance of counsel.  

	Assertions of ineffective assistance must be firmly founded in the record. 
Bone, 77 S.W.3d at 835; Gamble, 916 S.W.2d at 93.  Here, the record does not
contain counsel's reasons for his approach.  Appellant did not file a motion for new
trial, in which counsel's reasons could have been developed on the record.  When the
record is silent, we may not speculate about why counsel acted as he did. Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994); Gamble, 916 S.W.2d at 93. We
must presume counsel had a plausible reason for his actions. Safari v. State, 961
S.W.2d 437, 445 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd).  Appellant has
not overcome the strong presumption that counsel might have acted pursuant to sound
strategy.  See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.]
1999, pet. ref'd).  Appellant seems to contend that this is one of those "rare cases" in
which a record silent as to counsel's reasoning nonetheless reveals counsel's
deficiency.  See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). 
We disagree.  In this case, counsel's actions are not such that no reasonable trial
strategy could explain them. 
	We conclude that appellant has not shown that defense counsel's representation
fell below an objective standard of reasonableness.  We hold that appellant did not
receive ineffective assistance of counsel at trial as contended.
	We overrule appellant's third sub-issue.



Conclusion
	We affirm the judgment of the trial court. 




						Laura Carter Higley
						Justice

Panel consists of Justices Nuchia, Jennings, and Higley.
Justice Jennings, dissenting.
Publish.  Tex. R. App. P. 47.2.
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