Ferguson v. State

699 S.W.2d 381, 1985 Tex. App. LEXIS 12358
CourtCourt of Appeals of Texas
DecidedNovember 7, 1985
DocketNo. 2-85-022-CR
StatusPublished
Cited by2 cases

This text of 699 S.W.2d 381 (Ferguson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. State, 699 S.W.2d 381, 1985 Tex. App. LEXIS 12358 (Tex. Ct. App. 1985).

Opinion

OPINION

HOPKINS, Justice.

The defendant, Aaron Ferguson, appeals from a conviction of aggravated robbery. He was tried by a jury on a not guilty plea, was found guilty and the jury assessed his punishment at 30 years confinement in the Texas Department of Corrections.

We affirm the judgment.

Defendant’s first two grounds of error allege ineffective assistance of counsel in the following particulars:

1) counsel did not request a record be made of the voir dire;
2) counsel did not object to the definition in the court’s charge of “robbery” and “effective consent” (These two matters are also made the subject of defendant’s third and fourth grounds of error.);
3) counsel’s failure to object to improper rebuttal examination of State’s complaining witness;
4) counsel’s failure to object to introduction of evidence of extraneous offenses;
5) counsel’s failure to object to the portion of the penitentiary packet containing references to parole law;
6) counsel’s failure to call defendant’s sisters as witnesses at the punishment phase of the trial.

The burden of proving ineffective assistance of counsel falls on the appellant and such a contention must be proved by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984). The standard to be used in gauging the effectiveness of counsel, whether ap[383]*383pointed or retained, is “reasonably effective assistance of counsel,” meaning “counsel reasonably likely to render and rendering effective assistance.” Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Crim.App.1983); Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980). In applying this standard, the adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of the representation. Ex parte Raborn, 658 S.W.2d at 605; Romo v. State, 631 S.W.2d 504, 507 (Tex.Crim.App.1982). • Any claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case. Johnson v. State, 614 S.W.2d 148, 149 (Tex.Crim.App.1981). Though the accused in a criminal proceeding is entitled to “reasonably effective assistance” of counsel, this does not mean errorless counsel or counsel judged by hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App.1983). The fact another lawyer might have pursued a different course of action in representing the accused will not support a finding of ineffective assistance of counsel. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App.1983).

At the request of either party, the court reporter shall take notes of all trial proceedings, including voir dire examination. TEX.CODE CRIM.PROC.ANN. art. 40.09(4) (Vernon Supp 1985). In his brief, defendant concedes there is no statutory or constitutional requirement that voir dire be transcribed. Furthermore, defendant has not indicated in what manner he was prejudiced by such failure. Neither has he shown us that the results of the trial would have been different or that error was committed during voir dire.

On direct examination, the complaining witness testified she had made two sketches of the man who had robbed her and furnished the second sketch to the police. On cross-examination in an apparent attempt by defense counsel to discredit and cause doubt about the reliability of the witness’s identification of the defendant, testimony was elicited that the witness was “pretty scared” during the robbery. On redirect, the State examined the witness about the description of the robber she had given the police, and the photographic lineup shown her two weeks later at which she identified a picture of the defendant. The failure to object to this redirect examination is what the defendant now asserts as ineffective assistance of counsel. In his brief, the defendant acknowledges the examination did not constitute improper bolstering, but alleges it constituted improper rebuttal testimony. The defendant cites no authority for his contention and we find it without merit.

A more serious question of ineffective assistance is presented where the allegation is made that counsel allowed improper interjection of extraneous offenses into the trial. The assertion is that this occurred on three occasions during the trial and we will review each.

On cross-examination by the State, one of defendant’s sisters, an alibi witness, testified she was positive the defendant had not left his home the day of the robbery “[bjecause he hadn’t been leaving or going because he said the police had been watching him.” She further testified that the defendant made this statement to her prior to the date of the robbery. When the State asked, “[w]hen did the police start following him?”, the defense counsel objected to any introduction of extraneous offense and the court admonished the State to refrain from going into extraneous offense. Further complaint is now made about counsel’s failure to object to the State’s argument which alludes to this testimony and the State’s comment that the jury could “draw your own conclusions and reasonable deductions from that evidence.” Counsel also failed to object when, in final argument, the State alluded to the photograph of the defendant which had been admitted into evidence without objection as a part of the lineup. The State made particular reference to the fact the “mug shot” of the defendant showed that it had been taken by the Dallas Police Department more than two years prior to the robbery.

[384]*384Counsel may properly summarize evidence admitted during trial. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). In the instances complained of, the State did not interject extraneous offenses and there was no need for objection by defense counsel. Although failure to excise the “mug shot” information from the photograph of defendant is not assigned s an incident of ineffective assistance, this serious omission has been noted by this Court in reviewing the record with a view towards the totality of representation given the defendant by counsel. Counsel should have requested the information be excised before it was admitted for the jury’s consideration. Richardson v. State, 536 S.W.2d 221, 223 (Tex.Crim.App.1976). Introduction of “mug shots” where no objection is made is not reversible error. George v. State, 498 S.W.2d 202, 206 (Tex.Crim.App.1973).

Defendant also complains of counsel’s failure to object to the penitentiary packet which contained reference to federal parole laws.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peavy v. WFAA-TV, Inc.
221 F.3d 158 (Fifth Circuit, 2000)
Rodgers v. State
744 S.W.2d 281 (Court of Appeals of Texas, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
699 S.W.2d 381, 1985 Tex. App. LEXIS 12358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-state-texapp-1985.