McCullough v. State

116 S.W.3d 86, 2001 WL 1590041

• Court: Court of Appeals of Texas
• Decided: May 29, 2002
• Docket: 14-00-00430-CR
• Status: Published

Opinions

PLURALITY OPINION

RICHARD H. EDELMAN, Justice.

Kenneth Earl McCullough appeals a conviction for aggravated robbery¹ on the ground that his trial counsel’s failure to object to hearsay testimony denied appellant effective assistance of counsel. We affirm.

To prevail on a claim of ineffective assistance of counsel, an appellant must show, first, that counsel’s performance was deficient, ie., it fell below an objective standard of reasonableness, and, second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex.Crim.App.2001). To be sustained, an allegation of ineffective assistance of counsel must be affirmatively demonstrated by the record. Varelas, 45 S.W.3d at 629.

Moreover, in reviewing ineffectiveness claims, scrutiny of counsel’s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel’s perspective at the time. Id. Thus, the presumption that an attorney's actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268-69 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1081, 120 S.Ct. 803, 145 L.Ed.2d 676 (2000).

In this case, at the beginning of trial, counsel requested a ruling on an oral “motion in limine.” He then described the evidence whereby appellant had come to the attention of the police by way of a Crime Stoppers telephone tip² and asked that this hearsay evidence “not be included for the consideration of the jury in this cause” (emphasis added). The State argued that the testimony was not hearsay because it was not being offered to prove the truth of the matter asserted, i.e., that appellant had committed the offense, but only to show the reasons for the officer’s actions in putting appellant’s photo in a photo spread. The trial court denied defense counsel’s motion.

To the extent the purported motion in limine sought to have the evidence excluded, rather than merely requiring the State to approach the bench or obtain a ruling on its admissibility before introducing it,³ it was, in effect, a motion to suppress the evidence, and counsel did not fail to object to the hearsay testimony and was, thus, not ineffective for failing to object. Conversely, to the extent the purported motion in limine was not an objection, appellant has failed to rebut the presumption of sound trial strategy by failing to develop a record of his counsel’s reason for asserting no objection.

Likewise, this was not a situation in which reasonable counsel could not have failed to seek exclusion of the complained of testimony because: (1) it was expressly offered only for the purpose of showing how appellant came to be a suspect in the case, and was admissible for that purpose; ⁴ and (2) the evidence of the anonymous tip was of little consequence in that the eyewitness’s identification of appellant was unequivocal and unimpeached. Because appellant’s sole point of error thus fails to demonstrate ineffective assistance of counsel, it is overruled, and the judgment of the trial court is affirmed.

FROST, J., concurring.

BAIRD, J., dissenting.

1 . A jury found appellant guilty and sentenced him to 25 years confinement.

2 . At trial, Houston Police Officer Rivera testified that: "The tip that we got gave us the name of a Kenneth McCullough that was responsible for robbing this hotel.” After receiving the tip, Rivera obtained a photograph of appellant and placed it in a photo spread from which the complainant identified appellant as the person who robbed her.

3 . See, e.g., State v. Monroe, 813 S.W.2d 701, 702 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d) (distinguishing between motion to suppress and motion in limine on this basis).

4 . See, e.g., Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex.Crim.App.1995), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). To the extent the evidence was admissible only for ffiat purpose, defense counsel could have asked for a limiting instruction. See Tex.R.Evid. 105(a) (when evidence which is admissible for one purpose but not admissible for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such a request, the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.) Whether counsel was deficient for not requesting a limiting instruction or whether appellant could have been harmed by the failure to do so is not before us because appellant complains only that the evidence was wholly inadmissible and should have been objected to as such.