IN THE TENTH COURT OF APPEALS
No. 10-12-00353-CR
SARAH BETH PEARCE, Appellant v.
THE STATE OF TEXAS, Appellee
From the County Court Navarro County, Texas Trial Court No. C-34166-CR
MEMORANDUM OPINION
In six issues, appellant, Sarah Pearce, challenges her conviction for forgery by
passing, a third-degree felony. See TEX. PENAL CODE ANN. § 32.21(a)(1)(A)-(B), (e)(1)
(West 2011). We affirm.
I. BACKGROUND
Appellant was charged with passing a forged check in the amount of $150 that
purported to be the act of Clifford Crowe. The testimony at trial revealed that Robert
Newland is the grand-nephew of Crowe and that Newland called Crowe his grandmother. Newland testified that he regularly helped out Crowe and that Crowe
occasionally lent him “three or four dollars” and once bailed him out of jail. Newland
also testified that for a little longer than a year, he was in a romantic relationship with
appellant. Newland admitted to taking, forging, and cashing multiple checks from
Crowe during this time. Crowe did not discover the forgeries until she received a
notice from the bank informing her that her checking account had been overdrawn.
Jimmy Fields, Crowe’s stepson and co-signer on the account, testified that the account
balance on July 1, 2011 was $6,000 when the alleged forgeries began.
Upon discovering that the account had been overdrawn, Crowe spoke with
Tracey Jock, Vice-President of Security at the Community National Bank in Corsicana,
Texas. Jock recounted that Crowe was clearheaded and able to communicate with him
about the incident. After reviewing copies of cashed checks from the account, Crowe
identified numerous checks that had been forged. In particular, two of the checks
Crowe identified were State’s exhibits 1 and 2, a $150 check made payable to Newland
and a $150 check made payable to appellant, respectively. Crowe denied knowing
appellant and denied writing the checks to Newland and appellant. Nevertheless, the
record reflects that appellant endorsed the check made payable to her.
After speaking with Jock, Crowe was directed to the Corsicana Police
Department to file a report. In doing so, Crowe executed an affidavit of forgery,
wherein she identified four checks, including the two checks listed above, that were
forgeries. Despite the fact that Crowe identified only four checks as forgeries in the
affidavit, Detective Mark Nanny with the Corsicana Police Department noted that
Pearce v. State Page 2 Crowe complained about forty-two different checks. Upon further questioning,
Detective Nanny stated that thirty-six of the forty-two checks that Crowe complained
about were made payable to Newland.
Regarding State’s exhibit 2, Newland testified that he wrote appellant’s name on
the check and gave appellant the check to cash. Newland acknowledged that appellant
was not present when he wrote the check from Crowe’s account but that she was
present “when I put her name on it.” Newland also testified that appellant shared in
the proceeds from the forged checks. In any event, Newland denied that appellant
knew that he did not have permission to cash checks from Crowe’s account. In fact,
Newland testified that he had asked Crowe for money while in appellant’s presence.
The testimony revealed that, on November 8, 2011, appellant passed another
check that Crowe identified as forged by Newland. This check, described as State’s
exhibit 1, was a $150 check that Newland made payable to himself. Newland later
pleaded guilty to forging this check. Surveillance videos from the bank showed
appellant driving her vehicle to the bank’s drive-through, taking the tube from the
tower, and submitting forged checks for cashing. In another video, appellant is seen
handing Newland a document which was then inserted in the tube and submitted to
the bank. The video also showed Newland giving appellant the proceeds collected
from the tube.
At the conclusion of the evidence, the jury found appellant guilty of the charged
offense and sentenced her to ten years’ incarceration in the Institutional Division of the
Texas Department of Criminal Justice. The trial court subsequently suspended the
Pearce v. State Page 3 sentence and placed appellant on community supervision for a period of seven years.
This appeal followed.
II. EXTRANEOUS-OFFENSE EVIDENCE
In her third issue, appellant contends that the trial court abused its discretion by
admitting evidence of other checks forged by appellant during the time Newland and
appellant were dating. Appellant asserts that the probative value of this evidence is
outweighed by the prejudicial effect.
Here, appellant filed a motion in limine, seeking to prevent discussion of her
prior convictions and other extraneous acts in the presence of the jury. The trial court
conducted a hearing on appellant’s motion in limine, wherein the parties focused on the
admissibility of State’s exhibits 1 and 2—the two forged checks mentioned above. At
the conclusion of the hearing, the trial court granted appellant’s motion in limine, in
part; State’s exhibits 1 and 2 were deemed admissible, though the trial court agreed to
issue a limiting instruction that the exhibits were admitted for the limited purpose to
show intent, lack of mistake, and prior knowledge at the time the exhibits were
tendered for admission into evidence. At the trial, when the State tendered exhibits 1
and 2 for admission into evidence, appellant did not object.
To properly preserve error with regard to purported inadmissible extraneous-
offense evidence, there must have been a timely request, objection, or motion stating the
grounds for the ruling with sufficient specificity to make the trial court aware of the
complaint and secure a ruling. See TEX. R. APP. P. 33.1. In fact, the Texas Court of
Criminal Appeals has stated that “[f]or error to be preserved with regard to the subject
Pearce v. State Page 4 of a motion in limine, an objection must be made at the time the subject is raised during
trial.” Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (emphasis in original).
Moreover, “[a] motion in limine . . . is a preliminary matter and normally preserves
nothing for appellate review.” Id. (citing Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim.
App. 1985)) (emphasis in original); see Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim.
App. 2003) (stating that a pre-trial motion in limine does not preserve error; it is
necessary that an objection be made at the time the subject is raised during the trial).
Accordingly, because appellant did not object to the admission of State’s exhibits 1 and
2 during trial, we cannot say that appellant preserved this issue for review. See TEX. R.
APP. P. 33.1; see also Fuller, 253 S.W.3d at 232; Geuder, 115 S.W.3d at 14. As such, we
overrule appellant’s third issue.
III. DEFENSE COUNSEL’S CROSS-EXAMINATION OF NEWLAND
In her fifth issue, appellant complains that the trial court erred in denying her the
opportunity to cross-examine Newland regarding whether he was authorized to write
checks for Crowe and about Newland’s motives for pleading guilty to forgery.
A. Standard of Review and Applicable Law
The Confrontational Clause of the Sixth Amendment to the United States
Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This
procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas,
380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273
S.W.3d 671, 680 (Tex. Crim. App. 2008). The Sixth Amendment protects the defendant’s
Pearce v. State Page 5 right not only to confront the witnesses against him, but to cross-examine them as well.
See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). “The
exposure of a witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316-37, 94 S.
Ct. at 1110. The accused is entitled to great latitude to show a witness’ bias or motive to
falsify his testimony. See Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel
Op.] 1982).
However, the right of cross-examination is not unlimited. The trial court retains
wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van
Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986). The trial court
must carefully consider the probative value of the evidence and weigh it against the
risks of admission. See Hodge, 631 S.W.2d at 758. These potential risks include “the
possibility of undue prejudice, embarrassment or harassment to either a witness or a
party, the possibility of misleading or confusing the jury, and the possibility of undue
delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).
Moreover, “the Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, or to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294,
88 L. Ed. 2d 15 (1985) (emphasis in original); see Walker v. State, 300 S.W.3d 836, 844-45
(Tex. App.—Fort Worth 2009, pet. ref’d).
Pearce v. State Page 6 B. Discussion
With regard to the check underlying his conviction for forgery, Newland
testified, on cross-examination, that he had permission from Crowe to write the check.
The State objected to this testimony as an improper collateral attack on Newland’s
judgment of conviction for forgery—a charge to which Newland had pleaded guilty.
The trial court sustained the State’s objection, and defense counsel continued to
question Newland about other aspects of the case.
In any event, after the State rested and outside the presence of the jury, defense
counsel stated the following:
Yes. The first issue, during the questioning of Robert Newland, I had asked him [a] question regarding State’s Exhibit No. 1, which is a copy of the check that’s in the indictment, that the State had shown Mr. Newland, and asked him if he plead [sic] guilty. I had approached Mr. Newland, I asked him whether or not he had permission for that check. And [sic] objection was made, the objection was sustained.
I would like to put on the record in terms of a proffer versus—is acceptable—instead of calling Mr. Newland back. But what the evidence would have shown was that Mr. Newland would have said that he did, in fact, have permission for that check.
....
That he’d been indicted which would eliminate or go to the issue of whether or not that’s a forged check. And the—sustaining the objection, I was prohibited—or prevented from doing that. He also said that in the Pre-Trial Hearing yesterday, which was in the record.
On appeal, the State asserts that appellant did not preserve this issue for review.
The Texas Court of Criminal Appeals has held that, when complaining about the
exclusion of evidence, the proponent is required to make an offer of proof and obtain a
Pearce v. State Page 7 ruling in order to preserve error. Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim. App.
2005); see Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim. App. 1996) (noting that, as a
general rule, to preserve error in the exclusion of evidence, the proponent is required to
make an offer of proof showing what the excluded testimony would have been and to
obtain a ruling on whether such testimony is admissible); see also TEX. R. EVID. 103(a)(2).
Moreover, “it is not enough to tell the judge that evidence is admissible.” Reyna, 168
S.W.3d at 177. “The proponent, if he is the losing party on appeal, must have told the
judge why the evidence was admissible.” Id. This is particularly true when the basis
for admitting evidence could be either under the Rules of Evidence or the Confrontation
Clause, which involve different standards for admissibility and policy considerations.
“When a defendant’s objection encompasses complaints under both the Texas Rules of
Evidence and the Confrontation Clause, the objection is not sufficiently specific to
preserve error.” Id. at 179.
Here, appellant never explained to the trial court why he believed the evidence
was admissible, either under the Rules of Evidence or the Confrontation Clause.
Because appellant “did not clearly articulate” that the Confrontation Clause demanded
admission of the evidence, the trial court “never had the opportunity to rule upon” this
rationale. See id. (citing Clark v. State, 881 S.W.2d 682, 694 (Tex. Crim. App. 1994)). “As
the losing party, [appellant] must ‘suffer on appeal the consequences of his
insufficiently specific offer.’” Id. (quoting Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim.
App. 1992)); see TEX. R. APP. P. 33.1(a). We therefore conclude that appellant did not
preserve this issue for review. We overrule appellant’s fifth issue.
Pearce v. State Page 8 IV. APPELLANT’S MOTION FOR MISTRIAL
In her fourth issue, appellant contends that the trial court erred in denying her
motion for mistrial. Specifically, appellant complains that the prosecutor failed to abide
by a motion in limine by offering testimony regarding appellant’s drug use.
A. Standard of Review
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “’A mistrial is a device used to halt trial proceedings
when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a
narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its
discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be
reached” or a conviction would have to be reversed on appeal due to “an obvious
procedural error.” Wood, 18 S.W.3d at 648 (“A mistrial is required only when the
improper question is clearly prejudicial to the defendant and is of such character to
suggest the impossibility of withdrawing the impression produced on the minds of the
jurors.”); see Ladd, 3 S.W.3d at 567.
B. Discussion
Pearce v. State Page 9 On appeal, appellant asserts that Newland’s comments about appellant’s drug
use were so inflammatory that an instruction to disregard was not enough. Appellant
also argues that, despite the instruction to disregard, the prosecutor engaged in
misconduct by asking follow-up questions that were allegedly designed to inflame the
jury and elicit additional information about appellant’s drug use.
Only in extreme circumstances, when the error is incurable, will a mistrial be
required. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). The asking of an
improper question will seldom call for a mistrial because any harm can usually be cured
by an instruction to disregard. Wood, 18 S.W.3d at 648. In fact, the Texas Court of
Criminal Appeals has stated: “Ordinarily, a prompt instruction to disregard will cure
error associated with an improper question and answer, even one regarding extraneous
offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). A mistrial is
required only when the improper question is clearly prejudicial to the defendant and is
of such character as to suggest the impossibility of withdrawing the impression
produced on the minds of jurors. Wood, 18 S.W.3d at 648.
Here, the prosecutor asked Newland about what he did with the proceeds from
the forged checks. The purpose of the question was to demonstrate appellant’s
involvement in the scheme. When Newland volunteered that he purchased drugs with
the proceeds of the forged checks, the prosecutor followed up with questions about
whether Newland did drugs with appellant. At this point, appellant objected, arguing
that the comments were highly prejudicial, irrelevant, and in violation of a pre-trial
motion in limine. Appellant also moved for a mistrial. The trial court sustained
Pearce v. State Page 10 appellant’s objection, immediately instructed the jury to disregard Newland’s comment
that he shared drugs with appellant, and denied appellant’s motion for mistrial.
In any event, when the State later asked Newland whether he shared the
proceeds from the forged checks with appellant, Newland commented: “I was buying
drugs with it. That’s about it. And I bought her items . . . .“ At this point, defense
counsel objected. The prosecutor responded that the question was “a yes/no question”
and that “He [Newland] added superfluous at the end of it. I can’t control that.” The
trial court noted that the question was acceptable but ordered Newland to just answer
the questions asked of him. Defense counsel did not obtain a ruling on this objection,
nor did he request a mistrial at this time.
Because defense counsel did not obtain ruling on his objection or move for a
mistrial as to Newland’s drug comments after the limiting instruction was issued, we
cannot say that appellant preserved her complaints about those comments. See Young v.
State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (“Because the objection, the request for
an instruction to the jury, and the motion for mistrial seek judicial remedies of
decreasing desirability for events of decreasing frequency, the traditional and preferred
procedure for a party to voice its complaint has been to seek them in sequence—that is,
(1) object when it is possible, (2) to request an instruction to disregard if the prejudicial
event has occurred, and (3) to move for a mistrial if a party thinks an instruction to
disregard was not sufficient. However, this sequence is not essential to preserve
complaints for appellate review. The essential requirement is a timely, specific request
that the trial court refuses.”); see also TEX. R. APP. P. 33.1(a). Moreover, we believe that
Pearce v. State Page 11 the trial court’s instruction to disregard cured any error associated with Newland’s
initial testimony and the State’s questioning about appellant’s drug use. See Ovalle, 13
S.W.3d at 783. As such, we cannot say that the trial court abused its discretion in
denying appellant’s motion for mistrial. See Archie, 221 S.W.3d at 699-700; see also Wood,
18 S.W.3d at 648. Accordingly, we overrule appellant’s fourth issue.1
V. SUFFICIENCY OF THE EVIDENCE
In her first issue, appellant contends that the evidence is insufficient to support
her conviction for forgery by passing. We disagree.
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the
1 Besides appellate counsel’s speculation, we find no evidence in the record clearly demonstrating that the prosecutor in this case engaged in blatant prosecutorial misconduct. Based on our reading of the record, the prosecutor’s questions after the instruction to disregard were designed to elicit information from Newland about whether appellant shared in the proceeds from the forged checks with the purpose of showing appellant’s involvement in the scheme. A review of Newland’s testimony shows that he often provided more information than was asked, and we do not find evidence in the record reflecting that the prosecutor “failed to instruct his witness” about the jury instruction to disregard testimony about appellant’s drug use. Accordingly, we cannot say that the prosecutor engaged in misconduct, nor can we can we say that prosecutor’s actions undermined the efficacy of the trial court’s limiting instruction.
Pearce v. State Page 12 incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13.
Id.
Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
the conflicts in favor of the prosecution and therefore defer to that determination.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial
evidence are treated equally: “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that
the factfinder is entitled to judge the credibility of the witnesses and can choose to
believe all, some, or none of the testimony presented by the parties. Chambers v. State,
805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
Pearce v. State Page 13 Here, the State was required to prove beyond a reasonable doubt that appellant
forged a writing with intent to defraud or harm another. See TEX. PENAL CODE ANN. §
32.21(b). As limited by the indictment, “forge” means: “(A) to . . . make, complete,
execute, or authenticate any writing so that it purports to be the act of another who did
not authorize that act”; or “(B) to . . . transfer . . . [or] pass . . . a writing that is forged
within the meaning of Paragraph (A).” Id. § 32.21(a)(1). Intent to defraud or harm
another is a necessary element of the offense of forgery. See id. § 32.21(b); see also
Crittenden v. State, 671 S.W.2d 527, 527 (Tex. Crim. App. 1984). Intent to defraud or
harm may be inferred from proof the defendant knew the instrument was forged.
Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985); Stuebgen v. State, 547
S.W.2d 29, 32 (Tex. Crim. App. 1977). Intent to defraud or harm may be established by
circumstantial evidence. Williams, 688 S.W.2d at 488.
On appeal, appellant focuses this issue on the intent element of the charged
offense. The record reflects that Newland was appellant’s boyfriend for a little over a
year during the relevant time in this case. Newland testified that he took multiple
checks from Crowe without permission. In fact, Detective Nanny testified that Crowe
identified forty-two checks taken by Newland. Ultimately, Newland pleaded guilty to
forging a check from Crowe’s account.
With regard to the check Newland stole from Crowe and made out to appellant,
Newland stated that appellant was not in his presence when he made out the check;
however, he admitted that appellant “was with me when I put her name on it.”
Pearce v. State Page 14 Newland also acknowledged that he and appellant shared the proceeds from him
cashing checks from Crowe’s account. Additionally, Crowe testified that she did not
know appellant, and in her affidavit of forgery, Crowe identified the check made out to
appellant and the check appellant cashed for Newland as forged. Moreover, it is
undisputed that appellant endorsed and cashed the check made out to her.
Furthermore, State’s exhibit 5 includes several surveillance videos obtained from
Community National Bank. These videos showed appellant driving her vehicle to the
bank’s drive-through, taking the tube from the tower, and submitting forged checks for
cashing. In another video, appellant is seen handing Newland a document which was
then inserted in the tube and submitted to the bank. The video also showed Newland
giving appellant the proceeds collected from the tube. Based on the foregoing evidence,
Detective Nanny testified that appellant was “a party to the offense.”
In any event, Newland denied that appellant knew that he did not have
permission to cash checks from Crowe’s account. He also testified that he had asked
Crowe for money while in appellant’s presence. Given this testimony, appellant asserts
that she was not aware that the checks were unauthorized.
As we stated earlier, it is within the province of the factfinder, the jury here, to
judge the credibility of the witnesses. See Chambers, 805 S.W.2d at 461. This means that
the jury was entitled to believe all, some, or none of the testimony presented by the
parties. See id. And because it is within the province of the jury, we are to defer to the
jury’s resolution of conflicts in the evidence. See Jackson, 443 U.S. at 329, 99 S. Ct. at
2792-93; see also Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v.
Pearce v. State Page 15 State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must
give deference to a jury’s decision regarding what weight to give contradictory
testimonial evidence because the decision is most likely based on an evaluation of
credibility and demeanor, which the jury is in a better position to judge.”). With its
guilty verdict, the jury believed that the check made out to appellant was forged and
that appellant was involved in the passing of the forged check. And based on the
foregoing case law, we are to defer to the jury’s resolution of the facts. See Jackson, 443
U.S. at 329, 99 S. Ct. at 2792-93; see also Lancon, 253 S.W.3d at 706; Chambers, 805 S.W.2d
at 461; Render, 316 S.W.3d at 859.
Viewing the evidence in the light most favorable to the verdict, we conclude that
a rational factfinder could have found the essential elements of the offense beyond a
reasonable doubt. See TEX. PENAL CODE ANN. § 32.21(a)(1)(A)-(B); see also Jackson, 443
U.S. at 318-19, 99 S. Ct. at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13.
Thus, we conclude that the evidence supporting appellant’s conviction is sufficient. See
Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214
S.W.3d at 13. We overrule appellant’s first issue.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, appellant asserts that her trial counsel was ineffective
because he failed to: (1) object to the introduction of hearsay evidence, including
Crowe’s affidavit of forgery and Crowe’s identification of the checks as forged to
Detective Nanny and Jock; and (2) question Newland about State’s exhibit 1.
Pearce v. State Page 16 A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
First, appellant must show that counsel was so deficient as to deprive appellant of his
Sixth Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Second, appellant must show that the deficient representation was prejudicial and
resulted in an unfair trial. Id. To satisfy the first prong, appellant must show that his
counsel’s representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, appellant must show that
there is “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable
probability exists if it is enough to undermine the adversarial process and thus the
outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65
S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to the totality of the
representation and the particular circumstances of each case in evaluating the
effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential
and presumes that counsel’s actions fell within a wide range of reasonable professional
assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.
The right to “reasonably effective assistance of counsel” does not guarantee
errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.
State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). “Isolated instances in the record
Pearce v. State Page 17 reflecting errors of commission or omission do not cause counsel to become ineffective,
nor can ineffective assistance of counsel be established by isolating or separating out
one portion of the trial counsel’s performance for examination.” Ex parte Welborn, 875
S.W.2d 391, 393 (Tex. Crim. App. 1990). Appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective, and an allegation of
ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.
Trial court counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111
(Tex. Crim. App. 2003). Specifically, when the record is silent regarding the reasons for
counsel’s conduct, a finding that counsel was ineffective would require impermissible
speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—
Houston [1st Dist.] 1996, no pet.). Therefore, absent specific explanations for counsel’s
decisions, a record on direct appeal will rarely contain sufficient information to evaluate
an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). To warrant reversal without affording counsel an opportunity to explain his
actions, “the challenged conduct must be ‘so outrageous that no competent attorney
would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007).
Here, the record does not contain specific explanations for counsel’s actions;
therefore, under Roberts, we must examine counsel’s actions to determine whether “the
challenged conduct must be ‘so outrageous that no competent attorney would have
engaged in it.’” 220 S.W.3d at 533. Based on our review of the record, the evidence
Pearce v. State Page 18 about which appellant complains was admissible; therefore, no objection would have
been successful. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (noting
that counsel is not ineffective for failing to undertake futile actions); see also Ex parte
Chandler, 192 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent
counsel need not perform a useless or futile act[.]”).
First, Crowe’s affidavit of forgery was admissible as a prior inconsistent
statement. See TEX. R. EVID. 801(e)(1)(A). At trial, Crowe was asked whether Newland
had permission to write the check in question, and Crowe responded, “Lord, I don’t
know.” The record reflects that Crowe was ninety-three years old at the time of trial
and was hard of hearing. Nevertheless, Crowe’s uncertain testimony at trial about
whether Newland had permission to write the check in question was inconsistent with
her affidavit of forgery, which has been executed several months prior to trial and
shortly after discovering that the account had been overdrawn. Therefore, contrary to
appellant’s complaint on appeal, Crowe’s affidavit of forgery is not hearsay and was
admissible. See id.
Second, appellant complains about the testimony of Jock and Detective Nanny—
in particular, Crowe’s identification of the check in question as forged. An out-of-court
statement offered into evidence to prove the truth of the matter asserted is hearsay.
TEX. R. EVID. 801(d). A statement not offered to prove the truth of the matter asserted,
but offered for some other reason, is not hearsay. Guidry v. State, 9 S.W.3d 133, 152 (Tex.
Crim. App. 1999); see Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). The
Texas Court of Criminal Appeals has concluded that if a statement is introduced to
Pearce v. State Page 19 explain how a defendant became a suspect or how the investigation focused on a
defendant, then the statement is not hearsay because it is not offered for the truth of the
matter asserted. See Dinkins, 894 S.W.2d at 347 (holding an appointment book and
patient application were not offered for the truth of the matter asserted, but instead the
evidence was offered to show how appellant became a suspect of the investigation); see
also Cano v. State, 3 S.W.3d 99, 110 (Tex. App.—Corpus Christi 1999, pet. ref’d) (deciding
that the testimony was not being offered to prove drugs were literally being distributed,
but rather to show why the officers focused their investigation on appellants). “This
type of testimony assists the jury’s understanding of the events by providing context for
the police officer’s actions.” Cano, 3 S.W.3d at 110.
A review of the record shows that this testimony was offered to explain the
bank’s procedures and how appellant became a suspect in the case. See Dinkins, 894
S.W.2d at 347; see also Cano, 3 S.W.3d at 110. We do not believe that the testimony was
designed to elicit hearsay. Accordingly, without a record detailing counsel’s trial
strategy, we cannot say that trial counsel was ineffective for not objecting to this
testimony.
Appellant also argues that trial counsel was ineffective for failing to elicit
testimony from Newland regarding the reason appellant passed the forged check. At a
pre-trial hearing, Newland testified to the following: “I wrote the check and I got in the
car with her and I told her that I didn’t have my driver’s license because I didn’t have
them because I thought I left them at the bank the day before.” Appellant argues that
this was favorable testimony that trial counsel failed to elicit. However, Newland was
Pearce v. State Page 20 later asked whether the check was made out at the time he told appellant that he did
not have his driver’s license. To this question, Newland responded, “No, it was blank—
I mean, it wasn’t made out to nobody—it was blank.” This testimony suggests that the
check had been forged in appellant’s presence. And as such, it was a reasonable trial
strategy to not elicit these statements at trial, especially given that trial counsel argued
that appellant did not know that the checks were forged. We therefore cannot say that
trial counsel’s action in failing to elicit testimony from Newland regarding the reason
appellant passed the forged check was ‘so outrageous that no competent attorney
would have engaged in it.’” Roberts, 220 S.W.3d at 533.
Based on the foregoing, we conclude that appellant has not established the first
prong of Strickland. See 466 U.S. at 687, 104 S. Ct. at 2064; see also Lopez, 343 S.W.3d at
142. Moreover, even if she had established the first prong of Strickland, we cannot say
that appellant established “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,”
especially in light of our sufficiency discussion. See Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064; see also Thompson, 9 S.W.3d at 812. We therefore overrule appellant’s second
issue.
VII. WHETHER APPELLANT RECEIVED A FAIR TRIAL
In her sixth issue, appellant argues that the cumulative effect of errors listed in
her issues on appeal was to deny her a fair trial. “It is conceivable that a number of
errors may be found harmful in their cumulative effect.” Chamberlain v. State, 998
S.W.2d 230, 238 (Tex. Crim. App. 1999) (citing Stahl v. State, 749 S.W.2d 826, 832 (Tex.
Pearce v. State Page 21 Crim. App. 1988)). However, non-errors may not in their cumulative effect cause error.
See id. In our analysis of appellant’s issues, we did not conclude that there was error;
therefore, we cannot conclude that appellant was harmed by the cumulative effect of a
number of non-errors. Accordingly, we overrule appellant’s sixth issue.
VIII. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed January 16, 2014 Do not publish [CR25]
Pearce v. State Page 22