Torrence Bell v. State

• Court: Court of Appeals of Texas
• Decided: November 3, 2010
• Docket: 04-09-00417-CR
• Status: Published

Opinion

MEMORANDUM OPINION Nos. 04-09-00417-CR, 04-09-00418-CR, 04-09-00419-CR

Torrence BELL, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court Nos. 2007-CR-9870A, 2007-CR-9871A, 2007-CR-9872A Honorable Mary D. Roman, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: November 3, 2010

AFFIRMED

Appellant Torrence Bell was charged by indictment with the murder of Raishun Slack

and the aggravated assaults of Ervin Jackson and Larry Drummer. The jury returned a guilty

verdict on each charge. During the punishment phase of the trial, Bell entered a plea of true to

the enhancement paragraph. The jury sentenced Bell to life in prison and fined him $10,000.00.

On appeal, Bell argues that he received ineffective assistance of counsel. We affirm the

judgment of the trial court. 04-09-00417-CR, 04-09-00418-CR, 04-09-00419-CR

BACKGROUND

On July 17, 2007, San Antonio Police Officer Montrez Butler was dispatched to the

Springhill Apartments because shots were reportedly fired in apartment 704. Officer Butler had

worked in the high crime area for over eight years, where the majority of his calls were related to

narcotics or gang activity. When he arrived at the apartment complex, several individuals, who

Officer Butler already knew from previous calls to the complex, informed him that Bell shot

someone inside the apartment. When Officer Butler walked in, he saw five-month pregnant

Raishun Slack, dead on the couch from a single gunshot wound to the head. He also saw several

people assisting Drummer and Jackson, who also had gunshot wounds. Jackson had leased

apartment 704 and was the father of Slack’s two-year-old daughter.

Prior to the incident, Drummer picked up Jackson during his lunch hour to run an errand.

As they returned to the apartments, four men, including Bell, were standing at the apartment

gate. Two of them started “throwing their hands up doing gang signs to the car.” Drummer

talked to the men, and then proceeded to the parking lot. As they exited the car, Jackson saw

Bell, Terrence Craft, Chris Boyd, and another individual he did not know begin to walk toward

his apartment. Jackson and Drummer hurried into apartment 704. After a few minutes, they

heard a knock at the door, and Jackson answered, walked outside, and closed the door behind

him. Bell, Boyd, and an unidentified individual claimed that Drummer had “disrespected” them.

After ending the conversation, Jackson turned to enter the apartment and as he opened the door,

shots were fired. Jackson was hit five times, but did not see who was shooting. Drummer was

hit twice, and testified that he saw Bell draw his gun and start firing.

Officer Butler began a search for Bell by sending officers to every apartment that he

knew Bell frequented in Springhill. He also sent San Antonio Police Detective Volkmann to

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Bell’s mother’s house, where Detective Volkmann found and arrested Bell. During the arrest,

Detective Volkmann found weapons, although unrelated to the crime at hand, in the trunk of a

vehicle parked at the premises.

INEFFECTIVE ASSISTANCE OF COUNSEL

Bell complains that several of his defense counsel’s acts and omissions constitute

ineffective assistance of counsel. Specifically, Bell alleges that his counsel was deficient by: (1)

impeaching the main defense witness with a prior conviction; (2) failing to object to the

admission of weapons unrelated to the crime; (3) failing to object to improper victim impact

testimony evidence offered during the punishment phase of the trial; and (4) eliciting prior

criminal and delinquent acts of defense witnesses during the punishment phase of the trial. The

trial court did not conduct a hearing where Bell’s trial counsel could explain the basis for her

actions.

A defendant is entitled to effective assistance of counsel under both the U.S. and Texas

Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The standard for determining

whether a defendant has been deprived of his right to effective assistance of counsel is the two-

pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To establish

ineffective assistance of counsel, a convicted defendant must show: (1) his trial counsel’s

performance was deficient in that counsel made such serious errors that he was not functioning

effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree

that the defendant was deprived of a fair trial. Id. at 687; Hernandez v. State, 988 S.W.2d 770,

770 n.3 (Tex. Crim. App. 1999). When reviewing an ineffective assistance claim, “[a]n appellate

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

case . . . .” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

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An appellant must defeat the strong presumption that defense counsel’s conduct fell

within the wide range of reasonable professional assistance. Id. To do so, the “record must

affirmatively demonstrate the alleged ineffectiveness.” Bone v. State, 77 S.W.3d 828, 835 (Tex.

Crim. App. 2002). In many cases, such as this one, the appellant does not develop a record

through a hearing on a motion for a new trial and thus deprives defense counsel of an

opportunity to explain her trial strategy. Hill v. State, 303 S.W.3d 863, 879 (Tex. App.—Fort

Worth, 2009, pet. ref’d). Consequently, direct appeal is usually not an effective means to raise

an ineffective assistance of counsel claim because the record is generally undeveloped.

−14. Thompson, 9 S.W.3d at 813 Prejudice is demonstrated when the defendant shows a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1986), cert

denied, 489 U.S. 1091 (1989).

A. Impeaching the Main Defense Witnesses with a Prior Conviction

The defense called Cody Clark to testify. Although he was present at the shooting, Clark

stated that Bell was not involved. Based on questions propounded by defense counsel, he

acknowledged his previous marihuana arrests. Bell complains that his defense counsel’s

assistance was deficient because she elicited Clark’s prior possession of marihuana conviction,

which would have been improper impeachment evidence.

Any allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813, 814.

Absent record evidence to the contrary, an appellate court presumes that counsel’s conduct fell

within the wide range of reasonable professional assistance. Id. Introducing impeachment

evidence does not constitute ineffective assistance of counsel where the record does not clearly

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show that the impeachment evidence is inadmissible. See De Los Santos v. State, 918 S.W.2d

565, 572−73 (Tex. App.—San Antonio 1996, no pet.) (holding that counsel was not ineffective

by eliciting impeachment evidence of a defense witness’s prior marihuana conviction where the

record did not clearly establish that it was an inadmissible misdemeanor conviction). The record

in this case indicates only that Bell’s trial counsel elicited from Clark his full prior criminal

history, which consisted of two arrests for possession of marihuana. Clark admitted to doing

“some time” on one of those arrests, and stated that the sentence was fully served. Because a

possession of marihuana crime may be a felony, which would be admissible under Texas Rule of

Evidence 609(a), and because no record evidence clearly establishes that Clark’s prior conviction

was a misdemeanor conviction, Bell has not met his burden of showing that his trial counsel’s

eliciting of this testimony constituted ineffective assistance of counsel. See TEX. R. EVID.

609(a); TEX. HEALTH & SAFETY CODE ANN. § 481.120 (West 2010); De Los Santos, 918 S.W.2d

at 572.

B. Failure to Object to Admission of Unrelated Weapons

Bell next contends that defense counsel was ineffective by failing to object to the

admission of weapons found in the trunk of the vehicle located in the driveway of his mother’s

house. We remain mindful that the failure to object to inadmissible evidence, alone, does not

necessarily constitute ineffective assistance. See Stroman v. State, 69 S.W.3d 325, 332 (Tex.

App.—Texarkana 2002, pet. ref’d) (concluding that counsel may have chosen not to object to

inadmissible incriminating testimony from an officer in an effort to appear open and honest with

the jury); see also Castoreno v. State, 932 S.W.2d 597, 603 (Tex. App.—San Antonio 1996, pet.

ref’d). An attorney must be free to decide against objecting, even if she has a legal basis for

doing so. McKinny v. State, 76 S.W.3d 463, 473 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

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Here, Bell’s defense counsel had no opportunity to explain her reasons for not objecting, and the

record is otherwise silent as to her possible strategies. We, therefore, decline to speculate why

counsel acted as she did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Because the record does not affirmatively demonstrate that these specific omissions were

attributable to ineffectiveness, Bell has not defeated the strong presumption of reasonable

professional assistance. See Thompson, 9 S.W.3d at 813.

C. Failure to Object to State’s Misuse of Victim Impact Evidence

Bell complains that the State elicited testimony from the victim’s mother that was

impermissible victim character evidence during the punishment phase of the trial. Raishun

Slack’s mother told the jury that her daughter was studying nursing at Incarnate Word

University, that she loved dancing, and was a dedicated mother. Bell contends that there is no

reasonable trial strategy that would justify defense counsel’s failure to object to otherwise

inadmissible evidence.

Bell’s argument is similar to that raised in Boone v. State, 60 S.W.3d 231, 239 (Tex.

App.―Houston [14th Dist.] 2001, pet. ref’d), that “the sheer weight of the testimony was

unfairly prejudicial.” Id. at 238. Because an unreasonable amount of victim-impact evidence

may become unfairly prejudicial, courts caution against overuse of victim impact testimony

during the punishment hearing. See Lindsay v. State, 102 S.W.3d 223, 228 (Tex. App.―Houston

[14th Dist.] 2003, pet. ref’d).

Once again, the record does not reflect why Bell’s counsel failed to object to the

complained of testimony. The victim impact testimony simply confirmed the loss family

members felt as a result of the crime. Objecting to the mother’s testimony might have done more

to emphasize the information, and could be the reason counsel failed to object. We simply do

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not know from the record. Under these circumstances, Bell has not shown that defense counsel’s

failure to object to the testimony rendered her performance deficient. See Johnson v. State, 176

S.W.3d 74 (Tex. App.―Houston [1st Dist.] 2004, pet. ref’d).

D. Offering Defense’s Punishment Witnesses’ Past Criminal or Delinquent Acts

Bell finally claims that his trial counsel’s offering of defense witnesses’ prior criminal or

delinquent acts during the punishment phase rendered his assistance of counsel deficient.

Specifically, Bell complains that it was improper for his trial counsel to bring up the prior

criminal or juvenile histories of witnesses Shauntae Green, Stephan Kareem McGowan, and

Tashia Bell.

Even assuming, without deciding, that the prior convictions were inadmissible, as

previously noted, the record must affirmatively demonstrate any alleged ineffectiveness.

Thompson, 9 S.W.3d at 813, 814. Absent record evidence to the contrary, the defendant must

defeat the strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance. Id. A lawyer may strategically decide to introduce evidence, even if it

would be inadmissible if offered by opposing counsel, “because it simply does not hurt the

client’s case or, in fact, may help it.” See McKinny, 76 S.W.3d at 473. Here, defense counsel’s

allowing the jury to understand the background of the witnesses, and the pervasiveness of the

gang activity associated with the individuals involved, even if the evidence is inadmissible, may

well have formed the basis of a strategic plan. Because the record does not affirmatively show

that Bell’s trial counsel lacked any strategic reason for offering the evidence of the punishment

witnesses’ prior criminal or delinquent acts, Bell has failed to defeat the strong presumption of

effective assistance. See Thompson, 9 S.W.3d at 813, 814; McKinny, 76 S.W.3d at 473.

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CONCLUSION

Bell failed to obtain a hearing on his motion for new trial. As a result, defense counsel’s

reasoning for admitting the prior criminal or delinquent acts of several of the defense witnesses

during the guilt and punishment phases; failing to object to evidence of the weapons found when

Bell was arrested; or failing to object to the testimony offered by Slack’s grieving mother, does

not appear in the record. Bell’s defense counsel’s reasoning for each of these decisions could

have been part of a reasonable trial strategy. See McKinny, 76 S.W.3d at 473. Moreover, we

cannot say that the acts and omissions of counsel in this case are so outrageous that no competent

attorney would have engaged in them. See Goodspeed, 187 S.W.3d at 392–93; Smith v. State, 40

S.W.3d 147, 151 (Tex. App.―Texarkana 2001, no pet.) (concluding counsel was not ineffective

by failing to object to inadmissible hearsay because record was silent regarding counsel's

strategy). Without more, we must defer to the decisions of defense counsel and conclude that

Bell has not defeated the strong presumption that his counsel’s conduct was reasonable. Thus,

because Bell failed to show that his counsel’s assistance fell below an objective professional

standard of reasonableness, we affirm the judgment of the trial court. 1

Rebecca Simmons, Justice

DO NOT PUBLISH

1 Because we conclude that Bell failed to overcome the strong presumption that his counsel’s conduct was reasonable, we need not address the allegations of prejudice in the guilt–innocence or punishment phases. See Hernandez v. State, 988 S.W.2d at 770 n.3.

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