### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00628- CR

Edw rick Quentria Bass, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NO. 742 01, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Edwrick Quentria Ba ss was char g ed with felony assa u l t family violence, and the indictment also alleg ed that B ass had pr eviously been convicted on at l east one previous occ asion of assault family violence. See T ex . Penal Code § 22.01(a) (setting out elements of offe nse of assault), (b)( 2) (spec ify

ing that assault is third-deg ree felony if offe nse is committed ag ainst person whose rela tionship with defe ndant is descr ibed by Fa mily Code and if defe ndant has previously been

co n v i cted of assaulting simil arly descr ibed victim). The alleg ed victim was Kewa nee Simm ons , whom Ba ss was alleg ed to have had a dating rela tionship with in the past. Prior to trial, the S tate filed a notice of its intent to seek enhanc ed punishment on the g round that Ba ss had alleg edly been previously convicted of a fe l o n y o ff ense for assault family violence, which was alleg ed to have

occur red several y ear s afte r the previous convictions descr ibed above. At the end of the g uilt-orinnocenc e phase of the trial, the jury found Ba ss g uilty of the char g ed offe nse. Ba ss elec ted tohave the district court assess his punishment, and he enter ed a plea of true to t h e felony

enhanc ement alleg ation. See id. § 12.42(a) (enha ncing punishment rang e for third-deg ree felony to that of second- deg ree felony if defe ndant has previously been convicted of another felony offe nse);

see also id. § 12.33 (listing permissible punishment rang e for second- deg ree felony ). At the end of the punishment phase, the district court imposed a sentenc e of eleve n y ear s’ imprison m en t. I n a single issue on appea l, Ba ss conte n d s t h at h is trial attorney provided ineffe ctive assistance of counsel. We will modify the district court’s judg ment of convic tion to correc t a clerica l error and aff irm the district court’s judg ment of convic tion as modified.

DISCUSSIO N
Ef fectiveness of Coun sel

I n his sole issue on appea l, Ba ss contends that his trial attorney “re ndere d ineffe ctive assistance of counsel by producing a sealed envelope from the Bell County S heriff ’s Department, without first asce rtaining the nature of the contents, and the seale d envelo p e co n t ained a Texas Depa rtment of Criminal J ustice identity car d showing [t hat Ba ss] was a conv i ct ed felon.” The incident at issue occur re d d u ri n g the testimony of an employ ee for the Be ll County J ail, Dwig ht Morrison. I n his testimony , Morrison di scussed what happens to an inm ate’ s proper ty when he is admitted into jail. Fur

ther, Morrison identified the bag containing Ba ss’s persona l proper ty

. I nside the bag was an envelope that wa s s ea l ed and had Ba ss’s name on it, and Morrison explained that envelope s like that one are used to store items of value (e.g ., jewelr y ). I n addition, Morrison testified that money that is collecte d from an individual afte r his arr est is either transfe rre d t o an inmate’s commissary acc ount or place d in an envelope like the one that he had been discussing until “anothe r
2office r could come in and place [] ” it in the inmate’s acc ount. Fur ther, Morrison ag ree d that “if there had been money broug ht to the jail with Mr. Ba ss from [t he] Killeen Police Depa rtment, there would be a r ecor d of it” and e x plained that ther e was no rec ord of a ny money being collecte d from B ass. During Morrison’s testimony , Ba ss’s attorney instructed Morrison to open up the envelope

. I nside the envelope was a Te x as De partment of Criminal Just ice of fende r identification car d with B ass’s

name and other persona l information on it along with one penny . On cross-e x amination, Morrison explained that identification ca rds ar e g iven to any one who is sent to prison or a state jail and that the issuance of a car d to Ba ss indicated that he had previously been to either a state jail or a prison.

On appea l, Ba ss co n t ends that there could have been no sound trial strateg y for delibera tely introducing evidenc e showing that he had previously been imprisoned. Alterna tively , Ba ss asser

ts that if his attorney introduced the evidenc e inadver tently , this woul d al s o establish ineffe ctive assistance beca use it would mean that his a ttorney failed to investiga te “the contents of the envelope prior to having it opened in open court.” I n addition, Ba ss arg ues that he was harme d b y h i s at t o rn ey ’s actions beca use he had chosen not to testify and beca use his prior convictions would there fore not have been admitted during his t es t i m o n y . Relatedly , Ba ss asser ts that his attorney ’s actions harme d him because it undermined his cre dibilit y befor e the jury

. Specifica lly , Ba ss notes that evidenc e had alre ady been prese nted showing that Simm ons had been convicted of
two prior felonies and arg ues that by prese nting evidenc e of his off en der identification car d, his attorney put him “on the same leve l as the complaina nt as a c onvicted fe lon.”
T o s u cc ee d on an ineffe ctiveness claim, a defe ndant must overc ome the strong presumption that his trial “counse l’s conduct falls within the wide rang e of rea sonable profe ssional

3assistance ” and must show that the attorney ’s “re prese ntation fell below an objective s t an d ar d of

rea sonablene ss . . . under preva iling profe ssional norms” and that “ther e is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Strickland v. W

ashington , 466 U.S. 668, 688, 689, 694 (1984). “[A]n appe llant’s failure to sa tisfy

one prong of the Strickland test neg ates a court’s need to consider the other prong .” Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001). Evaluations of eff ectivene ss are based on “the totality of the repres en t ati on,” Frangias v. State , 450 S.W .3d 125, 136 (Tex. Crim. App. 2013); see also
Davis v. State , 413 S.W .3d 816, 837 (Tex. App.—Austin 2013, p e t. ref ’d) (providing that assessment

s h o u l d consider “cumulative eff ect” of counsel’s defic iencies) , and alleg ations of ineffe ctiveness
must be firmly established by the rec ord, Mallett v. State , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001).
Fur thermore , even though a defe ndant is not en t i t l ed t o repr esenta tion that is err or-f ree , a single

err or can rende r t he represe ntation ineffec t i v e if it “wa s eg reg ious and had a seriously deleter ious impact on the bala

nce of the re prese ntation.” Frangias , 450 S.W .3d at 136.
I n g ener al, direc t appea ls do not provide a useful vehicle fo r p re s en ting ineffe ctiveness claims beca use the rec ord for that ty

pe of claim is usually undevelope d. Goodspee d
v. Stat e , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005); see also Mallett , 65 S.W .3d at 63 (s t at ing that “[i] n the majority of case s, the rec ord on direc t appea l is undevelope d and cannot adequately

r e f le c t the motives behind trial counsel’s actions”)

. I n addition, befor e their repr esenta tion is dee me d ineffe ctive, trial attorney s should be aff orded the opportunity to e x plain their actions. Goodspee d , 187 S.W .3d at 392 (stating that “counse l’s conduct is revie wed with g rea t defe renc e, without the distorting eff

ects of hindsight”)

. I f that opportunity has not been provided, as in this case , an

4appellate court should not deter min e that an attorney ’s perf ormanc e was ineffe ctive unless the conduct at issue “wa s so outrag eous that no competent attorney would have eng ag ed i n i t

. ” See
Garcia , 57 S.W .3d at 440.

As a preliminary matter, we note that the rec ord d o es not contain any information
reg arding why Ba s s ’s att orney chose to have Morrison open the envelope in this case , cf. Mallet t , 6 5 S

. W

. 3 d at 64-65 (stating that “spec ulation on counsel’s strateg y is immaterial to our deter mination that counsel has not been proven ineffe ctive” when rec ord is si l en t ), n o r does the

rec ord establish whether or n o t Bass’s attorney was awa re of what was inside the envelope

. 1
Howeve r, the rec ord does indicate that part o f Ba ss’s attorney ’s strateg y was to undermine the

cre dibilit y of Simm ons. Specifica lly , Simm ons told the police and testified during the trial that Ba ss stole $400 from her during the alleg ed incident, and Ba ss’s attorney emphasized during his opening

s t at em en t t h at Ba ss only had his “lucky penny ” and around $20 on him when he was arre sted. I n li gh t o f that defe nsive strateg y , Ba ss’s attorney could have conclude d that having Morrison g o throug h the persona l items that wer e collecte d from Ba ss when he was arr ested in order to undermine Simm ons’s cre dibilit y by showing that Ba ss did not have $400 on him was worth the risk of having the jury lear

n that Ba ss ha d previously serve d time in a prison or in a state jail. Cf. Blount v. State , 6 4 S

. W

. 3d 451, 455 (Tex. App.—Texarkana 2001, no pet.) (explaining that even if “counse l’s actions

. . . seem imprudent in hindsight, it is not f or us to se cond-g uess her strateg y ”). Moreove r, when weig hing the potential benef its ag ainst the potential har m s t emm ing from Morrison’s

The rec ord does reve al that Ba s s ’s attorney was able to examine Ba ss’s proper ty befor e 1 trial, but nothing in the re cord shows w hether he opene d the enve lope at issue. 5testimony , Ba ss’s attorney could have considere d that the State had alre ad y introduced in its case

in chief the t wo prior judgme nts of conviction for the of fense s that were alleg ed in the indictment and surmised that any potential impact on the jury stemming from the fac t that Ba ss had previously been give n an offender identification card wa s blunted by the evidence from the S tate concer ning his prior convictions. 2

For all of these rea sons, we must conclude that the re co rd is not sufficie ntly develope d to evalua te whether Ba ss’s att o rn ey ’s decision to have Morrison g o throug h Ba ss’s
persona l proper

ty that was co l l ec ted when he was arr ested, including his identification car d,

was part of rea sonable trial strateg y beca use his attorney has not “be en gi ven an opportunity to

Wh e n p r e s e n ti n g th is is s u e o n a p p e a l, B a s s p r im a

r il y r e li e s o n S

to n e v
. S ta te , 1 7 S. W. 3 d 3 4 8 2 (Tex. App.—Corpus Christi 2000, pet. ref’d). Howeve r, we believe that Ba ss’s relianc e on Stone is misplaced. I n that case , the trial court deter mined that the State would not be allowed to prese nt ev i d en ce i n the first phase of the trial reg arding Stone’s remote prior conviction for murder, but when Stone testified during the trial, his attorney aske d h i m about his prior murder conviction any way . Id. at 349. On appea l, the revie wing court deter mined that Stone recei v ed i n ef fe cti ve assistance of counsel beca use “no rea sonably competent attorney could h av e believed that introducing that evidenc e amou n t ed t o sound trial strateg y .” Id. Fur ther, the appellate court deter mined that Stone’s lawy er’ s decision to mention the prior conviction undermined Stone’s cre dibilit y when it was cruc ial to his alibi defe nse and “g ave substance t o h i s t h re at s to kill the prosec ution witnesses.” Id. at 353.
As an initial matter, we note that there was no simil ar ruling in the prese nt case that expressly prohibited the State from admitting evidenc e of Ba ss’s prior convictions. Moreove r, unlike in Stone , as we discussed above, the decision by Ba ss’s attorney to have Morrison open the envelope may have possibly been part of a sound trial strateg y . Cf. Blount v. State , 64 S.W .3d 451, 454-55 (Tex. App.—Texa rk an a 2 0 0 1, no pet.) (distinguishing case from Stone beca use revie wing court could deter mine possible strateg y to disc redit victim’s mother by asking victim’s mother why she would place her child near defe ndant when she was awa re of prior alleg ations of child abuse as part of trial strateg y to show that victim fabr icated claim or was abused by someone else). Fur thermore , unlike in Stone , no details of the nature of Ba ss’s prior offe nse and incar cer ation wer e admitted throug h the testimony of Morrison. Finally , to the extent that Stone could be rea d as having any applicability to this case, we note that the ana ly sis from Stone is not bindi ng on this Court. 6respond to” the claims, see Goodspeed , 187 S.W .3d at 392, 394, that Ba ss has failed to overc ome

the presumption of rea sonably profe ssional assistance , and that Ba ss has not de monstrated that his trial attorney ’s alleg ed mistake was so outrag eous that n o competent attorney would have made that mistake. 3 Having deter mined that Ba ss has not shown that his trial attorney p r o v id e d in e f f e c tive assistance of counsel on the g rounds alleg ed above, we need n o t fu rt her addre ss the matter, but

we do emphas i z e t h at i n eff ectivene ss challeng es are considere d in light of “the totality of the
repr esenta tion” provided by the attorney

. See Thompson v. S t a t e , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999); see also Simmons v. S t a t e , Nos. 03-11-00229- CR, -00230-CR, 2012 WL 3629864,
at *4 (Tex. App.—Austin Aug

. 22, 20 1 2 , p et

. ref ’d) (mem. op., not desig nated for publication) (dete rmining that “[t] he critica l w eakne ss” in ine ffe ctiveness claim was “its failure to consider the

Although we need not rea ch t h e i s sue, we also believe that Ba ss has not established that 3 there is a rea sonable proba bility that the results of the proce eding would have be en diffe rent if the jury was not made awa

re of the exis tence of the identification car d. As disc u s s ed ea rl i er , no information reg arding the offe nse for which he rec eiv ed the car d was prese nted to the jury , and the State did not discuss the exis tence of the car d except briefly during Morrison’s testimony

. Moreove r, sever al police office rs testified t h at t h ey responde d to the scene of a 911 call and saw Ba ss and Simm ons interac ting, and those witnesses also testified reg arding the serious injuries that they observe d when talking with Simm ons and reg ard i n g the condition of Simm ons’s apar tment wher e the offe nse wa s all eg ed to have occur red. I n addition, Simm ons’s medical rec ords and numerous photogr aphs chronic ling those injuries wer e admitted into ev id e n c e . F in a ll y , e v id e n c e was prese nted showing that Ba ss had assaulted Simm ons in the past. Cf. Lewis v. Stat e , No

. 0 1 -02- 01155-CR, 2003 WL 22916637, at *6 (Tex. App.—Houston [1st Dist.] 2003, n o pet.) (mem. op., not desig nated for publ ication) (expl aining in ref ere nce to 403 objection t hat “although the TDCJ identification car d also sug g ested that appellant had eng ag ed in extraneous misconduct, the State did not f ocus on this point” or “use the TDCJ car d to inflame the minds of the jury ,” that car d “did not state the cri m e fo r wh i ch appellant was convicted or the date of his conviction,” and that “[t] he testimony conce rning the car d was brief and only in the context of what forms of identification wer e found in the re sidence ”). 7totality of trial counsel’s repr esenta tion”). Moreove r, we note that during voir dire Ba ss’s attorney

discussed t he S tate’s burden, went over the defe ndant’s right t o a j u ry t ri al , talked about the j ury delibera tion pr ocess, and war ned the pa

nel member s to vote their consc ience and not how another juror might want them to vote. I n addition, his attorney enter ed into an ag ree ment with the State to strike sever al panelists for cause . During his opening statem ent, Ba ss’s attorney sug g ested that Simm ons had sever al felony convictions; mentioned how althoug h Simm ons asser ted that Ba ss had stolen money from her, the police did not find any money on Ba ss shortly afte r the alleg ed incident; emphasized how althoug h Simm ons was blee ding, the re was no blood on any of B ass’s clothes or
any phy s ical indication that Ba ss had been involved in an alterc ation; and denied that Ba ss and Simm ons wer e in a dating rela tionship. I n a hear ing outside the prese nce of the jury , Ba ss’s attorney moved t o exclude evidenc e of his prior convic t i o n s and bad acts under R ule of Evidence 404 and

cross-e x amined the witne s s e s that the State called during that hear ing to discuss the prior convictions and bad acts. See Tex. R. Evid. 404 (prohibiting, in g ener al, evidenc e of prior crime or bad act “t o p ro v e a p erson’ s char acte r in order to show that on a particula r occa sion the person acte d i n ac co rdanc e with the char acte r”)

. During the trial, Ba ss’s attorney cross-e x amined the Sta t e’ s witnesses, asked the State’s witnesses about whether they found any mon ey o n Ba s s when they

arr ested him and about whether they saw any injuries to Ba ss or any b lood on him, questioned
S i m m o n s ab o u t her rela tionship with Ba ss and about whether they wer e in fac t in a dating rela tionship, and inquired into Simm ons’s four felony and thirteen misdemeanor convictions. I n his closing arg uments during the g uilt-or-innoce nce p h a s e , B a s s ’ s a tt o r n e y e n c o u r ag ed the jury members
to make up their own m i n d and to not be pressured into voting a cer tain way , sug g ested that Ba ss

8and Simm ons did not have the ty pe of rela tionship alleg ed in the indictment in this case , emphasized the State’s burden of establishing all of the elements bey ond a rea sonable doubt, and urg ed that there

was rea sonable do u b t i n t h is case . During his closing arg ument in the punishment phase, Ba ss’s attorney noted that Ba ss’s mother has ag ree d to allow Ba ss to live with her afte r he finishes serving his sentenc e, mentioned that Ba ss had been diag nosed as bipolar, discussed Ba ss’s criminal history but urg ed that his use of d rug s was the source of hi s past misdeeds, and reque sted that the di strict
court assess t he minimum sentenc e. I n the absenc e of further information, we conclude that the totality of the re prese ntation sugg ests that Ba ss was provided w ith effe ctive assistanc e of c ounsel.
For all of these r easons, we overr ule B ass’s first issue on a ppeal.

Cleric al Error in the Judgm ent

Although Ba ss does not raise this on appea l, we observe that the judgme nt of conviction in this case contains a cler ical err or. The judgme nt in this case ref lects that the conviction

was under subsection 22.01(b -1 ) o f t h e P enal Code. See Tex. Penal Code § 22.01(b-1)

. That provision e levates the offe nse level for assault and explains that a person commits a n offe nse if he assaults a victim whose re lationship with hi m is gove rned by provisions of the Fa

mily Code, if he has previously been convicted of assaulting a victim with a simil arly define d rela tionship, and if the offe nse at issue involves “impeding the normal brea thing or circ ulation of the blood” of the victim “by apply ing pressure to the person’s throat o r n eck or by blocking the persons’s nose or mouth.” Id. Although evidence was presented during the trial indicating that Ba ss had strang led Simmons during the assault, the indictment did not alleg e strang ulation as an element of the char g ed offe nse and instead alleg ed that Ba ss “did then and t h er e intentionally , knowing ly , and rec klessly cause
9bodily injury to

. . . Simm ons . . . by striking her, drag g ing her body , kicking her or causing her head

to strike the floor” and that B ass had pr eviously committed the offe nse of a ssault family violence.
Acc ording ly , the alleg ed offe nse was g overne d by subsection 22.01(b)( 2) of the Penal Code, which eleva tes the offe nse level for assault and provides that an ind i vidual commits an offe nse if he assaults someone whose rela tionship with him is descr ibed by provisions of the Family Code and if he previously committed assault ag ainst someone with whom he had a simil arly d e f ine d rela tionship. See id. § 22.01(b)(2 ). This Court has t he authority to modify incorre ct j udg ments when it has t he information nece ssary to do so. See Tex. R. App. P. 43.2(b); Bigley v. State , 865 S.W .2d 26, 27-28 (Tex. Crim. App. 1993). For these rea sons, we modify the judgme nt of co n v i ct i o n to ref lect that
Ba ss was convic ted under subsection 22.01(b)( 2) of the Pena l Code.

CONCLUSION Having modified the judgme nt of conviction and having overr uled Ba ss’s sole issue
on appea l, we af

firm the district cour

t’s judgme nt of conviction as modified.

__________________________________________ David Pury ear , J ustice
Be fore Chief J ustice Rose and Justi ces Pury ear and Pember

ton Modified and, a s Modified, Aff irmed Filed: June 8, 2016 Do Not Publish

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