NO. 12-09-00251-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EVERSON JEROME VICTOR, § APPEAL FROM THE 7TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Everson Jerome Victor appeals his conviction for aggravated assault with a deadly 

weapon against a public servant. In his sole issue on appeal, Appellant argues that his trial 

counsel rendered ineffective assistance of counsel. We affirm.

BACKGROUND

Appellant was charged by indictment with the offense of aggravated assault with a deadly 

weapon against a public servant, a first degree felony.1The indictment also alleged that 

Appellant used or exhibited a deadly weapon – a motor vehicle that in the manner and means of 

its use and intended use was capable of causing death and serious bodily injury, during the 

commission of or immediate flight from the offense. Appellant entered an open plea of guilty to 

the offense charged in the indictment. Appellant and his counsel signed an agreed punishment 

recommendation, an acknowledgment of admonishments, a waiver of jury trial, an agreement to 

stipulate testimony, and a written stipulation of evidence in which Appellant swore that such 

stipulation constituted the evidence in the case. After a punishment hearing, the trial court 

adjudged Appellant guilty of the offense of aggravated assault with a deadly weapon against a 

 

1

See TEX. PENAL CODE ANN. § 22.02(a), (b)(2)(B) (Vernon Supp. 2009).
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public servant,2 made an affirmative deadly weapon finding, and assessed his punishment at 

thirty years of imprisonment. This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his sole issue on appeal, Appellant argues that his trial counsel rendered ineffective 

assistance of counsel by failing to object to impermissible impeachment evidence offered by the 

State against a key mitigation witness. Further, Appellant contends that this testimony adversely 

affected the punishment assessed by the trial court and, thus, he was prejudiced. The State 

disagrees.

Standard of Review

In reviewing an ineffective assistance of counsel claim, we follow the United States 

Supreme Court=s two pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). 

Under the first prong of the Strickland test, an appellant must show that counsel=s performance 

was Adeficient.@ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 

712 (Tex. Crim. App. 2000). AThis requires showing that counsel made errors so serious that 

counsel was not functioning as the >counsel= guaranteed the defendant by the Sixth Amendment.@

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must Ashow that 

counsel=s representation fell below an objective standard of reasonableness.@ Id., 466 U.S. at 

688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the Adeficient performance 

prejudiced the defense.@ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 

712. The appropriate standard for judging prejudice requires an appellant to Ashow that there is a 

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

would have been different.@ Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 

712. A reasonable probability is a probability sufficient to undermine confidence in the 

 

2

In the indictment, Appellant was charged with “intentionally, knowingly, or recklessly” causing bodily 

injury with a deadly weapon against a public servant. However, in the stipulation of evidence, Appellant admitted 

only to “recklessly” causing bodily injury with a deadly weapon against a public servant. Thus, at the conclusion of 

the punishment hearing, the trial court found Appellant guilty of the offense as set forth in the indictment as to the 

“recklessly” portion of the charge.
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outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standard applies to 

ineffective assistance of counsel claims alleging a deficiency in attorney performance at 

noncapital sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 

1999) (overruling Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980)).

Review of a trial counsel=s representation is highly deferential. Tong, 25 S.W.3d at 712. 

We indulge in a Astrong presumption that counsel=s conduct falls within the wide range of 

reasonable professional assistance.@ Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is the 

appellant=s burden to overcome the presumption that, under the circumstances, the challenged 

action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; 

Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in 

the record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required 

showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. 

Id. Appellant must prove both prongs of the Strickland test by a preponderance of the evidence 

in order to prevail. Tong, 25 S.W.3d at 712. 

Application

A witness may be impeached with evidence that the witness has been convicted of a 

crime, “but only if the crime was a felony or involved moral turpitude, regardless of 

punishment.” TEX. R. EVID. 609(a). The witness’s conviction must be admitted if the court 

determines that the probative value of admitting this evidence outweighs its prejudicial effect to 

a party. Id.

At the punishment hearing, Appellant offered two witnesses on his behalf, his pastor and 

his father. Appellant’s father, Eric Victor, testified regarding Appellant’s character, schooling, 

mental health problems, previous arrests, and juvenile probation. He also testified that he 

believed Appellant was “salvageable,” and that his son realized that he had made a mistake. 

However, Eric blamed Appellant’s criminal history on other people, or his son’s mental health 

problems, and also described it as a “phase” his son was going through. He stated further that he 

knew Appellant had no “intention” of hurting the public servant. On recross examination, the 

State questioned Eric regarding his own arrest for resisting arrest. Eric responded that he did not 

resist arrest, that he was “kind of manhandled,” and that it was because of his medication. He 
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stated that he paid a fine and was sentenced to probation for that offense. Eric also stated that he 

“believed” he was convicted for failure to identify because his identification was stolen. 

Appellant asserts that the offense of resisting arrest is not an offense involving moral 

turpitude and that his trial counsel failed to determine whether the offense was a felony. See 

TEX. PENAL CODE ANN. § 38.03 (a), (c), (d) (Vernon 2003) (providing that the offense is a 

misdemeanor unless the actor uses a deadly weapon to resist the arrest); Williams v. State, 449 

S.W.2d 264, 265 (Tex. Crim. App. 1970). Moreover, he states that while the offense of failure to 

identify by giving a false or fictitious name is an offense involving moral turpitude, committing 

the same offense by simply refusing to provide the requested information to an officer is not.

See TEX. PENAL CODE ANN. § 38.02 (Vernon Supp. 2009) (providing that an actor commits an 

offense if he intentionally refuses to give his name, residence address, or date of birth to a peace 

officer who has lawfully arrested the person and requested the information); Lape v. State, 893 

S.W.2d 949, 958 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d) (stating that lying to a police 

officer involves moral turpitude). Thus, Appellant argues, his trial counsel rendered ineffective 

assistance when he permitted the State to impeach Eric without determining if the evidence of 

his prior convictions was admissible or the crimes involved moral turpitude. 

In this appeal, we have no record, usually developed in a motion for new trial or on writ 

of habeas corpus, explaining trial counsel=s thought processes and trial strategy in not objecting 

to the admission of Eric’s testimony about his own prior convictions. See Redmond v. State, 30 

S.W.3d 692, 698-99 (Tex. App.–Beaumont 2000, pet. ref’d). It is Appellant=s burden to 

overcome the presumption that, under the circumstances, the challenged action might be 

considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 

S.W.3d at 712. Moreover, 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. Because the record does not show deficient performance, we conclude that 

Appellant has failed to meet the first prong of the Strickland test. See id. 

Even if Appellant had met the first prong of the Strickland test, he has failed to show 

that, without the evidence of Eric’s prior convictions, the result of the proceeding would have 

been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. In 

sentencing Appellant, the trial court stated that Appellant’s history did not justify a deferred 
5

finding of guilt. Further, the trial court stated that Appellant’s “father got up and testified to 

numerous things, all of which are really suspect to me, based upon what I see in your history.” 

At that point, the trial court briefly summarized Appellant’s criminal history since September 

2005, which included evading arrest, possession of marijuana, aggravated assault, driving while 

intoxicated, unlawful carrying of a weapon, and two charges each of assault family violence and 

possession of a controlled substance. The trial court also enumerated how many times Appellant 

had been sentenced to probation for these charges. The trial court noted that Eric’s testimony did 

not “make or break the issues in this case because the issues . . . were created long before y’all 

ever got here to give testimony.” Then, the trial court found Appellant guilty of the offense as 

set forth in the indictment as to the “recklessly” portion of the charge, made an affirmative 

finding of the use of a deadly weapon, and assessed his punishment at thirty years of 

imprisonment.

Appellant asserts that Eric’s prior convictions influenced the trial court’s comment that 

Eric’s testimony was “suspect” and difficult to believe. As such, Appellant argues that he was 

harmed because the evidence regarding Eric’s prior convictions may have reasonably contributed 

to Appellant’s punishment and that, but for Eric’s testimony, he would have received a different 

sentence. However, the trial court found that Eric’s testimony regarding Appellant’s brushes 

with the law to be of dubious character, not because of Eric’s criminal history, but because of 

Appellant’s own criminal history that the trial court had before it. In fact, the trial court pointed 

out that Eric’s testimony did not “make or break” the issues in the case because Appellant’s 

criminal history was created long before the punishment hearing. Further, we cannot speculate 

as to whether the trial court would have assessed a lesser sentence absent the challenged 

testimony. See Schaired v. State, 786 S.W.2d 497, 499 (Tex. App.–Houston [1st Dist.] 1990, no 

pet.). Because Appellant failed to show that the result of the proceeding would have been 

different without the evidence of Eric’s prior convictions, he also has failed to meet the second 

prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 

S.W.3d at 712. Therefore, even if he had met the first prong of Strickland, he still could not 

prevail. Appellant=s sole issue is overruled.
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DISPOSITION

The judgment of the trial court is affirmed.

SAM GRIFFITH

 Justice

Opinion delivered March 24, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)