NO. 07-10-00443-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E JUNE 29, 2011

GARY DALE PHELPS, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 62,053-D; HONORABLE DOUG WOODBURN, JUDGE

Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J. 1

MEMORANDUM OPINION Appellant, Gary Dale Phelps, appeals his conviction for the offense of aggravated assault with a deadly weapon 2 and subsequent sentence of confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) of four years and a fine of $5 00. Appellant contends that he was denied effective assistance of counsel and that the trial c ourt committed reversible erro r in failing to admonish him

1 John T. Boyd, Chief Justice (Ret.), Se venth Court of Appeals, sitting by assignment.

2 See T EX

. P ENAL C ODE A NN . § 22.02(a)(2) (West 2011).2 regarding his rights against self-incrimination under the 5 th Amendment to the United States Constitution prior to his te stimony at trial. We affirm. Factual and Procedural Background 3
On November 12, 2009, Monte Phillips observed a blue Ford pick-up dumping what appeared to be construction debris on a private road in Potte r County. Phillips realized that the trash was being dumped on the r oad that belonged to his neighbor, Jamie Macrander, so he phoned Macrander and advised what was occurring. After Phillips phoned Macrander, Phil lips went outside and star ted approaching the pick-up while trying to get the attent ion of the male who was dumpi ng the trash. At the same time, Macrander came out of his house and started toward the road. After being alerted that his dumping acti vities had been observed, the male got back in the truck and turned around to leave. Phillips was able to obtain the license plate number of the truck as it left the scene. At the same time, Macrander went into the road and tried to stop the ve hicle from leaving. While standing in the road holding his hand up in an effort to advise the driver to stop, Macrander rea lized that the truck was not slowing down and was headed directly at him. Macrander was able to avoid being hit by the truck by jumping to the side of the road. He also copied the license plate number down and called 91 1 to report the incident. Potter County deputies were sent to t he scene and, later that night, located a blue Ford pick-up truck with the reported license plate num ber at a residence in

3 Appellant does not challenge the suffici ency of the evidence to support his conviction and sentence, therefor e, only those portions of the record relevant to his issues will be recited.3 Amarillo. The deputies who loca ted the truck talked to t he two people at the residence about the trash dumping incident. Appellant was one of the two people at the house and advised the deputies that he had been working removing trash from a construction site in Amarillo that day but that he did not dump any trash at the scene. Appellant did advise the deputies that he had hired two day laborers who were driving his truck and that, if they had in fact dumped trash illega lly, he would be willing to go clean up the site. After visiting with appellant, the deputies took pictures of appellant and the other person at the house and went back to the Macrander residence to show the pictures to Phillips and Macrander. Bo th Phillips and Macrander identif ied appellant as the male who was dumping the trash and driving the truck when it nearly ran over Macrander.
Appellant was subsequent ly indicted for aggravat ed assault with a deadly weapon. During the trial, appella nt testified in his own defense. Prior to getting into the facts of the case, appellant’s trial counsel elicited a response from appellant affirming that he had in fact been convicted of a prior felony. The defense presented an alibi defense tending to show that the Ford pick-up involved in the inci dent was being driven by the two day laborers that appellant had hired. At the conclusion of the testimony and after having prepared a proposed charge, the tria l court inquired as to whether the State or appellant had any objections. Neither State nor appellant requested the submission of any lesser-included charges. The jury then returned a verdict of guilty against appellant.4 Appellant had elected to go to the tr ial court for punishment. During his testimony on punishment, his counsel firs t attempted to ask questions regarding whether appellant was familiar with and coul d abide by the terms and conditions of probation. At that point, the State pointed out that, under the laws of t he State of Texas, appellant could not receive prob ation from the trial court for the offense for which he was convicted. 4 The trial court subsequently sentenced appellant to a term of confinement in the ID-TDCJ of four year s and assessed a fine of $500. This appeal followed appellant’s conviction. Appellant brings forth two issues. Firs t, he alleges that tr ial counsel provided ineffective assistance in four particulars: 1) the failure of trial counsel to understand the law regarding punishment; 2) the failure of tr ial counsel to request a charge on a lesserincluded offense; 3) trial counsel’s introduction of evidence of appellant’s prior conviction; and 4) the failure of trial c ounsel to object when the State introduced the same prejudicial evidence of the prior c onviction during the guilt innocence phase of the trial. Second, appellant cont ends that the trial court committed reversible error by not admonishing appellant regarding his right agai nst self-incrimination prior to appellant’s testifying during the guilt innocence phase of the trial. We di sagree with appellant’s contentions and will affirm.

4 See T EX

. C ODE C RIM

. P ROC

. A NN . art. 42.12 § 3g(a)(2) (West Supp. 2010).5 Ineffective Assistance of Counsel

Standard of Review In determining whether counsel’s repres entation was so inadequate as to violate a defendant’s Sixth Amendment right to c ounsel, Texas courts apply the two-pronged test enunciated in St rickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State , 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Judicial review of an ineffective assistanc e of counsel claim must be highly deferential, and there is a strong pr esumption that counsel’s conduc t fell within the wide range of reasonable professional assistance. Strickland , 466 U.S. at 689. An appellant bears the burden of proving by a preponderance of the evi dence that (1) counsel’s representation fell below an objective st andard of reasonableness and (2) the deficient performance prejudiced the ap pellant. Freeman v. State , 125 S.W.3d 505, 511 (Tex.Crim.App. 2003). Failure to make the required showing of either deficient performance or sufficient prejudice is fa tal to an ineffectiveness claim. See id

. Reviewing courts “commonly a ssume a strategic motive if any can be imagined” and will conclude that counsel’s performance wa s “deficient only if the conduct was so outrageous that no competent at torney would have engaged in it.” Andrews v. State , 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Analysis
Appellant contends that ther e are four separate events of ineffective assistance of counsel. We will address each as they allegedly occurred during the trial.6 Prior Felony Conviction We first address appellant’s allegation of ineffective assistance during the guilt innocence phase of the trial. Both of these allegations concern appellant’s conviction for a prior felony offense. When appellant was called as a witness, the first area of inquiry made by trial counsel concerned the fact that appel lant had been convicted of a prior felony offense. According to appellant, this inquiry into his prior conviction was an act of ineffective assistance. Appellant also contends t hat, when the State questioned him about it during cross-examination, his trial counsel was ineffective because he failed to object to this inquiry. Our initial inquiry addresses the question of whether the introduction of this testimony fell below an objective standard of reasonableness. See Freeman , 125 S.W.3d at 511. Trial counsel ca n, as a strategic decision, dec ide to blunt the effect of a prior conviction by discussing the matter with his client on direct examination. See Martin v. State , 265 S.W.3d 435, 443 (Tex.App.—Houston [1 st Dist.] 2007, no pet). However, this decision is only viable if t he prior convictions are otherwise admissible. See Robertson v. State , 187 S.W.3d 475, 484-85 (Tex.Crim.App. 2006). The question of admissibility is decided under the guidance of the Te xas Rules of Evidence and cases interpreting the rules of evidence. See T EX

. R. E VID . 609; 5 Theus v. State , 845 S.W.2d 874, 880 (Tex.Crim.App. 1992).

5 Further reference to the Texas Rules of Evidence shall be by reference to “Rule ___” or “rule ___.”7 Rule 609 provides in pertinent part: General Rule. For the purposes of a ttacking the credibility of a witness, evidence that the witness has been conv icted of a crime shall be admitted if elicited from the witne ss or established by public record but only if the crime was a felony or involved mora l turpitude, regardless of punishment, and the court determines that the probat ive value admitting this evidence outweighs its prejudicial effect to a party.
The Theus case provides guidance in determining when such evidence is admissible. See Theus , 845 S.W.2d at 880. Unde r this analysis, we examine five factors in determining the probative value of the prio r conviction as opposed to its prejudicial effect: 1) the impeachment value of the prior c onviction; 2) the tempor al proximity of the prior conviction; 3) the similarity between the past conviction and the offense being prosecuted; 4) the importance of the appellant’s testimony; and 5) the importance of the credibility issue. Id

. The prior offense was a felony and, as such, met the first r equirement of Rule 609. The prior offense was a forgery which has been held to be a crime of deception and, therefore, of relative high impeachment value. See Denman v. State , 193 S.W.3d 129, 136 (Tex.App—Houston [1 st Dist.] 2006, pet. ref’d). At the time the prior offense evidence was presented, the time span bet ween the forgery and the trial was approximately five years. Th is span has been previously held to be temporally proximate for purposes of this analysis. See Theus , 845 S.W.2d at 881. The previous conviction and the current case ar e not similar, and, under the Theus analysis, this dissimilarity is consist ent with admissibility. Id . at 880-81. The only Theus factor that seems to militate against admi ssibility is the fact that appe llant’s defense did not rely only on his testimony. Id . In fact, appellant had a number of additional witnesses that8 testified as to his alibi. However, in light of the two eyewitnesses that identified appellant at the scene, the credibility of appell ant’s testimony was critical. This element would suggest that the prior off ense should be admitted under the Theus analysis. Therefore, we are left with the conclusion that the evidence of appellant’s prior conviction was admissible in the trial of the ca se. Accordingly, the strategic decision of trial counsel to blunt the impact of this ev idence by introducing it on direct examination was a valid trial decision of counsel. See Robertson , 187 S.W.3d at 485. Therefore, trial counsel’s action in this regard did not fall bel ow an objective standard of reasonableness. See Freeman , 125 S.W.3d at 511. The same reasoning applies to appellant’s additional complaint about the failure of trial counsel to object when the State on cross-examination pr oved up the prior conviction by introduction of St ate’s exhibit 22. The failure of trial counsel to object to admissible evidence is not ineffective assistance of counsel. See McFarland v. State , 845 S.W.2d 824, 846 (Tex.Crim.App. 1992) ( en banc), overruled on other grounds , Bingham v. State , 915 S.W.2d 9, (Tex.Crim.App. 199 4). As mentioned in the preceding paragraph, trial counsel’s action in not object ing to the introduction of the exhibit during cross-examination did not fall below an objective standard of reasonableness. See Id

. Failure to Request Lesser-Included Charge
Appellant next contends t hat trial counsel was ineffective when he did not request the inclusion in the Court’s Charge to the jury a lesser-included charge. Appellant cites the Court to a number of cases that indicate that there are at least two lesser-included offenses to the offense for wh ich appellant was being tried. The fact9 that there are lesser-include d charges possible does not ipso facto dictate that a failure to request one is an act of an ineffective counsel.

It is instructive that appellant and his trial counsel discussed their collective decision not to seek a lesser-included c harge while appellant was testifying during punishment. When asked if they decided to go all or nothing by no t requesting a lesserincluded charge, appella nt answered in the affirmative. A decision not to request the lesser-included charge when made as part of trial strategy has been held not to be an act of ineffective assistance of counsel. See Fife v. State , No. 07-02-00410-CR, 2004 Tex. App. LEXIS 4994, at *13-14 (Tex.App. —Amarillo 2004, no pet.) (not designated for publication) (citing Wood v. State , 4 S.W.3d 85, 87 (Tex.App.—Fort Worth 1999, pet. ref’d)). Accordingly, we conclude that this was a matter of trial strategy. Appellant’s argument is prefaced on the conclusion that, had a lesser-included charge been requested and given, then the jury would ha ve found appellant guilty of only the lesserincluded offense. This is nothing more or le ss than speculation and, in the face of a trial strategy decision, we are not convinced that appellant woul d have forgone his all or nothing approach under any circ umstances. Therefore, as to his assertion regarding the lesser-included offense issu e, appellant has not met his burden of proof in an ineffective assistance claim. See Freeman , 125 S.W.3d at 511. Therefore, appellant’s claim of ineffective assistance of counsel, as it pertains to the lesser-included offense issue, is overruled.10 Failure to Know the Law Relating to Punishment
Appellant’s last issue regarding trial counsel’s performance contends that, “counsel’s fundamental lack of knowledge and/or misi nterpretation of the law regarding Texas criminal sentencing law was deficie nt and fell below an objective reasonable standard of representation.” Two facts are apparent from the record: 1) appellant was not eligible for probation from a jury because of his prior felony conviction; and 2) the offense for which appellant wa s indicted was a “3g” offens e that, by statute, did not permit the trial judge to grant a probation. See T EX

. C ODE OF C RIM

. P ROC

. A NN . art. 42.12 § 3g(a)(2). That trial counsel is charged with know ledge of the app licable law is beyond question. See Ex parte Welch , 981 S.W.2d 183, 185 (T ex.Crim.App. 1998) (trial counsel’s misunderstandi ng of the law constituted ineffective assistance of counsel). Appellant refers t he Court to Aldrich v. State for the proposition that counsel’s lack of understanding of the bas ic principles of the law app licable to him is deficient performance under the fi rst prong of Strickland . See Aldrich v. State , 296 S.W.3d 225, 242 (Tex.App.—Fort Worth 2009, pet. ref’d). However, we must disagree with appellant ’s contention that t he record before us demonstrates that appellant would have made a different decision had he been accurately informed of the law relating to probat ion. The record is silent on that point and, because of this silence, we are asked to speculate that appellant would, in fact, have elected to do something differently. Such speculation is not how deficient performance is to be determined. See Freeman , 125 S.W.3d at 511.11 Additionally, we see nothing in the re cord to demonstrate appellant has been harmed even if we found that trial counsel’s performance was deficient. Appellant was not eligible for probation from the jury; therefore, he elected to go the judge for punishment. The fact that the judge could not grant probation di d not cast harm on appellant, for to decide otherwise would mean we must infer that the jury either could grant probation or would have given a shorter sentence. We know that the jury could not grant probation, and speculat ion about a shorter sentence is just that: speculation. Appellant has not carried his bur den to demonstrate harm. See id . Finally, the record reflects that appellant received a sentence of four years confinement on a seconddegree felony that carried a possible punishm ent of up to 20 years confinement. See T EX

. P ENAL C ODE A NN . § 12.33 (West 2011). Therefore, we decline to find trial counsel’s action regarding sentencing to be ineffective. Having considered all alle gations of ineffective assi stance of counsel and having determined that in none of the instances wa s trial counsel ineffective, we overrule appellant’s first issue. Failure to Admonish Appellant of the Right Against Self-Incrimination Appellant’s final issue contends that, because the record is devoid of any admonition regarding the ri ght against self-incriminati on and because appellant did testify, the trial court must have committ ed reversible error. However, such a proposition ignores existing case law that has determined that the tr ial court has no duty to admonish a defendant of his right against se lf-incrimination when he is represented by counsel. See Johnson v. State , 169 S.W.3d 223, 235 (Tex.Crim.App. 2005). We are12 not disposed to depart from this well-establ ished precedent by placing that burden upon the trial court. Accordingly, appell ant’s second issue is overruled.

Conclusion Having overruled appellant’s issues, the judgment of the trial court is affirmed.

Mackey K. Hancock Justice

Do not publish.