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Court of Appeals of Texas, El Paso.


No. 08-15-00371-CR

Decided: January 31, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ.


Kerry Lynch appeals his conviction for assault bodily injury family violence (enhanced), asserting that his counsel rendered constitutionally ineffective assistance in introducing certain extraneous offenses at trial.1 In his sole issue on appeal, Appellant contends that his trial counsel's performance fell below an objective standard of reasonableness when he elicited testimony from Appellant regarding his prior convictions during the guilt phase of his trial. He asserts that counsel should have known that ten of the sixteen offenses introduced were inadmissible under Texas Rule of Evidence 609, and that but for the jury hearing about these additional offenses, the outcome of the trial would have been different. For the following reasons, we affirm.


Factual History

This case is about a claim of ineffective assistance of counsel based on the admission of some of the Appellant's extraneous offenses at trial. Appellant Kerry Lynch and Phyllicia Regil were involved in an on-again, off-again relationship spanning about two years. Appellant and Regil initially lived together for a time at Regil's mother's rental property. But their relationship became contentious and began to deteriorate. During their relationship, Appellant was indicted for assaulting Regil by slamming her head into the wall. Appellant plead guilty to this offense and moved out after the assault, but the couple continued their relationship.

The stories of the two partners differed substantially regarding what happened on the day of Appellant's second assault on Regil. Regil testified that she was getting ready for the day after having sent her children off to school when Appellant showed up to her home unannounced and asked to use her cellular phone. She told Appellant the phone was next door at her mother's, at which point Appellant cursed at her, grabbed her by the face, and head-butted her in the nose. The impact broke her nose. Appellant then said, “Look what you made me do to you,” and refused to let her call an ambulance. Regil testified that she promised Appellant that she would not tell anyone what he had done, and that once he was convinced of that, he left the house and she called 911.

Conversely, Appellant testified that Regil was a habitual drug user, and that he awoke on the morning in question to Regil shouting at him because the couple had exhausted their supply of marijuana and cigarettes. He testified that as she became more irritable, he got on his knees in front of her and urged her to pray with him. Refusing to be placated, she continued her verbal assault, and out of an urge to calm her down he stood up to ask her to stop and accidentally headbutted her. He testified that she then angrily informed him that she was going to her mother's house, at which point he decided to leave.

Trial commenced in 2015. There were no other witnesses and, as a result, the trial focused on the credibility of Regil and Appellant's divergent stories. During direct-examination of Appellant, defense counsel stated, “I want to get this out right in the open here, Kerry. You've been convicted of a lot of crimes; is that correct?” Appellant confirmed that this was accurate, and defense counsel followed up by asking him to confirm that he had been convicted for each of the following crimes:

1. Possession of a controlled substance in 1995;

2. Misdemeanor evading arrest in 1996;

3. Misdemeanor driving while license suspended in 1996;

4. Failure to identify as a fugitive from justice in 1996;

5. Class A deadly conduct in 1999;

6. Possession of marijuana in 2000;

7. Possession of marijuana in 2002;

8. Misdemeanor possession of marijuana in 2004;

9. Possession of a controlled substance in 2005;

10. Possession of a controlled substance in 2005;

11. Assault bodily injury (family violence) in 2009;

12. Misdemeanor unlawful restraint in 2010;

13. Possession with intent to deliver or manufacture a controlled substance in 2010;

14. Driving while license suspended in 2013;

15. Driving while license suspended in 2013; and

16. Assault bodily injury in 2013.

Appellant confirmed each charge as he was questioned about it. He also confirmed his 2013 conviction for the assault committed against Regil. Appellant further testified that he had had a drug problem, and that he and Regil used methamphetamine together on several occasions. On cross-examination, the prosecutor pointed out that two of Appellant's possession charges were for methamphetamine. The prosecutor also delved into the circumstances of Appellant's prior assault against Regil, his prior drug use, his conviction for failure to identify, and his unlawful restraint of a previous girlfriend. Following this exchange, the defense rested, and after deliberations the jury found Appellant guilty of assault family violence. This appeal followed.


In his sole issue on appeal, Appellant maintains that his trial counsel rendered constitutionally ineffective assistance in eliciting testimony regarding ten of his sixteen prior convictions, asserting that they would have been inadmissible under Texas Rule of Evidence 609. He contends that these admissions prejudiced his defense, and requests that we reverse and remand the cause for a new trial.

Standard of Review

A criminal defendant is entitled to be represented by effective, competent counsel under the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). But this right does not entitle a defendant to errorless or perfect representation as judged by the benefits of hindsight; rather, it entitles him or her to reasonably effective assistance of counsel. Cueva v. State, 339 S.W.3d 839, 857-58 (Tex.App.--Corpus Christi 2011, pet. ref'd) (citing Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003)(en banc)).

We review claims for ineffective assistance of counsel under the well-established standard set by Strickland. First, we determine whether the appellant has shown by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. Cavitt v. State, 507 S.W.3d 235, 248 (Tex.App.--Houston [1st Dist.] 2015, pet. ref'd) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064). That is, the appellant must prove that there was no plausible professional reason for a specific act or omission by counsel. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). If counsel was deficient, we determine whether there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Id.; Adekeye v. State, 437 S.W.3d 62, 73 (Tex.App.--Houston [14th Dist.] 2014, pet. ref'd). The two prongs of the Stickland test do not need to be analyzed in any particular order, and an appellant's failure to satisfy either prong defeats a claim of ineffective assistance of counsel. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)(citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2069).

Demonstrating ineffective assistance of counsel on direct appeal is even more difficult, given that the reasonableness of counsel's decisions often involves facts which are not in the record. Rylander, 101 S.W.3d at 110 (noting that habeas corpus proceedings are often the better avenue for relief because counsel can have the opportunity to explain his thought process and extra-record evidence may be introduced). Absent evidence of counsel's strategic motivations for particular actions at trial, we indulge a strong presumption that counsel rendered adequate assistance and that his actions were a result of a sound trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). “We have said that we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). But counsel's performance falls below an objective standard of reasonableness as a matter of law when “no reasonable trial strategy could justify the trial counsel's conduct,” regardless of counsel's subjective reasons for taking the action or actions at issue. Id. at 102.


Appellant contends that his trial counsel was constitutionally ineffective under Strickland for eliciting Appellant's testimony on direct that he had been convicted of sixteen prior offenses, ten of which he argues were inadmissible under Texas Rule of Evidence 609. He asserts that, because his credibility was paramount, these admissions prejudiced his defense and the proceeding may have been different but for his counsel's deficient performance.

Appellant correctly notes that eliciting testimony from a defendant about his own prior convictions can be a sound trial strategy, provided that those prior convictions are in fact admissible. See Rodriguez v. State, 129 S.W.3d 551, 558-59 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd). He argues, however, that Rule 609 of the Texas Rules of Evidence clearly bars impeachment of a witness with: (1) felonies where more than ten years have passed since the witness's conviction or release; or (2) crimes not involving moral turpitude. See TEX.R.EVID. 609(a), (b). Appellant contends that, based on Rule 609's prohibition, his trial counsel should have known that the following convictions were inadmissible or presumably inadmissible:

• 1/4/1995 State Jail Felony possession of a controlled substance (conviction more than ten years' old); Appellant plead guilty and placed on probation: Probation revoked 6-18-1997. Appellant sentenced to State Jail Division for ten and one-half months.

• 7/18/1996 misdemeanor class B evading arrest (conviction not involving moral turpitude);

• 1996 driving while license suspended (conviction not involving moral turpitude);

• 7/18/1996 misdemeanor failure to identify as a fugitive (conviction more than ten years' old);

• 10/20/1999 misdemeanor class A deadly conduct (conviction more than ten years' old);

• 6/22/2000 misdemeanor class A (drug-free zone) possession of marijuana (conviction more than ten years' old);

• 1/15/2002 misdemeanor Class B possession of marijuana (conviction not involving moral turpitude);

• 8/20/2004 misdemeanor class B possession of marijuana (conviction not involving moral turpitude);

• 2013 driving while license suspended (conviction not involving moral turpitude);

• 2013 driving while license suspended (conviction not involving moral turpitude).

Accordingly, he claims that the introduction of these convictions could serve no strategic value—including demonstrating that he was not a liar—and that their admission was highly prejudicial because his credibility was paramount to his defense. The six convictions which Appellant admitted to and does not challenge on appeal are: (1) assault bodily injury family violence September 13, 2013; (2) second degree felony possession with intent to deliver or manufacture a controlled substance: Methamphetamine October 15, 2010; (3) class A misdemeanor assault bodily injury/family violence July 4, 2009; (4) misdemeanor class A unlawful restraint October 15, 2010; (5) first degree felony possession of a controlled substance: Methamphetamine November 10, 2005; and (6) second degree felony possession of a controlled substance March 16, 2005.

Appellant acknowledges that the prohibition he relies upon in Rule 609 is not an absolute bar to admission; convictions more than ten years' old are admissible if their “probative value, supported by specific facts and circumstances, substantially outweighs [their] prejudicial effect.” TEX.R.EVID. 609(b). For a felony less than ten years' old, or a crime involving moral turpitude, the offense is admissible if, on balance, “the probative value of the evidence outweighs its prejudicial effect” on the party. TEX.R.EVID. 609(a). He points to the Texas Court of Criminal Appeals' decision in Robertson, that held that trial counsel performed deficiently for eliciting testimony regarding two prior convictions which were inadmissible under Rule 609. Robertson v. State, 187 S.W.3d 475, 484 (Tex.Crim.App. 2006). In Robertson, the appellant had faced an aggravated assault charge at trial and his defense rested almost entirely on his version of the events; thus, his credibility was paramount. Id. His trial counsel elicited testimony that the appellant was already incarcerated on two convictions that were pending on appeal, and mentioned the convictions during closing arguments. Id. at 479. Because a conviction with an appeal pending is inadmissible under Rule 609, the Texas Court of Criminal Appeals held that the appellant's lawyer had performed deficiently under Strickland in eliciting testimony of clearly inadmissible evidence. Id. at 484. The Court concluded that admission of the convictions “could serve no strategic value including demonstrating that appellant is not a liar.” Id.

But Robertson is distinguishable in a key respect: admission of a conviction for which an appeal is pending is absolutely barred by Rule 609. TEX.R.EVID. 609(e)(“A conviction for which an appeal is pending is not admissible under this rule.”). The ten-year-old felony bar and the restriction on crimes involving moral turpitude are only conditionally barred in that they are admissible after a proper probative versus prejudicial analysis. TEX.R.EVID. 609(a), (b). Accordingly, Appellant can only overcome the presumption that his trial counsel acted reasonably if the trial court would have abused its discretion by admitting the ten prior convictions complained of. Huerta v. State, 359 S.W.3d 887, 894 (Tex.App.--Houston [14th Dist.] 2012, no pet.). A trial court would abuse its discretion in admitting prior convictions only if no reasonable view of the record could have supported the ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex.Crim.App. 2012).

Felony Greater than 10 Years' Old

Of the ten prior convictions complained of, only one is a felony greater than ten years' old that would be subject to the balancing test of Rule 609(b) and thus the highest threshold for admission under the rule: that its probative value substantially outweighs its prejudicial effect. TEX.R.EVID. 609(b). In Theus, the Texas Court of Criminal Appeals provided a list of five nonexclusive factors to consider in weighing a conviction's probative value against its prejudicial effect on a party: (1) the conviction's value for impeaching the witness; (2) the temporal proximity of the conviction relative to the offense being tried, and the witness's subsequent history; (3) the conviction's similarity to the offense being prosecuted; (4) the importance of the defendant's testimony to his defense; and (5) the importance of the witness's credibility. Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992); Morris v. State, 214 S.W.3d 159, 187 (Tex.App.--Beaumont 2007), aff'd, 301 S.W.3d 281 (Tex.Crim.App. 2009). These factors cannot be applied with “mathematical precision,” however, because several factors can cut in different directions. Theus, 845 S.W.2d at 880. Further, in respect to Rule 609(b), the Texas Court of Criminal Appeals recently held that “[i]n deciding whether, in the interests of justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction.” Meadows v. State, 455 S.W.3d 166, 170 (Tex.Crim.App. 2015).

Here, the felony complained of is possession of a controlled substance. The first Theus factor—the impeachment value of the offense—neither favors nor disfavors admission, because the possession charge does not involve deception or violence. Theus, 845 S.W.2d at 881. Thus, it does not carry high impeachment value or a risk that the jury will give it undue weight. Id.

The second Theus factor—temporal proximity and subsequent history—favors admission. Appellant's conviction for possession of a controlled substance occurred twenty years before trial. Viewed in isolation, this conviction occurred long before the crime charged and would therefore weigh against admission. Theus, 845 S.W.2d at 881. But when considered along with Appellant's entire conviction history, the calculus begins to weigh in favor of admission. Id. Appellant was convicted of sixteen crimes between 1995 and 2015, the time of trial. The second Theus factor favors admission of recent past crimes if the witness has “demonstrated a propensity for running afoul of the law.” Id.; Meadows, 455 S.W.3d at 170 (courts may still consider whether intervening convictions dilute prejudice); Cavitt, 507 S.W.3d at 258 (intervening convictions diluted prejudice in introducing forty-year-old crime); Leyba v. State, 416 S.W.3d 563, 571 (Tex.App.--Houston [14th Dist.] 2013, pet. ref'd)(demonstrated failure to rehabilitate, based on subsequent crimes, neutralized the taint of introducing fifteen-year-old conviction). Appellant's crimes are nearly evenly spread over the twenty-year period between his first conviction and the trial, and so demonstrate the law-breaking propensity that weighs in favor of admission under the second factor.

The third Theus factor—the similarity of the past and charged crime—weighs in favor of admission of the felony at issue. The third factor weighs against the admission of past convictions that are similar to the charged crime in order to prevent the jury from convicting the defendant based on the perception of a past pattern of conduct, as opposed to the facts of the charged offense. Theus, 845 S.W.2d at 881. Appellant was charged with assault family violence, but possession of a controlled substance bears no resemblance to the assault Appellant was charged with at trial. Therefore, the risk of the jury convicting Appellant on his past conduct instead of the facts was minimal for this offense, and the third factor would weigh in favor of its admission. Id.

The fourth and fifth Theus factors—the importance of the defendant's credibility and testimony—are related, and their weight is measured based on the nature of the defendant's defense and his means of proof. Theus, 845 S.W.2d at 881. When the defendant is able to present an alibi defense, his credibility is not likely to be a critical issue as he will be able to call other witnesses in his favor and will not necessarily need to testify. Id. But when the case involves only the testimony of the defendant and the State's witnesses, the credibility of the defendant and his testimony becomes paramount. Id.; Huerta, 359 S.W.3d at 893. As the importance of the testimony and credibility of the defendant increases, so does the importance of allowing the State the opportunity to impeach the defendant's credibility. Theus, 845 S.W.2d at 881. Here, we have a classic he-said, she-said, with the Appellant claiming accident and Regis claiming assault. As the Appellant himself concedes, his credibility was critical and thus so was the need to allow the State to impeach his credibility. Id. Accordingly, the fourth and fifth Theus factors weigh in favor of admitting his prior conviction.

As noted above, the weighing of the factors in a prejudicial versus probative analysis cannot be done with mathematical precision. Theus, 845 S.W.2d at 880. The threshold question, however, is whether the trial court would have abused its discretion in admitting the possession conviction over Appellant's objection. Huerta, 359 S.W.3d at 894. Given the nature of the record and the weighing of the factors just discussed, we cannot say that it would have. The trial court is given wide discretion in the admission of evidence, and especially relevant here is the diluting effect of any prejudice due to Appellant's consistent and lengthy criminal history. Meadows, 455 S.W.3d at 170. Further, allowing the State to impeach Appellant's credibility would have been especially necessary considering his defense rested on the jury believing his testimony that he accidently headbutted Regil. The decisions to admit or exclude this extraneous offense would not lie outside the zone of reasonable disagreement; the trial court would not have abused its discretion in admitting the offense, and it would not have abused its discretion in excluding it. Davis v. State, 259 S.W.3d 778, 780 (Tex.App.--Houston [1st Dist.] 2007, pet. ref'd)(citing Theus, 845 S.W.2d at 881). Because we cannot conclude that the trial court would have erred in admitting his conviction for possession, Appellant has not met his heavy burden to show that counsel's performance fell below an objective standard of reasonableness in soliciting testimony regarding these four offenses. Andrews, 159 S.W.3d at 101; Rodriguez, 129 S.W.3d at 558-559.

The Crimes Not Involving Moral Turpitude and Failure to Show Harm

Assuming, without deciding, that the remaining nine misdemeanor offenses would have been inadmissible and counsel would have performed deficiently in introducing them, Appellant still cannot meet the showing of harm required for reversal.

When addressing the harm prong of the Strickland test, “we examine counsel's errors not as isolated incidents, but in the context of the overall record.” Robertson v. State, 214 S.W.3d 665, 667 (Tex.App.--Waco 2007, no pet.), citing Ex Parte Menchaca, 854 S.W.2d 128, 132 (Tex.Crim.App. 1993). Counsel's deficient acts must sufficiently undermine the reviewing court's confidence in the outcome of the proceedings, creating a probability that, but for his performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 689, 104 S.Ct. at 2055-56; Thompson, 9 S.W.3d at 81; Cueva, 339 S.W.3d at 875.

Appellant complains of his counsel's introduction of the following nine misdemeanor convictions because they do not involve moral turpitude: (1) 1996 class B evading arrest; (2) 1996 driving while license suspended; (3) 1996 failure to identify; (4) 1999 class A deadly conduct; (5) 2000 class A possession of marijuana; (6) 2002 class B possession of marijuana; (7) 2004 class B possession of marijuana; (8) 2013 driving while license invalid; and (9) 2013 driving while license invalid. These convictions, however, were either duplicative of or not as serious as the six admissible offenses introduced.

The six admissible convictions elicited by Appellant's trial counsel were: (1) 2005 possession of a controlled substance; (2) 2005 possession of a controlled substance (methamphetamine); (3) 2009 assault bodily injury (family violence); (4) 2010 possession with intent to deliver/manufacture a controlled substance; (5) 2010 unlawful restraint; and (6) 2013 assault bodily injury. As noted above, the 2013 assault was committed on Regil, the victim in the charged offense. The prosecution gave notice that it intended to introduce these offenses at trial. The record reflects that Regil testified that Appellant intentionally headbutted her, and that Appellant testified that it was an accident. The jury heard testimony from the State's expert witness, Dr. Carrie Pohlmeyer, that Regil's behavior fit the profile of someone undergoing domestic abuse. The jury also heard testimony that Regil had lied to investigators on a previous occasion, but ultimately, they found Appellant guilty.

In light of the record as a whole, it is difficult to see how the jury would have reached a different verdict but for the introduction of the relatively minor misdemeanors and a single additional felony possession conviction. Even considering the importance of Appellant's credibility, he has not shown how the jury placed any additional significance on his inadmissible convictions when the more serious convictions were admissible and heard by the jury. See Leyba, 416 S.W.3d at 570 (finding no harm where an inadmissible DUI was introduced when the prosecution had elicited testimony involving more recent and serious offenses because it was not apparent that the jury placed any measurable significance on the additional conviction). Accordingly, Appellant has failed to show a reasonable probability that the outcome of the proceedings would have been different but for the introduction of these inadmissible extraneous-offenses. Bone, 77 S.W.3d at 833. Having failed to undermine this Court's confidence in the outcome of the proceedings, Appellant's sole issue is overruled.


Having overruled Appellant's sole issue on appeal, the judgment of the trial court is affirmed.

Hughes, J. (Not Participating)


1.   This appeal was transferred from the Beaumont Court of Appeals pursuant to a docket equalization order issued by the Texas Supreme Court. We apply the precedent of that court to the extent required by TEX.R.APP.P. 41.


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