In Re Woodville Ford, Inc.--Appeal from 88th District Court of Tyler County

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State: Texas

Court: Texas Northern District Court

Docket No: 09-04-00490-CV

Case Date: 12/02/2004

Plaintiff: Desiree Lingo-Perkins, a/k/a Desiree Perkins-Lingo

Defendant: The State of Texas--Appeal from 2nd District Court of Cherokee County

Preview:Ricardo Rachell v. The State of Texas--Appeal from
185th District Court of Harris County
11th Court of Appeals
Estland, Texas
Opinion
Ricardo Rachell
Appellant
Vs. No. 11-03-00192-CR -- Appeal from Harris County
State of Texas
Appellee
Ricardo Rachell appeals his conviction by a jury of the offense of aggravated sexual assault of a child. The jury
assessed his punishment at 40 years in the Texas Department of Criminal Justice, Institutional Division. He contends in
two points of error on appeal that the trial court denied him a fair trial by refusing to admit an audiotape consisting of
an interview of him by a representative of the Houston Police Department following his arrest and that he was denied
fundamental due process when evidence of a 21-year-old prior conviction was admitted at the guilt/innocence phase of
his trial. We affirm.
Rachell contends in point one that the trial court denied him a fair trial by refusing to admit an audiotape, made shortly
after his arrest, of his interview by a representative of the Houston Police Department. On the audiotape, Rachell
apparently denied the commission of the offense and allowed a DNA sample to be taken. It is apparent that Rachell
has an enunciation problem. It is also difficult to hear and understand either Rachell or the interrogator due to the
technical quality of the recording. Rachell offered the audiotape into evidence, not for the truth of the matter asserted,
but to show his speech difficulties as close to the time of his arrest as possible. After the State objected to the
audiotape=s introduction based on it being Abackdoor hearsay,@ the trial court sustained the objection.
AHearsay@ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into
evidence to prove the truth of the matter asserted. TEX.R.EVID. 801(d). The audiotape was not offered into evidence
to prove the matter asserted but to prove the nature of Rachell=s speech impediment at the time of his arrest in order to
show that he was not exaggerating his speech deformity at trial. Consequently, it was not hearsay. ABackdoor
hearsay@ is testimony that contains by necessary inference a hearsay statement even though the question and answer
does not directly contain the statement. See Schaffer v. State, 777 S.W.2d 111, 113 (Tex.Cr.App.1989). The testimony
at issue here is a statement that would be direct hearsay were it not for the fact that it was offered not for its truth but
to show the nature and extent of Rachell=s speech impediment at the time of his arrest. We hold that the audiotape was
not Abackdoor hearsay.@
TEX.R.EVID. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation
of cumulative evidence.
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It appears from the audiotape that Rachell has a speech impediment, although it is difficult to hear both participants in
the interview.
The complainant testified that, when Rachell first came up and talked to him, Rachell said: ADo y=all want to make
some money off some trash?@ The complainant then said that he had to guess a little about what Rachell was saying
because he was not Atalking that right.@ Lisa Clemons, the arresting police officer, testified that she had some trouble
understanding Rachell at times because he had a speech deformity. One witness, an 8-year-old boy, testified that he
did not have any trouble understanding the individual who abducted the complainant and that the individual spoke
clearly.
Rachell testified at trial. There was nothing to suggest that Rachell=s speech deformity was greater at trial than it had
been at the time of his arrest, nor was any suggestion made that he was faking it. We hold that, given these facts, the
trial court could reasonably have determined that the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice, considerations of undue delay, or needless presentation of cumulative evidence. Given
these same facts, we also hold that, even if the trial court abused its discretion by excluding the audiotape, we must
disregard it because the exclusion did not affect a substantial right of Rachell. See TEX.R.APP.P. 44.2(b). We overrule
point one.
Rachell insists in point two that he was denied a fair trial and fundamental due process when his attorney solicited
evidence of inadmissible prior convictions when his credibility was of paramount importance. We interpret this as a
claim that he was denied the effective assistance of counsel. We apply a two-pronged test to ineffective-assistance-of-
counsel claims. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812
(Tex.Cr.App.1999). First, appellant must show that his counsel=s performance was deficient; second, appellant must
show that the deficient performance prejudiced the defense. Strickland v. Washington, supra at 687.
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson v. State, supra at 813. The issue is whether counsel=s assistance was
reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. Strickland v.
Washington, supra at 688-89. A[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.@ Strickland v. Washington, supra at 690. An
allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, supra at 814. Our scrutiny of counsel=s performance must
be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland v.
Washington, supra at 689.
The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the
defendant of a fair trial, i.e., a trial whose result is reliable. Strickland v. Washington, supra at 686-87. In other words,
an appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, supra at 694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra. The ultimate focus of
our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Strickland v.
Washington, supra at 697.
Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation
was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s
conduct was reasonable and professional. Rarely will the trial record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of such a serious allegation. Bone v. State, 77 S.W.3d 828, 833
(Tex.Cr.App.2002). Our record does not show the reasons for trial counsel=s introduction of Rachell=s prior
conviction. Consequently, the record on direct appeal is not sufficient to show that counsel=s representation was so
deficient and so lacking in tactical or strategic decision making as to overcome the presumption that his conduct was
reasonable and professional. We overrule point two.
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The judgment of the trial court is affirmed.
PER CURIAM
September 30, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, J., and
McCall, J., and Hill, S.J.[1]
[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.
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