Matlock v. State, 12-09-00358-CR

MARCUS DEWA YNE MATLOCK, APPELLANT

v.THE STATE OF TEXAS, APPELLEE

NO. 12-09-00358-CR

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

Opinion Delivered October 26, 2011

APPEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Marcus Dewayne Matlock appeals his conviction for criminal nonsupport. On appeal, he raises four issues. We affirm in part, and reverse and render in part.

BACKGROUND

On March 19, 2009, Appellant was charged by indictment with sixteen counts of criminal nonsupport, a state jail felony.¹ Appellant was required to pay his child support on the first of each month during the alleged periods of nonsupport. The indictment alleged that Appellant failed to pay child support on the first of each month from February 2006 through November 2006, in January 2008 and June 2008, and from September 2008 through December 2008. Appellant pleaded "not guilty," and the case proceeded to a jury trial.

The trial court appointed trial counsel for Appellant. But before testimony in the trial began, Appellant asserted, and was granted, the right to represent himself. At trial, the State showed that Appellant was ordered to pay $191.40 each month beginning on November 1, 1999, as child support for his minor child. The State produced Appellant's payment record from theattorney general's child support disbursement unit and financial activity report from the attorney general's child support enforcement unit. The State also produced a community supervision order showing the amount of Appellant's child support arrearage as of January 31, 2008. The trial court admitted these documents into evidence. Before cross examining a child support officer from the attorney general's child support division, Appellant, acting as his own counsel, produced his Smith County jail "book-in, book-out" record. This record established the dates that Appellant was in jail for various offenses. The trial court admitted this document into evidence. After the State's first two witnesses testified, Appellant requested that his appointed counsel resume representing him. Appellant elected to testify during the guilt-innocence phase of the trial.

At the conclusion of the trial, the jury found Appellant guilty of sixteen counts of criminal nonsupport as charged in the indictment, and assessed his punishment at two years of confinement in a state jail facility and a $10,000 fine on each count.² The sentences were to run concurrently. This appeal followed.

EFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, Appellant argues that his trial counsel rendered ineffective assistance of counsel. In three subissues, Appellant contends that counsel failed to provide effective assistance because he (1) did not move to quash two counts of the indictment, (2) did not object to the State's improper use of Appellant's prior convictions for impeachment purposes, and (3) did not develop mitigating and exculpatory witnesses and evidence. In a fourth subissue, Appellant argues that the cumulative effect of trial counsel's errors deprived him of effective assistance of counsel.

Applicable Law

Claims of ineffective assistance of counsel are evaluated under the two pronged test articulated 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, the appellant must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). "This 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 "show 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. Further, the appellant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

Under the second prong, an appellant must show that the "deficient performance prejudiced the defense." Id., 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 "show 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 outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

An appellant must prove both prongs of Strickland by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712. Our review of counsel's representation at trial is highly deferential. Id. We engage in a "strong presumption" that counsel's actions fell within the wide range of reasonably professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. We look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is an 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.

Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). 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. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). But when no reasonable trial strategy could justify counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects counsel's subjective reasons for acting as he did. Andrews v. State, 159S.W.3d 98, 102 (Tex. Crim. App. 2005). It is also possible that a single egregious error of omission or commission by counsel may constitute ineffective assistance. Thompson, 9 S.W.3d at 813.

Analysis

In this appeal, we have no record, usually developed in a motion for new trial hearing or on writ of habeas corpus, explaining trial counsel's thought processes and trial strategy. See Redmond v. State, 30 S.W.3d 692, 698-99 (Tex. App.-Beaumont 2000, pet. refd). However, the record in this case is sufficient for us to resolve the issues Appellant presents. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

Counts Time-Barred Under Statute of Limitations

Appellant contends that his trial counsel rendered ineffective assistance of counsel because he did not seek to quash, based on the statute of limitations, two counts of the indictment. The statute of limitations for the felony offense of criminal nonsupport is not specified. See TEX. CODE CRIM. PROC. ANN. 12.01 (West Supp. 2010). Thus, the statute of limitations for criminal nonsupport falls under the residual provision for limitations, which provides that indictments for "all other felonies" must be presented within three years from the date of the commission of the offense. TEX. CODE CRIM. PROC. ANN. 12.01(7) (West Supp. 2010). Therefore, Appellant argues, the first two counts of his indictment are barred by the statute of limitations because the dates of nonpayment alleged in the first two counts-February 1, 2006, and March 1, 2006-were more than three years before the presentation of the indictment on March 19, 2009. The State contends that the offense of criminal nonsupport is a continuing offense, and therefore the general rule for "all other felonies" does not apply to criminal nonsupport.

The Supreme Court has acknowledged that "[s]tatutes of limitations normally begin to run when the crime is complete." Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156 (1970) (quoting Pendergast v. United States, 317 U.S. 412, 418, 63 S. Ct. 268, 271, 87 L. Ed. 368 (1943)). Thus, the doctrine of continuing offenses should be applied in only limited circumstances since "[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term." Id., 397 U.S. at 115, 90 S. Ct. at 860 (quoting United States v. Toussie, 410 F.2d 1156, 1158 (2d Cir. 1969), rev'd, 397 U.S. 112, 124, 90 S. Ct. 858, 865, 25 L.Ed.2d 156 (1970)). These considerations require that such a result should not be reached unless the explicitlanguage of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that the legislature must assuredly have intended that it be treated as a continuing one. See id., 397 U.S. at 115, 90 S. Ct. at 860.

The offense of criminal nonsupport is a continuing offense because the offense requires no overt act and is continuing in nature. Ex parte Beeth, 154 S.W.2d 484, 486 (Tex. Crim. App. 1941). The gravamen of the offense "by its very nature is founded, not upon the commission of overt acts, but upon the neglect of a duty." Id. Further, the offense continues as long as the neglect does not cease. Id.; see also Ex parte Logan, 205 S.W.2d 994, 996 (Tex. Crim. App. 1947) (concluding that failure to support minor child is continuing offense, committed not by overt act but by neglect and failure to act; offense continues so long as neglect continues...