Opinion issued December 30, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00267-CR
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Darrell Jones, Appellant
V.
The State of Texas, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1167879
MEMORANDUM OPINION
A jury convicted appellant Darrell Jones of burglary of a habitation. See Tex. Penal Code Ann. § 30.02 (Vernon 2003). The indictment included two enhancement allegations, reciting Jones’s prior felony convictions for burglary in 1988 and burglary of a habitation in 2003. Jones initially elected jury sentencing and pleaded not true to the enhancements, but after the State introduced evidence of multiple prior convictions, he changed his election to sentencing by the trial court. He pleaded true to the enhancement allegations in exchange for an agreed recommendation as to punishment. The court accepted the State’s punishment recommendation and sentenced him to imprisonment for 25 years.
Jones brings five issues on appeal: (1) the sufficiency of the evidence; (2) ineffective assistance of counsel; (3) failure to instruct the jury on two requested lesser-included offenses; (4) the voluntariness of his plea of true to the enhancement paragraphs during punishment; and (5) the adequacy of admonishments during the punishment phase. These issues lack merit, thus we affirm the judgment of the trial court.
I. Background
Paschal Haywood was a project manager for the Kalu Group, an investment company that renovated and sold real estate properties. In the spring of 2008, Haywood managed the renovation of a single-family home in southeast Houston. He testified that the house had electricity and running water, and the air conditioning worked. He also said the house was habitable, though there were no tenants actually living there while renovations were in progress, which included installation of sinks, ceiling fans, and light fixtures, painting, roofing, and repairing or replacing the air conditioner.
In late April or early May, Jones approached Haywood seeking the opportunity to earn some money, and Haywood hired him to mow the lawn one time. Haywood testified that he never gave Jones permission to enter the house or take anything from it.
Approximately two weeks later, Ronnie Clark, who lived in the house next door, saw Jones on the street. Clark had previously seen Jones walking or riding his bike around the neighborhood. He saw Jones walk beside the house under renovation, toward the back of it. Approximately 15 or 20 minutes later, he saw Jones walk back toward the street carrying two stainless steel or aluminum kitchen sinks. Clark called the police and Haywood, and he later identified Jones from a photographic lineup as the person he saw carrying the sinks. He also identified Jones in open court.
Haywood came to the house and discovered that ceiling fans and two kitchen sinks were missing and the bathtub had been vandalized. Houston Police Department Officer A. Leal, who responded to the burglary call, testified that a window and a sliding-glass door were opened, but there were no signs of forced entry. He said that he found no discernible fingerprints, only smudges.
Another neighbor, Drexell Carroll, also testified. He said that he had known Jones for approximately four or five years and that Jones had helped him by doing some odd jobs at his house. Carroll testified that Jones confessed breaking into the house and told him that he intended to return the sinks but had not done so. He identified Jones from a photographic lineup as the person who confessed breaking into the house. On cross-examination, Carroll admitted that he had previously been convicted of burglary of a building, delivery of a controlled substance, and failure to identify himself to a law-enforcement officer.
At the charge conference, Jones’s attorney requested that the trial court instruct the jury on the lesser-included offenses of burglary of a building and theft. The trial court refused those requests, and the jury found Jones guilty of burglary of a habitation.
Before the punishment phase of trial, Jones pleaded not true to two enhancement paragraphs in the indictment, which alleged that he was convicted of burglary in 1988 and of burglary of a habitation in 2003. The prosecutor stated that the State intended “to enhance in the punishment phase to 25 to life with a different . . . felony conviction.” The trial court indicated that the State could arraign Jones only on the enhancements alleged in the indictment, however the trial court permitted the State to introduce evidence of Jones’s other prior convictions. The State introduced evidence of the following prior convictions: (1) burglary with intent to commit theft, a felony, December 12, 2003; (2) burglary of a habitation with intent to commit theft, a second degree felony, December 22, 2003; (3) burglary of a building with intent to commit theft, September 7, 1990; (4) burglary of a building with intent to commit theft, April 7, 1995; (5) evading arrest, April 28, 1995; (6) criminal trespass, August 28, 2003; (7) evading arrest, December 8, 2003; and (8) evading arrest, August 22, 1994. The State did not introduce any evidence of the 1988 conviction for burglary recited in the indictment, and the State and defense both rested.
The State sought permission to substitute a different conviction for the 1988 burglary listed in the enhancement paragraph but not proven at trial. The trial court sustained Jones’s objection and refused the State’s request. Outside the presence of the jury, the trial court heard the parties’ legal arguments about whether prior convictions that were not listed in the enhancement paragraphs of the indictment could be used to enhance the range of punishment under the habitual offender statute. The trial court indicated they could but gave the parties a brief recess to ascertain any relevant or contrary authority.
After a recess, Jones informed the court that he wished to withdraw his case from the jury and have the court assess his punishment pursuant to an agreement reached with the State. In exchange for the State’s recommendation that his punishment be set at 25 years in prison, Jones pleaded true to both enhancement paragraphs. The trial court admonished him that if the court found the enhancement paragraphs true, the range of punishment would be imprisonment “for life, any term of not more than 99 years or less than 25 years.” Jones acknowledged that he was waiving “any right of appeal in this case both in the guilt/innocence phase of the trial, as well as the punishment phase of the trial.”
Based on his pleas, the trial court found both enhancement paragraphs true and assessed punishment at 25 years in prison. The court initially certified that there was no right to appeal, but after a pro se motion to withdraw the “guilty plea,” the court amended the certification of right to appeal to state that this is not a plea-bargain case and Jones does have the right to appeal.
II. Jurisdiction
The State challenges our jurisdiction to entertain this appeal, so we address that issue first. See, e.g., Galliford v. State, 101 S.W.3d 600, 603 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Relying on Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000), the State contends that Jones waived his right to appeal when he pleaded true to the enhancements and elected for the trial court to assess punishment in accordance with his agreement, and there is no reason why Jones should not be held to his bargain. However, what distinguishes Jones’s appeal from Blanco is that in this case the trial court gave Jones permission to appeal. Although a valid waiver of the right to appeal will prevent a defendant from appealing without the consent of the trial court, see Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 2009), the trial court nevertheless has the authority to allow a defendant to appeal despite a valid waiver. See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (recognizing “trial court’s authority to allow a defendant to appeal despite a valid waiver of appeal,” citing Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003)).
In its initial certification, the trial court noted that this was a plea-bargain case and that Jones had no right to appeal. After the initial certification, Jones filed a pro se “Motion to Withdraw Plea of Guilty,” in which he argued that his “plea of guilty” was not intelligent and voluntary because he received ineffective assistance of counsel. After this document was filed—and without explicitly ruling on it—the trial court issued an new certification of Jones’s right to appeal in which the trial court noted that his was “not a plea-bargain case, and the defendant has the right to appeal.” By entering this second certification, the trial court granted Jones permission to appeal.
The State also argues that the second certification is not supported by the record because this was a plea-bargain case. See Dears v. State, 154 S.W.3d 610, 614–15 (Tex. Crim. App. 2005) (holding that certifications of defendant’s right to appeal must be supported by record). We disagree. A plea-bargain case is one in which a defendant’s plea was guilty or nolo contendere. Tex. R. App. P. 25.2(a)(2). Jones pleaded “not guilty” as to guilt or innocence and “true” as to the enhancements alleged in the indictment. Therefore the trial court’s second certification is both supported by the record and indicates the trial court’s permission to appeal. We conclude that this court has jurisdiction to consider the appeal.
III. Sufficiency of the evidence
In his first issue, Jones contends that the evidence is insufficient to sustain his conviction for burglary of a habitation. Specifically, Jones argues that the evidence is insufficient to show he committed burglary and to show that the building was a habitation.
A. Standard of review
Although Jones’s brief recites now-defunct caselaw suggesting separate standards of review for legal and factual sufficiency, see Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), his brief did not make separate factual-sufficiency arguments or separate factual sufficiency into a separate point of error. We therefore treat his challenges to the sufficiency of the evidence, as he does in his brief, in a unified analysis. We review the sufficiency of evidence to support a criminal conviction to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Viewed in the light most favorable to the verdict, evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See id. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11.
If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982). An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. An appellate court may not re-evaluate the weight and credibility of the record evidence and thereby substitute its own judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
B. Burglary of a habitation
A person commits the offense of burglary if, “without the effective consent of the owner, the person . . . enters a habitation . . . with intent to commit a felony, theft, or an assault; or . . . enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Tex. Penal Code Ann. § 30.02(a) (Vernon 2003). A person commits a theft if “he unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03(a) (Vernon Supp. 2009). Appropriation of property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
A “habitation” is “a structure . . . that is adapted for the overnight accommodation of persons.” Tex. Penal Code Ann. § 30.01(1) (Vernon 2003). In this context, “adapted” means “suitable.” Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989).
The most significant element of the definition is the adaptation “for the overnight accommodation of persons.” “What makes a structure ‘suitable’ or ‘not suitable’ for overnight accommodation is a complex, subjective factual question fit for a jury’s determination.” The jury may look to a host of considerations such as the contents of the structure, including bedding, electricity, plumbing, or furniture; the jury may also look to and consider the type of structure and its typical use as a means for overnight accommodation.
Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App. 2009) (footnotes omitted, quoting Tex. Penal Code Ann. § 30.01(1) and Blankenship, 780 S.W.2d at 209-10). Each factor is relevant; none is essential or necessarily dispositive. Blankenship, 780 S.W.2d at 209. A jury’s determination that a burglarized place was a habitation will not be overturned on appeal unless the appellant can demonstrate that no reasonable trier of fact could have found that the structure was a habitation. See id.
C. Analysis
1. Evidence of burglary
Haywood testified that he never gave Jones permission to enter the house or to remove anything from it. He also testified that he hired Jones to mow the lawn only once, approximately two weeks before the burglary. Clark testified that he saw Jones walk beside the house, toward the backyard and that he saw Jones emerge from that area approximately 15 to 20 minutes later carrying two kitchen sinks. Haywood testified that one kitchen sink matching the description given by Clark was taken from the house and another kitchen sink was taken from the garage. Carroll testified that Jones confessed the burglary to him.
Jones argues that one of the State’s witnesses was not credible, however, we must defer to the jury’s determination of credibility. See Williams, 235 S.W.3d at 750. Jones argues that there was no evidence that he was not permitted access to the house by a work crew and that Carroll did not testify as to when Jones broke into the house. These arguments focus on what was not in evidence rather than the evidence that was actually admitted at trial, which is what we must rely upon in performing a sufficiency review. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (holding that, in evaluating sufficiency of evidence, appellate court must view evidence in light most favorable to verdict). Finally, Jones speculates that he may have entered the home another time, he may have received the sinks from another party and intended to return them, or that he may have taken them from outside the home if left there by another person. None of these speculations are supported by evidence in the record, and none is a basis to reverse a conviction on the grounds of legal or factual insufficiency.
Viewing all of the evidence in the light most favorable to the verdict, we conclude that a reasonable fact finder could have found the essential elements of the charged offense beyond a reasonable doubt, namely, without the effective consent of the owner, Jones entered the house and took two kitchen sinks. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We hold that the evidence is sufficient to show that Jones committed burglary.
2. Evidence that the building was a habitation.
Jones argues that the evidence was insufficient to show that the home was a habitation rather than a building under construction. For example, Jones asserts that the State neglected to ask if the house had a roof, if it was enclosed, or if the garage was attached or detached. Jones also argues that the there was no evidence that the garage containing one of the sinks was connected to the building to be used as a habitation.
Jones’s argument centers on a response Haywood gave during cross-examination. Haywood testified that the electricity and water were turned on and that the air conditioning worked, but no one was living in the house, “because during construction we don’t put a tenant in until everything is fixed.”
Q: So, there were things in the house that you would not want a person living there in because—let me back up. There were things going on in the house that would render the house such that you wouldn’t want a family or a person living there; is that correct?
A: Well, the only thing was the AC.
Q: Okay. So, the answer to my question is yes?
A: Yeah.
But Haywood also testified that the house was habitable at the time of the burglary, “We just didn’t have tenants. We could have lived in it.” In addition, several photographs of the house were admitted into evidence during trial. These photographs show that the house was a fully-enclosed, brick, one-story, single-family dwelling with a roof, a paved driveway, and an attached garage.
The house had utilities and, as a single-family residence, it was intended to be used to accommodate persons overnight. See Blankenship, 780 S.W.2d at 209. Despite his response on cross-examination, Haywood testified that persons could have lived in the house at the time it was burglarized. Under our standard of review, we must presume that the jury resolved any conflicting evidence in favor of its verdict, and we defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Viewing the evidence in the light most favorable to the verdict, we conclude that a reasonable fact finder could have found beyond a reasonable doubt that the house that was burglarized was a habitation. See id.
Because we conclude that the evidence is sufficient to show that Jones committed burglary of a habitation, we overrule his first issue.
IV. Lesser-included offense
In his third issue, Jones contends that the trial court erred by denying his requested jury instructions on lesser-included offenses of burglary of a building and theft.
A. Standard of review
To determine whether a defendant is entitled to an instruction on a lesser-included offense, the court conducts a two-pronged test. See Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). The first prong of the test requires the court to use the “cognate pleadings” approach to determine whether an offense is a lesser-included offense of another offense. The first prong is satisfied if the indictment for the greater-inclusive offense either:
1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.
Watson, 306 S.W.3d at 273 (footnote omitted). This inquiry is a question of law. Hall, 225 S.W.3d at 535.
The second prong asks whether there is evidence that supports giving the lesser-included-offense instruction to the jury. Id. at 536. A defendant is entitled to a requested instruction on a lesser-included offense when the proof for the charged offense subsumes the proof required to establish the lesser-included offense and some evidence in the record would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A lesser-included-offense instruction is required when the evidence establishes the lesser-included offense as a valid, rational alternative to the charged offense. Id.
B. Burglary of a building
The same predicate offense of burglary underlies both burglary of a building and burglary of a habitation. Tex. Penal Code Ann. § 30.02(a), (c) (Vernon 2003). The offense of burglary is a state jail felony if committed in a building other than a habitation, but it is a felony of the second degree if committed in a habitation. Id. § 30.02(c). The definition of “building” includes but is not limited to habitations. Id. § 30.01(2). Accordingly, under the first prong of the analysis, the State does not dispute that burglary of a building can be a lesser-included offense of burglary of a habitation. See, e.g., Allison v. State, 618 S.W.2d 763, 764-65 (Tex. Crim. App. 1981).
However, for Jones to have been entitled to a jury charge on burglary of a building, under the second prong of the analysis there must be evidence that if Jones was guilty of anything, he was guilty only of burglary of a building—and not of a habitation. See Hall, 225 S.W.3d at 535; Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). As noted previously, a “habitation” is “a structure . . . that is adapted for the overnight accommodation of persons,” and in determining whether a building also qualifies as a habitation, a jury may consider the type of structure, its typical use, and its contents. Salazar, 284 S.W.3d at 877. On appeal, Jones argues that there are four reasons why a rational jury could have found that the structure was a building and not a habitation: (1) the house was unoccupied; (2) the electricity had been turned on so that the workers could use their tools during the day; (3) Haywood testified that he would not want a person or family living in the house during renovations; and (4) there was no air conditioning.
First, Jones’s argument about the availability of electricity for use by the workers militates against giving the lesser-included offense instruction, because the availability of utilities is one factor to be considered in determining that a building is a habitation. See Blankenship, 780 S.W.2d at 209. There was no evidence at trial to suggest that the same electricity available to renovation workers during the day would not also be available for use by a person staying in the structure overnight.
Second, Jones’s contentions about the air conditioning and Haywood’s testimony are not supported by the record. Jones argues that there was no air conditioning in the house, but the evidence at trial shows that Haywood unequivocally testified that it worked. Similarly, Haywood affirmatively testified that people could have lived in the house, though he agreed on cross-examination that “there were things going on in the house that would render the house such that [he] wouldn’t want a family or person living there.” The cross-examination did not develop what the unidentified “things going on” were, so there is no evidentiary basis to suggest that this testimony was inconsistent with Haywood’s other testimony that people could have lived there. For example, the reason why Haywood agreed that he “wouldn’t want a family or person living there” could have referred to paint fumes or dust or other incidents of the ongoing home renovation that would have been an inconvenience to a person living in the home, but nevertheless would not have prevented a person from staying there overnight. Neither of these arguments suggest that the jury heard evidence that would support a conclusion that the house was not “adapted for the overnight accommodation of persons.”
Finally, Jones argues that the house was unoccupied. Although this argument is supported by the record, we hold that this mere fact, standing alone, does not constitute more than a scintilla of evidence to show that the house was not suitable for the overnight accommodation of persons. See Tex. Penal Code Ann. § 30.01(1); Blankenship, 780 S.W.2d at 209; see, e.g., Hunt v. State, No. 13-01-243-CR, 2002 WL 34249726, at *1–5 (Tex. App.—Corpus Christi Apr. 18, 2002, no pet.) (mem. op., not designated for publication) (holding that trial court did not err in refusing to instruct jury on lesser-included offense of burglary of a building when burglarized house was unoccupied but was wired for electricity, had water available, and was undergoing renovations after a fire); Mathes v. State, No. 14-93-00311-CR, 1995 WL 529144, at *1–2 (Tex. App.—Houston [14th Dist.] Sept. 7, 1995, no pet.) (mem.op., not designated for publication) (holding that trial court properly denied jury instruction on lesser-included offense of burglary of a building when burglarized house was unoccupied but was wired for electricity and had water available). A house being renovated—like a vacation home, the primary home of a family on vacation, or a home for sale—may be unoccupied for extended periods of time, but the structure does not thereby cease to be a habitation.
We conclude that there is no evidence in the record from which the jury could have concluded that if Jones was guilty, he was guilty only of burglary of a building and not of burglary of a habitation. Accordingly the trial court did not err by refusing to give a jury instruction on burglary of a building.
C. Theft
As to Jones’s complaint that the trial court should have instructed the jury on the lesser-included offense of theft, we conclude that he has inadequately briefed this issue. To assert an issue on appeal, an appellant’s “brief must contain a clear and concise argument for the contention made, with appropriate citations to authorities . . . .” Tex. R. App. P. 38.1(i). An appellant waives an issue on appeal if he fails to adequately brief that issue by presenting supporting arguments and authorities. See id.; Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). In his third issue, Jones asserts that the trial court erred by denying his requested jury charge on the lesser-included offense of theft of the sinks, but he provides no meaningful argument or analysis of why theft is a lesser-included offense of burglary of a habitation under the first prong of our analysis or what evidence shows that if he is guilty, he is guilty only of theft and not burglary of a habitation. Therefore, we hold that Jones has waived this issue on appeal. See Tex. R. App. P. 38.1(i); Cardenas, 30 S.W.3d at 393.
We overrule Jones’s third issue.
V. Involuntary plea
In his fourth issue, Jones contends that his plea of true at punishment was involuntary.
A. Standard of review
In assessing the voluntariness of a plea, we review the record as a whole and consider the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Lee v. State, 39 S.W.3d 373, 375 (Tex. App.—Houston [1st Dist.] 2001, no pet.). A record indicating that the trial court properly admonished the defendant presents a prima facie showing that the guilty plea was made voluntarily and knowingly. Starz v. State, 309 S.W.3d 110, 117 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)). If the record presents such a showing, then the burden shifts to the defendant to show that he entered the plea without understanding the consequences. Id. An accused who attests that he understands the nature of his guilty plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary. Id.; Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).
B. Analysis
The State introduced evidence that Jones had previously been convicted of eight crimes, including four prior burglary convictions. In exchange for the State’s punishment recommendation of imprisonment for 25 years, Jones then changed his election from jury sentencing to trial court sentencing and changed his plea to the enhancement paragraphs from “not true” to “true.” He testified that he understood the two enhancements alleged in the indictment, that he was pleading true because the enhancements were true, and that no one had promised him anything or threatened him to persuade him to enter his pleas of true. In addition, the trial court admonished Jones that it would find the enhancement paragraphs true if he pleaded true and that the punishment range in that situation would be imprisonment for 25 to 99 years, or for life. Thus, there is a prima facie showing that Jones’s plea was knowing and voluntary. See Starz, 309 S.W.3d at 117.
On appeal, Jones does not identify any evidence that shows that his plea was involuntary. Rather, he argues that he “personally could gain nothing by pleading true as a habitual offender to the judge for a conviction for which the State had no evidence.” The indictment included two enhancement paragraphs, each alleging the prior commission of a felony. The State presented evidence to support one of the two enhancement paragraphs, but it conceded that it did not have evidence to support the other.
Jones was charged with burglary of a habitation, a second-degree felony. See Tex. Penal Code Ann. § 30.02(c)(2) (Vernon 2003). The punishment range for a second-degree felony is imprisonment for two to 20 years. Id. § 12.33(a) (Vernon Supp. 2010). Under the repeat-offender statute, however, the punishment would be enhanced to that of a first-degree felony upon a showing that the defendant had previously been convicted of a first-degree felony, i.e., imprisonment for life or five to 99 years. See id. § 12.32(a) (first-degree felony punishment); id. § 12.42(b) (repeat and habitual offender statute).
The State introduced evidence to support the second enhancement paragraph, including evidence showing that Jones previously committed four burglaries, committed theft, and evaded arrest. Had the jury found that Jones committed one of the two felonies used for enhancement, it would have been within its discretion to assess his punishment at confinement in prison for 99 years or for life. Thus, Jones may have pleaded guilty in order to obtain what he believed would have been a more lenient sentence than what the jury may have imposed.
Jones has not directed us to any evidence showing that his plea was involuntary, and we hold that it was not. We overrule Jones’s fourth issue.
VI. Sentencing admonishments
In his fifth issue, Jones contends that the trial court erred by failing to admonish him on the entire range of punishment before he entered his plea of true to the enhancement paragraphs at punishment. Specifically, he complains he was not admonished as to the range of punishment if only one or neither of the enhancements was found to be true.
Article 26.13 of the Code of Criminal Procedure requires the trial court to give the defendant certain admonishments prior to accepting a plea of “guilty” or “nolo contendre.” Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2010). However, “as a matter of law, it is unnecessary to admonish an accused who pleads ‘true’ or ‘guilty’ to enhancement convictions alleged in the indictment. This is absolutely discretionary with the trial court.” Harvey v. State, 611 S.W.2d 108, 111–12 (Tex. Crim. App. 1981); Griffin v. State, 764 S.W.2d 306, 307 (Tex. App.—Houston [1st Dist.] 1988, no pet.) (holding that article 26.13 did not apply to plea of true to enhancement allegation).
Here, the trial court admonished Jones that if he pleaded true to the enhancement allegations, it would find them true. See Thomas v. State, 312 S.W.3d 732, 741 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“If, however, a defendant pleads ‘true’ to the enhancement paragraph, the State’s burden of proof is satisfied.”); accord Harrison v. State, 950 S.W.2d 419, 421 (Tex. App.—Houston [1st Dist.] 1997, writ ref’d) (citing Harvey, 611 S.W.2d at 111). The trial court also admonished Jones what the range of punishment would be if it found both enhancement allegations true. The trial court had no obligation to admonish Jones as to the range of punishment if only one or neither of the enhancements was found to be true. See Harvey, 611 S.W.2d at 111–12. We hold that the trial court did not err by not so admonishing Jones, and we overrule his fifth issue.
VII. Ineffective assistance of counsel
Finally, we will address Jones’s second issue, in which he contends that he received ineffective assistance of counsel because: (1) his trial counsel failed to move for instructed verdict based on insufficient evidence; (2) his trial counsel failed to object to a police officer’s non-responsive statement during cross-examination that he obtained Jones’s “mugshot photo” from a prior arrest for the photographic lineup in this case; and (3) his trial counsel participated in a plea of true to an enhancement paragraph that was unsupported by any evidence admitted at trial.
A. Standard of review
The standard of review for claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). To prevail on his claims, an appellant must first show that his counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. “Specifically, appellant must prove, by a preponderance of the evidence, that his counsel’s representation fell below the objective standard of professional norms.” Bone, 77 S.W.3d at 833. “Second, appellant must show that this deficient performance prejudiced his defense.” Id. This means that appellant “must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Bone, 77 S.W.3d at 833. Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.
There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and the appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689, 104 S. Ct. at 2065. To overcome the presumption of reasonable professional assistance, “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, 814 (Tex. Crim. App. 1999). When determining the validity of an ineffective assistance of counsel claim, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). The record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance of counsel claim. See Bone, 77 S.W.3d at 833. Based on such a record, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). When the record is silent as to trial counsel’s strategy, we will not conclude that trial counsel’s assistance was ineffective unless the challenged conduct was “‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
B. Failure to move for instructed verdict
Jones argues that his trial counsel was ineffective because he did not move for an instructed verdict based on insufficient evidence. On appeal, Jones does not present any supporting arguments or authorities for this contention. Moreover, as we have already held the evidence was sufficient to support the conviction, Jones could not have been harmed by his counsel’s failure to request an instructed verdict. See Bone, 77 S.W.3d at 833.
C. Failure to object to testimony
Jones further argues that his trial counsel was ineffective because he failed to object to a statement from a Houston Police Department investigator, Officer M. Wright, who compiled the photographic lineups from which the witnesses identified Jones. During cross-examination, Jones’s lawyer questioned him about how he compiled the photographic lineup:
Q: [P]hotos for a photo spread can come from various sources, right?
A: They can.
Q: Can come from, say, a mug shot of people that have been arrested?
A: In this case that’s what it was, yes.
Jones’s attorney did not object, but he responded, “I didn’t ask you that.”
Jones did not file a motion for new trial, and the record is silent as to his counsel’s trial strategy. Based solely on this silent record, we cannot conclude that no reasonable trial strategy could justify his trial counsel’s conduct. See, e.g., Ingham, 679 S.W.2d at 509 (Tex. Crim. App. 1984) (“An isolated failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel.”); Bollinger v. State, 224 S.W.3d 768, 781 (Tex. App.—Eastland 2007, pet. ref’d) (“Counsel can be concerned that too many objections will alienate a jury or that an objection might draw unwanted attention to a particular issue.”).
D. Participation in plea to enhancement paragraph
Finally, Jones contends that his trial counsel was ineffective because he participated in the plea proceedings when the State had presented no evidence of one of the two enhancement allegations. As we have noted, the record is silent as to trial counsel’s strategy. In addition, we have already explained a possible strategic reason for Jones to have pleaded true in exchange for the agreed punishment recommendation. See supra Part V.B. Accordingly Jones has not shown that his trial counsel’s conduct was “‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed, 187 S.W.3d 390 at 392 (quoting Garcia, 57 S.W.3d at 440).
We hold that Jones has not met his burden to show that he received ineffective assistance of counsel, and we overrule his second issue.
CONCLUSION
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. Tex. R. App. P. 47.2(b).