COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-384-CR
2-07-385-CR
KENNETH L. ENGLISH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Kenneth L. English entered open pleas of guilty to two counts
of aggravated robbery with a deadly weapon, and the trial court found him
guilty on both counts. At the punishment hearing, his trial counsel urged the
court to put Appellant on community supervision. After noting that Appellant
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… See T EX. R. A PP. P. 47.4.
was ineligible for community supervision under article 42.12, section 3g,2 the
trial court sentenced him to twenty-five years’ confinement on each count. In
his sole point on appeal, Appellant argues that trial counsel rendered ineffective
assistance because he failed to inform Appellant that he was ineligible for
community supervision if the trial court assessed punishment. We affirm.
Standard of Review
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence (1) that his counsel’s representation fell below
the standard of prevailing professional norms and (2) that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
When evaluating the effectiveness of counsel under the first Strickland
prong, we look to the totality of the representation and the particular
circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is
whether counsel’s assistance was reasonable under all the circumstances and
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… See T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 3g(a)(1)(F) (Vernon
Supp. 2008), § 3g(a)(2) (Vernon 2006).
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prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation
is highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation.
Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.
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, 466 U.S. at 687, 104 S. Ct. at 2064. In
other words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at
813–14. “In the majority of cases, the record on direct appeal is undeveloped
and cannot adequately reflect the motives behind trial counsel’s actions.”
Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome
the presumption of reasonable professional assistance, “any allegation of
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ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson,
9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer
ineffective assistance based upon unclear portions of the record. Mata v.
State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
There is no requirement that we approach the two-pronged inquiry of
Strickland in any particular order, or even address both components of the
inquiry if the defendant makes an insufficient showing on one component. 466
U.S. at 697, 104 S. Ct. at 2069.
Discussion
Appellant entered open pleas of guilty to two counts of aggravated
robbery with a deadly weapon. At punishment, Appellant’s sister and
grandmother and the mother of his children testified that he was a good
candidate for community supervision. Appellant testified why he wanted the
trial court to put him on community supervision.
At the conclusion of the punishment-phase testimony, the trial court
noted that Appellant was ineligible for community supervision because article
42.12, section 3g provides that when a defendant elects to have a judge
assess punishment, the judge may not order community supervision if the
defendant has been adjudged guilty of, among other offenses, (1) aggravated
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robbery or (2) a felony offense in which a deadly weapon was used or
exhibited. See T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 3g(a)(1)(F), (2). Trial
counsel conceded that he might have misunderstood article 42.12 and asked
the trial court to put Appellant on community supervision or, if that was not
possible, to sentence him to no more than ten years in the penitentiary. The
State asked for a sentence of thirty years. The trial court sentenced Appellant
to twenty-five years’ confinement in each case, with the sentences to run
concurrently. Appellant did not file a motion for new trial.
To support a claim of ineffective assistance of counsel where, as in this
case, the complaint is that counsel misunderstood the law regarding probation
pursuant to article 42.12, section 3g, more must be apparent from the record
than trial counsel’s mere mistake. State v. Recer, 815 S.W.2d 730, 731 (Tex.
Crim. App. 1991). There must be evidence that the defendant was initially
eligible to receive probation, that counsel’s advice to go to the trial judge for
sentencing was not given as part of a valid trial strategy, that the defendant’s
decision to have the judge assess punishment was based on his attorney’s
erroneous advice, and that the defendant’s decision would have been different
if his attorney had correctly informed him of the law. Id.
The only thing apparent from the record in this case is counsel’s mere
mistake regarding the possibility of community supervision under article 42.12,
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section 3g. There is no evidence that Appellant was initially eligible to receive
probation, that counsel’s advice to go to the trial judge for sentencing was not
part of a valid trial strategy, that Appellant’s decision to have the judge assess
punishment was based on counsel’s erroneous advice, or that his decision
would have been different if counsel had correctly informed him of the law.
See id.
Appellant cites Ex parte Felton, 815 S.W.2d 733 (Tex. Crim. App. 1991)
and Trevino v. State, 752 S.W.2d 735 (Tex. App.—Eastland 1988), pet.
dism’d, 759 S.W.2d 142 (Tex. Crim. App. 1988), in support of his argument
that trial counsel renders ineffective assistance when counsel’s conduct
indicates a lack of understanding of the law and facts relevant to punishment.
Felton is distinguishable because it did not involve community supervision and
because the postconviction record was sufficiently developed to permit a full
Strickland analysis. 815 S.W .2d at 734–35. Trevino is distinguishable
because it did not involve article 42.12, section 3g and thus did not implicate
the evidentiary requirements for showing ineffective assistance set out by the
court of criminal appeals in Recer. 752 S.W.2d at 737.
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Conclusion
We hold that from the limited record on appeal, Appellant has failed to
satisfy the second prong of Strickland by showing a reasonable probability that,
but for counsel’s deficiency, the result of the trial would have been different.
See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Recer, 815 S.W.2d at
731. Therefore, we overrule his sole point and affirm the trial court’s
judgments.
PER CURIAM
PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: August 28, 2008
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Kenneth L. English v. State
Combined Opinion