Ex Parte John Wesley Jones

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-388-CR

EX PARTE JOHN WESLEY JONES

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FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY

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MEMORANDUM OPINION 1

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I. INTRODUCTION

Appellant John Wesley Jones appeals from the trial court’s order denying

him relief on his application for writ of habeas corpus filed pursuant to article

11.072 of the Texas Code of Criminal Procedure. Acting pro se, Jones argues

that he was denied effective assistance of counsel at trial and on direct appeal,

that his rights guaranteed under the Fourth Amendment were violated, that the

State engaged in prosecutorial misconduct, that the evidence is insufficient to

1
… See T EX. R. A PP. P. 47.4.
support his conviction, and that the trial court erroneously failed to hold a

hearing on his application.2 We will affirm.

II. P ROCEDURAL B ACKGROUND

In January 2004, a jury convicted Jones of criminal trespass, and the trial

court sentenced him to 365 days’ confinement and a $4,000 fine. The trial

court suspended imposition of the jail term and $2,000 of the fine and placed

Jones on community supervision for twenty-four months. Jones filed a notice

of appeal, and on September 29, 2005, a panel of this court issued a

memorandum opinion affirming the trial court’s judgment. See Jones v. State,

No. 02-04-00115-CR, 2005 WL 2402746 (Tex. App.—Fort Worth Sept. 29,

2005, no pet.) (mem. op.) (not designated for publication). 3

2
… Jones does not numerically designate his issues. We therefore refer
to them by subject matter instead of number.
3
… A portion of the factual background set forth in this opinion is as
follows:

It was undisputed that on the afternoon of August 26, 2001,
Appellant entered onto the property of a neighbor, JoAnn Hill, to
retrieve his puppy that had wandered onto her property. Hill
testified that at 10:30 p.m. that evening, she was awakened by a
loud knocking on the back door, and when she went downstairs
with a shotgun, she saw that Appellant had entered her house.
According to Hill, Appellant was really angry and accused her of
having his dog. Hill called 911 to report the situation and informed
the 911 dispatcher that Appellant appeared to be intoxicated. The
911 tape was played for the jury. Hill testified that while she was

2
 On June 12, 2007, Jones filed his application for an article 11.072 writ

of habeas corpus. On September 14, 2007, the trial court signed an order

indicating that it had considered Jones’s application without conducting a

hearing, that Jones was manifestly entitled to no relief, that the application was

frivolous, and that the application was denied. Jones timely filed a notice of

appeal. 4

III. A RTICLE 11.072 AND S TANDARD OF R EVIEW

Article 11.072 provides an opportunity for habeas corpus relief for

defendants convicted of a felony or misdemeanor and ordered to community

supervision. See T EX. C ODE C RIM. P ROC. A NN. art. 11.072, § 1 (Vernon 2005);

Ex parte Cummins, 169 S.W.3d 752, 756 (Tex. App.—Fort Worth 2005, no

pet.). If the trial court denies the application in whole or in part, the applicant

on the phone with the dispatcher, Appellant retreated from her
home.

Appellant testified that he never entered Hill’s house, but he
did approach Hill’s house three times that evening to inquire about
his missing dog. He testified that on the third time he came to
Hill’s house, she answered the door with a shotgun.

Jones, 2005 WL 2402746, at *1.
4
… Jones also filed a petition for writ of mandamus in January 2008
challenging, among other things, issues raised in his application for writ of
habeas corpus. We denied the petition later that same month.

3
may appeal under article 44.02 and rule 31 of the Texas Rules of Appellate

Procedure. See T EX. C ODE C RIM. P ROC. A NN . art. 11.072, § 8; Ex part

Villanueva, 252 S.W.3d 391, 396–97 (Tex. Crim. App. 2008).

In reviewing the trial court’s decision to grant or deny habeas corpus

relief, we view the facts in the light most favorable to the trial court’s ruling

and, absent an abuse of discretion, uphold the ruling. See Ex parte Peterson,

117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by

Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007); Ex parte Twine, 111

S.W.3d 664, 665 (Tex. App.—Fort Worth 2003, pet. ref’d). In conducting our

review, we afford almost total deference to the judge’s determination of the

historical facts that are supported by the record. Twine, 111 S.W.3d at 665.

If the resolution of the ultimate question turns on an application of legal

standards, we review the determination de novo. Peterson, 117 S.W.3d at

819.

IV. INEFFECTIVE A SSISTANCE OF C OUNSEL—T RIAL

Jones argues that his trial counsel rendered ineffective assistance by

failing to object to the introduction of evidence that he was intoxicated at the

time of the offense; by failing to conduct an adequate investigation and to call

rebuttal witnesses; by failing to request a limiting instruction regarding evidence

of his intoxication; by failing to file a request for notice of extraneous offenses;

4
by failing to call additional character witnesses; by permitting the introduction

into evidence of his 1975 arrest; by failing to give an appropriate closing

argument at the punishment phase of trial; by failing to request a jury

instruction on the affirmative defense of justification; by failing to thoroughly

cross-examine law enforcement witnesses; by failing to give an appropriate

closing argument at the guilt/innocence phase of trial; and by failing to

adequately interview him and keep him informed.

To prevail on a claim of ineffective assistance of counsel, the defendant

must show that trial counsel’s performance was deficient and that a reasonable

probability exists that the result of the proceeding would have been different

but for the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984). The first prong of the Strickland test requires that the

appellant show that counsel’s performance fell below an objective standard of

reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The defendant must prove objectively, by a preponderance of the

evidence, that trial counsel’s representation fell below professional standards.

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A reviewing

court must indulge in a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance. Strickland, 466 U.S. at

689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly

5
founded in the record, and the record must demonstrate affirmatively the

alleged ineffectiveness. Thompson, 9 S.W.3d at 813. The second prong

requires that the defendant show a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9

S.W.3d at 812.

A. Intoxication Evidence

Jones contends that his trial counsel was ineffective because he failed to

object to evidence that Jones was intoxicated when a peace officer with the

Parker County Sheriff’s Department questioned him about his encounter with

Joann Hill, the complainant, on the day of the offense. The record

demonstrates that the following exchange occurred:

[Prosecutor]: Officer Perkins, before we broke for lunch, I was
asking you about your conversation with the Defendant at the end
of his - - or in his driveway. As you spoke to the Defendant, did
you make any observations about him?

[Officer Perkins]: Yes, I did.

[Prosecutor]: And can you describe some of the observations that
you made?

[Officer Perkins]: I remember smelling alcohol from his breath.

[Defense counsel]: Your Honor, I would object to this testimony - -
this line of testimony as being prejudicial under Rule 404(B), 403.
It’s irrelevant to the offense charged.

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 [Trial Court]: Response.

The record thus demonstrates that Jones’s trial counsel lodged an objection to

the officer’s testimony opining that Jones was intoxicated.

To the extent Jones argues that his trial counsel was ineffective for failing

to continuously object to evidence of intoxication admitted thereafter, we

reasoned in our previous opinion that Jones failed to preserve for appellate

review his argument that the trial court abused its discretion by overruling his

extraneous offense objection to the intoxication evidence because similar

evidence had previously been admitted by way of the 911 recording that Hill

initiated when she encountered Jones in her residence. See Jones, 2005 WL

2402746, at *2. Included in the appendix to Jones’s application is a “911

Transcript Disclosure” in which Jones states that “[Trial counsel] told me that

we should suppress the [911] tape. I did not agree to that as it was the only

evidence available to disclose the truth.” Jones cannot now complain about

trial counsel’s failure to object to intoxication evidence because the record

demonstrates that he is the one who initially insisted that the 911 recording be

played. Jones has not shown that trial counsel’s performance fell below an

objective standard of reasonableness, nor has he overcome the strong

presumption that trial counsel’s conduct fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at

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2065; Thompson, 9 S.W.3d at 812. W e overrule this portion of Jones’s

ineffective assistance of counsel argument.

B. Adequate Investigation and Rebuttal Witnesses

Jones argues that his trial counsel was ineffective because he failed to

conduct an adequate investigation, which resulted in trial counsel’s failing to

call witnesses to rebut the evidence of Jones’s alleged intoxication on the night

of the incident.

A criminal defense lawyer has a duty to make an independent

investigation of the facts of a case, which includes seeking out and interviewing

potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App.

1990). A breach of the duty to investigate may result in a finding of ineffective

assistance “where the result is that any viable defense available to the accused

is not advanced.” Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App.

1982). “In any ineffectiveness case, a particular decision not to investigate

must be directly assessed for reasonableness in all the circumstances, applying

a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S.

at 691, 104 S. Ct. at 2066.

Jones points to Ollie Mae Stevens, an individual whom he cuts trees for,

and Mary King, an individual who accompanied him to the SPCA when he

adopted a dog, as individuals who could have been called as witnesses to rebut

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the evidence that he was intoxicated, arguing that they could have testified

about Jones’s speech when he spoke on the phone with them on the night of

the incident. Included in the appendix to Jones’s application is an affidavit

signed by King stating that she spoke to Jones on the telephone the day of the

incident, that he did not seem to be intoxicated, and that she was not asked to

testify.

Although Stevens and King did not testify, Jones unequivocally testified

that he was not intoxicated on the night of the incident. Trial counsel also

called Terese Hutchinson, who testified that she has known Jones for about

three years, that they visit often, and that she has never seen him intoxicated.

Applying a heavy measure of deference to trial counsel’s decision not to call

Stevens and King to rebut the evidence of Jones’s alleged intoxication, we hold

that trial counsel’s decision not to call Stevens and King was reasonable under

the circumstances because trial counsel rebutted the evidence that Jones was

intoxicated through the testimonies of Jones and Hutchinson. Trial counsel

could have also reasonably concluded that the testimonies of Stevens and of

King would be cumulative. Because trial counsel advanced Jones’s intoxication

rebuttal evidence, Jones has not shown that trial counsel’s performance fell

below an objective standard of reasonableness, nor has he overcome the strong

presumption that trial counsel’s conduct fell within the wide range of

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reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at

2065; Thompson, 9 S.W.3d at 812. We overrule this portion of Jones’s

ineffective assistance of counsel argument.

Jones additionally complains that trial counsel failed to adequately

investigate the existence of a “pre-teen” who was allegedly in attendance at the

party that Hill held at her house on the day of the offense. Jones testified that

he spoke to this individual, who told him that she and her family were going to

adopt Jones’s dog, which ran over to Hill’s yard during Hill’s party. Conversely,

Hill testified that an eleven, twelve, or thirteen-year-old individual was not in

attendance at the party.

Although Jones attaches significant weight to the presence of this “pre-

teen” at Hill’s party, whether this “pre-teen” was actually in attendance at Hill’s

party is not a fact tending to support the prosecution’s allegation that Jones

committed the offense of criminal trespass, nor is it a significant fact necessary

to cast doubt on the credibility of Hill’s testimony that Jones committed

criminal trespass. Moreover, both Hill and Jones testified in detail about the

facts surrounding Jones’s initial contact with Hill and her family members on

the day of the offense, and the jury was free to believe or disbelieve Hill’s

testimony that this “pre-teen” was not at the party. Considering the record as

a whole, we cannot conclude that a reasonable probability exists that the result

10
of the trial would have been different had trial counsel further investigated the

presence, non-presence, existence, or non-existence of the alleged “pre-teen.”

See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. We overrule this portion

of Jones’s ineffective assistance of counsel argument.

C. Limiting Instruction

Jones argues that his trial counsel was ineffective because he failed to

request during trial that the trial court give the jury a limiting instruction that it

could only consider the evidence of intoxication if it believed beyond a

reasonable doubt that Jones was intoxicated at the time of the offense. Jones

also contends that trial counsel was ineffective because the jury charge did not

include a limiting instruction. He contends that it is reasonable to presume that

the jury did not doubt that he was intoxicated and that it used this evidence

against him.

Although this is not a direct appeal, nothing in the exhibits that Jones

attached to his application explain or develop the facts surrounding trial

counsel’s reason for not requesting a limiting instruction during trial or as part

of the jury charge. Trial counsel may have purposely decided not to request a

limiting instruction to prevent further attention being drawn to the “extraneous

offense” of intoxication. See Webb v. State, 995 S.W.2d 295, 300–01 (Tex.

App.—Houston [14th Dist.] 1999, no pet.). Considering the lack of any

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explanation in the record, Jones has failed to rebut the strong presumption that

trial counsel acted reasonably. See Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. W e overrule this portion of Jones’s ineffective assistance of counsel

argument.

D. Request for Notice of Extraneous Offenses

Jones argues that trial counsel was ineffective because he failed to file

a request for notice of extraneous offenses. He contends that trial counsel

would have been aware of the State’s intent to put on extraneous offense

evidence (intoxication) had he filed such a request.

As mentioned above, we reasoned in our previous opinion that Jones had

failed to preserve for appellate review his argument that the trial court abused

its discretion by overruling his extraneous offense objection to the intoxication

evidence because similar evidence had previously been admitted by way of the

911 recording that Hill initiated when she encountered Jones in her residence.

See Jones, 2005 WL 2402746, at *2. Evidence of Jones’s alleged intoxication

was thus previously admitted in the 911 recording; it was not admitted for the

first time by way of the deputy sheriff’s testimony.

Jones’s argument that trial counsel would have been aware of the State’s

intent to put on extraneous offense evidence (intoxication) had he filed such a

request is inconsistent with the facts viewed in the light most favorable to the

12
trial court’s ruling. This is because Jones’s statement in a document included

in his appendix to his application, providing that he did not agree with his trial

counsel’s recommendation that the 911 recording should be suppressed,

demonstrates that he and his attorney had knowledge of the

contents—including the intoxication evidence—of the 911 recording. We

cannot conclude that a reasonable probability exists that the result of the trial

would have been different had trial counsel requested notice of extraneous

offense evidence, which, nonetheless, may or may not have included Jones’s

intoxication as an “extraneous offense,” considering the State’s argument that

evidence of Jones’s alleged intoxication was “same transactional contextual

evidence.” See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

E. Punishment Arguments

Jones argues that his trial counsel was ineffective during the punishment

phase of the trial because he failed to call William H. Thoele and James F.

Smith as additional character witnesses. He contends that these individuals

could have offered specific testimony regarding Jones’s character, work habits,

and work history.

The record demonstrates that Jones and Hutchinson testified at the

punishment phase of trial. Hutchinson testified that Jones was “[l]aw-abiding,”

“caring,” “compassionate,” and “very hard working.” She testified that he

13
“gives food to the homeless,” that he checks in on an old lady who lives down

the street from him, and that he has given job opportunities to certain

developmentally disabled adults. She testified that “he’s a tree trimmer,” that

he trims trees for others in the neighborhood, that he “goes out for auctions to

buy property,” that he is a “multitalented, busy gentleman,” and that he has

“many irons in the fire.” Hutchinson thus testified about the same topics that

Jones argues Thoele and Smith should have been called to testify

about—Jones’s character and work habits. Trial counsel could have reasonably

concluded that additional testimony about Jones’s character and work habits

from other witnesses would have been cumulative and unnecessary.

Consequently, Jones has not shown that trial counsel’s performance fell below

an objective standard of reasonableness, nor has he overcome the strong

presumption that trial counsel’s conduct fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at

2065; Thompson, 9 S.W.3d at 812. We overrule this portion of Jones’s

ineffective assistance of counsel argument.

Jones additionally argues that trial counsel was ineffective for permitting

the introduction into evidence of Jones’s 1975 arrest. Trial counsel asked him

if he had ever been arrested, and Jones responded that he had been arrested

sometime between 1969 and 1971. On cross-examination, the State

14
questioned Jones whether he had also been arrested for assault in 1975.

Jones responded that it was a false claim and that he was booked into jail but

later released. Jones contends that trial counsel’s question about his arrests

opened the door to the 1975 arrest. But as the State contends, the record

seems to indicate that Jones had not informed his counsel of the 1975 arrest

and that it came to light only when the State brought it up on cross-

examination. “If the client falsely tells his attorney he has no record, he many

not later claim that his own lies have caused him to suffer ineffective assistance

of counsel. He may not set up counsel for later attack by such evidence.” Ex

parte Ewing, 570 S.W.2d 941, 947 (Tex. Crim. App. 1978). Jones has failed

to rebut the strong presumption that trial counsel acted reasonably. See

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We overrule this portion of

Jones’s ineffective assistance of counsel argument.

Jones further argues that his trial counsel was ineffective because of

statements that he made during closing arguments. He complains that the

following argument was, at best, “damning” and that it did not include any of

the mitigating facts that were available to trial counsel:

[Defense counsel]: Your Honor, I - - I believe that justice would not
be served if - - if Mr. Jones were incarcerated. I have met with him
on many occasions, speaking personally, and quite honestly, he’s -
- he is a law-abiding person. He is difficult to get along with.
Excuse me, just stating the truth.

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 The Witness: That’s fine.

[Defense counsel]: But I don’t think he belongs in a jail. In regard
to punishment, I’m not - - I guess that’s all I’m going to say
because I’m not going to - - I’m not going to go against - - I know
what the jury says. I have my belief. But I - - I do believe that
justice would not be served if you - - if you placed him in jail. And
I’ve - - and I’ve had my difficulties with him, but they’ve not been
on a criminal nature. And I’ve been around a lot of criminals, and
he’s just - - this man is not - - I don’t believe he belongs - - he does
not belong in jail.

Although trial counsel’s closing argument did not address the specific

“mitigating facts that were available to” trial counsel, the record demonstrates

that trial counsel made his closing statement just after the State gave its

closing statement, which was immediately after both Jones and Hutchinson

testified about the “mitigating facts” regarding Jones’s character and his

version of the facts. The trial judge, whom Jones had elected to determine

punishment, was consequently well aware of the “mitigating facts” that Jones

argues his counsel failed to mention. Trial counsel nevertheless argued that

Jones should not go to jail. We hold that Jones has not shown that there is a

reasonable probability that his punishment would have been different had trial

counsel mentioned additional “mitigating facts” during closing argument. See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.

We overrule the remainder of Jones’s ineffective assistance of counsel

argument regarding punishment.

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 F. Affirmative Defense Jury Instruction

Jones argues that his counsel was ineffective because he failed to

request a jury instruction on the affirmative defense of justification. He

contends that the evidence at trial entitled him to an instruction under section

9.41 of the penal code, which permits the protection of a person’s property

under certain circumstances, because it was reasonable for him to conclude

that someone at Hill’s party had taken his dog and that he had a right to inquire

of Hill whether or not she knew where his dog was. Section 9.41(b) provides

as follows:

A person unlawfully dispossessed of . . . tangible, movable
property by another is justified in using force against the other
when and to the degree the actor reasonably believes the force is
immediately necessary to . . . recover the property if the actor uses
the force immediately or in fresh pursuit after the dispossession and
(1) the actor reasonably believes the other had no claim of right
when he dispossessed the actor.

T EX. P ENAL C ODE A NN. § 9.41(b)(1) (Vernon 2003).

Here, Jones was only prosecuted for criminal trespass, which requires the

State to prove that a person, without effective consent, enters or remains on

or in the property of another, and that he had notice that entry was forbidden

or received notice to depart but failed to do so. Id. § 30.05(a) (Vernon Supp.

2008). Jones was not entitled to an instruction pursuant to section 9.41

because, whether he reasonably believed that he had been unlawfully

17
dispossessed of the dog or not, there is no evidence that he used any force

against another to recover his dog; he merely entered or remained on Hill’s

property without consent and after he received notice to depart. Jones has

thus failed to rebut the strong presumption that trial counsel acted reasonably

by not requesting a jury instruction on the affirmative defense of justification.

See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We overrule this portion

of Jones’s ineffective assistance of counsel argument.

G. Cross-examination of Law Enforcement Witnesses

Jones argues that his trial counsel was ineffective because he failed to

adequately cross-examine two law enforcement officers who testified at trial.

He contends that trial counsel should have questioned the officers about their

investigation—or lack thereof—into Jones’s allegation that his dog had been

stolen and never found. According to Jones, “Had the officers looked into the

matter[] and found the dog had been taken by a member o[f] the Hill family, it

would have strengthened [Jones’s] testimony and justified his knocking on

[Hill’s] door that evening, and ma[d]e [Jones’s] actions more understandable

and sympathetic.”

As trial counsel correctly noted during closing argument, the case hinged

on whether the jury believed Jones’s testimony that he did not enter Hill’s

house or whether it believed Hill’s testimony that Jones did enter her house.

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While Jones’s missing dog may have given him a reason to approach Hill’s

residence, knock on her front door, and ask her if she knew where his dog was,

it did not allow him to enter Hill’s residence without her permission and commit

criminal trespass. This conclusion is implicit in the jury’s verdict. It is thus

irrelevant for purposes of this criminal trespass prosecution whether a member

of Hill’s family took Jones’s dog or not. Jones has failed to rebut the strong

presumption that trial counsel acted reasonably by not questioning the officers

about his missing dog. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Moreover, Jones has not shown that there is a reasonable probability that the

result of the trial would have been different had trial counsel questioned the

officers about his missing dog. See Strickland, 466 U.S. at 694, 104 S. Ct. at

2068; Thompson, 9 S.W.3d at 812. We overrule this portion of Jones’s

ineffective assistance of counsel argument.

H. Closing Argument—Guilt/Innocence

Jones argues that his trial counsel was ineffective because he made a

misstatement during closing argument at the guilt/innocence portion of the trial.

Trial counsel stated, “And I think that if you consider all of the evidence that’s

been presented, that you’ll come back with a guilty not verdict. A verdict of

not guilty, and I ask you to do so.” [Emphasis added.] Jones contends that

this misstatement demonstrated that trial counsel believed that Jones was

19
guilty and that it misled and confused the jury. Included in the appendix to his

application is an affidavit signed by Hutchison stating that she was in the

courtroom during the closing argument and that there was a two-to-three-

second pause between the “guilty” and “not” words that “caused [two] jurors

in the front row to start and look at [trial counsel] in sharp incredulity.”

The record demonstrates that trial counsel misstated his thoughts and

then corrected himself. Considering the record as a whole, including

Hutchinson’s affidavit, it is unreasonable to conclude that trial counsel rendered

ineffective assistance because he misspoke. Jones has not shown that there

is a reasonable probability that the result of the trial would have been different

had trial counsel not misspoke. See Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Thompson, 9 S.W.3d at 812. We overrule this portion of Jones’s

ineffective assistance of counsel argument.

I. Failure to be Adequately Informed of Case’s Facts

Jones argues that his counsel rendered ineffective assistance because he

was not adequately informed of the facts of the case. To support his

argument, he cherry-picks a few of trial counsel’s statements from the record,

in which trial counsel accidentally says “Mr.” Hill instead of “Ms.” Hill and says,

“I think,” with regard to what the evidence will show, during his opening

statement. Considering the record as a whole, this argument is entirely without

20
merit, and we overrule this portion of Jones’s ineffective assistance of counsel

argument.

J. Failure to Adequately Interview and Keep Client Informed

Jones argues that his counsel rendered ineffective assistance because he

failed to adequately interview him and to keep him informed. Nothing in the

exhibits that Jones attached to his application explain or develop the facts

surrounding any such failures. Considering the lack of any explanation or

analysis in the record, Jones has failed to rebut the strong presumption that

trial counsel acted reasonably. See Strickland, 466 U.S. at 689, 104 S. Ct. at

2065; see also T EX . R. A PP. P. 38.1(h). We overrule this portion of Jones’s

ineffective assistance of counsel argument and his issue complaining of

ineffective assistance of counsel in its entirety.

V. P ROSECUTORIAL M ISCONDUCT

Jones argues that the State’s attorneys committed prosecutorial

misconduct. He states,

[The] trial prosecutors presented witnesses and based their case on
testimony that they knew or should have known was perjury, and
which was contrary to the State’s evidence. The prosecutors
vouched, made seriously misleading statements, misstated
evidence and purported facts not in evidence, and failed to refrain
from improper methods, and other manners of prosecutorial
misconduct.”

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Contrary to Jones’s argument, nothing in the record supports his accusation

that the State’s attorneys committed prosecutorial misconduct. We overrule

his issue complaining of prosecutorial misconduct.

VI. H EARING

Jones argues that the trial court erred by denying him relief without

having conducted a hearing on his application. We have previously held that

there is nothing in article 11.072 requiring the trial court to conduct a hearing

on an application for habeas corpus before rendering its decision on the relief

sought. See Cummins, 169 S.W.3d at 757. Because article 11.072 did not

require the trial court to hold a hearing before rendering its decision on Jones’s

requested relief, the trial court did not err by failing to hold a hearing on Jones’s

application. We overrule Jones’s issue complaining that the trial court erred by

failing to conduct a hearing.

VII. R EMAINING A RGUMENTS N OT P RESERVED

Jones argues in his remaining issues that he was denied effective

assistance of counsel on direct appeal, that his rights guaranteed under the

Fourth Amendment were violated, and that the evidence is insufficient to

support his conviction.

To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

22
grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. T EX. R. A PP. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Preservation of error

is a systemic requirement that this court should review on its own motion.

Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007); Jones v. State,

942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997).

Jones limited his arguments in his application filed in the trial court to

ineffective assistance of counsel at trial and prosecutorial misconduct. He did

not argue that he was entitled to habeas relief because he was denied effective

assistance of counsel on direct appeal, because his rights guaranteed under the

Fourth Amendment were violated, or because the evidence is insufficient to

support his conviction.5 The trial court thus never had an opportunity to

consider these arguments, and Jones may not raise them for the first time on

appeal. See T EX. R. A PP. P. 33.1(a)(1); Aldrich v. State, 104 S.W.3d 890, 895

5
… Nor did he argue in his application any other issues that might be
construed from a reading of his brief.

23
(Tex. Crim. App. 2003) (reasoning that only violations of “rights which are

waivable only” and denials of “absolute systemic requirements” may be raised

for the first time on appeal). Consequently, Jones failed to preserve these

arguments for appellate review. We therefore overrule Jones’s issues

complaining that he was denied effective assistance of counsel on direct

appeal, that his rights guaranteed under the Fourth Amendment were violated,

and that the evidence is insufficient to support his conviction.

VIII. C ONCLUSION

Having overruled all of Jones’s issues, we affirm the trial court’s

judgment denying Jones habeas relief.

PER CURIAM

PANEL: HOLMAN, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 7, 2008

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