In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00008-CR
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JOSEPH BONNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. D-202-CR-92-0479
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N
Joseph Bonner appeals the revocation of his community supervision in each of four cases. In 1988, Bonner pleaded guilty to felony driving while intoxicated (DWI). The trial court sentenced him to five years' imprisonment, but suspended the imposition of his sentence and placed him on five years' community supervision.
In 1992, Bonner was indicted for two other felony DWI offenses. The State also filed a motion to revoke Bonner's community supervision for the 1988 conviction. The trial court did not hear these cases until 1995, when Bonner was indicted for a fourth felony DWI offense.
Bonner pleaded guilty to the two 1992 felony DWI offenses and the 1995 felony DWI offense. The trial court sentenced him to five years' imprisonment for each offense. The trial court also revoked Bonner's community supervision in the 1988 conviction and sentenced him to five years' imprisonment. All sentences were ordered to run concurrently. However, five months later, the trial court placed Bonner on five years' "shock probation" in each case.
In 2000, the State again moved to revoke Bonner's community supervision, alleging he committed five violations of its terms. Specifically, the State alleged (1) that Bonner operated a vehicle without an ignition interlock device installed on the vehicle, (2) that he failed to report to the community supervision department as directed, (3) that he failed to pay his supervision fees for five months, (4) that he consumed alcohol, and (5) that he failed to report to the supervision office and take Anabuse over a ten-day period. (1)
Bonner pleaded true to two of the State's allegations. The trial court found three of the allegations true, revoked Bonner's community supervision in all four cases, and ordered the execution of the remainder of his sentences.
This opinion addresses the revocation of Bonner's community supervision for one of the 1992 felony DWI offenses, trial cause number D-202-CR-92-0479, for which he was convicted in 1995. Bonner has also appealed the revocation of his community supervision in each of the other cases. We address those appeals in separate opinions.
We have this day released our opinion in Number 06-01-00006-CR, Joseph S. Bonner v. State of Texas. Because the briefs and arguments are identical to those raised in this appeal, we affirm the trial court's judgment.
Ben Z. Grant
Justice
Date Submitted: March 12, 2002
Date Decided: March 19, 2002
Do Not Publish
1.
y: Times New Roman"> Martin asserts his trial counsel was ineffective for four reasons: First, his trial counsel did not present a jury argument during the punishment stage of the proceedings. Second, his trial counsel did not object to the admission of a videotape showing Martin taking a polygraph examination. Third, his trial counsel did not object to the admission of a videotape in which Martin is seen attached to a polygraph machine. And fourth, Martin's trial counsel did not call a community supervision officer to testify during the punishment phase about the terms, conditions, and programs available if Martin were placed on community supervision.
A. No Closing Argument
It is the custom in Texas during the punishment phase of a criminal trial to permit the State to make an opening summation, followed by the accused's punishment argument, then a rebuttal from the State. See generally Tex. Code Crim. Proc. Ann. arts. 36.07, 36.08 (Vernon 1981). In this case, after both sides had rested and the trial court had read its punishment charge to the jury, the State gave a brief opening summation regarding punishment that comprises three pages of the appellate record. Martin's trial counsel thereafter waived his right to present a closing argument. Because Martin's counsel presented no argument, the State did not have the right to present any rebuttal. Martin asserts that it is this waiver of a summation on punishment which constitutes ineffective assistance.
"It is the trial strategy of some attorneys to waive final argument in an attempt to cut off the State's rebuttal. There is a strong presumption that this strategy was an exercise of reasonable professional judgment." Salinas v. State, 773 S.W.3d 779, 783 (Tex. App.--San Antonio 1989, pet. ref'd). Trial counsel's waiver of final argument in the case now on appeal could have been a tactical decision to prevent the State from making a much longer rebuttal argument. We cannot say such a decision is outside the wide range of professional norms. No ineffective assistance has been shown.
B. The Videotape
In his second and third issues, Martin asserts his counsel provided ineffective assistance by failing to object to the admission of a videotape showing him attached to a polygraph machine. This videotape also shows Martin being asked what he thought should happen to someone who sexually assaulted a minor, to which Martin responded that such a person should be "severely punished . . . probably the maximum." Martin's brief on appeal makes no effort to demonstrate that this videotape was inadmissible under the Rules of Evidence or that (if admissible) the videotape's probative value was nonetheless substantially outweighed by its prejudicial impact (thereby precluding its admission under Tex. R. Evid. 403). Nor does Martin's appellate brief attempt to demonstrate that, but for the admission of this videotape, the outcome of Martin's trial would have been different. As such, Martin has demonstrated neither that counsel provided deficient performance on either of these alleged bases, nor that counsel's alleged errors prejudiced Martin's defense, as required under Strickland. As such, these claims have been inadequately briefed. Accord Peake v. State, 133 S.W.3d 332, 334 (Tex. App.--Amarillo 2004, no pet.).
C. Failure to Call a Community Supervision Officer to Testify About Community Supervision
Finally, Martin claims trial counsel provided constitutionally deficient assistance because he failed to call a community supervision officer to testify regarding the possible terms and conditions of community supervision. Martin contends such testimony might have resulted in the jury giving a lesser punishment. Martin's appellate brief makes no effort to demonstrate how testimony from an employee of the local community supervision and corrections department would have aided his case, nor has Martin made any effort to demonstrate how the absence of such testimony made the State's case for punishment more persuasive. At best, Martin's argument is speculative, rather than being firmly rooted in the record, as required. See, e.g., Ex parte Gray, 126 S.W.3d 565, 568-69 (Tex. App.--Texarkana 2003, pet. dism'd, untimely filed); Hernandez v. State, 84 S.W.3d 26, 35 (Tex. App.--Texarkana 2002, pet. ref'd). As such, this issue has also been inadequately briefed. See Gray, 126 S.W.3d at 568-69.
III. Conclusion
For the reasons stated, we overrule each claim of ineffective assistance of counsel and affirm the trial court's judgment.
Bailey C. Moseley
Justice
Date Submitted: November 13, 2006
Date Decided: January 9, 2007
Do Not Publish
1. The jury also found Martin not guilty of another charge of sexual assault.