In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00076-CR ______________________________
DANIEL SHAWN JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 12,308
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
On October 5, 1999, Daniel Shawn Jackson waived a jury trial and pled guilty to sexual assault as charged in the indictment. The charged offense is a second degree felony. See Tex. Pen. Code Ann. § 22.011 (Vernon 2003). Pursuant to a plea agreement, the trial court deferred a finding of guilt, placed Jackson on community supervision for a period of five years, and dismissed a second charge against Jackson.
On November 20, 2000, April 25, 2001, and November 5, 2002, the trial court approved three, separate, agreed modifications to the conditions of Jackson's community supervision. The November 5 modification extended Jackson's community supervision for one year and required him to submit to residential drug treatment for a minimum of six months. The prior modifications to Jackson's terms of community supervision had also included periods of incarceration in the Upshur County jail and attendance at drug education programs.
On January 29, 2003, the State filed a final motion to adjudicate Jackson's guilt. The State alleged Jackson had not reported to his community supervision officer during several months preceding November 2002, had not performed his assigned community work service during several months before November 2002, had failed to pay his scheduled fees for community supervision from July 2000 until December 2002, and had failed to submit to and remain at the residential substance abuse treatment facility for no less than six months. Jackson pled "not true" to violating his community supervision.
Jackson's community supervision officer, Linda Keller, testified Jackson failed to successfully complete the residential drug treatment program because he had not followed the rules and regulations of the program. Jackson told the trial court he was kicked out of the residential drug treatment program and the program director wanted him to go to a boot camp facility for a few months and then return to the residential treatment center to continue his treatment for drug use. Jackson testified the rules he violated included unauthorized trading of commissary goods (1) and incomplete performance of his "extra duty" hours. (2) At the conclusion of the hearing, the trial court found Jackson had violated his community supervision, adjudicated Jackson's guilt, and assessed his punishment at twelve years' imprisonment.
On July 2, 2003, Jackson's appellate counsel filed an Anders (3) brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Jackson a copy of the appellate brief and informed him of his right to file a response pro se and of his right to review the record.
This Court informed Jackson at that time his response, if any, was due by August 1, 2003. As of this date, Jackson has not filed a response pro se. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case.
Jackson admitted failing to complete the residential drug treatment program as required by the trial court's November 5, 2002, modification order. Accordingly, the trial court did not abuse its discretion by finding Jackson had violated that term of his community supervision. The trial court also assessed Jackson's punishment at twelve years' imprisonment. This is within the range permitted under Texas law. See Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). Therefore, the trial court did not abuse its discretion by adjudicating Jackson's guilt or by assessing his punishment at twelve years' imprisonment.
Finally, Jackson's appellate counsel draws our attention to several errors in the trial court's judgment. First, the trial court's judgment states Jackson pled "true" to violating the terms of his community supervision. Jackson, however, pled "not true." Second, the judgment includes violations that occurred before the November 5, 2002, modification order. At the conclusion of the hearing, the trial court directed the district attorney to prepare the judgment. A trial court may not consider allegations of violations that occurred before a previous modification order when, as is the case here, those same allegations were the subject of a prior state's motion to adjudicate guilt and that motion was dismissed pursuant to an agreed modification and continuation of the defendant's community supervision, as approved by the trial court. See Wester v. State, 542 S.W.2d 403, 405-06 (Tex. Crim. App. 1976). Thus, it appears several pre-November 5, 2002, allegations were erroneously included in the trial court's judgment.
Appellate courts have the power to reform a trial court's judgment. See Mazloum v. State, 772 S.W.2d 131, 132 (Tex. Crim. App. 1989). We reform the judgment to reflect Jackson's plea of "not true" to the alleged violations and to delete the notations regarding any alleged violations that occurred before November 2002 (as these were not properly before the trial court), and we otherwise affirm the trial court's judgment.
Donald R. Ross
Justice
Date Submitted: October 1, 2003
Date Decided: October 14, 2003
Do Not Publish
1. According to Jackson's testimony, he exchanged a bag of coffee and some sweat pants for a ring owned by another resident at the treatment program. The ring was apparently similar to his wedding ring, which Jackson had sold and was seeking to replace.
2. Jackson claimed a peer at the program had failed to record the proper number of hours Jackson worked.
3. Anders v. California, 386 U.S. 738 (1967).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00012-CR
______________________________
JERRY CRAIG, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 241st Judicial District Court
Smith County, Texas
Trial Court No. 241-1385-10
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Jerry Craig, Jr.,[1] pled guilty to the charge of robbery and elected that the jury assess punishment. The trial court accepted Craigs plea and instructed the jury to find him guilty. Craig also pled true to having been convicted of a prior felony, which enhanced the range of punishment to a first degree felony. After the jury assessed punishment of forty-two years imprisonment, the trial court sentenced Craig accordingly. On appeal, Craig claims his trial counsel was ineffective. We overrule Craigs point of error and affirm the trial courts judgment and sentence.
Craigs claim of ineffective assistance of counsel is based on references by the State, in opening argument, and in questions posed to the robbery victim, which brought out evidence the victim was a cancer survivor. Diane Cannella, the clerk at the CVS drugstore which Craig admitted robbing,[2] testified that about twelve years before the robbery, she had undergone successful treatment for leukemia. Craig claims that such evidence was irrelevant, or even if it had relevance, it was substantially more prejudicial than probative, and that by admitting it, the State encouraged the jury to reach a punishment verdict on an improper basis, to-wit, the allegedly irrelevant testimony from Cannella. Thus, argues Craig, his trial counsel was ineffective for failing to object to the States introduction of this evidence and discussion of it in argument.
I. Standard to Establish Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution, and Article 1, Section 10 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a criminal prosecution. U.S. Const. amend. VI; Tex. Const. art. 1, § 10. The right to counsel requires more than the presence of a lawyer; it necessarily requires the right to effective assistance. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v. Alabama, 287 U.S. 45, 57 (1932). However, the right does not provide a right to errorless counsel, but rather to objectively reasonable representation. See Strickland v. Washington, 466 U.S. 668, 686 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
Ineffective assistance of counsel claims are evaluated under the two-part test formulated by the United States Supreme Court in Strickland, requiring a showing of both deficient performance and prejudice. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Fox v. State, 175 S.W.3d 475, 485 (Tex. App.Texarkana 2005, pet. refd). Ineffective assistance of counsel claims cannot be built on retrospective speculation, but must be firmly rooted in the record, with the record itself affirmatively demonstrating the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). First, Craig must show that trial counsels representation fell below an objective standard of reasonableness. Fox, 175 S.W.3d at 485 (citing Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). We indulge a strong presumption that counsels conduct falls within the wide range of reasonable, professional assistance and was motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). If counsels reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsels decisions and deny relief on an ineffective assistance claim on direct appeal. Ortiz v. State, 93 S.W.3d 79, 8889 (Tex. Crim. App. 2002).[3]
The second Strickland prong requires a showing that the deficient performance prejudiced the defense to the degree that there is a reasonable probability that, but for the attorneys deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. Failure to satisfy either part of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim. App. 2006). It is not necessary to conduct the Strickland analysis in any particular order; if an appellant cannot demonstrate sufficient prejudice, a court may dispose of the claim on that ground. Strickland, 466 U.S. 697; Hagens v. State, 979 S.W.2d 788, 79394 (Tex. App.Houston [14th Dist.] 1998, pet. refd); Gamboa v. State, 822 S.W.2d 328, 330 (Tex. App.Beaumont 1992, pet. refd).
II. Was Counsels Performance Deficient?
Craig claims Cannellas medical history was not relevant to her description of the robbery. We observe that it is not uncommon to introduce witnesses with preliminary questions about their family life and history. Here, the background questions to the witness included her birthplace, childhood residence, marriage and children, previous employment, medical history of leukemia, transfer to Smith County, and finally, her employment with CVS Pharmacy where this offense occurred. While none of this information is directly relevant in determining the punishment, it is commonly presented by both the State and the defense, without objection, to introduce the witness to the jury. See Hunt v. State, No. 14-00-01293-CR, 2001 Tex. App. LEXIS 8469, at *67 (Tex. App.Houston [14th Dist.] Dec. 20, 2001, pet. refd) (mem. op., not designated for publication)[4] (It is clear from the record that the question, together with those that preceded it, occurring during the first one or two minutes of Mr. Holmes testimony, was intended to be background information introducing the witness to the jury. Such introductory questions, while perhaps legally irrelevant, are commonplace and accepted.). It is true Cannellas past illness and successful treatment did not have an explicit tendency to make a fact of consequence more probable or less probable. Tex. R. Evid. 401. But in the course of introducing the witness and having her explain her life before moving to Smith County, we cannot say that briefly touching on the witness personal story was so improper as to require an objection by counsel. As has been stated in hundreds of previous cases urging that counsel was ineffective, there are numerous reasons counsel may decide it is not in the clients best interest to object to irrelevant evidence and without a record, we cannot determine counsel had no logical rationale for failing to object.
Based on the state of the record before us, silent as it is regarding trial counsels actions, Craig has failed to rebut the strong presumption that counsels representation was within a wide range of reasonable, professional assistance, and was motivated by sound trial strategy. The state of the record precludes Craig from meeting the first prong of the Strickland test, and he thus cannot prove his claim of ineffective assistance of counsel. See Lopez v. State, No. PD-0481-10, 2011 Tex. Crim. App. LEXIS 826, at *13 (Tex. Crim. App. June 15, 2011). Having failed on the first Strickland prong, Craigs claim of ineffective assistance of counsel fails. Martinez, 195 S.W.3d at 730 (failure to satisfy either prong of Strickland test fatal).
III. Inability to Show Prejudice
Even if Craig could demonstrate his trial counsel rendered deficient performance in his trial representation, we would not find Craig was prejudiced. The State alluded to Cannellas medical history in opening argument: the State described Cannella as a cancer survivor, and said,
[I]n 1995 she was diagnosed with leukemia, and she went through a three- to four-year battle fighting cancer, going through all the treatments that someone would go through who has a life-threatening disease like she had. And she battled it as hard as she could and she beat it.
These statements were the only references in about eight pages of opening argument. The rest of the States time was spent summarizing the anticipated evidence about the offense and Craigs criminal history. Cannellas testimony at trial takes up about seventeen pages of direct examination; the State questioned her for about twelve lines of testimony regarding her leukemia and treatment. Unprompted, she later made one mention of her past illness, answering a State question about Craig having threatened her life: Well, after battling leukemia trying to work and raise a family, I never thought Id be threatened and killed over two cartons of cigarettes. Discussion of Cannellas surviving cancer was a relatively small part of the States evidence.
Cannella also described the robbery and her fear; a co-worker testified to what she saw that night at the store; the jury was presented evidence of still pictures taken from the stores security cameras showing Craig intimidating or threatening Cannella and Craigs prior convictions (which included three convictions for forgery; the robbery used to enhance his range of punishment; and Nebraska convictions for the misdemeanors of contributing to the delinquency of a minor and procuring/selling alcohol to a minor). Craig acknowledged his guilt for this crime and the prior robbery charge. The facts do not establish that even if deficient performance were shown by counsels failure to object to Cannellas testimony about her medical history, there is a reasonable probability the punishment trial would have had a different outcome. See Strickland, 466 U.S. at 694.
Craig has failed to demonstrate his trial counsel was ineffective, and we overrule his appellate complaint. We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: July 28, 2011
Date Decided: August 2, 2011
Do Not Publish
[1]This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas Supreme Courts docket equalization program. Tex. Govt Code Ann. § 73.001 (West 2005). We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal. See Tex. R. App. P. 41.3.
[2]Craig approached the clerk at the counter and asked the price of different cartons of cigarettes; he requested one or two cartonsthe testimony is not clearand a cigar. After the clerk totaled the items, Craig told her to void the cigar purchase; he then grabbed the bag with the cigarettes. When the cigarettes fell from the bag, he commanded the woman to pick up the cigarettes or he would shoot her, although there was no evidence he brandished a firearm.
[3]The record on direct appeal is frequently insufficiently developed to support a claim of ineffective assistance of counsel; the best way to make a sufficient record to support such a claim is by a hearing on a motion for new trial or a hearing on an application for writ of habeas corpus. Jackson, 877 S.W.2d at 773. When facing a silent record as to defense counsels strategy, an appellate court will not speculate as to counsels tactics or reasons for taking or not taking certain actions. Id. at 771. Because the trial record is directed to the issues of guilt or innocence and punishment (or in this case, punishment alone), an additional record focused specifically on the conduct of counsel, such as a record of a hearing on a motion for new trial asserting ineffective assistance of counsel, is generally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.Houston [1st Dist.] 1994, pet. refd). Only when counsels ineffectiveness is so apparent from the record will an appellant prevail on direct appeal absent a hearing on a motion for new trial asserting an ineffective assistance of counsel claim. Freeman v. State, 125 S.W.3d 505, 50607 (Tex. Crim. App. 2003); Kemp, 892 S.W.2d at 115.
[4]Although this unpublished case has no precedential value, we may have guidance from it as an aid in developing reasoning that may be employed. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.Amarillo 2003, pet. refd).