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Opinion filed May 1, 2008
In The
Eleventh Court of Appeals
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Nos. 11-06-00295-CR & 11-06-00296-CR
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JAMES DANIEL FLORES, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause Nos. 9757 & 9758
M E M O R A N D U M O P I N I O N
James Daniel Flores entered pleas of guilty to the offenses of arson[1] and of burglary of a habitation.[2] After a joint trial, the jury convicted appellant and assessed his punishment at confinement for fifteen years for each offense. We affirm.
Issue on Appeal
In his sole issue in each appeal, appellant contends that he was denied effective assistance of counsel at trial. Specifically, appellant argues that his trial counsel failed to object to and failed to secure a hearing on the admissibility of extraneous conduct: credit card abuse and burning other houses in the area. Further, appellant contends that his trial counsel was ineffective in failing to object to two of the State=s comments in closing argument: that appellant shoved his son during a domestic confrontation with his former wife (the child=s mother and the victim in these cases) and that appellant had been involved with credit card abuse.
Standards of Review
A. Effective Assistance of Counsel.
In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
B. Admissibility of Extraneous Offenses at the Punishment Phase of Trial.
Tex. Code Crim. Proc. Ann. art. 37.07, ' 3 (Vernon Supp. 2007) provides that evidence of an extraneous crime or bad act is admissible at the punishment phase if the evidence shows beyond a reasonable doubt that the defendant did commit the act. Article 37.07, section 3 allows the admission of both adjudicated and unadjudicated acts. Under Article 37.07, section 3, the factfinder may not consider the extraneous acts unless it is satisfied beyond a reasonable doubt that the acts are attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 481 (Tex. Crim. App. 2000).
C. Permissible Areas of Jury Argument.
Proper jury argument includes summation of the evidence presented at trial, reasonable deduction drawn from that evidence, answer to the opposing counsel=s argument, and a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). An argument that is manifestly improper or injects new, harmful facts into the case is reversible error. Id.
Proceedings at Trial
There is no challenge to the sufficiency of the evidence. Appellant entered pleas of guilty to burning Leigh Flores=s home and to burglarizing her home. The record reflects that appellant purchased $.50 worth of gas, entered Leigh=s home without permission, and started the fire. Leigh testified that, during her marriage to appellant, there had been many instances of domestic disturbance. Leigh was not sure how many times the couple had separated during their eleven-year relationship. Leigh could not recall all the details of their various disturbances but stated that no one was putting words in her mouth about their son getting physically between appellant and her while they were fighting or about her son being shoved by appellant. Leigh testified that appellant had been jailed for credit card abuse.
Leigh testified that she had expressed concern prior to the fire that appellant would burn down her house. She testified that vacant houses in her neighborhood had caught fire. When the State asked if these fires had been after she had had a fight with appellant, appellant objected, and the parties approached the bench for a conference off the record. The State then withdrew its question and asked Leigh if houses in her neighborhood had burned and, if so, where were these houses in location to her home. Leigh answered that they were across the street and to the left.
Frank Stephen Cook testified that appellant used to come to his house to party. Appellant had been at Cook=s house when Cook=s business credit card Aturned up missing.@ Eight unauthorized charges were made on the credit card, including one at an Abilene Super Wal-Mart. Cook reported the abuse to police after he had conducted his own investigation and concluded that appellant had taken his card. Jack Thompson testified that, while he was a police officer for the City of Anson, he investigated or was aware of investigations of several offenses involving appellant, including the arson of Leigh=s home and Cook=s credit card abuse case. Thompson stated he watched an Abilene Wal-Mart security video in which appellant used a credit card.
The State waived its opening closing argument, and appellant=s counsel argued to the jury that appellant was admitting his guilt, that he had had a troubled past and problems with the law, and that he was eligible for community supervision. Counsel asked the jury to be lenient and to allow appellant to be a father to his children. The State responded by discussing appellant=s history of domestic violence including assaults on Leigh in front of their children and their son=s intervention as well as appellant=s various scrapes with law enforcement including a DWI involving the youngest of his children and the abuse of Cook=s credit card. The State concluded its argument by suggesting to the jury that appellant was not a good candidate for community supervision and that confinement was an appropriate punishment.
The charge to the jury included an instruction that it could consider any extraneous conduct in assessing punishment only if it found beyond a reasonable doubt that appellant did engage in that conduct.
Analysis
The record does not support appellant=s contentions that his trial counsel=s representation fell below an objective standard of reasonableness. The State=s arguments were not only permissible summations of the evidence at trial and reasonable deductions from the evidence but were also permissible answers to appellant=s closing argument. Jackson, 17 S.W.3d at 673. Therefore, trial counsel could not have been ineffective for failing to object to permissible jury argument.
While Article 37.07, section 3 does not require that a hearing be requested, the record reflects that a hearing was conducted at trial counsel=s request concerning Leigh=s testimony about appellant burning other houses in her neighborhood. The jury was properly instructed concerning the consideration of any and all extraneous conduct, and we will presume that the jury followed that instruction. Under the circumstances, it is very possible that trial counsel did not object and argue his concerns in front of the jury due to sound trial strategy. Bone, 77 S.W.3d at 833; Stafford, 813 S.W.2d at 508-09. Appellant=s sole issue in each appeal is overruled.
This Court=s Ruling
The judgments of the trial court are affirmed.
RICK STRANGE
JUSTICE
May 1, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Cause No. 11-06-00295-CR.
[2]Cause No. 11-06-00296-CR.