NUMBER 13-99-358-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
SALOME VERA, JR.
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
___________________________________________________________________
Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Justice Dorsey
Salome Garcia Vera, Jr. was indicted for intent to deliver and felony possession of a controlled substance. He pleaded guilty to the lesser included offense of felony possession and elected to have the jury assess his punishment. The jury assessed punishment at five years in prison and a $5,000.00 fine. By direct appeal, he complains that he was denied effective assistance of counsel.
Vera contends that counsel's performance was ineffective for the following reasons:
(1) Arguing to the jury that the case "was a possession
case, not a delivery case," when the State had
overwhelming evidence that Vera was actually selling drugs
and not in mere possession of drugs;
(2) Failing to call Vera to testify on his own behalf;
(3) Failing to object when the prosecutor asked one of
Vera's witnesses, a probation officer, whether he had
worked with children that were "hooked on drugs";
(4) Failing to request a curative instruction when the
prosecutor argued in closing that Vera could sell drugs to
children if granted probation;
(5) Failing to object to the charge which stated only that the
trial judge could impose a 180 day jail sentence if Vera's
community supervision were to be revoked, omitting the fact
that the trial judge could also impose such a jail sentence
regardless of whether community supervision was revoked;
and
(6) Failing to present additional evidence on the conceded
point that Vera had no prior felony convictions.
On the record before this court, we do not agree that those acts amounted to ineffective assistance of counsel.
I. Standard for Reviewing Ineffective Assistance ClaimsProving ineffective assistance of counsel is quite difficult, especially in the posture of direct appeal when no motion for new trial is filed. All presumptions run in favor of a finding that counsel's conduct was a part of reasonable trial strategy. Texas courts adhere to the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 81213 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); No. 13-97-845-CR. Under Strickland, the first question is whether counsel's performance "fell below an objective standard of reasonableness." Thompson, 9 S.W.3d at 812; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997); Ex Parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993). If appellant can demonstrate "deficient assistance" under the first prong of Strickland, the next test is whether the appellant was harmed. Cf. Thompson, 9 S.W.3d at 812; McFarland v. State, 928 S.W.2d at 500. The second prong of Strickland requires appellant to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson, 9 S.W.3d at 812. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome of the proceeding." Id.; Hernandez v. State, 726 S.W.2d at 55. The Texas Court of Criminal Appeals has called this two-pronged test "the benchmark for judging whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result." Thompson, 9 S.W.3d at 812 (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993)).
Besides the difficulty in meeting the strict two-pronged Strickland test, another problem that arises in making a successful claim for ineffective assistance is that the record is many times inadequate to support the claim because of the strong presumptions that apply in the absence of evidence to the contrary. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 812.
When reviewing a claim of ineffective assistance of counsel under the first prong, we must presume "that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that counsel made all significant decisions in the exercise of reasonable professional judgment." Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). Further, we strongly presume that counsel's conduct lies within the "wide range of reasonable representation" and constitutes sound trial strategy. McFarland, 928 S.W.2d at 500. Thus, we must evaluate the quality of the representation from counsel's perspective at trial, rather than counsel's isolated acts or omissions in hindsight. Strickland, 466 U.S. at 689; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).
To make out a claim of ineffective assistance, an appellant must show ineffective assistance firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 77172 (Tex. Crim. App. 1994). Appellate courts may not speculate as to the reasons behind trial counsel's actions nor should they try to second guess trial counsel's tactical decisions which do not fall below the objective standard of reasonableness. Young, 991 S.W.2d at 83738; Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990). In fact, the court of criminal appeals has noted that:
A substantial risk of failure accompanies an appellant's claim
of ineffective assistance on direct appeal. Rarely will a
reviewing court be provided the opportunity to make its
determination on direct appeal with a record capable of
providing a fair evaluation of the merits of the claim involving
such a serious allegation. In the majority of instances, the
record on direct appeal is simply undeveloped and cannot
adequately reflect the failings of trial counsel.
Thompson, 9 S.W.3d at 81314.
II. Application of Strickland to Vera's ComplaintsOur first task is to determine whether trial counsel's acts fell below an objective standard of reasonableness. We hold that they did not. Rather, they must be presumed to be a part of counsel's "reasonable trial strategy" on the record before us. Vera has offered no evidence regarding why counsel's actions could not be considered reasonable trial strategy. In the absence of such evidence, this court must presume counsel's conduct fell within the "wide range of reasonable trial strategy" unless the conduct was so clearly deficient that no additional evidence could possibly show the performance was reasonable. See Stone v. State, No. 13-97-845-CR, 2000 WL 38012 (Tex. App.--Corpus Christi, April 13, 2000) at *3.
1. Jury Argument
Vera's first complaint is about counsel's jury argument. Counsel argued:
[F]irst of all, this is a possession case, not a delivery case. Of
course, the Government can go ahead and introduce other
factors for purposes of punishment, but this is a possession
case, but you may hear some evidence from the State that
[Vera] was dealing and infer from the cocaine itself;
however, there's other facts, too.
Vera contends that by making that statement, counsel opened himself and his client up to a devastating assault on their credibility because of the overwhelming evidence offered thereafter by the State on "delivery."
However, the statement that counsel made was objectively true. While the State was equipped to offer powerful evidence regarding delivery, the fact remained that Vera was convicted of the lesser offense of possession. The overall defense strategy appeared to be to plead to the lesser offense and receive punishment within that range rather than within that of the higher offense. Reducing the range of punishment very well may have been the best strategy available to persuade the jury to give Vera a lighter sentence.
The evidence regarding delivery was there, and counsel could not have prevented it from being admitted at the punishment hearing. The code of criminal procedure allows evidence to be admitted during a punishment hearing regarding any matter the court deems relevant to sentencing,
including but not limited to the prior criminal record of the
defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for
which he is being tried, notwithstanding Rules 404 and 405,
Texas Rules of Criminal Evidence any other evidence of an
extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been
charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2000). If the State was unwilling to offer a lighter sentence as part of a plea bargain, counsel had no choice but to allow either the judge or the jury to assess punishment. With no way to avoid having the jury hear evidence regarding "delivery," the best strategy may very well have been to attempt to persuade the jury that it should only sentence Vera for possession and not attempt to impose a delivery sentence upon him given the damning evidence. Given the broad deference given to counsel's strategic discretion, we hold this action was within the zone of reasonable trial strategy.
2. Failure to Call Vera to Testify on his own Behalf
Next, Vera complains that trial counsel's performance was deficient because counsel failed to call Vera to testify on his own behalf. However, Vera has offered no evidence that his own testimony would have actually benefitted him. Many times, calling a defendant to testify can open the door to admission of devastating evidence. Certainly, situations exist where choosing not to calling a defendant to testify is sound strategy. We have no evidence that this was not such a situation. Thus, we must presume it was.
3. Failure to Object
Next, Vera complains that trial counsel was deficient in failing to object when the State questioned a defense witness who was a probation officer whether the officer had worked with children who were "hooked on drugs." However, Vera has made no legal argument regarding why that question was objectionable. The defense called the officer to testify regarding the relative success of rehabilitation efforts. While the State's question was arguably irrelevant or unfairly prejudicial, we do not find that counsel's failure to object was so egregious that it amounted to ineffective assistance. Moreover, "in order to argue successfully that . . . trial counsel's failure to object to the State's questioning and argument amounted to ineffective assistance, appellant must show that the trial judge would have committed error in overruling such an objection." Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Vera has not met this burden by pointing out the legal basis of the objection he claims that should have been lodged. Thus, we hold that counsel's actions were not deficient in failing to object to that question.
4. Failure to Request a Curative Instruction
Vera complains that counsel was ineffective for failing to request a curative instruction when the State argued to the jury that if Vera were to be granted probation, he would be free to sell drugs to children. We do not agree that failure amounted to ineffective assistance. If counsel believed there was no reasonable expectation that mistrial would be granted, the failure to request a curative instruction could have been a strategic decision to avoid calling undue attention to the prejudicial argument. Counsel did object to the testimony, and his objection was sustained by the trial court. The court of criminal appeals has cautioned that "[a]n appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions--whether those actions were of strategic design or the result of negligent conduct." Thompson, 9 S.W.3d at 814. We do not find his conduct rose to the level of ineffective assistance in failing to request a curative instruction.
5. Failure to Request a Special Jury Instruction
Next, Vera contends that counsel failed to object to an incomplete jury charge. Specifically, he contends that counsel's conduct was deficient in allowing a charge to go to the jury without objection that stated the court could sentence Vera to 180 days in jail if given probation and it was revoked, but not including a statement that the judge could impose a jail sentence up to 180 days as a condition of probation. The charge stated:
[Vera] filed his sworn motion stating that he has never
before been convicted of a felony in this State or in any other
State and requesting that he be placed on community
supervision.
"Community supervision" means the placement of a
defendant by a Court under a continuum of programs and
sanctions, with conditions imposed by the Court for a
specified period during which a sentence of imprisonment or
imprisonment and fine is probated and the imposition of
sentence is suspended in whole or in part. "Community
supervision" was previously known and referred to as
"probation."
Our law provides that where the Jury finds the
defendant guilty of the offense of Possession of Cocaine in
an amount of four grams or more but less than 200 grams
and sets his punishment at a term of not more than 10 Years
imprisonment and the Jury also finds that the Defendant has
never before been convicted of a felony in this State or in any
other State, then the Jury may recommend to the Judge that
the Judge suspend the imposition of the sentence and place
the defendant on community supervision. Whether you do
or do not recommend the placement of the Defendant on
community supervision is a matter that rests within the
sound discretion of the Jury. If the Jury recommends to the
Judge that the Judge place the defendant on community
supervision, then the Judge shall place the defendant on
community supervision and the Defendant will not be sent
to the penitentiary for the term assessed. If the Jury does
not recommend to the Judge that the Judge place the
defendant on community supervision, then the Judge shall
not place the defendant on community supervision and the
defendant will be sent to the penitentiary for the term
assessed.
If the Jury recommends to the Judge that the Judge
place the defendant on community supervision, then the
Judge, and not the Jury, determines and sets the period of
community supervision. Do not confuse the "period of
community supervision" with the "term of imprisonment."
The term of imprisonment is the punishment that the
Defendant would be liable to serve in the penitentiary should
his community supervision be revoked. The period of
community supervision is the period of time that the
defendant would be under the supervision of the court while
the defendant is on community supervision. In a felony
case, the minimum period of community supervision is the
same as the minimum term of imprisonment applicable to
the offense (for the offense of Possession of Cocaine in an
amount of four grams or more but less than 200 grams, the
minimum period of community supervision is 2 years) and
the maximum period of community supervision in any case
is 10 years.
The Judge, and not the Jury, determines and sets the
conditions of community supervision as required by law and
by the facts of the case, and may, at any time during the
period of community supervision, alter or modify the
conditions of community supervision.
When community supervision is granted to a
Defendant, it cannot be revoked so long as the defendant
does not violate any of the conditions of community
supervision. If a defendant violates any condition of
community supervision, the Court may conduct a hearing,
without a Jury, to determine whether the Defendant has in
fact violated a condition of community supervision and to
determine the reasons, if any, for such violation. If the Court
finds that the Defendant has violated a condition of
community supervision, the Court may continue the
Defendant on community supervision, modify the conditions
of community supervision, and/or impose one or more
sanction on the defendant, or revoke the Defendant's
community supervision.
If the Defendant is continued on community
supervision, in all probability the conditions of community
supervision will be modified and/or the Court may impose
one or more sanctions on the defendant. Doing so may
result in the increased supervision of the Defendant,
including a period of confinement not to exceed 180 days.
The Defendant may be continued on community supervision
by extending the regular period of community supervision so
that the total period of community supervision, including any
extensions, does not exceed 10 years.
If the Defendant's community supervision is revoked, the Court may proceed to dispose of the case as if there had been no community supervision and may order that the Defendant be imprisoned in the penitentiary for the term assessed by the Jury and that he pay his fine, if any. If the Court determines that the best interest of society and the Defendant would be served by a shorter term of imprisonment, the Court may reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum prescribed for the offense of which the defendant was convicted. No part of the time that the Defendant is on community supervision, including any confinement served as a condition of community supervision, is considered as any part of the sentence that he is required to serve.
(emphasis added).
Vera complains that this charge is incomplete. We disagree, and rather, find that the charge correctly and sufficiently sets forth the law regarding community supervision. See Tex. Code. Crim. Proc. Ann. art. 42.12, § 4(a), § 11(a) (Vernon Supp. 2000). We hold that the failure to request an additional instruction containing illustrative "conditions" of community supervision that the judge may impose does not fall below the standard of reasonably competent representation.
Article 42.12 of the code of criminal procedure provides a nonexclusive list of conditions that may be imposed as a term of community supervision. Tex. Code Crim. Pro. Ann. art. 42.12, § 11(a) (Vernon Supp. 2000). Some examples of these conditions are: (1) a condition that the defendant shall commit no offense against the laws of this State or of any other State or of the United States; (2) shall avoid injurious or vicious habits; (3) avoid persons or places of disreputable or harmful character; (4) shall report to the supervision officer as directed by the judge and obey all rules and regulations of the community supervision and corrections department. Id. The list is illustrative, not exhaustive. Id. Section 12 states that if a judge imposes a period of confinement in a county jail as a term of community service in a felony case, that term may not exceed 180 days. Id. at art. 42.12, § 12.
It is settled law that an erroneous or incomplete jury charge . . . does not implicate state or federal constitutional rights. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). A constitutional violation occurs only if there is a reasonable likelihood that the jury understood the instructions to allow conviction on insufficient proof. Barrera v. State, 982 S.W.2d 415, 416-17 (Tex. Crim. App. 1998). Article 36.14 of the code of criminal procedure governs the charge, and states that the "judge shall deliver to the jury a written charge distinctly setting forth the law applicable to the case." Counsel on both sides are then permitted to request special instructions to be given in the charge. Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon Supp. 2000). Vera argues that his attorney provided ineffective assistance by failing to request an instruction advising the jury that a term of imprisonment may be included as a condition of community supervision. We do not agree.
While it may have been a good strategy to advise the jury that a jail sentence may be imposed as a term of community supervision, the failure to do so does not amount to an unreasonable trial strategy. This court is not permitted to determine what counsel might have done better, but is charged with determining from the record whether counsel's actions or inactions were so deficient as to violate the defendant's right to counsel guaranteed by the Constitution. We do not find that the failure to instruct the jury that a jail sentence may be imposed as a condition of community supervision rises to that level of deficiency.
6. Failure to Present Evidence that Vera had no Prior Felony Convictions
Finally, Vera complains that counsel was ineffective because "it was the prosecutor who established that the appellant had never been convicted of a felony--not the defense attorney." However, the record shows that during opening argument, defense counsel clearly stated to the jury that Vera had never before been convicted of a felony. That statement was never disputed. True, the State was the first to ask the question whether Vera had ever been convicted of a felony. But that fact means little in this case. The court's charge clearly stated that the only way community supervision was available as a sentencing option was if Vera had no prior felony convictions. Moreover, once the prosecutor solicited direct testimony that Vera had no prior felony convictions, the decision of whether to submit additional evidence to bolster that point was strictly a matter of strategy. Vera has produced no evidence that counsel's strategy was unreasonable. We hold that counsel's performance was not deficient for that failure.
Accordingly, we overrule all Vera's points of error, and AFFIRM the
judgment of the trial court.
______________________________
J. BONNER DORSEY,
Justice
Do not publish
.Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 8th day of June, 2000.