Affirmed and Memorandum Opinion filed March 10, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-00650-CR
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VIRGINIA ESTELL JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 19,968
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M E M O R A N D U M O P I N I O N
Appellant Virginia Estell Jones challenges her conviction for introducing implements of escape into a correctional facility. She asserts ten issues on appeal, alleging: (1)B(2) the evidence is legally and factually insufficient to support her conviction; (3) the trial court erred when it denied her motion to suppress custodial statements; (4) the jury charge failed to require a unanimous verdict; (5) the trial court erred in admitting evidence of other crimes, wrongs, or acts in violation of Texas Rules of Evidence 403 and 404(b); (6) the jury charge and statements made by the State misled the jury as to the meaning of Areasonable doubt;@ (7) the jury engaged in misconduct by deliberating before the close of the evidence and the reading of the jury charge; (8) her trial counsel rendered ineffective assistance; (9) the trial court defined the offense improperly and improperly enhanced punishment; and (10) the trial court committed constitutional error by failing to properly instruct the jury on the law of parole. We affirm.
I. Factual and Procedural Background
Appellant and Mark Stallings, an inmate in the Holliday Unit of the Institutional Division of the Texas Department of Criminal Justice in Huntsville, Texas, shared a romantic relationship. Appellant regularly visited Stallings in prison, and they corresponded regularly by mail. In this correspondence, appellant and Stallings, using code words, discussed appellant acquiring a gun. On or about August 2, 1998, appellant allegedly supplied Stallings with a gun. Five days later, Stallings used the gun to threaten and to hold a prison guard hostage in an attempt to escape. Prior to trial, Stallings signed a written confession in which he stated that appellant brought the gun to him in prison during a contact visit on August 2, 1998, and another inmate, Jerry Dale Stanley, helped him smuggle it past the guards in the visitation room.
At trial, the State asserted that appellant gave the gun to Stallings during the August 2, 1998 contact visit, although no one saw appellant deliver the gun to Stallings. At that time, prison visitors were not patted down, searched for contraband, or required to pass through metal detectors. Stanley and another inmate, Joseph Kellerman, testified that Stallings=s escape plan included appellant smuggling a gun into the prison and giving it to him during visitation. Stanley testified that when he and Stallings left the visitation room on August 2, Stallings handed him a heavy item, wrapped in cloth, and asked him to hold it. The item was successfully smuggled past the guards supervising the visitation.
Stanley gave a second version of events. In contrast to the account given in his first written confession, in a second written confession and at trial, Stallings testified that he received the gun from a corrupt corrections officer.
Appellant testified that she acquired the gun for her own protection. She also testified that she did not give Stallings the gun during visitation, but that she gave the gun to a man sent by Stallings to pick it up from her at her home. Felix Garza, appellant=s ex-boyfriend, testified that he bought the gun for appellant. Although the gun used by Stallings had the serial number filed off, a firearms expert was able to restore the serial number. The custodian of records for the pawn shop where Garza purchased the gun testified that Garza purchased a gun with the same serial number as the gun used by Stallings. Prison records indicate that Stallings had no visitors other than appellant between the date the gun was purchased and the date of Stallings=s attempted escape.
Appellant was charged by indictment with introducing implements of escape into a correctional facility. Appellant pleaded Anot guilty.@ A jury found appellant guilty and assessed punishment at ten years in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine.
II. Analysis and Discussion
A. Is the evidence legally and factually sufficient to support appellant=s conviction?
A person commits a felony if the person, with the intent to facilitate escape, introduces into a correctional facility, or provides an inmate with, a deadly weapon or anything that may be useful for escape. Tex. Pen. Code Ann. ' 38.09(a) (Vernon 2003). A person is criminally responsible for an offense committed by another if that person, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense. Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003). The jury charge authorized the jury to convict appellant as a principal or as a party and instructed the jury on the law of parties and the need to corroborate accomplice testimony. In appellant=s first and second issues, she asserts that the evidence is legally and factually insufficient to support her conviction because there is no evidence to show that appellant (1) delivered the gun to Stallings; (2) introduced the gun into the prison unit; or (3) had the specific intent to facilitate Stallings=s escape from prison.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
Appellant asserts that the non-accomplice evidence is legally insufficient to support her conviction. Appellant argues that the State established only that appellant had an opportunity to commit the crime and failed to present evidence sufficient to establish all the elements of the offense beyond a reasonable doubt. A conviction cannot be based upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The corroboration is insufficient if it merely shows the commission of the offense. Id. To corroborate accomplice-witness testimony, the law requires some non-accomplice evidence that tends to connect the accused to the commission of the offense. See Hernandez v. State, 939 S.W.2d 173, 178B79 (Tex. Crim. App. 1997). In determining the sufficiency of the corroboration, we eliminate the testimony of the accomplice and ask whether other inculpatory evidence tends to connect the accused to the commission of the offense, even if it does not directly link the accused to the crime. See McDuff, 939 S.W.2d at 612. We consider each case on its own facts and circumstances and look to all facts as furnishing the corroboration. See Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The corroborative evidence may be circumstantial or direct, and it need not establish the accused=s guilt of the charged offense or directly link the accused to the offense; it is sufficient if it tends to connect the defendant to the offense. Id. We must review the corroborating evidence in the light most favorable to the verdict. Knox v. State, 934 S.W.2d 678, 686B87 (Tex. Crim. App. 1996).
In this case, Stallings and Stanley were accomplice witnesses. Therefore, we must apply the standard discussed above to determine whether there is evidence other than their testimony that tends to connect appellant to the offense. Kellerman, a fellow inmate of Stallings and Stanley, testified that Stallings=s escape plan included appellant smuggling a gun into the prison and giving it to Stallings during visitation. We conclude that this evidence sufficiently tends to connect appellant with the offense alleged. Therefore, the testimony of Stallings and Stanley is sufficiently corroborated and the jury was free to consider their testimony.
A fact finder determines intent from all the facts and infers intent from the conduct and circumstances surrounding those facts. See Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985); Murchison v. State, 93 S.W.3d 239, 254 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Stallings=s first written confession, which he recanted at trial, stated appellant gave the gun to him during a contact visit and he used that gun in an escape attempt several days later. The jury heard testimony from two of Stalling=s fellow inmates that his escape plan included appellant smuggling a gun into prison and giving it to him during visitation. The jury was also presented with details about the hostage situation and Stallings=s attempted escape. From these facts and circumstances, a rational trier of fact could infer appellant, acting with the intent to facilitate Stallings=s escape, either introduced a gun into the correctional facility or provided Stallings with a gun. Viewing the evidence in a light most favorable to the verdict, the evidence is legally sufficient to support appellant=s conviction as a principal or as a party. Accordingly, we overrule appellant=s first issue.
When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Appellant argues that the evidence that she committed the offense amounts to no more than mere suspicion. Appellant points to evidence provided by Kervin Devereau, a prison guard assigned to monitor visitation on August 2, 1998, and to the absence of a credible explanation of how appellant provided Stallings with the gun during a contact visit or otherwise introduced the gun into the prison as the most important evidence undermining the jury=s verdict. Deverau testified at trial that he searched Stallings=s person and clothing after the August 2 contact visit and did not find any contraband. The jury was presented with evidence and testimony concerning two possible ways appellant could have furnished the gun to Stallings. The jury was also presented with evidence that at that time, prison visitors were not patted down, searched for contraband, or required to pass through metal detectors. The jury was also presented with Stallings=s first written confession and Stanley=s testimony, both of which stated that appellant gave Stallings a gun, which Stallings used in an escape attempt.
After reviewing all the evidence in a neutral light, we find (1) the evidence supporting the verdict is strong enough to support the finding of guilt beyond a reasonable doubt and (2) that the contrary evidence is not strong enough to prevent the beyond-a-reasonable-doubt standard from being met. Therefore, we conclude the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. Accordingly, we overrule appellant=s second issue.
B. Did the trial court err when it denied appellant=s motion to suppress her custodial statements?
In her third issue, appellant asserts that the trial court erred in denying her pretrial motion to suppress statements she made while in police custody. Appellant asserts her custodial statements were inadmissible because her arrest was illegal. In her motion to suppress, appellant argued her arrest was illegal because (1) the justice of the peace allegedly signed the arrest warrant based on an unsworn complaint after appellant was arrested, and (2) the complaint is legally insufficient to sustain an arrest warrant. The trial court denied the motion to suppress and did not file findings of fact.
We review the trial court=s ruling on a motion to suppress evidence under an abuse of discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). A trial court=s ruling on a motion to suppress, if supported by the record, will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial judge is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings of fact are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial judge=s decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 855B56.
A complaint is an affidavit made before a magistrate that charges the commission of an offense. Tex. Code Crim. Proc. Ann. art. 15.04 (Vernon 1977). An affidavit must provide the magistrate with sufficient factual information to support an independent judgment that probable cause exists to believe that the accused has committed an offense. McFarland v. State, 928 S.W.2d 482, 509 (Tex. Crim. App. 1996). In determining the sufficiency of an affidavit to support the issuance of a warrant, we limit our review to the four corners of the affidavit. See Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004). We interpret the affidavit in a common sense, realistic manner, recognizing that the magistrate was permitted to draw reasonable inferences. Id. A presumption is indulged in favor of the proceedings in a lower court unless the record presents affirmative evidence to the contrary. Garza v. State, 896 S.W.2d 192, 197 (Tex. Crim. App. 1995).
Appellant claims her arrest was illegal because the justice of the peace signed the warrant based on an unsworn complaint after appellant was arrested. At the pre-trial motion-to-suppress hearing, two complaints were offered into evidence. The first, dated August 8, 1998, was signed by the affiant, Robert Pittmon, a Texas Department of Criminal Justice investigator. It lacks a magistrate=s signature. The second complaint, dated August 9, 1998, was signed by both Pittmon and Justice of the Peace Amy Bradley. Pittmon testified at the hearing that he signed the first complaint, realized he had not signed it in front of a magistrate, printed a second copy, and signed the second one in Bradley=s presence. Bradley issued an arrest warrant on August 9, 1998, based on that complaint. There is no time indicated on the complaint or the warrant. The return of service shows that Pittmon received the warrant at 10:30 a.m. nd executed it at 1:15 p.m.
The trial judge did not file findings of fact, but we assume that the trial judge, in overruling appellant=s motion to suppress, found that the warrant was signed before appellant was arrested and was based on a properly sworn complaint. See Ross, 32 S.W.3d at 855. These implicit findings are supported by the record. The State offered a properly sworn complaint, and Pittmon testified that he signed it in Bradley=s presence. Inasmuch as the arrest warrant was issued pursuant to that complaint, it is a reasonable conclusion that the complaint was a pre-existing document. Because the trial judge is free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of Pittmon, the trial judge=s decision should be given deference. See Guzman, 955 S.W.2d at 89. Therefore, we find that the trial court was acting within its discretion when it impliedly found that the arrest warrant was signed before appellant was arrested and that the warrant was based on a properly sworn complaint.
Appellant also claims that the complaint was inadequate to permit the justice of the peace to issue a valid arrest warrant because the complaint was based on unreliable information from an accomplice and was conclusory. Therefore, appellant argues, there was no probable cause to support the arrest warrant. A complaint is sufficient to establish probable cause, if from the totality of the circumstances reflected in the complaint, a magistrate was provided with a substantial basis for concluding that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983).
The complaint in this case recites that the informant, Stallings, admitted that appellant visited him in prison and provided him a gun with the intent to facilitate his escape. The complaint also stated that Stallings used that gun to hold a prison guard hostage in an attempt to escape. An admission against penal interest is a factor indicating reliability. See U.S. v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2082, 29 L. Ed. 2d 723 (1971); Castillo v. State, 818 S.W.2d 803, 806 n.6 (Tex. Crim. App. 1991). From the totality of the circumstances reflected in the complaint, a neutral and detached magistrate would be justified in concluding that probable cause existed and in issuing an arrest warrant. See Gates, 462 U.S. at 238, 103 S. Ct. at 2332. Indulging the presumption in favor of the proceedings in the lower court and finding no affirmative evidence in the record to the contrary, we overrule appellant=s third issue. See Garza, 896 S.W.2d at 197.
C. Did the jury charge fail to require a unanimous verdict to convict appellant?
In her fourth issue, appellant argues that the jury instructions failed to require a unanimous verdict in violation of her rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; Article I, Sections 10 and 19 of the Texas Constitution; articles 36.14 and 38.03 of the Texas Code of Criminal Procedure; and section 2.01 of the Texas Penal Code. The jury charge allowed the jury to find appellant guilty of the alleged offense as a principal or under the law of parties. The charge also permitted the jury to find appellant guilty if she provided the gun to Stallings or if she introduced the gun into the prison. Appellant did not object at trial and alleges on appeal that the charge violated the unanimity requirement because the jury was not required to unanimously agree (1) whether principal or party liability would be the basis for the verdict, or (2) as to which method appellant utilized to commit the offense.
When defense counsel does not object to a jury charge, error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The jury charge in this case was not erroneous. Even though the indictment in this case alleged the differing methods of committing the offense in the conjunctive, it is permissible to charge the jury in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). When alternative theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Id. As discussed earlier, the evidence is legally and factually sufficient to support a conviction under any of the theories submitted to the jury. The unanimity requirement is not violated by instructing the jury on alternative theories of committing the same offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). Accordingly, we overrule appellant=s fourth issue.
D. Did the trial court err in admitting testimony and evidence concerning details of the hostage situation in violation of Texas Rules of Evidence 403 and 404(b)?
In her fifth issue, appellant argues that the trial court erred in admitting details of the hostage situation, specifically the prison guards= testimony concerning the hostage crisis and a videotape of the hostage scene in prison. Appellant objected to the introduction of this evidence under Texas Rules of Evidence 403 and 404(b) and argued that such evidence was repetitive, more prejudicial than probative, irrelevant, and that it inflamed the jury. The State urges that it was necessary to introduce some details of the attempted escape in order to prove that appellant intended to facilitate Stallings=s escape when she introduced the gun into a correctional facility or provided Stallings with the gun.[1]
All relevant evidence is admissible unless otherwise excepted by the Constitution, statute, or other rules. Tex. R. Evid. 402. ARelevant evidence@ is defined as evidence having Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. Relevant evidence may not be admissible if, among other things, its probative value is substantially outweighed by the danger of unfair prejudice or it is a needless presentation of cumulative evidence. Tex. R. Evid. 403.
We review a trial court’s ruling on the admissibility of extraneous-offense evidence under an abuse-of-discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). We will reverse only if the trial court=s decision falls outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g). In order for evidence of crimes or acts to be admissible under Rule 404(b), it must be relevant for a purpose other than to show the character of a person and that he acted in conformity with it. See Tex. R. Evid. 404(b). Rule 404 applies not only to other crimes, wrongs, or acts of the accused, but also to those of third persons. See Castaldo v. State, 78 S.W.3d 345, 348B51 (Tex. Crim. App. 2002).
Here, the prison guards= testimony and videotape of the melee are relevant to show appellant=s intent to help Stallings escape and are admissible under Rule 404(b) for that purpose. See Tex. R. Evid. 404(b). There was a dearth of other evidence to connect the introduction of the gun with appellant=s intent to help Stallings escape. Details of the fracas involving the gun were essential to establishing appellant=s intent. Weighing the probative value of this evidence against its prejudicial effect, we find that the trial court did not abuse its discretion in ruling the evidence was admissible. See Tex. R. Evid. 403. Accordingly, we overrule appellant=s fifth issue.
E. Did they jury charge and statements made by the State mislead the jury as to the meaning of Areasonable doubt?@
In her sixth issue, appellant argues that the jury charge and statements made by the State mislead the jury as to the meaning of Areasonable doubt@ in violation of the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution; Article I, Sections 10 and 19 of the Texas Constitution; articles 36.14 and 38.03 of the Texas Code of Criminal Procedure; and section 2.01 of the Texas Penal Code. The trial court charged the jury on the meaning of Areasonable doubt@ as follows, AIt is not required that the prosecution prove guilt beyond all possible doubt; however, it is required that the prosecution=s proof exclude all reasonable doubt concerning the defendant=s guilt.@ In its closing argument, the State argued to the jury: A[T]o prove something to someone beyond a reasonable doubt does not mean I have to prove it to you beyond all doubt. I mean, it probably would be almost impossible for me to prove a crime beyond all doubt . . . . I have to prove it to you beyond a reasonable doubt, a doubt that=s based on reason and common sense.@ At trial, appellant did not object to the State=s closing argument or to the jury charge. On appeal, appellant argues that the jury charge was improper and that it, along with the prosecutor=s comments, invited the jury to minimize the State=s burden and shift the burden of proof and persuasion to the defendant.
When defense counsel does not object to a jury charge, the error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). It was not error for the trial court to give the Areasonable doubt@ instruction to the jury. Even in the absence of an agreement to an instruction as to the meaning of Areasonable doubt,@ a jury instruction that states the prosecution is not required to prove guilt beyond all possible doubt does not constitute reversible error. See Jackson v. State, 105 S.W.3d 321, 325 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).
In order to complain of improper jury argument on appeal, there must have been an objection at trial. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Appellant failed to object to the State=s jury argument, and thus failed to preserve error. See id.
Because the jury instruction does not constitute reversible error and appellant failed to preserve error with respect to the State=s closing argument, we overrule appellant=s sixth issue.
F. Did the jury engage in misconduct by deliberating before the close of the evidence and the reading of the jury charge?
In her seventh issue, appellant alleges that the jury engaged in misconduct because it began deliberations before the close of the evidence and the reading of the jury charge. The jury returned a guilty verdict after deliberating for four minutes. Appellant argues that but for this alleged misconduct, the jury could not have reached a verdict so quickly in a case that consisted of a five-day trial and involved more than a hundred exhibits and over thirty witnesses. At the motion-for-new-trial hearing, the jury foreman testified that the jury did not read the charge or examine the evidence. The jurors voted twice, unanimously finding appellant guilty each time. Appellant points to these facts as evidence that the jury began deliberating before the close of the evidence and the reading of the jury charge.
Appellant has waived error as to this issue by failing to adequately brief it on appeal. To present an issue for appellate review Athe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ Tex. R. App. P. 38.1(h). Appellant has not presented a single argument or citation in support of her seventh issue. She has not addressed any of the governing legal principles or applied them to the facts of this case. See King v. State, 17 S.W.3d 7, 23 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Appellant=s brief merely contains a sentence that says the jury engaged in misconduct by deliberating before the close of the evidence and reading of the charge to the jury. Conclusory statements which cite no authority present nothing for appellate review. Id.; see also Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992). We find that appellant has waived any error as to this issue, and accordingly, we overrule appellant=s seventh issue.
G. Was appellant=s trial counsel ineffective because of his failure to inquire about juror bias during voir dire?
In her eighth issue, appellant alleges her trial counsel was ineffective because he (1) failed to question prospective jurors about any potential bias they might have had towards appellant and (2) failed to challenge biased jurors for cause as allowed by article 35.16(a)(10) of the Texas Code of Criminal Procedure. Voir dire revealed that many of the prospective jurors or their spouses worked for the prison system and that a large number of prospective jurors could not have considered the minimum punishment in this case. Appellant=s trial counsel failed to ask prospective jurors about any press accounts or rumors of the crime to determine if there existed any bias against appellant. Appellant points to the jury=s swift verdict as an indication that the jury was biased.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon Supp. 2004). We evaluate appellant=s ineffective-assistance-of-counsel claim under the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687B92, 104 S. Ct. 2052, 2064B67, 80 L. Ed. 2d 674 (1984). Appellant bears the burden of proving her claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant cannot meet this burden when counsel=s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for trial counsel=s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See id. at 833. If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
Appellant raised ineffective assistance of counsel in her motion for new trial. Trial counsel appeared at the motion-for-new-trial hearing, but he only testified as to the duration of the jury deliberations. Trial counsel did not testify at the hearing or submit an affidavit as to the reasons behind tactics he used during voir dire. Therefore, we cannot conclude that trial counsel=s performance was deficient. See Jackson, 877 S.W.2d at 771B72. Because appellant has failed to rebut the presumption that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy, appellant cannot prevail on her ineffective-assistance claim. Accordingly, we overrule appellant=s eighth issue.
H. Did the trial court improperly define the offense and improperly enhance appellant=s punishment?
In her ninth issue, appellant contends that the trial court improperly defined the offense and improperly enhanced appellant=s punishment. The charged offense in this case is elevated from a third degree felony to a second degree felony if the person, with the intent to facilitate escape, introduces into a correctional facility, or provides an inmate with, a deadly weapon. Tex. Pen. Code Ann. ' 38.09(a) & (b) (Vernon 2003). The jury charge allowed the jury to convict appellant as a principal or as a party. The jury found appellant guilty as charged in the indictment. The indictment charged that appellant Aintentionally or knowingly introduced . . . or provided . . . Stallings . . . a deadly weapon, to-wit: a firearm.@ The trial court submitted the case to the jury with the punishment range of a second degree felony, and the jury returned a punishment within that range. The trial judge signed the judgment reciting an affirmative finding of a deadly weapon, which extended appellant=s parole eligibility date. Appellant argues that (1) the elements of an offense cannot enhance the punishment for committing it, and (2) the trial court improperly entered a deadly weapon finding without the submission of a special issue to the jury.
Appellant points to four cases in support of her assertion that the elements of an offense cannot enhance the punishment for committing it: McWilliams v. State, 782 S.W.2d 871 (Tex. Crim. App. 1990); Wisdom v. State, 708 S.W.2d 840 (Tex. Crim. App. 1986); Ramirez v. State, 527 S.W.2d 542 (Tex. Crim. App. 1975); Rodriguez v. State, 31 S.W.3d 359 (Tex. App.CSan Antonio 2000, pet. ref=d). These cases stand for the proposition that a prior conviction cannot be used both as an element of an offense and to enhance punishment for that offense. See McWilliams, 782 S.W.2d at 876; Wisdom, 708 S.W.2d at 845; Ramirez, 527 S.W.2d at 544; Rodriguez, 31 S.W.3d at 364. This principle is not applicable to this case because the State did not use any prior conviction of appellant and because an affirmative deadly weapon finding does not increase the punishment assessed against appellant. See Thomas v. State, 2 S.W.3d 640, 642B43 (Tex. App.CDallas 1999, no pet.); Martinez v. State, 883 S.W.2d 771, 772B75 (Tex. App.CFort Worth 1994, pet. ref=d). Appellant argues that we should extend the rationale of these cases and hold that the same conduct cannot be used as an element of an offense and also as the basis for a deadly weapon finding under article 42.12, section 3(g)(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 3(g)(a)(2) (Vernon Supp. 2005). A deadly weapon finding may limit an inmate=s eligibility for community supervision, parole, and mandatory supervision; it does not increase the punishment assessed against a defendant at sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2005); Tex. Gov=t Code Ann. ' 508.145(d) (Vernon 2004).
No case directly supports the holding appellant urges us to adopt. We find that appellant=s argument under this issue lacks merit and conflicts with the unambiguous language of article 42.12, section 3(g)(a)(2) of the Texas Code of Criminal Procedure, which authorizes the trial court to enter a deadly weapon finding in all felony cases. See Thomas v. State, 2 S.W.3d 640, 642B43 (Tex. App.CDallas 1999, no pet.); Martinez v. State, 883 S.W.2d 771, 772B75 (Tex. App.CFort Worth 1994, pet. ref=d); see also Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989) (agreeing with lower court=s conclusion that Aall felonies are theoretically susceptible to an affirmative finding of use or exhibition of a deadly weapon); Smith v. State, 944 S.W.2d 453, 456 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (deleting deadly weapon finding on different grounds by commenting that an allegation in an indictment on use or exhibition of a deadly weapon as an aggravating element in an assault case Ais immaterial for the purpose of the affirmative finding@). Therefore, we conclude the trial court did not enhance punishment based on an element of the offense.
As to the absence of a special issue as to the deadly weapon finding, a trial court is authorized to enter an affirmative deadly weapon finding when the jury has found guilt as alleged in the indictment and a deadly weapon has been specifically pleaded in the indictment. See Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). An affirmative deadly weapon finding is correct when a deadly weapon was used or exhibited during the commission of a felony offense and the defendant used or exhibited the deadly weapon. Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2005). When the defendant was a party to the offense, an affirmative deadly weapon finding is allowed when the defendant knew that a deadly weapon would be used or exhibited. Id. In order to Ause@ a deadly weapon for affirmative finding purposes under section 3(g)(a)(2), a weapon must be utilized to achieve an intended result, namely, commission of the felony offense. See Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992). The entry of an affirmative deadly weapon finding by the trial court was proper under a finding of guilt under either principal or party liability. By finding appellant guilty as alleged in the indictment, the jury found that appellant intended or knew that a deadly weapon would be used in committing the alleged offense. Accordingly, we overrule appellant=s ninth issue.
I. Did the trial court commit constitutional error by failing to properly instruct the jury on the law of parole?
In her tenth issue, appellant argues that the trial court improperly instructed the jury on the law of parole. At the conclusion of the punishment phase of trial, the trial court charged the jury on parole law as mandated by article 37.07, section 4(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2005). Appellant did not object to the instruction at trial. Appellant asserts on appeal that this statute violates the Due Process Clause of the United States Constitution and the due-course-of-law provisions of the Texas Constitution because the instruction mislead and confused the jury as to the interaction between parole and the accumulation of good-conduct time. Appellant urges this court to remand this case for a new trial on punishment.
Appellant argues that the jury was mislead and confused by the jury charge on parole because the statutorily-mandated language informs the jury that appellant could effectively shorten the period of incarceration by earning good-conduct time. As a result, appellant asserts the jury increased appellant=s prison sentence. When defense counsel does not object to a jury charge, the error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The jury charge at the punishment phase of trial was not erroneous.
The Texas Court of Criminal Appeals has determined that this statute does not violate the federal constitution=s due process clause or a defendant=s due-course-of-law rights under the Texas Constitution. See, e.g., Luquis v. State, 72 S.W.3d 355, 364B68 (Tex. Crim. App. 2002) (holding the language of article 37.07, section 4(a) does not violate a defendant=s due course of law rights under the Texas Constitution or a defendant=s Due Process rights under the Federal Constitution); Muhammad v. State, 830 S.W.2d 953, 956 (Tex. Crim. App. 1992) (holding the parole instruction mandated in article 37.07, section 4(a) does not violate federal due process); Oakley v. State, 830 S.W.2d 107, 111B12 (Tex. Crim. App. 1992) (holding the parole instruction given pursuant to article 37.07, section 4(a) does not violate the due course of law protections in the Texas Constitution).
Appellant argues that even though article 37.07, section 4(a) has been held to be constitutional, the jury misconstrued and misapplied the jury charge in this case because appellant, who was probation-eligible, received a ten-year sentence.[2] When reviewing a challenged jury instruction, Athe only question . . . is >whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.=@ Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385 (1991) (quoting Cupp v Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400B01, 38 L. Ed. 2d 368 (1973)). We assume the jury followed the instructions as given, and we will not find federal constitutional error unless we conclude that a reasonable jury was actually confused by this charge. See Luquis, 72 S.W.3d at 366B67. The trial court record does not indicate that the jury was misled by the charge or that it improperly applied or considered the information it was given. The jury could have assessed punishment at as much as twenty years in prison, but opted to give appellant ten years. Appellant has failed to demonstrate that there is a reasonable likelihood that the jury unconstitutionally applied the concept of good-conduct time to assess a higher sentence as a result of the instruction. Accordingly, we overrule appellant=s tenth issue.
Having overruled all ten of appellant=s issues on appeal, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed March 10, 2005.
Panel consists of Justices Anderson, Hudson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The State asserts that appellant waived her right to appeal this issue because appellant failed to consistently object to all the evidence concerning details of the hostage situation. See Tex. R. App. P. 33.1(a)(1)(A). Our examination of the record reveals that appellant timely objected at the time the evidence was offered. Therefore, appellant has preserved error with respect to this issue.
[2] Appellant makes no distinction between her rights under the federal Constitution and the Texas Constitution with respect to this issue. Therefore, we may dispose of this issue by addressing only the Federal Constitution. See Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992) (declining to address appellant=s arguments regarding his state constitutional rights when appellant did not make a distinction between the Federal Constitution and the Texas Constitution).