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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00013-CV
______________________________
MICHAEL KENNEDY, Appellant
V.
JAMES T. WORTHAM [SIC], ET AL., Appellees
On Appeal from the 369th Judicial District Court
Anderson County, Texas
Trial Court No. XXX-XX-XXXX
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In the District Court of Anderson County, Michael Kennedy (Kennedy) and Danielle Simpson (Simpson), Texas prison inmates, filed an emergency motion to stay or abate Simpson’s execution. The motion’s caption names as defendants the Honorable James T. Worthen (misnamed Wortham by Kennedy in some places in the record), Chief Justice of the Texas Court of Appeals for the Twelfth Appellate District, and Anderson County District Judge, the Honorable Mark Calhoon (misnamed Calhoun by Kennedy in some places in the record). Acting on its own motion, the trial court, the Honorable Deborah Oakes Evans, dismissed the motion without a hearing, finding that the suit was frivolous or malicious and that Kennedy and Simpson failed to satisfy the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.[1]
Kennedy appeals from the trial court’s dismissal of the motion to stay or abate Simpson’s execution. Kennedy filed a single brief,[2] in which he raises an issue common to both of his appeals.[3] On appeal, Kennedy argues that the trial court erred in dismissing his action because the trial judge was a named defendant and thus was disqualified from presiding over this case.
We addressed this issue in detail in our opinion of this date on Kennedy’s appeal in cause number 06-10-00012-CV.[4] For the reasons stated therein, we likewise conclude in this case that error has not been shown.
We overrule Kennedy’s point of error and affirm the order of dismissal.
Josh Morriss, III
Chief Justice
Date Submitted: May 14, 2010
Date Decided: May 21, 2010
[1]The trial court also ordered Kennedy to pay court fees and costs in the amount of $229.00.
[2]Simpson did not file an appellate brief.
[3]Defendant appeals from orders of dismissal in cause numbers 06-10-00012-CV and 06-10-00013-CV.
[4]Unlike in the companion appeal, our cause number 06-10-00012-CV, there is a question in this case regarding whether or not Evans is a named defendant. We need not reach that issue, however, because, even if she was a named defendant, she has no direct personal or pecuniary interest in the case, as detailed in our opinion of this date on Kennedy’s appeal in the companion appeal.
o-spacerun:yes'> Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.––Houston [1st Dist.] 2006, no pet.). Only when “counsel’s 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, 125 S.W.3d at 506–07.
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 attorney’s 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, 793–94 (Tex. App.––Houston [14th Dist.] 1998, pet. ref’d); Gamboa v. State, 822 S.W.2d 328, 330 (Tex. App.––Beaumont 1992, pet. ref’d).
We have been provided with no record (such as that which would be produced in a hearing on a motion for new trial or a habeas corpus hearing or by affidavit) whereby Bells attempted to obtain an explanation of trial counsel’s strategy––or lack of strategy––in having opened the door to allow Foreman’s testimony. Bells testified at the sentencing hearing that she was taking college classes, that she had learned lessons from her prior criminal convictions (summarized below), and that she intended to henceforth “follow the letter of the law.” Defense counsel’s first statement in closing argument was that Bells had not “hid from her past background or past history.” This is evidence supporting the presumption that counsel had some strategy in mind; we find nothing in the record before us to rebut that presumption. Bells has not established her counsel rendered deficient performance.
Even had Bells successfully established that her trial counsel’s performance was deficient, she has not proved a reasonable probability that she would have received a lesser sentence but for counsel’s cross-examination. Bells had a fairly extensive criminal record, including six previous convictions, of which one was a felony, dating from 1995. It appears from the record that on at least three of those prior offenses, including the felony, she had been placed on community supervision, which had been subsequently revoked, or that she at least had been found to have violated the supervision’s terms and conditions. She was in possession of a not-inconsequential amount of drugs, and the circumstances (including her own admission) established that she was a drug dealer.[1] The record suggests that she sold drugs from her home, a residence shared with six children, one of whom was as young as three years.[2] She admitted to using both cocaine and marihuana while on community supervision; her community supervision officer testified that although she reported regularly as required, she was almost $600.00 delinquent in the payment of her supervision fees.
Further, while on the instant case Bells was sentenced to five years for a third-degree felony, it must be remembered she was simultaneously being sentenced for a second-degree felony violation (see our opinion in cause number 06-10-00154-CR), plus a state-jail felony (see our opinion in cause number 06-10-00153-CR). As detailed in our opinion in cause number 06-10-00154-CR, there was an initial misunderstanding about the impact which a drug-free-zone finding would have on that case’s charge of possession with intent to deliver cocaine.[3] The trial court stated it was his preference to sentence Bells to five years’ incarceration. In light of that statement by the trial court in the combined hearing of all three cases, the large amount of drugs found in Bells’ possession, the fact that she was selling illicit drugs from a house which she shared with six children, her documented criminal history, and the fact she received the instant sentence as part of a unitary proceeding sentencing her for two other pending cases (the consequences, if followed to the fullest, could have resulted in a harsher sentence), we cannot say that she has demonstrated a reasonable probability that the outcome of her sentencing proceeding would have been different had her trial counsel not asked questions which allowed introduction of evidence regarding prior criminal offenses pertaining to drug trafficking for which she was neither charged nor convicted.
Bells has failed to meet the requirements of Strickland. We overrule her point of error and affirm the trial court’s judgment and sentence.
Consecutive or Concurrent Sentence?
Finally, we feel compelled to draw attention to a potential irregularity in the trial court’s judgment. At the conclusion of the punishment hearing, the trial court ordered Bells’ three sentences to be served concurrently. We have previously described how the State agreed to abandon the allegation of a drug-free-zone allegation in cause number 06-10-00154-CR because the inclusion of the drug-free-zone finding would mandate a larger sentence than the five-year penalty the trial court expressed that it believed appropriate. Although the drug-free-zone allegation was dropped from the other case, it remained in this one and the judgment reflects that Bells was convicted of possession of the alleged amount of marihuana in a drug-free zone.[4] With that observation, we note that there is another subsection in the drug-free-zone statute that does not appear to have been contemplated by the parties when the sentence was announced:
Punishment that is increased for a conviction for an offense listed under this section may not run concurrently with punishment for a conviction under any other criminal statute.
Tex. Health & Safety Code Ann. § 481.134(h) (Vernon 2010). It appears this subsection is mandatory and would require that Bells’ sentence for possession of marihuana in a drug-free zone––the offense which is the subject of the instant appeal––would be required to be served consecutively to (and not concurrently with) her sentence for the revoked community supervision for the state-jail felony of use or possession of fraudulent identifying information (our cause number 06-10-00153-CR). See Newman v. State, 268 S.W.3d 266, 269 (Tex. App.––Amarillo 2008, pet. ref’d) (defendant convicted of possession of controlled substance and engaging in organized criminal activity, consecutive sentences required); see also Williams v. State, 253 S.W.3d 673, 677–78 (Tex. Crim. App. 2008) (reconciling Tex. Health & Safety Code Ann. §§ 481.132, 481.134(h)).
Neither party has raised this matter and there was no appeal by the State challenging the trial court’s sentence. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.––Dallas 1991, pet. ref’d). We may reform a judgment even where the error is not pointed out or urged by a party. Asberry, 813 S.W.2d at 529–30. In the instant situation, though, we are not convinced we have all the necessary information compelling a reformation of Bells’ sentence for the conviction of possession of marihuana in a drug-free zone. We have pointed out there was some confusion among the parties at the time of sentencing regarding the effect of a drug-free-zone finding and the trial court clearly stated its preference regarding the sentence to be imposed (i.e., to impose a sentence of five years for both possession cases and for all three sentences to be served concurrently). Further complicating this issue is the fact that the trial court’s imposition of concurrent sentences, while possibly not congruent with Section 481.134(h), was nevertheless pronounced in front of Bells, and then reflected in the trial court’s judgment. A defendant has a due process “legitimate expectation” that the sentence he heard orally pronounced in the courtroom is the same sentence that he will be required to serve. Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002).[5] In light of the circumstances present, we find that reformation of Bells’ sentence in cause number 06-10-00155-CR is not appropriate.
As explained above, we overrule Bells’ point of error and affirm the trial court’s judgment and sentence.
Bailey C. Moseley
Justice
Date Submitted: February 8, 2011
Date Decided: February 23, 2011
Do Not Publish
[1]In addition to pleading guilty, when asked about the digital scales designed to look like a cell phone, Bells said she used the scales to measure drugs.
[2]Bells’ children were aged three, seven, eleven, fourteen, seventeen, and eighteen.
[3]The finding that the possession occurred within a drug-free zone would have required that the sentence be enhanced by five additional years’ confinement. Tex. Health & Safety Code Ann. § 481.134(c) (Vernon 2010).
[4]Had the State abandoned the drug-free-zone allegation in the instant case, Bells could have been convicted and sentenced herein for, at most, a state-jail felony. See Tex. Health & Safety Code Ann. §§ 481.121(b)(3), 481.134(d).
[5]The trial court in Madding initially decreed Madding’s sentence would run concurrently with that for another offense; fifty-two days later, the written judgment stated the sentence would run consecutive to the earlier sentence. The Texas Court of Criminal Appeals found this to be a due process violation. Madding, 70 S.W.3d at 136–37.