COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00503-CR
ANTHONY GEORGE HANNON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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Upon his plea of guilty to one count of theft over $20,000 but less than
$100,000 and his pleas of true to enhancement paragraphs, a jury convicted
Appellant Anthony George Hannon of the charged offense and assessed his
punishment at ninety years’ confinement. The trial court sentenced him
accordingly. In two issues, Appellant contends that the trial court erred by
denying his objection to the jury charge and that he received ineffective
1
See Tex. R. App. P. 47.4.
assistance of counsel at trial. Because the trial court did not err by denying
Appellant’s objection to the jury charge and because Appellant has failed to
sustain his burden to prove ineffective assistance of counsel at trial, we affirm the
trial court’s judgment.
Facts
On February 2, 2011, Appellant was indicted on one count of theft over
$20,000 but less than $100,000. The indictment contained an enhancement
paragraph alleging that he had previously been convicted of possession of four
grams or more but less than two hundred grams of cocaine and that the
conviction had become final before the commission of the theft.
At his arraignment on March 1, 2011, Appellant pled not guilty. On August
10, 2011, the State filed a notice of enhancement, stating that it intended to use
five prior convictions (including the conviction previously alleged in the
enhancement paragraph in the indictment) to elevate the punishment range for
the third-degree felony theft offense to that of a habitual felony offender. The
notice then listed the five prior convictions that the State intended to use. Each
paragraph stated that the conviction “became final before the commission of the
aforesaid offense.” At his trial on October 18, 2011, Appellant changed his plea
to guilty. He pled true to the enhancement paragraph in the indictment and to the
enhancement paragraphs alleged in the notice of enhancement.
Appellant elected to have his punishment determined by a jury. At the
charge conference, Appellant objected “to the Court’s entire charge on
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punishment,” arguing that he had not been given notice “that the Court could
submit a charge of 25 to life under the habitual [offender] provision of the Penal
Code.” Appellant then elaborated,
Specifically, Your Honor, the allegations that are made on the
notice of enhancement fail to allege in any specificity that—each of
those enhancements, and the same objection would apply to each
one, Your Honor, that it was—had become final before the
commission of the offense before it. They all refer to they became
final before the commission of the aforesaid offense to the primary
charge in the indictment.
Your Honor, we believe that failure to allege the consecutive
nature or that one became final before commission of the prior
offense that’s alleged as the enhancement fails to give the defense
notice that the provisions of the Penal Code and intention to
enhance to 25 to life are effective.
Because of failure of those two, Your Honor, the notice of
enhancement and the indictment taken in whole, we object to the
submission of the Court’s charge on punishment as provided to
counsel.
Specifically, Your Honor, we think the appropriate charge
would contain a—under the pleas would contain, Your Honor, an
instruction to the jury that this is a third degree felony enhanced to a
second with a primary—appropriate punishment range, Your Honor,
of 2 to 20 and up to a $10,000 fine, that being because a third
degree felony being alleged and pled to with the enhancement count
would elevate an enhancement to a second degree only. So we
have that objection to the Court’s charge on punishment.
The trial court overruled the objection.
3
Charge Error
In his first issue, Appellant argues that the trial court improperly instructed
the jury on the range of punishment for a habitual offender and improperly
allowed the jury to assess his sentence under the habitual offender provision
because neither the indictment nor the enhancement notice informed him that
“the Court could submit a charge of 25 to life under the habitual [offender]
provision of the Penal Code.” Appellant also argues that “there is no evidence to
show that the offenses were committed and became final in the proper
sequence . . . .”
The State’s notice of enhancement provided that the State sought to
sentence Appellant as a habitual felon. Appellant pled true to each of the
enhancements. Appellant’s three penitentiary packets were admitted into
evidence to show that he had been convicted of those offenses contained in the
penitentiary packets and had been to the penitentiary at least three times in the
past. The State also proved the sequence of convictions. Additionally, the trial
court instructed Appellant on the habitual range of punishment. Appellant did not
claim surprise and did not ask for a continuance.
Appellant argues that each of the enhancement allegations provided that
the enhancement provision became final prior to the commission of “the
aforesaid offense,” and that the offense referred to as “the aforesaid offense”
could be only the new offense for which Appellant was on trial. Appellant is
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correct that the enhancement notice lists the enhancement offenses in reverse
order. This court has held, however, that
[b]ecause it was not necessary for the State to allege the dates on
which the enhancing convictions became final or the sequence of
the enhancing convictions, the indictment[’]s nonsequitur allegation
that the 2003 DWI conviction was final before the commission of the
1998 assault is immaterial. The enhancement allegation[]s recited
the counties, courts, cause numbers, and dates of conviction for
both enhancements; this was sufficient to enable [defendant] to find
the record and prepare for trial regarding whether he is the convict
named in the convictions.2
It is therefore likewise of no consequence that the enhancement offenses were
not listed in proper sequential order in the case before us. Nor did Appellant
claim surprise at trial when the jury was instructed on habitual offender
punishment. Appellant received ample notice from the State (more than two
months) and the trial court that the State would seek to punish him as a habitual
offender.3
Finally, if his complaint is that the evidence is insufficient to prove him
guilty as a habitual offender, we disagree. Appellant correctly argues that section
12.42(d) of the penal code requires the State to prove a particular chronological
sequence of convictions: The first conviction becomes final, the offense leading
to a later conviction is committed, the later conviction becomes final, and the
2
Derichsweiler v. State, 359 S.W.3d 342, 350 (Tex. App.—Fort Worth, no
pet.).
3
See Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).
5
offense for which the defendant presently stands accused is committed.4 Having
closely reviewed the entire record, we hold that the evidence sufficiently proves
the appropriate chronological sequence of convictions.
At the beginning of the punishment phase of his trial, Appellant
acknowledged all five of the prior convictions used for enhancement and entered
his pleas of true to five prior felony convictions contained in three separate
penitentiary packets that were admitted into evidence. He acknowledged that he
could be sentenced to a term of twenty-five years up to ninety-nine years or life
imprisonment if the State proved the convictions in the appropriate sequence.
The record reflects that the State proved the prior convictions at trial and that
they are properly sequenced.
Because Appellant had ample notice that the State would seek to prove
that he was a habitual offender and pled true to the enhancement allegations and
because the State additionally proved that he was a habitual offender, we hold
that the trial court did not err by overruling Appellant’s objection to the jury
charge. Consequently, there is no need for a harm analysis.5 We overrule
Appellant’s first issue.
4
See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011); Ex parte Miller,
330 S.W.3d 610, 624 (Tex. Crim. App. 2009).
5
See Throneberry v. State, 109 S.W.3d 52, 60 (Tex. App.—Fort Worth
2003, no pet.).
6
Ineffective Assistance of Counsel
Appellant frames his second issue as a general claim of ineffective
assistance of counsel. Specifically, he states, “APPELLANT HAD INEFFECTIVE
ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.” Essentially, he argues
generally that trial counsel made bad decisions and failed to act at various times
during trial and thereby hampered Appellant’s chances of success at trial.
Appellant claims that trial counsel did not acquaint himself with the facts of the
case “as his cross examination of all witness [sic] was sorely lacking.” Appellant
also contends, “Had defense counsel acquainted himself with the facts of the
case, he would not have advised Appellant to plead guilty. There was a potential
unlawful search issue that defense counsel failed to investigate prior to trial and
failed to thoroughly examine while taking the witness on voir dire.” Appellant also
points out that trial counsel filed no pretrial motions.
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different.6
6
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009); Hernandez
v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
7
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.7
The issue is whether counsel’s assistance was reasonable under all the
circumstances and prevailing professional norms at the time of the alleged error. 8
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation.9 A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim. 10 “In
the majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.”11 To overcome the
presumption of reasonable professional assistance, “any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.”12 It is not appropriate for
7
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
8
See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
9
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
10
Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.
11
Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).
12
Id. (quoting Thompson, 9 S.W.3d at 813).
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an appellate court to simply infer ineffective assistance based upon unclear
portions of the record.13
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, that is, a trial with
a reliable result.14 In other words, an appellant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.15 A reasonable probability is a
probability sufficient to undermine confidence in the outcome.16 The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding in
which the result is being challenged.17
The evidence showed that Appellant and two friends stole an El Camino in
Fort Worth, drove to Granbury, used the vehicle to smash through the front
window of the First National Bank of Granbury, stole the ATM machine out of the
bank, and put it into the back of the stolen El Camino. The break-in was
captured on the bank surveillance video. After a high-speed chase, the El
Camino crashed, and the men ran. As Appellant ran, he jumped over a fence
13
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
14
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
15
Id. at 694, 104 S. Ct. at 2068.
16
Id.
17
Id. at 697, 104 S. Ct. at 2070.
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and hurt his leg, allowing peace officers to capture him. Inside Appellant’s truck
parked near the bank, the officers found a list of addresses of banks that they
suspected were targets for possible burglaries.
The trial court thoroughly admonished Appellant regarding his right to a
trial and the consequences of pleading guilty and of pleading true to the
enhancement counts. Appellant had an extensive criminal record, and the
evidence of his guilt was overwhelming.
Appellant filed a motion for new trial, but alleged only that the verdict was
contrary to the law and the evidence. He did not raise ineffective assistance of
counsel, nor did he inquire regarding trial counsel’s trial preparation or strategy.
From our review of the record, trial counsel’s strategy appears to have been to
have Appellant assume responsibility for his actions, of which there was
overwhelming evidence, and to ask for mercy by putting on evidence of
Appellant’s good character and the fact that family members needed him to care
for them.
Applying the appropriate standard of review, we hold that Appellant has
failed to sustain his burden of showing that trial counsel rendered ineffective
assistance. We overrule Appellant’s second issue.
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Conclusion
Having overruled Appellant’s two issues on appeal, we affirm the trial
court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 14, 2012
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