COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00116-CR
BERT LEE DUNCAN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Following his non-plea-bargained-for plea of guilty and his pleas of true to
repeat offender paragraphs contained in the indictment, a jury sentenced
Appellant Bert Lee Duncan to ninety-nine years’ incarceration for the offense of
driving while intoxicated as a repeat offender.2 In two points, Duncan contends
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 49.04, 49.09(b)(2) (West Supp. 2011).
that he received ineffective assistance of counsel because (1) his counsel failed
to timely inform him of the State’s plea offer of forty-five years’ incarceration and
(2) his counsel did not object to the prosecutor’s statement to the jury that they
should consider how parole law would be applied to Duncan’s sentence. We will
affirm.
II. BACKGROUND
The facts of the underlying offense in this case are not in dispute. Thus,
we will detail those facts that pertain to the outcome of this appeal only. After
Duncan pleaded guilty to the charge and true to the enhancements in the
indictment, the jury found him guilty and sentenced him to ninety-nine years’
incarceration. Afterwards, Duncan filed a motion for new trial. In his motion,
among other arguments, he claimed that there were ―conflicting factual
assertions regarding whether or not [he] received the plea bargain offer prior to
the deadline‖ to accept the State’s offer. Duncan acknowledged that trial counsel
claims that Duncan was informed prior to the deadline.
At the hearing on the motion for new trial, Duncan did not call trial counsel
to testify to his version of the facts on the issue of whether trial counsel informed
Duncan of the State’s offer. Related to this appeal and consequently, trial
counsel was also not questioned regarding why he did not object to the
prosecutor’s comment to the jury that Duncan now claims informed them about
the effects of parole laws on Duncan’s punishment. Duncan, however, did
testify.
2
During questioning, Duncan averred that he should have been told of the
State’s offer ―a lot earlier than‖ he was informed. Duncan did not testify that he
would have taken the State’s offer but only that to him it was ―not right for a man
that [he had] already paid‖ to wait so long in the process to inform him of the
State’s offer, which according to Duncan, was conveyed to him on the Friday
before the Monday trial setting. When asked directly if he would have taken the
State’s offered plea, Duncan responded, ―No. . . . I’m not saying that.‖ But later,
Duncan said that he thought that he was accepting the State’s offer when he
came to trial the following Monday.
Duncan contradicted himself in testimony when he later said that when the
judge admonished him before he entered his plea of guilty, he understood that
―there was no plea bargain[].‖ The trial court denied Duncan’s motion.
Subsequently, the State offered, and the trial court admitted into evidence, an
affidavit by trial counsel which avers that, ―Early in the case [he] informed []
Duncan that the State’s offer was 45 years.‖ This appeal followed.
III. DISCUSSION
In two points, Duncan contends that he received ineffective assistance of
counsel. First, Duncan contends that his trial counsel failed to inform him of the
deadline to accept the State’s offer of forty-five years’ incarceration and that
under this court’s holding in Turner v. State, we should reverse his sentence and
remand his case back to the trial court with an instruction to reinstate the State’s
forty-five year plea bargain offer. 49 S.W.3d 461, 470–71 (Tex. App.—Fort
3
Worth 2001, pet. dism’d) (reversing sentence and reinstating State’s offer when
counsel failed to communicate offer’s deadline to defendant and defendant
attempted to accept offer after deadline had passed). Second, Duncan contends
that his counsel failed to provide effective assistance of counsel by not objecting
when the prosecutor urged the jury to consider how ―parole laws would be
applied specifically‖ to him.
A. The Right to Effective Assistance of Counsel
To establish ineffective assistance of counsel, the 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. 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).
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.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. 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. Salinas
4
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). A reviewing court will rarely be in a
position on direct appeal to fairly evaluate the merits of an ineffective assistance
claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. ―In the
majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.‖ Salinas, 163
S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). 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.‖ Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
5
B. The State’s Offered Plea
In this case, at the motion-for-new-trial hearing, Duncan’s testimony
establishes that at best he was willing to consider the offer of forty-five years.
Duncan’s testimony was that he wanted less time. On numerous occasions
during his testimony, Duncan made it clear that he thought forty-five years was
too much time to consider in a plea. And when asked directly whether he was
saying that he would have taken the forty-five year deal, Duncan responded,
―No. . . . I’m not saying that.‖ Duncan also contradicted himself during testimony
when at one point he said he believed he was accepting the State’s offer but later
acknowledged that there was no plea bargain in place when he entered his plea.
Duncan relies on this court’s decision in Turner for the proposition that
whenever trial counsel fails to communicate to a defendant a deadline on a
State’s plea offer, a conviction should be reversed and the State’s offer should be
reinstated. 49 S.W.3d at 470–71. But Duncan’s reliance on Turner is misplaced,
because unlike in Turner, there is no evidence here that Duncan attempted to
accept the State’s offer at any time prior to the hearing on his motion for new
trial. See id.; see also Paz v. State, 28 S.W.3d 674, 676 (Tex. App.—Corpus
Christi 2000, no pet.) (reinstating offer when counsel failed to inform defendant of
offer and defendant said he would have accepted offer).
Given Duncan’s own testimony, we conclude and hold that there is
insufficient evidence to undermine the confidence in the outcome of the trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, there is no
6
evidence that the outcome of the trial would have been different, and Duncan
fails to satisfy the second prong of Strickland. See Sheehan v. State, No. 02-02-
00401-CR, at *3, 2003 WL 22253865 (Tex. App.—Fort Worth Oct. 02, 2003, pet.
ref’d, cert. denied, 543 U.S. 935 (2004)) (not designated for publication) (holding
that trial counsel’s failure to communicate to defendant conditional plea bargain
offers made by state was not ineffective assistance of counsel where defendant’s
own testimony at hearing on his motion for new trial established only that he was
willing to consider a plea, not that he would have accepted the conditions of the
offer); see also Ex parte Lemke, 13 S.W.3d 791, 796–98 (Tex. Crim. App. 2000)
(ruling that prejudice prong of Strickland was satisfied by evidence that defendant
would have accepted the plea bargain offer had it been communicated by
counsel). We overrule Duncan’s first point.
C. Trial Counsel’s Lack of Objection
During the punishment phase, the prosecutor argued in front of the jury
that Duncan is ―going to get out of prison at some point, and I’m going to talk to
you about that. He’s going to get out of prison at some point . . . .‖ Trial counsel
did not object to this remark. Duncan claims that this statement by the
prosecutor violated Texas Code of Criminal Procedure article 37.07, which states
that a jury is ―not to consider the extent to which good conduct time may be
awarded to or forfeited by this particular defendant.‖ Tex. Code Crim. Proc. Ann.
art. 37.07 (West Supp. 2011). Thus, according to Duncan, trial counsel’s failure
to object to the prosecutor’s statement constituted ineffective assistance of
7
counsel. We will assume without deciding that the prosecutor’s comment is
prohibited by article 37.07.3
Generally, an isolated failure to object to certain procedural mistakes or
improper evidence does not constitute ineffective assistance of counsel. See
Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); see also
Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (stating that an
ineffective assistance claim must ―be firmly founded in the record‖), cert. denied,
543 U.S. 1059 (2005). And, generally, when the record is silent as to counsel’s
reason for failing to object, the appellant fails to rebut the presumption that
counsel acted reasonably. Thompson, 9 S.W.3d at 814. That is, where, as in
this case, there is no record relative to counsel’s decisions and actions, an
allegation of ineffective assistance can often lie beyond effective appellate
review. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d). Thus, we cannot determine that Duncan was denied effective
assistance of counsel. Duncan has a more appropriate remedy in seeking a writ
of habeas corpus to allow him the opportunity to develop evidence to support his
complaint. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000)
(noting that a postconviction writ proceeding is the preferred method for
3
We note that under article 37.07, it is permissible for a jury to consider the
existence of parole law and good conduct time. Tex. Code Crim. Proc. Ann. art.
37.07. But article 37.07 prohibits a jury from considering how those laws affect
the particular defendant on trial. Id.
8
gathering the facts necessary to substantiate an ineffective assistance of counsel
claim). We therefore overrule Duncan’s second point.
IV. CONCLUSION
Having overruled both of Duncan’s points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 22, 2011
9