Zackery Terrell v. State

Opinion issued August 16, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00746-CR
———————————
ZACKERY TERRELL, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 67366

MEMORANDUM OPINION

A jury convicted appellant Zackery Terrell of possession of a controlled

substance, cocaine, in an amount less than one gram. See TEX. HEALTH & SAFETY

CODE § 481.115(b). He pleaded true to two enhancement allegations, specifically

that he previously had been convicted of aggravated assault with a deadly weapon
and possession with intent to deliver a controlled substance, cocaine, in an amount

between one and four grams. The trial court assessed punishment of 50 years in

prison.

On appeal, Terrell contends that he received ineffective assistance of counsel,

asserting that his trial counsel failed to advise him properly of the full range of

punishment before he rejected a plea-bargain offer. He also contends that the trial

court entered an illegal sentence. We affirm.

Background

Zackery Terrell was stopped for a traffic offense and arrested for driving with

a suspended license and without insurance. Police officers conducted an inventory

search, which uncovered a loaded handgun, drug paraphernalia containing a residue

of cocaine, more than $12,000 in cash, and approximately 530 grams of liquid

codeine and promethazine.

Approximately six weeks after his arrest, Terrell was charged by indictment

with possession of less than one gram of cocaine. See TEX. HEALTH & SAFETY CODE

§ 481.115(b). The indictment included two enhancement paragraphs, alleging that

prior to the commission of the indicted offense, Terrell had been convicted of two

sequential crimes. In 1995, he committed the felony offense of aggravated assault

with a deadly weapon. After that conviction became final, Terrell was convicted of

the felony offense of possession of between one and four grams of cocaine. The State

2
later gave notice of its intent to request an instruction and jury finding that the

handgun used in the commission of the charged offense was a deadly weapon.

Prior to jury selection, the trial court considered Terrell’s motion in limine,

which sought to exclude all evidence regarding extraneous crimes or misconduct.

Although the charged offense of possession of less than a gram of cocaine is a state-

jail felony, the punishment range could be enhanced to 25 years to life in prison if

the State proved that Terrell used a deadly weapon in the commission of the charged

offense and previously had been convicted of the two sequential felonies charged in

the enhancement paragraphs of the indictment. See TEX. PENAL CODE § 12.42(d).

The trial court agreed that the State should be prohibited from mentioning any prior

convictions during the guilt-or-innocence phase of trial but stated, “they are going

to get to voir dire on the possible ranges of punishment.” The court and counsel then

discussed how the voir dire could be conducted to meet both objectives. During this

discussion, the possible enhanced punishment range of 25 years to life in prison was

mentioned 11 times by counsel and the court, and the minimum sentence of 25 years

was mentioned an additional two times. There was no mention of any plea offer, and

there was no indication that Terrell misunderstood the possible punishment range.

The record shows that the 25 years to life punishment range was not mentioned in

front of the jury.

3
 The jury found Terrell guilty, and the court assessed punishment of 50 years

in prison. After trial counsel failed to timely file a notice of appeal, Terrell filed a

petition for writ of habeas corpus seeking an out of time appeal. The trial court

agreed that trial counsel was ineffective for failing to file a motion for new trial, and

the Court of Criminal Appeals granted an out-of-time appeal.

Terrell then filed a motion for new trial and motion in arrest of judgment. His

motion for new trial alleged that his trial counsel was ineffective in 11 different

ways, including failing to advise him properly of the range of punishment and the

possible results of trial. The motion for new trial did not mention a plea offer or

assert that if trial counsel had given proper advice about the range or punishment

and possible results of trial, that Terrell would have accepted the plea agreement

rather than go to trial.

The trial court held a hearing on the motion for new trial about 18 months

after the trial. Terrell testified that his retained trial counsel, Arthur Washington, told

him at their first meeting that he had been charged with a state-jail felony. Terrell

testified that Washington later advised him that the range of punishment was two to

ten years in prison, but on the day of trial, he said that the punishment range was two

to twenty years. Terrell also testified that on the day of trial, the judge informed him,

in front of the jury, that the punishment range was 25 years to life in prison. Terrell

4
alleged that Washington never discussed with him the deadly-weapon allegation or

mentioned a punishment range of 25 years to life in prison.

Terrell acknowledged that Washington conveyed a plea offer of seven years,

which he rejected because he thought the range of punishment was two to ten years

in prison, and he believed the only difference between a seven- and a ten-year

sentence was the amount of time he would spend on parole. Terrell thought that with

either sentence he would most likely have the same parole date. But he did not speak

up when he heard the court say that the range of punishment was 25 years to life in

prison. He testified that he was surprised, did not think he could “say something

then,” and believed that he no longer had the right to accept the plea offer. Terrell

had hoped for a two-year plea bargain, but he would have taken the seven-year plea

bargain if he had thought the range of punishment allowed a sentence as long as 20

years.

Arthur Washington also testified at the motion for new trial hearing. Most of

the questioning centered on the legal question of what level felony had been alleged

and the appropriate range of punishment. At first, Washington testified that he had

advised Terrell that the range of punishment would be two to ten years in prison. He

later recalled that the offense was indicted as a state-jail felony, enhanced by the

notice seeking to prove that Terrell used a deadly weapon, and further enhanced by

two habitual offender allegations, all of which raised the punishment range to 25

5
years to life in prison. Neither Terrell’s appellate counsel nor the prosecutor asked

Washington if he had advised Terrell that the range of punishment could be 25 years

to life in prison if all the enhancements were proven. Washington testified that the

State made a final plea offer of seven years in prison, which would have resulted in

the dismissal of all other pending cases against him in Brazoria County, but Terrell

rejected it.

The trial court denied the motion for new trial, and Terrell appealed.

Analysis

Terrell raises two issues on appeal. First, he argues that he received ineffective

assistance of counsel. He asserts that his trial counsel mistakenly advised him about

the range of punishment and that he relied on this erroneous advice when he rejected

a plea-bargain offer for seven years in prison. Second, he argues that the trial court’s

sentence was greater than that allowed by statute.

I. Ineffective assistance of counsel

When a defendant claims his plea was involuntary due to ineffective

assistance of counsel, often he has pleaded guilty but argues he would have gone to

trial but for counsel’s erroneous advice. See, e.g., Labib v. State, 239 S.W.3d 322,

333 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Ex parte Moody, 991

S.W.2d 856, 857–58 (Tex. Crim. App. 1999)). Terrell raises the opposite complaint:

he argues that his trial counsel erroneously advised him of the range of punishment

6
he could face, and if he had known the steep penalty he faced at trial, he would have

pleaded guilty and accepted a seven-year prison term.

A claim of ineffective assistance of counsel must be “‘firmly founded in the

record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of

the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). To prove a claim

of ineffective assistance of counsel, an applicant must show that trial counsel’s

performance fell below an objective standard of reasonableness and there is a

reasonable probability that but for counsel’s unreasonable error, the result of the

proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137,

142 (Tex. Crim. App. 2011). Because the record must affirmatively demonstrate the

alleged ineffectiveness, a defendant’s uncorroborated testimony about counsel’s

errors will not establish ineffective assistance of counsel. See Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999); Arreola v. State, 207 S.W.3d 387, 391

(Tex. App.—Houston [1st Dist.] 2006, no pet.).

At the hearing on the motion for new trial, Terrell testified about the advice

he received. He said that Washington initially told him that he was charged with a

state-jail felony. The punishment range for a state-jail felony is 180 days to two years

in state jail. TEX. PENAL CODE § 12.35(a). Terrell testified that after the State later

7
alleged prior felony convictions to enhance the offense, Washington told him that

the range of punishment was two to ten years in prison. Terrell also testified that on

the day of trial, Washington advised him the punishment range was two to twenty

years in prison. According to Terrell, his trial counsel never discussed with him the

deadly-weapon allegation or a punishment range of 25 years to life in prison.

Terrell’s testimony arose in a hearing on a motion for new trial. The trial court,

as factfinder, was not required to accept his testimony as true. See Colyer v. State,

428 S.W.3d 117, 122 (Tex. Crim. App. 2014); Holden v. State, 201 S.W.3d 761, 763

(Tex. Crim. App. 2006); Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App.

2001). “Even if the testimony is not controverted or subject to cross-examination,

the trial judge has discretion to disbelieve that testimony.” Colyer, 428 S.W.3d at

122.

Washington testified that before he received the State’s notice of intent to

prove use of a deadly weapon, he advised Terrell that with the two enhancement

allegations the state-jail felony was enhanced to a third-degree felony with a range

of punishment between two and ten years in prison. Washington was not asked what

other advice he gave to Terrell about the punishment range as the case progressed.

Washington’s testimony at the hearing on the motion for new trial—18

months after the trial—reflected some confusion about the felony grade and

punishment range at issue. Terrell argues that this confusion is evidence that

8
Washington’s representation was unreasonable. But the quality of trial counsel’s

memory or knowledge at the time of the hearing is not directly at issue. The question

about whether there was ineffective assistance of counsel depends instead on what

Washington told Terrell about the punishment range before trial.

Although Washington exhibited some confusion on the matter at the

evidentiary hearing, the record from the pretrial hearing on Terrell’s motion in

limine demonstrates his contemporaneous understanding that based on the

indictment, enhancements, and notice of intent to prove use of a deadly weapon,

Terrell faced a punishment range of 25 years to life in prison as a habitual offender.

Washington advocated for a prohibition on mentioning any of Terrell’s prior

convictions during voir dire because he knew the State would be interested in

questioning the panel about its ability to consider the full range of punishment,

especially when the State was seeking 25 years to life imprisonment on possession

of less than a gram of cocaine.

On his claim of ineffective assistance of counsel, it was Terrell’s burden to

show by a preponderance of the record evidence that Washington failed to provide

reasonably competent professional advice by failing to advise him about the

potential range of punishment. Because the trial court could have disbelieved

Terrell’s testimony that his trial counsel never advised him of the correct range of

9
punishment, we conclude that the trial court did not abuse its discretion by denying

the motion for new trial, and we overrule this issue.

II. Sentencing under the habitual-offender statute

In his second issue, Terrell argues that the court erred by rendering an illegal

sentence because he was sentenced under the wrong habitual felony offender

provision. He was sentenced under Penal Code section 12.42(d), which provides for

punishment of 25 years to life, but he contends he should have been sentenced under

section 12.425(c) and its second-degree felony punishment range of 2 to 20 years.

See TEX. PENAL CODE § 12.33. Terrell also contends that the notice given by the

State was insufficient to apprise him of the intent to enhance his punishment as a

habitual offender.

A. Preservation of error

The State contends the challenge to Terrell’s sentence was waived by the

failure to object or otherwise raise the issue in the trial court. As support for its

waiver argument, the State relies upon Mercado v. State, 718 S.W.2d 291, 296 (Tex.

Crim. App. 1986), Holmes v. State, 380 S.W.3d 307, 308 (Tex. App.—Fort Worth

2012, pet. ref’d), Ponce v. State, 89 S.W.3d 110, 114–15 (Tex. App.—Corpus Christi

2002, no pet.), and Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus

Christi 1989, pet. ref’d).

10
 In Mercado v. State, 718 S.W.2d 291 (Tex. Crim. App. 1986), the appellant

challenged a trial court’s affirmative finding of the use of a deadly weapon on the

grounds that “it was entered after he gave notice of appeal and was, therefore,

untimely and vindictive.” 718 S.W.2d at 295. The Court of Criminal Appeals

observed: “As a general rule, an appellant may not assert error pertaining to his

sentence or punishment where he failed to object or otherwise raise such error in the

trial court.” Id. at 296.

This “general rule” does not extend to preclude review of a sentence that is

illegal due to the fact that it is outside the maximum or minimum range of

punishment. See Mizell v. State, 119 S.W.3d 804, 806-07 (Tex. Crim. App. 2003).

Any court with jurisdiction may notice and correct an illegal sentence, even if the

defendant did not object in the trial court. Id. at 806–07 & n.17. To the extent the

court in Ponce v. State, 89 S.W.3d 110 (Tex. App.—Corpus Christi 2002, no pet.),

interpreted Mercado to require objections to illegal sentences to be preserved in the

trial court, the subsequent Mizell opinion clarified the rule to be otherwise. Quintana

v. State, 777 S.W.2d 474 (Tex. App.—Corpus Christi 1989, pet. ref’d), is inapposite

because it addressed preservation requirements relating to a claim that a sentence

violated constitutional prohibitions of cruel and unusual punishments. See Quintana,

777 S.W.2d at 479. Finally, Holmes v. State, 380 S.W.3d 307 (Tex. App.—Fort

Worth 2012, pet. ref’d), is distinguishable because it presented an as-applied due-

11
process challenge to the application of the Penal Code, which requires preservation

in the trial court. See Holmes, 380 S.W.3d at 308 (citing Anderson v. State, 301

S.W.3d 276, 279–80 (Tex. Crim. App. 2009)).

To the extent Terrell challenges the adequacy of notice that the State sought

to have him sentenced as a habitual felony offender pursuant to Penal Code

section 42.12(d), we agree with the State that the objection was not raised in the trial

court and therefore has been waived. See TEX. R. APP. P. 33.1(a). To the extent

Terrell challenges the sentence itself as being void and illegal because

section 42.12(d) does not apply, we conclude no trial objection was required to

challenge the sentence on appeal. See Mizell, 119 S.W.3d at 806-07.

B. Habitual offender punishment ranges

With no enhancements, the punishment for conviction of a state-jail felony is

confinement in state jail between 180 days and two years. TEX. PENAL CODE

§ 12.35(a). When the defendant is found to have “used or exhibited” a deadly

weapon “during the commission of the offense or during immediate flight following

the commission of the offense,” the punishment is enhanced to that of a third-degree

felony, i.e., confinement in prison for two to ten years. Id. §§ 12.34, 12.35(c). This

is known as an aggravated state-jail felony. See Ford v. State, 334 S.W.3d 230, 233

(Tex. Crim. App. 2011).

12
 An aggravated state-jail felony may be enhanced further by the habitual-

offender statutes. Id. Penal Code section 12.425 establishes enhanced punishments

for a defendant on trial for a state-jail felony. Only subsection (c) applies to

aggravated state-jail felonies, and it provides for stricter punishment if the defendant

has one prior felony conviction:

If it is shown on the trial of a state jail felony for which punishment
may be enhanced under Section 12.35(c) that the defendant has
previously been finally convicted of a felony other than a state jail
felony punishable under Section 12.35(a), on conviction the defendant
shall be punished for a felony of the second degree.

TEX. PENAL CODE § 12.425(c).

Finally, section 12.42(d) establishes a more stringent punishment range for

three-time repeat felony offenders. The statute provides:

[I]f it is shown on the trial of a felony offense other than a state jail
felony punishable under Section 12.35(a) that the defendant has
previously been finally convicted of two felony offenses, and the
second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final, on
conviction the defendant shall be punished by imprisonment in the
Texas Department of Criminal Justice for life, or for any term of not
more than 99 years or less than 25 years.

Id. § 12.42(d).

Terrell argues that the sentence for his conviction is controlled by Penal Code

section 12.425(c), which applies a maximum punishment equivalent to a second-

degree felony, and that the statute does not permit any state-jail felony to be

enhanced to punishment beyond that of a second-degree felony. We disagree.
13
 Section 12.425(c) could apply to Terrell’s offense, because it is the only

provision of section 12.425 that applies to aggravated state-jail felonies. The other

provisions of section 12.425, subsections (a) and (b), are both limited to ordinary

state-jail felonies, as indicated by text in each subsection specifying application to

“a state jail felony punishable under Section 12.35(a).” Id. § 12.425(c).

Subsection (c) applies only to aggravated state-jail felonies—those “for which

punishment may be enhanced under Section 12.35(c)”—and provides for an

enhanced punishment equivalent to a second-degree felony in the event the

defendant “has previously been finally convicted of a felony other than a state jail

felony punishable under Section 12.35(a).” Id.

But nothing in the text of section 12.425 supports Terrell’s contention that it

is the exclusive means of enhancing state-jail felony punishments on the basis of

habitual offenses. Contrary to Terrell’s argument, section 12.42(d) expressly

provides that it may apply to a “felony offense other than a state jail felony

punishable under section 12.35(a).” Id. § 12.42(d). Since an aggravated state-jail

felony offense is not punishable under section 12.35(a), and is instead punishable

under section 12.35(c), it is included among the felony offenses eligible for

sentencing under section 12.42(d). Id. Section 12.42(d) unambiguously made Terrell

eligible for sentencing as a repeat and habitual felony offender because he met that

provision’s other criteria of having “been finally convicted of two felony offenses,

14
and the second previous felony conviction is for an offense that occurred subsequent

to the first previous conviction having become final.” See id. Thus an aggravated

state-jail felony may be enhanced to habitual-offender status under section 12.42 by

two sequential prior felony convictions.*

Terrell relies on the title of section 12.42—“Penalties for Repeat and Habitual

Felony Offenders on Trial for First, Second, or Third Degree Felony”—to support

his contention that the statute has no application to state-jail felonies, which may

have their sentences enhanced to the same level as first, second, or third degree

felonies, but do not thereby become first, second, or third degree felonies. See, e.g.,

Samaripas v. State, 454 S.W.3d 1, 7 (Tex. Crim. App. 2014); Ford, 334 S.W.3d at

234–35. While the title or caption of a statute may be an aid to statutory construction

when the statutory text is ambiguous, we find no ambiguity here and thus no need to

resort to canons of construction. See, e.g., Tapps v. State, 294 S.W.3d 175, 179 (Tex.

Crim. App. 2009). When a statute “is clear and unambiguous, the Legislature must

*
This court interpreted a prior version of section 12.42(d) in Smith v. State, 960
S.W.2d 372, 375 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). The Smith
opinion analyzed the statute as amended in 1993. See Smith, 960 S.W.2d at
375 (interpreting statutory revisions as introduced by the Act of May 29, 1993,
73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3604). The court
drew the conclusion that “an aggravated state jail felony may be enhanced by
two prior convictions in the proper sequence to habitual offender status under
subsection (d).” Id. at 374. As discussed above, the current version of section
12.42(d) has codified that interpretation by clarifying that the statute applies
as it was interpreted in Smith.
15
be understood to mean what it has expressed, and it is not for the courts to add or

subtract from such a statute.” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.

1991). While statutory titles can be a useful indicator of meaning, “they are of use

only when they shed light on some ambiguous word or phrase,” and “they cannot

undo or limit that which the text makes plain.” Brotherhood of R. R. Trainmen v.

Baltimore & O. R. Co., 331 U.S. 519, 529, 67 S. Ct. 1387, 1392 (1947); see also

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 222 (2012) (“a title or heading should never be allowed to override

the plain words of a text”).

Terrell was charged with the state-jail felony offense of possession of less than

one gram of cocaine. See TEX. HEALTH & SAFETY CODE § 481.115(b). The State

gave notice of intent to prove use of a deadly weapon during the commission of this

offense and proved it at trial. If no other enhancements had been proven, Terrell

would have been sentenced for an aggravated state-jail felony. See TEX. PENAL CODE

§ 12.35(c). However, the indictment included two enhancement allegations. The first

enhancement alleged that Terrell was convicted in 1995 of aggravated assault with

a deadly weapon. This was a second-degree felony. See id. § 22.02. The second

enhancement alleged that after the 1995 aggravated-assault conviction became final,

Terrell was convicted of possession of between one and four grams of cocaine. This

was a third-degree felony. See TEX. HEALTH & SAFETY CODE § 481.115(c). With

16
proof of only one prior felony conviction, Terrell would have been sentenced under

section 12.425(c). In this case, however, the State proved two prior sequential felony

convictions; thus Terrell was subject to sentencing under section 12.42(d), for a

period of confinement in prison of 25 years to life.

The court sentenced Terrell to 50 years in prison, a period within the statutory

sentencing range. See TEX. PENAL CODE § 12.42(d). Accordingly, we overrule his

issue complaining of an illegal sentence.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

17