Opinion filed August 13, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00232-CR
__________
PAULA KAY FREEMAN A/K/A PAULA KAY HEDDINS,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 14968
MEMORANDUM OPINION
Paula Kay Freeman a/k/a Paula Kay Heddins entered an open plea of guilty
to the first-degree felony offense of fraudulent possession of more than ten items but
less than fifty items of identifying information of an elderly individual. See TEX.
PENAL CODE ANN. § 32.51(c)(3), (c-1)(1) (West Supp. 2014). The jury assessed
Appellant’s punishment at confinement for seventy-five years in the Institutional
Division of the Texas Department of Criminal Justice and a fine of $10,000. On
appeal, Appellant contends that her trial counsel provided ineffective assistance
when he failed to object to the prosecutor’s allegedly improper jury argument, to the
admission of prior convictions, and to the prosecutor’s allegedly improper unsworn
opinion evidence during the punishment phase. Appellant also argues that the trial
court erred when it allowed the prosecutor to argue evidence outside the record
during closing argument. Appellant also includes one matter labeled as
“Unassigned Error Under Anders”1 in her brief. We affirm.
Background Facts
Appellant pleaded guilty to one count of fraudulent possession of more than
ten items but less than fifty items of identifying information of an elderly individual.
In this regard, Appellant and her husband worked at the same retirement home where
the elderly victim resided. At the jury trial on punishment, the State introduced into
evidence copies of the victim’s bank account statements, copies of purchase receipts
from Wal-Mart, a summary of the checks and drafts drawn on the victim’s account,
a video of Appellant purchasing items with the checks from the victim’s account,
and eleven prior judgments of conviction for Appellant.
Appellant testified at trial. She admitted that she had possession of the
victim’s checkbook and had purchased items from Wal-Mart using the checkbook.
Appellant also admitted that one of her prior convictions was for perjury.
Analysis
In her first three issues, Appellant argues that her trial counsel rendered
ineffective assistance of counsel during the punishment phase of trial when he failed
to object to the prosecutor’s comments during closing argument about extraneous
offenses, when he failed to object to the admission of Appellant’s pen packets, and
when he failed to object to the prosecutor’s plea for law enforcement.
1
Anders v. California, 386 U.S. 738 (1967).
2
To determine whether Appellant’s trial counsel rendered ineffective
assistance at trial, we must first determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness and, if
so, then determine whether there is a reasonable probability that the result would
have been different but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510 (2003);
Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98
(Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
We must indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690.
An allegation of ineffective assistance must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient
and so lacking as to overcome the presumption that counsel’s conduct was
reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). Rarely will the record on direct appeal contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
Id.
Appellant’s claims of ineffective assistance of counsel are premised on trial
counsel’s failure to object on various grounds. When alleging ineffective assistance
of counsel for failure to object, an appellant must demonstrate that, if trial counsel
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had objected, the trial court would have erred in overruling the objection. See Ex
parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
Appellant’s first and third issues concern comments made by the prosecutor
in closing arguments. The prosecutor stated that Appellant committed “66 felonies,”
“count them -- 66 checks, 2 drafts is the evidence.” Appellant now argues that,
because she was not charged with sixty-six forgery felonies, the prosecutor’s “sole
purpose of the statement was to inflame the jurors against the Appellant and inflate
her punishment.” Appellant contends that this is unsworn opinion testimony and
that it “is never . . . appropriate for a prosecuting attorney to state his personal belief
in the guilt of a defendant.” See Clayton v. State, 502 S.W.2d 755 (Tex. Crim. App.
1973).
Later in closing arguments, the prosecutor asked the jury: “Well, what about
the impact on the community where we all live? What impact has this crime had on
the community? . . . People in nursing homes, people in assisted living facilities in
our community. And what are they going -- what impact is it going to have on them?
Oh, my gosh, is that what’s going on in our community? They’re going to become
afraid maybe.” The prosecutor continued, “How will your sentence go to deter
others from engaging in this despicable conduct?” and “How will your sentence
protect the community?” Finally, the prosecutor talked about the fine to impose.
“And don’t forget about the fine. If it’s paid, most of that comes back to our county.
It pays for the cost of this prosecution. It comes back to us in our county. So assess
a 10,000-dollar fine. I don’t know if she’s going to pay it or not, but it’s important
that you do.”
Proper jury argument generally falls within four areas: (1) summation of the
evidence, (2) reasonable deduction from the evidence, (3) answer to argument of
opposing counsel, or (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564,
570 (Tex. Crim. App. 2008); Esquivel v. State, 180 S.W.3d 689, 692 (Tex. App.—
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Eastland 2005, no pet.). Counsel is allowed wide latitude to draw inferences from
the record, as long as the inferences are reasonable, fair, legitimate, and offered in
good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). We
conclude that the trial court would not have erred if it had overruled trial counsel’s
objections to the prosecutor’s arguments. The prosecutor’s first argument, quoted
above, is a proper jury argument because it constitutes both a summation of the
evidence and a reasonable deduction from the evidence. Brown, 270 S.W.3d at 570.
The State introduced into evidence a summary of the fraudulent checks passed by
Appellant based upon a review of the victim’s bank statements. There were sixty-
six checks in total on the summation under the label “FRAUDULENT
EXPENDITURES” that were attributed to Appellant. The comment that Appellant
committed “66 felonies” is a summation of, and reasonable inference from, the
evidence introduced. Id.
The prosecutor’s argument to protect the elderly community and his argument
about the imposition of a fine were proper pleas for law enforcement. See Borjan v.
State, 787 S.W.2d 53, 55–56 (Tex. Crim. App. 1990); Minjares v. State, 577 S.W.2d
222, 225 (Tex. Crim. App. [Panel Op.] 1978). A prosecutor may argue to the jury
what effect its verdict may have on a particular segment of the community. Borjan,
787 S.W.2d at 55–56. And a prosecutor may ask for the imposition of a fine.
Minjares, 577 S.W.2d at 225. Accordingly, these arguments were proper. Brown,
270 S.W.3d at 570.
In her second issue, Appellant alleges a claim of ineffective assistance of
counsel concerning the admission of Appellant’s prior convictions. The State
offered eleven “pen packets” into evidence. Appellant’s trial counsel did not object
to their admission. Appellant argues that her trial counsel should have objected to
Exhibit Nos. 50, 56, 57, 58, and 59 as not being properly authenticated. Appellant
also contends that Exhibit No. 52 is a void judgment and not admissible.
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To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that a prior conviction exists and that the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 922 (Tex.
Crim. App. 2007). The State may prove a prior conviction in a number of different
ways. Id. at 921–23. The State is not required to produce a specific document or
specific proof because “[t]here is no ‘best evidence’ rule in Texas that requires that
the fact of a prior conviction be proven with any document, much less any specific
document.” Id. at 921. The proof that is adduced to establish that the defendant on
trial is the same person named in the prior conviction “closely resembles a jigsaw
puzzle.” Id. at 923 (quoting Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App.
1988)). Standing alone, the pieces usually have little meaning, but when fitted
together, the pieces usually form the picture of the person who committed the alleged
prior conviction or convictions. Id. The trier of fact fits the pieces of the jigsaw
puzzle together and weighs the credibility of each piece. Id. Whatever form the
State’s proof takes, however, it must be sufficient to prove the defendant’s prior
conviction beyond a reasonable doubt. Id. at 923.
Appellant argues that the objectionable pen packets were not properly
authenticated because of the poor quality of the fingerprints on the judgment.
However, fingerprints are not the only way a prior conviction may be linked to a
defendant. Some of the ways include the testimony of a fingerprint expert, the
testimony of a witness who personally knows that the defendant was previously
convicted and can identify the defendant, the defendant’s stipulation or judicial
admission, or a photograph that is contained in the prior judgment or pen packet.
See, e.g., Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986); Littles v. State,
726 S.W.2d 26, 31–32 (Tex. Crim. App. 1984).
Exhibit Nos. 50, 56, 57, 58, and 59 contained Appellant’s name and some
other identifying information, including her date of birth, her social security number,
6
her address at the time, or her signature. During cross-examination, Appellant
admitted to her perjury conviction. As to Exhibit No. 52, Appellant argues that the
typographical error contained in the judgment renders the judgment void. The
judgment was for “HINDERING AN APPREHENDED FELON,” while the correct
title of the offense is “Hindering Apprehension.” See PENAL § 38.05 (West 2011).
However, Appellant cites no authority for the proposition that a typographical
mistake in the naming of an offense renders a judgment void. Accordingly, the trial
court would not have erred by overruling an objection to the pen packets, had trial
counsel asserted one.
Moreover, Appellant did not raise her claims of ineffective assistance in a
motion for new trial. Thus, her trial counsel has not been afforded an opportunity to
respond to her allegations. The record is silent as to why Appellant’s trial counsel
did not object to the prosecutor’s remarks during jury argument or to the admission
of the pen packets. Appellant’s counsel may have believed that the State could have
overcome the objections and that, therefore, an objection would have been futile.
Furthermore, Appellant has not shown that the jury arguments were improper or that
the pen packets were inadmissible. Because the record contains no evidence of the
reasoning behind trial counsel’s actions, we cannot conclude that counsel’s
performance was deficient. Appellant has failed to overcome the presumption that
trial counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d at 833.
We overrule Appellant’s first, second, and third issues.
In her fourth issue, Appellant contends that “the errors complained of in this
appeal, and set out above [in her first three issues], are preserved despite the
Appellant’s failure to timely object.” “These errors, individually and cumulatively,
should permit the Appellant to have a new punishment hearing because the trial court
erred in allowing the argument, even without objection.” This is essentially a
fundamental error argument. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
7
App. 1985) (op. on reh’g). Even if the State’s arguments were incurable and rose to
the level that they deprived Appellant of her right to due process of law, Appellant
waived her complaints by failing to object in the trial court. Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996) (“[A] defendant’s failure to object to a jury
argument or a defendant’s failure to pursue to an adverse ruling his objection to a
jury argument forfeits his right to complain about the argument on appeal.”);
Morris v. State, 460 S.W.3d 190, 197 (Tex. App.—Houston [14th Dist.] 2015, no
pet.). We overrule Appellant’s fourth issue.
Finally, Appellant briefly discusses a purported “Unassigned Error Under
Anders” in her brief regarding a dispute she has with trial counsel about a purported
plea bargain offer. However, this alleged dispute is not properly briefed or alleged
as an issue on appeal. See TEX. R. APP. P. 38.1(i). Furthermore, there is no reference
to it in the appellate record.2 Accordingly, we disregard Appellant’s complaint.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
August 13, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
The Texas Court of Criminal Appeals has defined an “unassigned error” as “a claim that was
2
preserved in the trial court but was not raised by either party on appeal.” Pfeiffer v. State, 363 S.W.3d 594,
599 (Tex. Crim. App. 2012). Appellant’s alleged dispute with trial counsel does not constitute an
unassigned error because it was not raised in the trial court.
8