Jeremy Edward Sustaita v. State ( 2015 )

ACCEPTED
07-15-00067-cr
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
11/4/2015 2:49:50 PM
Vivian Long, Clerk
NOS. 07-15-00067-CR & 07-15-00068-CR
STATE REQUESTS
ORAL ARGUMENT
FILED IN
7th COURT OF APPEALS
ONLYAMARILLO,
IF APPELLANT
TEXAS
REQUESTS ARGUMENT
11/4/2015 2:49:50 PM
VIVIAN LONG
IN THE CLERK
COURT OF APPEALS
FOR THE
SEVENTH JUDICIAL DISTRICT OF TEXAS
AMARILLO, TEXAS
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JEREMY EDWARD SUSTAITA,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
******************************************************************
ON APPEAL FROM THE 181ST DISTRICT COURT
CAUSE NOS. 67,370-B & 68,439-B
POTTER COUNTY, TEXAS
HONORABLE JOHN BOARD, PRESIDING
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STATE’S BRIEF
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RANDALL SIMS, DISTRICT ATTORNEY
KATHERINE L. LEVY, SBN 12266480
Assistant District Attorney
501 S. Fillmore, Suite 5A
Amarillo, Texas 79101
(806) 379-2325; (806) 379-2823 fax
kathylevy@co.potter.tx.us
ATTORNEYS FOR THE STATE
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS………………………………………………………..…i
LIST OF AUTHORITIES………………………………………………………....ii
THE CASES IN BRIEF…………………….…………………………………...…1
STATEMENT OF THE CASES..………………………………………………….2
STATEMENT OF FACTS……………………………………………………...3-12
SUMMARY OF THE ARGUMENTS……………………………………………12
ARGUMENT………………………………………………………………….13-24
RESPONSIVE POINT ONE (TO APPELLANT’S “ISSUE ONE”):
The argument in this case does not warrant reversal..............................13-18
I. Appellant’s Contentions……………………………………………..13
II. Summary of the State’s Response…………………………………...13
III. Argument and Authorities…………………………………….…13-18
RESPONSIVE POINT TWO (TO APPELLANT’S “ISSUE TWO”):
Appellant received effective assistance of counsel…………………….18-24
I. Appellant’s Contentions………………………………………....18-19
II. Summary of the State’s Response…………………………………...19
III. Argument and Authorities……………………………………….19-24
CONCLUSION AND PRAYER……………………………………………….....25
CERTIFICATE OF SERVICE………………………………………………...25-26
CERTIFICATE OF COMPLIANCE…………………………………………...…26
i
LIST OF AUTHORITIES
PAGE
CASE LAW
Berry v. State, 233S.W.3d 847, 858-59 (Tex.Crim.App. 2007)……………..14, 20
Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)……………………15
Ex parte Martinez, 195 S.W.3d 713, 730 (Tex.Crim.App. 2006)……………….20
Ex parte White, 160 S.W.3d 46, 53-54 (Tex.Crim.App. 2004)………………….20
Grado v. State, 445 S.W.3d 736, 741 (Tex.Crim.App. 2014)……………….…..16
Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986)……………..20
Lopez v. State, 725 S.W.2d 487, 490 (Tex.App.—Corpus Christi 1987, no
pet.)……………………………………………………………………………17, 24
Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993), overruled on other
grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997)……………...16
Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002)…………………….15
McFarland v. State, 989 S.W.2d 749, 751 (Tex.Crim.App. 1999)…………..…23
Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998)………………..…17
Oliva v. State, 942 S.W.2d 727, 733-34 (Tex.App.—Houston [14th Dist.] 1997,
pet. dism’d)………………………………………………………………….....22-23
Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App. 2006)………………20
Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003)………….…24
Smith v. State, 286 S.W.3d 333, 340-43 (Tex.Crim.App. 2009)………………...21
ii
Strickland v. Washington, 466 U.S. 668, 687-95, 104 S. Ct. 2052, 2064-69, 80
L. Ed. 2d 674 (1984)……………………………………………………………20, 24
Threadgill v. State, 146 S.W.3d 654, 666-67, 670 (Tex.Crim.App. 2004)....15, 17
Tidmore v. State, 976 S.W.2d 724, 731-32 (Tex.App.—Tyler 1998, pet. ref’d)..15
Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000)……………………....20
STATUTORY LAW AND RULES
Texas Penal Code, section 12.42(d)…………………………………………..…13
Texas Penal Code, section 12.44(a)……………………………………………5, 8
Texas Rule of Appellate Procedure 9.4(i)(3)…………………………………...26
Texas Rule of Appellate Procedure 33.1(a)…………………………………….15
Texas Rule of Appellate Procedure 44.2(b)………………………………...14, 20
iii
NOS. 07-15-00067-CR & 07-15-00068-CR
IN THE
COURT OF APPEALS
FOR THE
SEVENTH JUDICIAL DISTRICT OF TEXAS
AMARILLO, TEXAS
******************************************************************
JEREMY EDWARD SUSTAITA,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
******************************************************************
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellee, the State of Texas (“State”), and submits its Brief
in response to the Brief of Appellant, Jeremy Edward Sustaita (“appellant”), in the
above entitled and numbered appeal. Appellant was twice convicted of possession
of a controlled substance, methamphetamine, enhanced, in the 181st Judicial
District Court of Potter County, Texas, the Honorable John Board, Presiding.
THE CASES IN BRIEF
CHARGE #1 POSS. C.S./METH/4G<200G/ENH.
CHARGE #2 POSS. C.S./METH/1G<4G/ENH.
PLEAS GUILTY/TRUE
VERDICTS (JUDGE) GUILTY/TRUE
PUNISH (JUDGE) #1 10 YEARS IN TDCJ-ID
PUNISH (JUDGE) #2 5 YEARS IN TDCJ-ID/CONCURRENT
1
In the interest of brevity, the State will use the following designations: (1)
the Clerk’s Record for 67,370-B will be listed as “CR#1” and 68,439-B as “CR#2”
with each followed by page numbers; (2) the consolidated Reporter’s Record will
be referred to as “RR” followed by volume and page numbers.
STATEMENT OF THE CASES
Appellant appeals his two convictions for possession of a controlled
substance, enhanced. CR#1:28-30; CR#2:33-38 Appellant was charged by
indictment from the Potter County Grand Jury for: (1) possession of a controlled
substance, methamphetamine, four or more but less than 200 grams, enhanced;
and, (2) possession of a controlled substance, methamphetamine, one or more but
less than four grams, enhanced. CR#1:11; CR#2:15 On January 27, 2015,
appellant executed written plea papers and entered pleas of “guilty” to both
indictments and “true” to the enhancement paragraphs. CR#1:13-23; CR#2:17-18,
24-30, 32; RR2:7-8 The trial court approved appellant’s admonitions, waivers, and
judicial confessions. CR#1:16, 19, 31; CR#2:21-22, 27, 30 There was no
agreement on punishment. CR#1:20; CR#2:31After hearing testimony and
evidence, the judge entered findings and assessed 10 years and five years,
respectively, on each case. CR#1:28-30; CR#2:33-38 Appellant filed Motions for
New Trial, Notices of Appeal, and the Trial Court’s Certifications of Defendant’s
Right of Appeal. CR#1:27, 33, 37, 39-40; CR#2:23, 39-40, 42
2
STATEMENT OF FACTS
To set a context for the State’s response, it offers a narrative of proceedings.
I. Pre-trial Proceedings. Appellant’s first indictment herein reads:
THE GRAND JURORS for Potter County, Texas, duly organized and
sworn as such at the July Term A.D., 2014, of the District Court of the 108th
Judicial District, in and for Potter County, Texas, upon their oaths in that
Court at that term, present that JEREMY EDWARD SUSTAITA, on or
about the 26th day of June, 2013, and before the presentment of this
indictment, in Potter County, Texas, did then and there intentionally or
knowingly possess a controlled substance, namely, methamphetamine, in an
amount of four grams or more but less than two hundred grams.
ENHANCEMENT PARAGRAPH
And the Grand Jury further presents that before the commission of the
primary offense, the defendant was finally convicted of the felony offense of
Unlawful Possession of a Firearm by a Felon in cause number 46,904-E of
the 108th District Court of Potter County, Texas on the 12th day of August,
2004. CR#1:11
Just over six months from the first meth offense, appellant was arrested again on
another possession and indicted a second time herein:
THE GRAND JURORS for Potter County, Texas, duly organized and
sworn as such at the July Term A.D., 2014, of the District Court of the 108th
Judicial District, in and for Potter County, Texas, upon their oaths in that
Court at that term, present that JEREMY EDWARD SUSTAITA, on or
about the 3rd day of January, 2014, and before the presentment of this
indictment, in Potter County, Texas, did then and there intentionally or
knowingly possess a controlled substance, namely, methamphetamine, in an
amount of one gram or more but less than four grams. CR#2:15
The same enhancement paragraph appears in both indictments. Id. In January of
2014, John Terry was appointed to represent appellant. CR#1:8-9, 12; CR#2:6-7,
3
16 The State filed some discovery items in appellant’s second case in February of
2014. CR#2:8-13 On August 28, 2014, the cases were transferred from the 108th to
the 181st Judicial District. #1CR:10; #2CR:14
II. Open Plea Proceedings. On January 27, 2015, the following papers
were executed in both cases: Application for Community Supervision, Waiver of
Jury, Waiver of Preservation of Evidence, and Written Plea Admonishments.
CR#1:13-19, 21-25, 31; CR#2:17-18, 20-22, 24-30, 32 Appellant and the attorneys
also noted in writing and at the open plea hearing there was no agreement on
punishment in either case. CR#1:20; CR#2:31; RR2:6
Appellant’s cases were called and the parties announced ready for what the
State understood was to be “guilty” and “true” pleas which the defense confirmed.
RR2:6 The trial court took judicial notice of appellant’s applications for
community supervision and waivers of jury trial. RR2:6-7 For the first indictment,
appellant entered pleas of “guilty” and “true” to the offense and enhancement.
RR2:7-8 The range of punishment was reviewed for the second degree felony
enhanced once case: not more than 99 years or less than five years and, in
addition, a fine not to exceed $10,000. CR#1:14; RR2:7 Next, appellant entered
pleas of “guilty” and “true” to the second indictment. RR2:8 The range of
punishment was reviewed for the third degree felony enhanced once case: not
more than 20 or less than two years and, in addition, a fine not to exceed $10,000.
4
CR#2:25; RR2:8 Thereafter, the judge went over the admonishments with
appellant. RR2:8-12 Appellant confirmed he had an opportunity to go over the
paperwork with his attorney and Mr. Terry answered any questions appellant had
about the pleas and the paperwork. RR2:10 Appellant was the only witness called
to testify at this open plea bench hearing. RR2:12
Jeremy Edward Sustaita. At trial, appellant was 35 years old. RR2:13, 26
Appellant acknowledged he was in court for two possession charges and admitted
he had other felony convictions besides the one in the indictments. RR2:13 He had
a state jail felony for burglary of a building and also an evading arrest charge for
which appellant got a 12.44 sentence reduction. RR2:13-14, 16 Appellant was
using drugs and alcohol at the time of the other felonies. RR2:15-16, 42-43
Appellant began using drugs in the fifth grade and cleaned up during his
incarcerations and for about five years when he was married and had kids.
RR2:14-15 Appellant relapsed when he separated from his wife. RR2:16-17
Appellant testified he had never been in trouble for drugs before these two cases.
RR2:17-18 At trial, appellant characterized himself as an addict. Id. In prison, he
went to NA classes but that was all that was offered and no other programs.
RR2:18 His parole officer mentioned ACADA when he got out of prison but
appellant states she never made him go through with it. Id.
5
Defense counsel visited appellant three times at the jail and they discussed
everything about appellant’s cases. RR2:19 Appellant testified he did not want to
have a jury trial but wanted to go to the judge and get probation. RR2:19, 22
Defense counsel explained to appellant if he got a sentence over 10 years he could
not get probation. RR2:22 Appellant acknowledged since no deal was in place, he
decided to plead “guilty” and ask for leniency and mercy from the trial court.
RR2:19-21 Appellant confirmed his guilt for both possession offenses. RR2:28 He
claims he has never been sent to rehab. RR2:17-18, 21 Appellant wants the judge
to put him on community supervision so he can go to rehab for the first time.
RR2:21 Defense counsel explained SAFPF to appellant and appellant wants to do
it. RR2:21-25Appellant asked the judge to consider a long-term sentence, probated,
with an order for SAFPF and an aftercare program so he can get off drugs.
RR2:22-23 Appellant worked for eight years in spray insulation and would get and
keep a job if given probation and help take care of his kids. RR2:23, 25 He would
wear an ankle monitor and do the intensive supervision and submit to urinalysis
tests. RR2:24-25 Appellant wants a shot at rehabilitation and a chance to be
successful and not go to prison. RR2:24-26
Appellant admits he was approached by law enforcement to assist the drug
task force and agreed to do it but then changed his mind. RR2:20 Appellant was
concerned for his family’s safety and just wanted to pay for what he had done. Id.
6
Appellant admits he had a set of scales when arrested but claims he used them so
he would not get ripped off. Id. Appellant acknowledged when arrested on June 26,
2013, he had 8.82 grams of meth which costs a couple of hundred dollars but
testified it was all for personal use and the scales were not used for selling to
support his habit. RR2:26-28 When appellant was arrested again on January 3,
2014, he had 2.75 grams of meth on him. RR2:27-28
On cross-examination, appellant’s prior convictions and probations were
reviewed. RR2:28-32 Appellant admits to using hard drugs about eight years
before he was convicted of burglary of a building in 2001. RR2:28-29 The offense
occurred in 1997 and he pled to two years in state jail but his sentence was
suspended for four years of felony probation in 1999. RR2:28-31 Appellant got his
probation revoked and then was sentenced to 14 months in a state jail facility.
RR2:29-31; State’s Exhibit:1 When appellant got out from state jail, he committed
a new offense on December 29, 2002: unlawful possession of a firearm by a felon.
RR2:31-32; State’s Exhibit:2A-2B Appellant pled “guilty” to that offense and got
sentenced to seven years, probated for seven years’ probation, but violated
probation again—partly for injurious habits like using drugs—and was sentenced
to seven years prison time on August 12, 2004. RR2:31-33, 36-37, 42-43; State’s
Exhibits:2A-2B Appellant also got revoked because he did not submit to drug and
7
alcohol evaluation treatment because he knew he would fail. RR2:43 Besides
methamphetamine, appellant has used marijuana and cocaine. RR2:36-37, 42-43
When cross-examined about being offered an opportunity to go to SAFPF
during appellant’s probation for unlawful possession of a firearm, appellant
claimed he could not recall it. RR2:33 Similarly, appellant could not recall he had
been offered to go to ACADA while on probation in 2003. RR2:33-34 If he
completed ACADA, appellant testified he would have remembered it but could not
remember if he ever went. RR2:34 Then, appellant admitted he did recall turning
down SAFPF when it was offered and that he was referred to ACADA but never
went and that was another reason why his probation got revoked. RR2:34-35
Appellant acknowledged he has already had two felonies and two felony
probations. RR2:35-36, 40 Appellant also got charged with resisting arrest and
driving with an invalid license and possession of marijuana. RR2:35-36 For
resisting arrest and driving with an invalid license, he got 240 days in jail. RR2:36
For possession of marijuana, he got 120 days in jail. Id.
After appellant got out of prison for unlawful possession of a firearm, he
was arrested and charged in 2008 with felony evading arrest with a vehicle.
RR2:37 Although a state jail felony, appellant got a 12.44(a) reduction and did
nine months in jail, with a $250 fine. RR2:37-38; State’s Exhibit:3 Appellant also
got a plea bargain for driving while intoxicated, plead down to a Class A
8
misdemeanor, and did one year in jail with a $250 fine. RR2:38-39; State’s
Exhibit:4 When appellant got out of jail, he had another misdemeanor in 2012 and
then got 75 days in jail for violation of a protective order. RR2:39 While appellant
acknowledged he has already had two prior felony probations, he asked the trial
court for a third and fourth chance at probation. RR2:40
Appellant stated he has a lot of habits, including these 10 criminal cases: (1)
burglary of a building; (2) unlawful possession of a firearm by a felon; (3) resisting
arrest; (4) driving with license suspended; (5) possession of marijuana; (6) evading
arrest with a vehicle; (7) driving while intoxicated; (8) violation of a protective
order; (9) possession of controlled substance, enhanced; and, (10) possession of a
controlled substance, enhanced. RR2:40-41, 44 Appellant agreed the phrase
habitual offender, or, somebody who makes a habit out of committing crimes,
might describe him. RR2:41, 43-44
The trial court asked appellant how each recent arrest happened. RR2:44-47
Appellant stated the drugs from the June 26, 2013, incident were on his person and
all in one baggie. RR2:44-46 On the second arrest, appellant had the drugs on his
person in a single baggie. RR2:46-47 On cross-examination, it was pointed out
that the lab report from the first arrest had meth submitted in two bags (6.46 and
2.36 grams) and the lab report for the second arrest had the meth divided up in four
9
separate bags (.06, .23, 1.12, and 1.25). RR2:47-48 On defense exam, appellant
testified he also carried a syringe with him. RR2:49
Closing Arguments. The State argued appellant had already been in and out
of court for criminal offenses from age 20 and outlined his eight priors. RR2:50
The enhanced punishment range for appellant’s two latest cases was reviewed: (1)
five-to-99 years, with fine up to $10,000; and (2) two-to-20 years with same fine.
Id. The State argued appellant “doesn’t fit what the Code says is a habitual felony
offender because of the kinds of felonies” he has had. RR2:50-51The State noted
appellant’s two most recent cases do not fit under the habitual felony offender
statute, 25-to-99 years, even though he has 10 criminal cases. RR2:51
At this juncture in the proceedings, the State misspoke, the defense
interrupted, and the prosecutor apologized and corrected his argument. RR2:51-52
The State highlighted appellant had been on probation twice for a felony, revoked
twice for a felony, and then sentenced to seven years and it made no impression.
RR2:52 For the first degree enhanced case, the State suggested a 20-to-25 year
sentence, and, for the other case, 10-to-20 years. Id.
The defense began argument by agreeing with the State that appellant did
not fit the profile set out in the statutes of one subject to habitual offender
punishment. RR2:53 Defense counsel asked the trial court to treat the cause
instead of the symptoms of appellant’s addiction and to require treatment and not
10
just lock him up. RR2:53-55 Since appellant had been an addict for so long, the
defense stressed appellant needed rehabilitation and not prison. Id. The State’s
final argument pointed out that appellant repeatedly made the choice to violate the
law and that appellant’s crimes are not as much drug related as antisocial type of
situations. RR2:55-56The State argued appellant has had opportunities for
treatment in the past but chose not to take them. Id.
Trial Court Rulings. The trial court accepted appellant’s “guilty” and
“true” pleas. RR2:56, 58 Next, the judge commented what both lawyers said was
true and that appellant’s situation is a difficult one. RR2:56-57 The criminal
history was of concern to the judge since appellant was on his ninth and 10th cases.
RR2:57 The judge mentioned he runs a drug court and knows about addiction; a
user amount of meth and a dealer amount. RR2:53, 57 The trial judge commented
he had no doubt appellant was using but also believed that appellant was dealing to
support his habit. RR2:57 The trial court noted probation is for people that
deserve a second chance, not a 10th chance, and appellant has had multiple
chances. Id. In good conscience, the judge stated he did not think appellant’s latest
cases were appropriate for probation but agreed appellant needs treatment and
hopes he gets it someday. RR2:57-58 Lastly, appellant was sentenced on the low
end of the punishment range for each case: (1) for Cause Number 67,370-B,
11
appellant was assessed 10 years in TDC-ID; and, (2) for Cause Number 68,439-B,
appellant was assessed five years in TDCJ-ID, to run concurrent, no fines. RR2:58
SUMMARY OF THE ARGUMENTS
For issue one, argument of counsel during this open plea bench hearing was
sufficiently appropriate and appellant’s claims of entitlement to reversal are
without merit. Moreover, complaints about allegedly improper argument and
prosecutorial misconduct were waived, and the right to appellate review thereof
forfeited, for lack of objection. Furthermore, as to closing argument, it was made
to the trial court as trier of fact rather than before a jury and it is presumed that the
judge in such circumstances disregarded any alleged improper argument.
For issue two, appellant’s ineffectiveness claim should be denied. Defense
counsel’s failure to object to the State’s misstatement about prior convictions, a
mistake which was quickly corrected by the State, can be seen as legitimate trial
strategy to avoid overemphasis of appellant’s many prior convictions and not as
ineffective assistance. When read in context, the error was fixed after defense
counsel’s “[e]xcuse me” interruption, thus obviating any further challenge
necessary to the prosecutor’s argument. In sum, the sentences imposed by the trial
court were on the lower end of the punishment range for each and appellant has not
shown there is a reasonable probability that but for counsel’s alleged error that the
sentences imposed by the trial court would have been significantly less.
12
ARGUMENT
RESPONSIVE POINT ONE (TO APPELLANT’S “ISSUE ONE”):
The argument in this case does not warrant reversal.
I. Appellant’s Contentions. Appellant contends the State engaged in
prosecutorial misconduct when it improperly argued appellant should be punished
as a habitual felony offender. Although appellant encountered the criminal system
on multiple occasions, it was impermissible to argue Texas Penal Code, section
12.42(d), applied to appellant. Accordingly, appellant claims he is entitled to
reversal and remand for a new punishment hearing.
II. Summary of the State’s Response. As an initial matter, appellant waived
for appellate review his challenge to the prosecutor’s closing argument statement.
Additionally, when the prosecutor’s closing argument is viewed as a whole, the
entire argument and not just isolated sentences, the misstatement did not rise to the
level of prosecutorial misconduct. When read in context, the State was simply
focused on appellant’s many criminal convictions and prior chances at rehab and
probation. Finally, argument was made to bench, rather than to a jury, and the trial
judge is presumed to have disregarded any allegedly improper argument.
III. Argument and Authorities. A. Standard of Review. When reviewing a
prosecutor’s comments during closing argument, it is to be kept in mind that
“[p]ermissible jury argument generally falls into one of four areas: (1) summation
13
of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the
argument of opposing counsel; or (4) a plea for law enforcement.” Berry v. State,
233 S.W.3d 847, 859 (Tex.Crim.App. 2007). If a prosecutor’s comments fall
outside these permissible categories, one considers three factors in assessing the
resulting harm: (1) the severity of the prosecutor’s misconduct (i.e., the magnitude
of the remarks’ prejudicial effect); (2) the measures adopted to cure the misconduct
(i.e., the efficacy of any cautionary instruction by the judge); and, (3) the certainty
of conviction absent the misconduct (i.e., the strength of the evidence supporting
the conviction). Id. at 858-59. A prosecutor’s impermissible comments are
grounds for reversal only if they harm the defendant; that is, affect his substantial
rights. Id. at 859 (citing TEX. R. APP. P. 44.2(b)).
B. Relevant Record Excerpts. After outlining appellant’s eight prior
convictions, the State misspoke as follows:
STATE: And you know, they once said, you know, you have no way of
judging the future except by the past. Well, the past in this case is eight
other felony convictions before today. Today add two more.
DEFENSE: Excuse me.
STATE: I’m sorry. Criminal convictions. I apologize. Yeah, I misstated.
Eight other convictions. Three felonies and five misdemeanors and now
here we are, two more felonies, the most serious of the bunch. RR2:51-52
(emphasis added)
Thereafter, the State argued appellant should not be a candidate for probation again
since he was on probation twice before on a felony and revoked twice on a felony
14
and suggested punishment at 20-to-25 years for the first meth case and 10-to-20
years for the second. RR2:52 Defense counsel’s argument then began as follows:
I agree with Mr. Slaughter. This does not fit the profile set out in the
statutes as a habitual offender. It does fit a different profile, that of a drug
addict. RR2:53
C. Discussion. “[A] defendant’s ‘right’ not to be subjected to incurable
erroneous jury arguments is one of those rights that is forfeited by a failure to insist
upon it.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); TEX. R.
APP. P. 33.1(a). Therefore, a defendant’s right 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. Cockrell, 933 S.W.2d
at 89; Tidmore v. State, 976 S.W.2d 724, 731-32 (Tex.App.—Tyler 1998, pet.
ref’d). Since Cockrell was decided, the Texas Court of Criminal Appeals has
repeatedly reaffirmed its position on this issue in several cases, noting that its
position is in line with Texas Rule of Appellate Procedure 33.1, which provides
that as a prerequisite for presenting a complaint for appellate review, the record
must show that the appellant made a “timely request, objection, or motion” in the
trial court. See Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002)
(affirming Cockrell as being in line with Texas Rule of Appellate Procedure
33.1 and the policies “underlying preservation of error”); Threadgill v. State, 146
S.W.3d 654, 670 (Tex.Crim.App. 2004) (reaffirming that “Cockrell remains the
15
law,” and holding that the appellant had forfeited his right to complain about an
allegedly improper argument due to his failure to lodge a timely objection at trial).
In the present case, appellant’s complaint about the prosecutor’s closing
argument falls into the category of forfeitable rights and therefore appellant
forfeited his right to complain on appeal about the prosecutor’s closing argument.
See Grado v. State, 445 S.W.3d 736, 741 (Tex.Crim.App. 2014); Marin v. State,
851 S.W.2d 275 (Tex.Crim.App. 1993), overruled on other grounds by Cain v.
State, 947 S.W.2d 262 (Tex.Crim.App. 1997). Based on the foregoing, appellant
should not be heard to complain about the allegedly improper argument on appeal.
It is further critical to note that besides raising no formal objection on any
ground to the State’s argument, this proceeding was tried before the judge. As
noted in the Statement of Facts, appellant elected to have his punishment fixed by
the trial judge rather than by the jury. CR#1:24-25; CR#2:20-21; RR2:6-7, 19, 22
As such, the trial court sat as trier of fact for punishment at appellant’s bench trial.
Although appellant complains of allegedly improper argument by the prosecutor
during closing, the State suggests that merely a misstatement occurred, and as soon
as the mistake was brought to the prosecutor’s attention by the defense, the
argument was promptly corrected. Assuming arguendo the misstatement was not
pointed out by the defense and immediately fixed by the prosecutor, the trial court
was sitting as trier of fact and quite capable of disregarding any improper argument
16
and is presumed to have done so. See Lopez v. State, 725 S.W.2d 487, 490
(Tex.App.—Corpus Christi 1987, no pet.). In other words, appellant cannot
prevail and obtain reversal on his claim of prosecutorial misconduct by improper
argument where the trial court sat as trier of fact rather than a jury. Hereunder, it
should be noted that the cases cited in appellant’s brief deal with jury argument
and are generally inapplicable.
To summarize, the initial misstatement by the State was quickly corrected
upon interruption by defense counsel. Recognizing his error, the prosecutor
apologized and went on to advise the trial court of the proper classification of
appellant’s prior criminal convictions. From that point forward, the State properly
used the term criminal convictions versus felony convictions in its continued
discussion about appellant’s history and eight prior convictions. The prosecutor’s
argument fell within permissible bounds and it did not amount to severe
misconduct or affect appellant’s substantial rights, and therefore, should be
disregarded. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998);
Threadgill, 146 S.W.3d at 666-67; TEX. R. APP. R. 44.2(b).
Finally, the prosecutor in very plain words gave the position of the State of
Texas on appellant’s latest cases, and that position was that these were not
probation cases and urged that appellant should get more time since he was on his
ninth and 10th criminal convictions. The prosecutor expressed an opinion that the
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number of appellant’s criminal convictions was excessive, and, indeed, appellant
agreed his courtroom criminal encounters had become a habit. RR2:41, 43-44, 50-
52 Both the prosecutor and defense agreed appellant was not punishable under the
Texas Penal Code as a habitual felony offender. RR2:50-51, 53 The plea papers,
testimony and evidence, argument, and sentences imposed make it clear there was
no confusion about the applicable ranges of punishment.
D. Conclusion. In conclusion, appellant’s first issue should be denied
because (1) appellant did not object to the State’s initial misstatement and thereby
waived review; (2) the trial court was sitting as trier of fact and was quite capable
of disregarding any allegedly improper argument, and should be presumed to have
done so; and, (3) any allegedly inappropriate prosecutorial argument was quickly
corrected, and, when examined as a whole in context, the argument did not amount
to prosecutorial misconduct. Thus, appellant’s claim of entitlement to reversal in
issue one is without merit.
RESPONSIVE POINT TWO (TO APPELLANT’S “ISSUE TWO”):
Appellant received effective assistance of counsel.
I. Appellant’s Contentions. Appellant contends he is entitled to a new
punishment trial because his counsel was ineffective. According to appellant,
defense counsel should have formally objected when the State mischaracterized
appellant’s eight prior convictions as felonies and argued appellant was a habitual
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offender. Although defense counsel clarified—along with the prosecutor—that
appellant had eight prior criminal convictions and did not fit the profile set out in
the statute as a habitual offender, appellant claims he was denied a fair proceeding.
II. Summary of the State’s Response. The State asserts that it “discussed
appellant’s criminal history, ad naseum,” as appellant complains on appeal,
because appellant had so many convictions. Appellant’s Brief:14-17 Appellant’s
significant criminal history was rightfully the focus of the prosecution on
punishment, and, in particular, appellant’s lack of success on probation. For
strategic reasons, defense counsel presented ample mitigation testimony from
appellant and obviously chose to refrain from discussion of appellant’s many
convictions to de-emphasize them and argue for assistance for appellant’s drug
habit. Although appellant did not get rehab and probation as desired, his
punishment was very near the low end on both of the enhanced felony convictions.
Based upon a review of the record, appellant did not show there was a reasonable
probability of a different result even if defense counsel had formally objected at
closing argument.
III. Argument and Authorities. A. Standard of Review. To prevail on his
ineffective assistance claim, appellant must prove by a preponderance of the
evidence that (1) his counsel’s representation fell below an objective standard of
reasonableness, based on prevailing professional norms, and (2) there is a
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reasonable probability that the result of the proceeding would have been different
but for trial counsel’s deficient performance. See Strickland v. Washington, 466
U.S. 668, 687-95, 104 S. Ct. 2052, 2064-69, 80 L. Ed. 2d 674 (1984); Tong v. State,
25 S.W.3d 707, 712 (Tex.Crim.App. 2000); Hernandez v. State, 726 S.W.2d 53,
55-57 (Tex.Crim.App. 1986). It is now axiomatic that the right to counsel does not
mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483
(Tex.Crim.App. 2006). Failure to satisfy either prong of the Strickland test is
fatal. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex.Crim.App. 2006).
As noted above, permissible argument generally falls into one of four areas:
(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an
answer to the argument of opposing counsel; or (4) a plea for law enforcement.
Berry, 233 S.W.3d at 859. The State is allowed to make reasonable inferences
during closing argument. Id. If the State’s closing argument was proper,
appellant’s counsel was not deficient by failing to object. See Ex parte White,
160 S.W.3d 46, 53-54 (Tex.Crim.App. 2004). Before entitlement to a new
punishment hearing alleging ineffective assistance, appellant must demonstrate
sufficient facts from which a Court could reasonably conclude both that counsel
failed to act as a reasonably competent attorney and that, but for counsel’s failure,
there is a reasonable likelihood that the outcome of his trial would have been
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different. Smith v. State, 286 S.W.3d 333, 340-43 (Tex.Crim.App. 2009); King v.
State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000).
B. Discussion. In his last issue, appellant complains that his trial counsel
was ineffective by failing to object to the prosecutor’s closing argument. The State
urgues on appeal that appellant cannot meet his burden to demonstrate his counsel
rendered ineffective assistance on this record. The “improper argument” that the
State made about appellant’s prior eight convictions as all felony convictions was a
misstatement and after recognizing the error, upon defense counsel’s interruption,
the prosecutor immediately apologized—three times—and advised the trial court
of the correct classification of appellant’s eight prior convictions. RR2:51-52 From
that point forward, the State properly referred to the prior criminal convictions and
there was no need to further object as the problem had been remedied. Also,
counsel could have determined that it was unnecessary to address the matter
further because the trial court sat as trier of fact and the defense undoubtedly
wanted to de-emphasize appellant’s rather extensive criminal history as the defense
pushed for rehab and probation.
Although defense counsel could have formally objected instead of using the
more polite “[e]xcuse me” interruption, defense counsel’s performance does not
fall below the objective standard of reasonableness in failing to object to the
prosecutor’s argument. The record does not support a conclusion that, if counsel
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had formally objected to this argument, there is a probability that the outcome of
the proceeding would have been different. The interruption did the trick. The
statement about which appellant complains was one comment in the middle of a
short argument to the trial judge that predominately focused on appellant’s prior
chances at rehab and probation and a prior seven-year sentence which made no
impression. RR2:50-52, 55-56 Although the State suggested a 20-to-25 year
sentence on appellant’s ninth case and a 10-to-20 year sentence on his 10th, the trial
court sentenced appellant to 10 years and five years, respectively, concurrent, with
no fines. RR2:52, 58 Appellant received less than the State requested and close to
the minimum of the punishment range for each offense: five-to-99 years on the
ninth conviction; and, two-to-20 years on the 10th conviction. CR#1:14, 28-30;
CR#2:25, 33-38; RR2:7-8, 50, 58 Taking into account such factors as appellant’s
actual sentences, the potential minimum and maximum sentences, the extensive
criminal history he had, and past opportunities for rehab and probation and prison
time, appellant received rather lenient sentencing. Even assuming arguendo that
counsel’s performance was deficient, appellant failed to show that there was a
reasonable probability that his sentences would have been significantly less absent
his counsel’s purported error.
The present case is distinguishable from Oliva and the other jury trial cases
cited by appellant. Oliva v. State, 942 S.W.2d 727 (Tex.App.—Houston [14th
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Dist.] 1997, pet. dism’d). Unlike the prosecutor in Oliva, the prosecution in this
case was before the judge on punishment. At close, the prosecutor summarized
prior convictions and questioned appellant’s ability to benefit from rehab,
probation, and a light sentence given the prior criminal history. A summation of
evidence presented at trial is one of the four permissible areas of proper argument.
See McFarland v. State, 989 S.W.2d 749, 751 (Tex.Crim.App. 1999). Unlike
Oliva, the complained-of comment did not refer to appellant’s lack of remorse but
instead on appellant’s rather lengthy criminal history, including a seven-year
sentence, and prior missed opportunities at drug rehabilitation and probation.
Oliva, 942 S.W.2d at 733-34; RR2:51-52, 55-56 The record supports that there
was no prosecutorial misconduct and that defense counsel’s interruption was
sufficiently effective to clarify the misstatement. Therefore, the defense did not err
in failing to formally object and, in any event, the trial court was more than capable
of disregarding the initial misstatement made by the prosecutor. Based upon these
facts and this record, counsel rendered reasonably effective assistance during
closing argument.
Hence, defense counsel’s alleged failure did not prejudice appellant. The
State corrected its mistake and did not engage in prosecutorial misconduct and any
alleged error did not affect appellant’s substantial rights. Given that defense
counsel chose a more polite interruption to correct the State’s misstatement, it
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could be plausible trial strategy, on this record, for defense counsel to refrain from
further objection so as not to highlight appellant’s criminal history before the trial
court sitting as trier of fact versus a jury and with the judge quite capable of
disregarding any improper argument. Rylander v. State, 101 S.W.3d 107, 110-11
(Tex.Crim.App. 2003); Lopez, 725 S.W.2d at 490. The State urges appellant has
not made an adequate showing of prejudice; that is, he has not shown there is a
reasonable probability that but for trial counsel’s alleged error in not objecting, the
sentences imposed by the trial court would have been significantly less. In sum,
defense counsel was not deficient and appellant was not prejudiced given the
lenient sentences imposed on appellant’s ninth and 10th convictions.
C. Conclusion. Appellant has not satisfied both elements of the Strickland
test on this record. Appellant has not shown that counsel’s performance was
deficient and that there would have been probable change in outcome but for the
alleged ineffective representation. In the defense closing argument, counsel
reiterated—what all parties already knew—that appellant “did not fit the profile set
out in the statutes as a habitual offender.” RR2:53 Although appellant did not get
rehabilitation and probation as requested, his punishments were well below what
the prosecution recommended and close to the minimum. Thus, appellant was not
denied effective assistance of counsel and his claims for relief should be in all
respects denied.
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CONCLUSION AND PRAYER
Appellant’s judgment of conviction by the trial court in both cases should be
in all things upheld for the reasons outlined above. Appellant’s claim of reversible
prosecutorial misconduct should be overruled as well as his contention that he
received ineffective assistance of counsel.
WHEREFORE, PREMISES CONSIDERED, the State respectfully prays
upon consideration of the responsive points expressed and discussed herein, this
Honorable Court deny appellant’s issues one and two and affirm appellant’s
convictions.
Respectfully submitted,
RANDALL SIMS, 47TH DISTRICT ATTORNEY
Potter County Courts Building
/s/ Katherine L. Levy
KATHERINE L. LEVY, SBN 12266480
Assistant District Attorney
501 S. Fillmore, Suite 5A
Amarillo, Texas 79101
kathylevy@co.potter.tx.us
(806) 379-2325; fax (806) 379-2823
ATTORNEYS FOR THE STATE
CERTIFICATE OF SERVICE
I hereby certify that on this the 4th day of November, 2015, a true copy of the
foregoing State’s Brief was served on appellant’s attorney, Steven M. Denny, 2414
Line Avenue, Amarillo, Texas, 79106, email lawyerdenny@aol.com.
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/s/ Katherine L. Levy
Assistant District Attorney
CERTIFICATE OF COMPLIANCE
In accordance with TEX. R. APP. P. 9.4(i)(3), I hereby certify that the
foregoing Brief contains, as reflected in the computer word count, 6,330 words.
That count includes all words in the Brief, including words which, under the Rule,
are excluded from the prescribed word limit.
/s/Katherine L. Levy
Assistant District Attorney
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