Charles Nails v. State ( 2011 )

NO. 07-11-0010-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 6, 2011
CHARLES NAILS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B18451-1006; HONORABLE ED SELF, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Charles Nails, appellant, appeals his conviction for possession of a controlled
substance. Through a single issue, appellant contends he received ineffective
assistance of counsel. We affirm.
Appellant contends that counsel was ineffective because during closing
argument, counsel “mentioned twice a 1973 conviction which was not before the jury.”
Furthermore, the jury, during deliberations, sent a note requesting more information
about the 1973 conviction. Therefore, according to appellant, counsel was deficient by
mentioning the prior conviction when it was not before the jury and prejudice was shown
by the jury’s note. We disagree.
In any case analyzing the effective assistance of counsel, we begin with the
presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994) (en banc). We assume counsel's actions and decisions were
reasonably professional and that they were motivated by sound trial strategy. Id.
Moreover, it is the appellant's burden to rebut this presumption via evidence illustrating
why trial counsel did what he did. Jackson v. State, 877 S.W.2d at 771 (refusing to hold
counsel's performance deficient given the absence of evidence concerning counsel's
reasons for choosing the course he did); Rodriguez v. State, 955 S.W.2d 171, 176-77
(Tex. App.–Amarillo 1997, no pet.); Davis v. State, 930 S.W.2d 765, 769 (Tex. App.–
Houston [1st Dist.] 1996, pet. ref'd); Kemp v. State, 892 S.W.2d 112, 114-15 (Tex. App.
–Houston [1st Dist.] 1994, pet. ref'd). Without such evidence, we must assume that he
had a legitimate reason for acting as he did. Jackson v. State, 877 S.W.2d at 771.
Here, appellant plead guilty and presented evidence to the jury regarding
punishment. After the jury charge was read, both sides presented closing argument.
The State argued appellant’s past criminal record, which contained a felony conviction
in 1992, wherein the judgment was admitted into evidence. Furthermore, the State
pointed out that the original sentence was probated and then revoked. Defense counsel
responded to the State’s argument as follows: “You will be able to take those exhibits
back with you. If you look at the 1973, a 37-year-ago judgment, you find out [appellant]
served at least a portion of one year in jail. If you look at the second one, you will see
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that he served less than one year in jail.” Later, again in closing argument, defense
counsel made the following statement: “I’d point out to you, and it’s shown in these
documents, one case is at least 37 years old, the other case is at least 18 years old,
and he served less than one year.” After the jury retired for deliberations, it sent out a
note stating that it would like more information of the 1973 charges that defense counsel
mentioned in his closing arguments along with questions regarding the weight of the
drug he possessed in the present charge, what amount was considered for personal
use and why was his probation revoked. The trial court responded that it could not
answer the questions, nor could the parties add evidence to that already admitted and
that the jury needed to follow the instructions given in the charge. In reviewing the
record, we find the copy of a 1992 judgment but none for 1973. The jury sentenced
appellant to eight years in prison out of a possible twenty.
Because no motion for new trial was filed nor a hearing held to determine trial
counsel’s strategy or possibly a mistaken belief that appellant had a 1973 conviction, we
are left to speculate as to those motives. Furthermore, because there is no evidence
regarding a 1973 conviction and counsel’s arguments do not constitute evidence, we
must find that the jury complied with the trial court’s instructions and considered only the
evidence before them. Therefore, no evidence appears of record purporting to illustrate
the reasons or motivations, if any, underlying trial counsel’s decisions or actions. This is
problematic because we are to presume that counsel based those decisions and
actions on sound trial strategy. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App.
2007). Furthermore, that presumption cannot generally be overcome absent evidence
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of those reasons and motives appearing in the record. Ex parte Niswanger, 335 S.W.3d
611, 615 (Tex. Crim. App. 2011).
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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