JUAN RAMIREZ v. THE STATE OF TEXAS--Appeal from 148th District Court of Nueces County

NUMBER 13-00-708-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JUAN RAMIREZ, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

On appeal from the 148th District Court

  of  Nueces County,  Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Chief Justice Valdez

Appellant was convicted of aggravated assault and sentenced to fifteen years imprisonment. Appellant raises two points of error: (1) whether he was denied due process when the trial court incorrectly instructed the jury, during the punishment phase of the trial, that he may be eligible for good time credit, when in fact he had been convicted of aggravated assault with a deadly weapon and was ineligible for such credits; and (2) whether trial counsel was ineffective. We affirm.

Appellant argues in his first point of error that instructing the jury that he may earn time off the period of incarceration through the award of good conduct time was misleading as applied to him because he is not eligible for mandatory supervision, thereby denying him due process of law. The trial court instructed the jury in accordance with article 37.07, Section 4(a) of the Texas Code of Criminal Procedure.

Appellant did not object to this instruction at trial. Even in the absence of an objection, an appellate court is required to review a complaint that charge error violates a constitutional provision by the following standard: the judgment shall not be reversed unless it appears from the record that the defendant has not had a fair and impartial trial. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2002).

The instruction informing the jury of the existence and mechanics of parole law and good conduct time is mandatory. Tex. Code Crim. Proc. Ann. art. 37.07, ' 4 (Vernon Supp. 2002). The charge is universally applicable to all non-capital felonies listed in article 42.12, section 3g(a) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art 42.12, ' 3g(a) (Vernon Supp. 2002). Because appellant was convicted of an offense for which the judgment contains a deadly weapon finding under section 3g(a)(2) of article 42.12 of the code of criminal procedure, he was not eligible for mandatory supervision. See Tex. Gov=t Code Ann. ' 508.149 (Vernon Supp. 2002).

Appellant=s argument that instructing the jury that he may earn time off the period of incarceration through the award of good conduct time was misleading as applied to him because he is not eligible for mandatory supervision has been addressed and expressly rejected by other courts of appeals. See, e.g., Washington v. State, 59 S.W.3d 260, 266 (Tex. App.BTexarkana 2001, pet. filed); Alawad v. State, 57 S.W.3d 24, 26 (Tex. App.BHouston [14th Dist.] 2001, pet. filed); Felan v. State, 44 S.W.3d 249, 258 (Tex. App.BFort Worth 2001, pet. filed); see also Jimenez v. State, 992 S.W.2d 633 (Tex. App.BHouston [1st Dist.] 1999), aff=d on other grounds, 32 S.W.3d 233 (Tex. Crim. App. 2000), overruled by Bui v. State, 2002 Tex. App. LEXIS 484, No. 01-00-00507-CR (Tex. App.BHouston [1st Dist.] Jan. 24, 2002, no pet.)(Bui overruled Jimenez and held that reference to good conduct time does not violate state due course of law and federal due process protections when applied to defendants whose actual time in prison is affected by section 508.149(a) of the Texas Government Code, which lists instances in which inmates are ineligible for mandatory supervision).

The charge in question instructs the jury that it cannot accurately predict how the parole law and good conduct time might be applied to appellant and that it is not to consider the extent to which good conduct time may be awarded to him. The charge refers to good conduct time as only a possibility rather than a certainty.

An appellate court may assume that the jury will follow the instruction as given, and will not reverse in the absence of evidence that the jury was actually confused by the charge. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). Nothing in the record in the instant case suggests that the jury discussed, considered or tried to apply what they were told about good time and parole. See Martinez v. State, 969 S.W.2d 497, 501 (Tex. App.BAustin 1998, no pet.). There were no notes to the judge indicating confusion, nor was there testimony of jurors concerning misconduct. If the jury follows the directions, there is no confusion or harm. Id.

We find the charge is not misleading and, therefore, appellant was not denied due process of law. Consequently, the trial court did not err instructing the jury on good conduct time. Appellant=s first point of error is overruled.

Appellant argues in his second point of error that counsel was ineffective for: (1) failing to object to the jury charge mentioned in point of error one; (2) using a self-defense strategy; and (3) representing both appellant and his co-defendant.

The proper standard for determining claims of ineffective assistance under the Sixth Amendment is set out in Strickland v. Washington, 466 U.S. 668 (1984). Texas adopted the Strickland standard in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). In Strickland, the Supreme Court identified a two-pronged analysis for claims of ineffective assistance. Strickland, 466 U.S. at 687. Under the first prong, the defendant must show that counsel=s performance was deficient, to the extent that counsel failed to function as Acounsel@ guaranteed by the Sixth Amendment. Id. Under the second prong, the defendant must show that counsel=s deficient performance prejudiced the defense. Id. To show prejudice, the Adefendant must show that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.@ Id.at 694. Under the Strickland test, the defendant bears the burden of proving ineffective assistance. Id.at 684. Furthermore, when reviewing a claim of ineffective assistance, Aa court must indulge a strong presumption, that counsel=s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action >might be considered sound trial strategy.=@ Id.at 689.

A. Failure to Object to the Jury Charge

Appellant=s first complaint concerns trial counsel=s failure to object to the inclusion of the mandatory parole instruction in the jury charge, which was the subject of the issue raised by his first point of error. Appellant argues that A if a defendant=s attorney fails to challenge a correctable error, without a plausible strategic reason, any increase in the actual punishment can establish prejudice and thus the ineffective assistance of counsel.@

We again note that the 37.07 charge is a mandatory universal charge applicable to all non-capital felonies listed under code of criminal procedure article 42.12, section 3g(a). Tex. Code. Crim. Proc. Ann. art 42.12, ' 3g(a) (Vernon Supp. 2002).

Accordingly, we hold that counsel=s performance is not deficient merely because he fails to object to a mandatory charge. We further recognize that the appellant has failed to establish the second prong and detail how he was prejudiced by the inclusion of this jury charge.

Appellant=s first contention regarding ineffective assistance of counsel is without merit.

B. Self-Defense Strategy

By his second specific complaint, appellant argues that trial counsel was ineffective due to trial counsel=s use of the self-defense strategy. He argues that trial counsel=s self-defense strategy was not a genuine defense and was the result of trial counsel trying to establish that appellant=s co-defendant was not guilty with little regard for appellant=s interest.

The Texas Court of Criminal Appeals has held that we cannot sit in hindsight and find ineffectiveness due to errors involving calculated risks. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). The right to effective counsel is not the right to error-free counsel. Id. As such, a Afull inquiry into the strategy or tactics of counsel should be made only if from all appearances after trial, there is no plausible basis in strategy or tactics for his actions.@ Id.

The record supports the self-defense theory as reasonable trial strategy by counsel. Appellant testified that he had a conflict with the victim Aawhile back, like a couple of years back from that time, from 1998.@ Appellant testified that the victim had pulled a gun on him in the past. He further testified that on the day of the shooting, the victim had approached the van, kicked the van, and threatened to kill him. This evidence provides a plausible basis for trial counsel=s strategy of self-defense. Id.

Appellant=s second contention regarding ineffective assistance of counsel is without merit.

C. Conflict of Interest

Appellant=s third contention argues that he was denied effective assistance of counsel due to a conflict of interest that arose by counsel=s dual representation of appellant and his co-defendant. Specifically, he argues that his co-defendant=s testimony concerning the time interval between the victim kicking appellant=s vehicle and appellant shooting the victim creates a conflict of interest.

A common defense often gives strength against a common attack. Hurley v. State, 606 S.W.2d 887, 890 (Tex. Crim. App. 1980). Mere assertion of conflict of interest does not support a claim of ineffective assistance of counsel. Ferguson v. State, 639 S.W.2d 307, 310 (Tex. Crim. App. 1984). An accused who fails to object at trial must demonstrate that an actual conflict of interest adversely affected his lawyer=s performance. Ex parte Acosta, 672 S.W.2d 470, 474 (Tex. Crim. App. 1984). An actual and significant conflict of interest exists where Aone defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing.@ Gonzales v State, 605 S.W.2d 278, 282 (Tex. Crim. App. 1980). Conflict has been held to be merely Apossible@ rather than Aactual@ when both defendants gave corroborative testimony and otherwise presented a united front at trial. Hurley, 606 S.W.2d at 890.

In the instant case, the conflict here is not Aactual.@ Appellant=s claim that he contradicted his co-defendant is not supported by the record where his co-defendant also testified that appellant shot the victim in self-defense. We further note that the Apossible@ contradictory statement made by the co-defendant regarding the time interval between the kicking of the vehicle by the victim and appellant shooting the victim was clarified at trial. The co-defendant stated that it must have been about twenty-five seconds and could not have been two or three minutes before the time the victim approached and the time appellant shot him. As such, we find no actual conflict, and conclude appellant=s third contention is without merit.

Appellant=s three complaints of strategy, dual representation and conflict of interest do not demonstrate that his trial counsel was ineffective nor that he was adversely affected. Accordingly, appellant=s final point of error is overruled.

We affirm.

_____________________

ROGELIO VALDEZ

Chief Justice

Do Not Publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 23rd day of May, 2002.