Christopher Ramon Jessie v. The State of Texas--Appeal from 416th District Court of Collin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHRISTOPHER RAMON JESSIE,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00162-CR

Appeal from the

416th District Court

of Collin County, Texas

(TC# 219-80298-03)

O P I N I O N

This is an appeal from a jury conviction for the offense of attempted burglary of a habitation--enhanced as a habitual felony offender by allegations of two prior felony convictions. The jury assessed punishment at life in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

During the guilt-innocence stage of trial, the complainant, Melinda Graham, testified that on November 22, 2002, she was at home in Plano, Texas. She was sitting at her computer checking her e-mail when she saw an individual creeping across her backyard. This person moved toward her sliding glass door near to where she was seated. She rose and went to the sliding glass door and noticed the man crouched down just outside doing something to the door. She looked down at the man and when they made eye contact, he ran off. The police were called and found Appellant in the backyard of a neighbor s house. Graham identified Appellant as the individual she saw at her door.

At the punishment stage of trial, the State introduced, as part of its punishment evidence, penitentiary packets indicating that Appellant had been convicted on five prior occasions of felonies involving mainly burglaries of habitations.

At the close of evidence, the charge was prepared and submitted to the jury. It included an instruction tracking Tex. Code Crim. Proc. Ann. art. 37.07, 4(b) (Vernon Supp. 2004-05). The instruction read in relevant part:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if defendant [sic] is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-fourth of the sentence imposed or fifteen (15) years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four (4) years, he must serve at least two (2) years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

The possible actions of the governor of the State of Texas or the Texas board of Pardons and Paroles are not a matter of concern for the judge or jury.

During closing argument, one of the prosecutors stated:

And at some point, and like I said, up until now he s never had a jury assess punishment. He s pled guilty, and he s been sentenced. But we have got a little wiser and a little smarter. We realized, you know, we re not doing anyone any favors by putting him back on the street. Because as you heard the Judge say, fifteen years or one-quarter of the time that you assess, whichever is less, and you figure out the times that Chris is going to go over with you, you ll see it s not long, it s not life.

Appellant s counsel did not lodge an objection to the prosecutor s last comments about the fifteen years or the one-quarter time and the comment, it s not life. During the subsequent defensive argument, the following exchange occurred:

DEFENSE:And in assessing his punishment in this case I would ask all of you, each and everyone of you to search your hearts and think about what I have said here to you. Can you put him away, you have that power, for the duration of the remaining years of his life? And unless he s Methuselah or some of those people, I doubt if you gave him ninety-nine years he would be around for ninety-nine years from now.

STATE:Your Honor, I object, considering the parole division of fifteen years or a quarter, to say whichever is less, to say the rest of his life from thirty-seven. I don t think that s a fair statement.

COURT:The jury will abide by the instructions in the Charge. Go ahead.

DEFENSE:So I would ask you to be fair and reasonable in your assessing of the punishment in this case under the guidelines or under the lawsuit, of course, if you gave him sixty years, he may be eligible or become eligible after fifteen years, after having served twenty-five percent of that time. But knowing the Texas Department of Corrections as I do, he s not going to get out in fifteen years. The State knows that also. He ll be lucky if he got out in twenty.

STATE:In all due respect, we don t know if he would serve fifteen. He s asking for our agreement. Considering what he s already been sentenced to.

DEFENSE:We look at thirty-seven and add twenty to that, even at that age he would be fifty-seven, fifty-eight, an old man like me. I m not going to say any of you are that age, but I know I am. He doesn t have very much to look forward to. Even if he was the best of people and completely rehabilitated himself by going to school while he s in the institution, learning a trade, and just making a 180 degree turn in his life. All I ask you is to be reasonable in your assessment of the punishment in this case.

II. DISCUSSION

In Appellant s sole issue on appeal, he asserts that his trial counsel did not provide effective assistance of counsel. Specifically, he contends that trial counsel was ineffective for failing to object to the prosecutor s reference to the parole law during argument at the punishment stage. Successful claims of ineffective assistance of counsel must first demonstrate that counsel was not functioning as counsel guaranteed by the Sixth Amendment in providing reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The second prong of this test requires a showing that counsel s errors were so serious as to deprive Appellant of a fair trial, such that there arises a reasonable probability that but for counsel s unprofessional errors, the results would have been different. Reasonable probability is a likelihood sufficient to undermine confidence in the outcome. Id. at 694, 104 S. Ct. at 2068. Texas adopted this test in Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). See also McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963, 113 S. Ct. 2937, 124 L. Ed. 2d 686 (1993). The constitutional right to counsel does not mean errorless representation. In order to meet the constitutional standard, counsel must provide reasonably effective assistance. Wilkerson, 726 S.W.2d at 548. In reviewing these assertions, the totality of representation is examined as opposed to focusing upon isolated acts or omissions. Ineffective assistance of counsel cannot be established by isolating or separating out one portion of the trial counsel s performance for examination. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). In that regard, this Court, on review, will not engage in hindsighted comparisons of how other counsel, in particular, appellate counsel, might have tried the case. See Wilkerson, 726 S.W.2d at 548. A fair assessment of trial counsel s performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances at trial, and to evaluate the conduct from counsel s perspective at the time. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). We must indulge a strong presumption that counsel s conduct falls within the wide range of reasonably professional assistance. The Appellant must overcome the presumption that under the circumstances at trial, the challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065; Stafford, 813 S.W.2d at 506. Consequently, allegations of ineffectiveness of counsel must be firmly founded by the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983); Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981). The burden is upon Appellant to establish ineffective assistance of counsel by a preponderance of the evidence. Williams v. State, 837 S.W.2d 759, 761 (Tex. App.--El Paso 1992, no pet.).

Initially, we note that Appellant did not file a motion for new trial and no hearing was held regarding Appellant s ineffectiveness claim. In most instances, the record on direct appeal is undeveloped and cannot adequately reflect the failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). A defendant may rebut the presumption of effectiveness by providing a record from which the appellate court may ascertain that trial counsel s performance was not based on sound trial strategy. Parmer v. State, 38 S.W.3d 661, 666 (Tex. App.--Austin 2000, pet. ref d). A defendant may provide that record by filing a motion for new trial and obtaining a hearing thereon based on ineffective assistance of counsel. Id. Any error in trial strategy will be deemed inadequate representation only if counsel s actions are without any plausible basis. Id. A record that does not include any discernible explanation of the motivation behind trial counsel s actions fails to establish whether his or her actions were of strategic design or were the result of negligent conduct. Thompson, 9 S.W.3d at 813-14.

As a general rule, prosecutors are permitted to quote, paraphrase, or explain the law contained in the court s charge unless the prosecutor s statements are inaccurate or contrary to the charge. See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990); Jaramillo Perez v. State, 994 S.W.2d 233, 237 (Tex. App.--Waco 1999, no pet.). This general rule extends to the parole instruction. Jaramillo Perez, 994 S.W.2d at 237; Taylor v. State, 911 S.W.2d 906, 911 (Tex. App.--Fort Worth 1995, pet. ref d). Prosecutors are not, however, permitted to apply the parole laws to the defendant on trial. See Jaramillo Perez, 994 S.W.2d at 237; Taylor, 911 S.W.2d at 911.

In the present case, Appellant has failed to present any evidence regarding counsel s reasons for not objecting to the argument. This is not a case where there can be no valid reason or legal strategy for failing to object. Appellant s trial counsel seized upon the prosecutor s statements about parole and argued a favorable application of those statements to the jury. Having subtly applied the parole law to Appellant, defense counsel asked the jury to assess a reasonable punishment. Under this record, Appellant has not rebutted the presumption that trial counsel s failure to object was reasonable trial strategy. We overrule Appellant s sole issue on review.

Having overruled Appellant s sole issue on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

September 29, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)