GARY DONALD GIPSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed June 4, 1998
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-96-01679-CR
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GARY DONALD GIPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F96-44616-MN
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O P I N I O N
Before Justices Lagarde, Ovard, and Roach
Opinion By Justice Roach
        Gary Donald Gipson appeals his conviction for theft of property of less than $1500, a state jail felony. The jury found appellant guilty and assessed punishment, enhanced by two previous felony convictions, at eight years in prison and a $2000 fine. In seven points of error, he complains (1) the trial court erred in (i) communicating to the jury panel that he had prior felony convictions, (ii) reading the portion of the indictment alleging prior felony convictions during voir dire, (iii) misinforming the jury on the effect of an unpaid fine, and (iv) sentencing appellant outside the range of punishment; (2) the evidence is legally and factually insufficient to support the conviction; (3) the State made an improper jury argument; and (4) he received ineffective assistance of counsel. For the reasons set forth below, we overrule all points of error and affirm the trial court's judgment.
Factual Background
        Charles Powell, a loss control agent for K-Mart Corporation, testified that he was working at one of the stores on March 20, 1996 when appellant entered and went to the electronics department. Powell said he had a "funny feeling" about appellant and watched him while he was in the store. Appellant picked up a video cassette recorder and left the store without paying for it. Powell approached appellant, identified himself, and asked for a receipt. Appellant said he purchased the VCR in the electronics department, but the clerk did not give him a receipt. Powell and appellant then went to the electronics clerk, who denied selling the VCR to appellant. Powell said the VCR had a value of less than $1500. Powell took a photograph of the VCR and wrote on the photograph the date of the incident, the sales price of the VCR, and the VCR's serial number.
Sufficiency of the Evidence
        In his first and second points of error, appellant complains the evidence is legally and factually insufficient to support his conviction. When reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100 (1994). This standard leaves to the fact finder the responsibility to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984); cert. denied, 474 U.S. 865 (1985); Dumas, 812 S.W.2d at 615. Thus, the fact finder is free to accept or reject any or all evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        When conducting a factual sufficiency review, we examine the fact finder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We consider all of the evidence, but we do not view it in the light most favorable to the verdict. Id. at 129. When performing our review, we must be "appropriately deferential" so as to avoid substituting our judgment for the fact finder's judgment. Id. at 133. We set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
        To obtain a conviction in this case, the State had to prove (i) appellant, (ii) with the intent to deprive the owner of property, (iii) unlawfully appropriated a video cassette recorder, (iv) without the effective consent of the owner, (v) the value of the property was less than $1500, and (vi) appellant was previously convicted of two theft offenses.
        In this case, appellant complains that although there was testimony that the VCR had a value of less than $1500, there was no evidence of the actual value of the VCR. Such evidence, however, was not required. The indictment, which tracked the language of the statute, alleged the property had a value less than $1500, and Powell testified that the stolen VCR had a value of less than $1500. This testimony alone was sufficient, and no evidence of actual value was required. Cf. Gant v. State, 606 S.W.2d 867, 871 (Tex. Crim. App. [Panel Op.] 1980) (explaining that legislative intent in creating felony theft offense was to punish a third theft offense, though 'petty,' as a felony, irrespective of the value of the property, so long as it was less than the amount provided in statute). Even if evidence of actual value were necessary, Powell testified that he wrote the price of the VCR on a Polaroid photograph of the VCR, which was admitted into evidence. The price written on the photograph was $159.99. Thus, contrary to appellant's contention, there was evidence of the VCR's actual value. We conclude the evidence is legally and factually sufficient to establish the property had a value of less than $1500. Accordingly, we overrule the first point of error.
Voir Dire
        In his second and third points of error, appellant complains the trial court erred in informing the jury panel during voir dire that appellant had prior felony convictions. Specifically, at the beginning of voir dire, the trial court told the prospective jurors that:
Now, a State Jail felony is punishable, if one is convicted, by confinement in State Jail for not more than two years or less than a [sic] 180 days, with an optional $10,000 fine. There are circumstances where one convicted of such a case may face an enhanced penalty up to 20 years in prison and a minimum of two years in prison with an optional $10,000 fine, but I will not go into any of those circumstances at this point.
(Emphasis added.)
        Appellant contends this comment by the trial court violated article 36.01(a)(1) of the Texas Code of Criminal Procedure. However, appellant did not object at trial. A timely and reasonably specific objection is required to preserve error for appellate review. Tex. R. App. P. 33.1(a) (formerly rule 52). More particularly, failure to object to the trial court's instructions during voir dire waives error for appellate review. Butler v. State, 872 S.W.2d 227, 240 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1157 (1995). Accordingly, we overrule the second and third points of error.
Nonpayment of Fine
        In his fourth point of error, appellant complains the trial court erred by misinforming the jury of the effect of an unpaid fine. During deliberations, the jury sent a note asking what would happen if the accused served his prison time and did not pay the fine. The trial court responded that "payment of the fine would be made a condition of parole." Appellant points us to no place in the record where he objected to the trial court's response. Thus, error, if any, was waived. Tex. R. App. P. 33.1(a). We overrule the fourth point of error.
Improper Jury Argument
        In his fifth point of error, appellant complains the State made an improper argument when it told jurors that "[t]here is a lot of information I could pass out to you reflecting Mr. Gipson's prior criminal history." Appellant did not object; thus, error, if any, was waived. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 117 S. Ct. 1442 (1997) (holding that before a defendant will be permitted to complain on appeal about erroneous jury argument, he must show he objected and pursued his objection to an adverse ruling). We overrule the fifth point of error.
Punishment Range
        In his sixth point of error, appellant complains the trial court sentenced him outside the permissible range of punishment for a state jail felony and relies on State v. Mancuso, 919 S.W.2d 86, 90 (Tex. Crim. App. 1996). Appellant's reliance on Mancuso, however, is misplaced. Mancuso addressed state jail offenses that were alleged to have occurred in 1994 and held "under the law in effect at the time of the commission of the instant offenses, the only way a defendant's punishment could be enhanced under the provisions of § 12.42 was if the defendant committed a state jail felony under the circumstances described in § 12.35(c)." Mancuso, 919 S.W.2d at 90.
        Effective January 1, 1996, section 12.42 of the penal code was amended to add the following provision:
(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.
Act of May 28, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2735. The offense in this case was alleged to have occurred on March 20, 1996; thus, the above provision applies. Appellant pleaded true to two enhancement paragraphs alleging two previous felony convictions. Therefore, he was subject to punishment for a second-degree felony. The punishment range for a second-degree felony is two to twenty years in prison, in addition to which a fine of up to $10,000 may be imposed. Tex. Penal Code Ann. § 12.33 (Vernon 1994). Appellant's punishment fell within this range. Accordingly, we overrule the sixth point of error.
Ineffective Assistance of Counsel
        In his seventh point of error, appellant contends he was denied effective assistance of counsel and complains about trial counsel's failure to preserve error to objectionable matters at various times during trial. Specifically, he contends trial counsel was ineffective because he:
(1) Failed to object when the trial court communicated to the jury panel that he had prior felony convictions.
 
(2) Failed to object when the trial court misinformed the jury panel on the effect of an unpaid fine at the time a defendant is released from prison.
 
(3) Failed to object when the prosecutor made an improper jury argument.
He further contends the cumulative effect of these errors rendered counsel's assistance ineffective.
        In Texas, a defendant in a criminal case is entitled to reasonably effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). To show ineffective assistance of counsel at the guilt/innocence stage of trial, a convicted defendant must show (1) his trial counsel's performance was deficient in that counsel made such serious errors he was not functioning effectively as counsel, and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984).                
        The constitutional right to effective assistance of counsel is the right to reasonably effective assistance. See Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). We look to the totality of the representation to determine whether counsel has provided reasonably effective assistance. See Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1061 (1985). In reviewing claims of ineffective assistance of counsel, we indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance, and appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant must specifically identify counsel's acts or omissions that are not the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690.
        The record must support claims of ineffective assistance. See Holland v. State, 761 S.W.2d 307, 320 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). When the record contains no evidence of the reasoning behind trial counsel's action, we cannot conclude that counsel's performance was deficient. See Jackson, 877 S.W.2d at 771. A silent record does not require an appellate court to speculate as to the reason for trial counsel's decisions. Id.
        When analyzing the effectiveness of counsel during the punishment phase of noncapital offenses, we do not apply the Strickland standard of review; rather, we apply the test set forth in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980). See Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App. 1992). We first consider whether counsel was reasonably likely to render effective assistance and, second, whether counsel reasonably rendered effective assistance. Craig, 825 S.W.2d at 130. "Reasonably likely to render" refers to competence, and "rendered" refers to effectiveness. Ex parte Duffy, 607 S.W.2d at 516 n.17. We measure whether counsel's assistance was reasonably effective by the totality of the representation and the individual facts and circumstances, not by counsel's handling of one particular item. See State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991). When reviewing an ineffectiveness claim based on alleged errors during punishment, we examine the punishment phase both alone and in light of the entire record. See Davis v. State, 831 S.W.2d 839, 846 (Tex. App.--Dallas 1992, pet. ref'd).
1. Informing jury of prior felony convictions
        Appellant first complains that trial counsel was ineffective by failing to object during voir dire when the trial court informed the jury of appellant's prior felony convictions. He complains the trial court's comments improperly informed the jury of the enhancement allegations in violation of article 36.01 of the Texas Code of Criminal Procedure.
        When prior felony convictions are alleged for purposes of enhancement, the enhancement paragraphs may not be read to the jury until the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp. 1998). This article prohibits the mentioning of specific allegations contained in the enhancement paragraphs. Gentry v. State, 881 S.W.2d 35, 40 (Tex. App.--Dallas 1994, pet. ref'd). However, article 36.01 does not prevent the trial court or the prosecutor from informing the jury in hypothetical terms of the applicable range of punishment if the State proves prior convictions for enhancement purposes. See Martinez v. State, 588 S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1979); Gentry, 881 S.W.2d at 40; Johnson v. State, 901 S.W.2d 525, 532 (Tex. App.--El Paso 1995, pet. ref'd).
        In this case, the trial court instructed the jury that there are circumstances where a person convicted of a state jail felony could face an enhanced penalty, but the trial court did not go into those circumstances (see point of error three). Thus, contrary to appellant's assertion, the trial court never informed the jury panel of the specific allegations concerning appellant's previous convictions and, in fact, spoke only in hypothetical terms. As such, trial counsel was not ineffective for failing to object. Accordingly, we conclude this complaint lacks merit.
2. Effect of Unpaid Fine
        Appellant next complains counsel was ineffective for failing to object to the trial court's informing the jury, in response to a question, that a fine unpaid at the end of a defendant's sentence would be made a condition of parole. Specifically, while deliberating on punishment, the jury sent out a note asking: "[W]hat would happen if the accused served his prison time and did not pay the fine?" The trial court responded, "The defendant is responsible for payment of any fine assessed. . . . If the fine has not been paid at the time a defendant has completed his prison sentence, payment of the fine would be made a condition of parole. . . ."
        A fine that is unpaid at the time of a prisoner's release may result in additional confinement. See Tex. Code Crim. Proc. Ann. art. 43.03(c) (Vernon Supp. 1998). Additionally, the parole board may include as a condition of parole "any condition that a court may impose on a probationer under Article 42.12. . . ." Act of May 22, 1993, 73d Leg., ch. 397, § 1, 1993 Tex. Gen. Laws 1695, 1695. One such condition is the payment of one's fine. Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(8) (Vernon Supp. 1998).
        Thus, the trial court's response was not untrue, merely incomplete. We first note that the record does not contain the proceedings upon which this complaint is based; thus, the record does not establish that no objection was made. Assuming, however, that trial counsel did not object, the record contains no evidence of the reasoning behind his action, and a silent record does not require us to speculate on counsel's reasons. Considering the totality of the representation, we cannot say counsel rendered ineffective assistance of counsel. Accordingly, we conclude this complaint lacks merit.
3. Improper Jury Argument
        Finally, appellant complains that trial counsel was ineffective for failing to object when the prosecutor made an objectionable closing argument at the punishment phase of trial. Proper jury argument must fall within one of four general categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996).
        During closing argument, appellant's counsel argued:
        [L]adies and gentlemen of the Jury, you have been given a lot of information here which you're looking at now as the prior convictions of [appellant], and we can't hide those. We have stipulated to them that they are true. He is one in [sic] the same person, and there's nothing real nice in which you-all are seeing here now. I would ask you to just rely on your consciences though for what happened that day at K-Mart, putting a VCR in a shopping cart, pushing it outside the door.
 
* * *
        I would ask you to think on what happened that day. He has been to the penitentiary numerous times, as you can see from the papers. What should you do to [appellant] for taking this VCR out of the K-Mart store? I would ask you to be lenient. He has not hurt anybody. As you recall from the incident at the scene, he identified himself. . . . I would ask you to consider some leniency in this, and consider the lower end of two to 20 years.
        In response, the prosecutor made the following argument, which appellant complains was objectionable:
There is a lot of information that I could pass out to you reflecting [appellant's] prior criminal history. And I urge you to take a good, long, hard look at that. And I also urge you to think about what that means, what we're here for today, and why the range of punishment has been increased from two years -- from State Jail felony up to two to 20 years in jail -- in the penitentiary. The reason being is this man is a habitual offender. This is the kind of thing you, as a Jury, need to send a message to the other members and the other citizens of Dallas County. We're not going to continue to let repeat habitual offenders continue to commit crimes.
        Appellant complains the highlighted portion of the argument could have allowed the jury to punish appellant "for being a criminal generally" and was clearly intended to inflame the minds of the jury. We disagree. The prosecutor's argument fell within three permissible areas: (i) a reasonable deduction from the evidence; (ii) a proper response to argument of opposing counsel; and (iii) a proper plea for law enforcement. Because the argument was not objectionable, trial counsel was not ineffective for failing to object. We conclude this complaint lacks merit.
        Having concluded that counsel was not ineffective in his actions with respect to the above complaints, we likewise conclude that the cumulative effect of these actions did not render counsel's performance ineffective. Accordingly, we overrule the seventh point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOHN R. ROACH
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
961679F.U05