Elzie Lilly, III. v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00157-CR

______________________________

ELZIE LILLY, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30141-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Elzie Lilly, III, appeals from his conviction, on his plea of guilty without a plea agreement, to the offense of delivery of cocaine in an amount less than one gram. A jury assessed his punishment at 180 days' confinement in a state jail facility. Lilly also has a pending appeal in a companion case, in which he pled guilty to delivery of cocaine in an amount between one and four grams, and was sentenced to nine years' imprisonment. The two cases were tried together, and he has raised the same contention of error in each appeal. //

In his single contention of error, Lilly argues he received ineffective assistance of counsel at trial. The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his or her defense. Id.; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). In so doing, the appellant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App. Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Freeman v. State, No. 2156-01, 2003 Tex. Crim. App. LEXIS 711 (Tex. Crim. App. Nov. 5, 2003). Some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." Massaro v. United States, ___ U.S. ___, 123 S. Ct. 1690, 1694 (2003); Freeman, 2003 Tex. Crim. App. LEXIS 711, at *3. Such situations are quite rare, however. See Freeman, 2003 Tex. Crim. App. LEXIS 711, at *3.

Appellate counsel contends trial counsel was ineffective because he (1) did not object to a defective indictment, (2) filed defective defensive pleadings, (3) allowed the cases to be consolidated for punishment when the available punishments were in conflict, (4) did not object to extraneous offenses and bad reputation testimony, and (5) allowed Lilly to testify about his eligibility for community supervision.

In appeal number 06-03-00157-CR, the indictment was, in fact, defective. It alleged Lilly had delivered "cocaine , in an amount of less than one ," [sic]. This is sloppy work on the part of the State, but where actual notice exists, such an error is not fatal. The rule is that a defendant has a constitutional right to sufficient notice so as to enable him or her to prepare a defense. However, this due process requirement may be satisfied by means other than the language in the charging instrument. Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). There is some indication counsel was aware of the charge being pursued by the State, and nothing to reflect otherwise. In such a situation, although counsel could have successfully complained about the indictment, there would be no point in doing so. We will not find counsel constitutionally ineffective under those circumstances.

Lilly next argues trial counsel was ineffective because he filed defective defensive pleadings. Specifically, trial counsel filed an application for community supervision in which he stated that Lilly was charged with "the offense of Forgery Financial Instrument." Lilly was not charged with that crime. Presumably, this is a result of an inadequate updating of a form pleading. However, the record also shows that a correct motion for community supervision was filed two weeks later correctly setting out the charged offense. Thus, even though defense counsel was also guilty of sloppy editing, the error was corrected.

Lilly next contends counsel was ineffective because he allowed two cases with differing punishment ranges to be consolidated. Counsel's reasoning on appeal lies in the fact that, under Tex. Code Crim. Proc. Ann. art. 42.12, 3(e)(2), 4(d)(2), 15 (Vernon Supp. 2004), a person convicted of a state jail felony may be able to obtain community supervision from a judge, but cannot seek it if a jury assesses punishment. See Anderer v. State, 47 S.W.3d 60 (Tex. App. Houston [14th Dist.] 2001, pet. ref'd). Thus, if Lilly was found not guilty of the felony, but guilty of the state jail felony, incarceration would be the only option when the jury assessed punishment.

This analysis by appellate counsel is correct. However, application places trial counsel in a conundrum with no easy answer, because if the cases had been tried separately, and if convicted of both, Lilly would then face the unpalatable possibility of having two sentences stacked. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004); Tex. Pen. Code Ann. 3.03 (Vernon 2003). In light of the fact that this proceeding involved a guilty plea before the jury to both charges, we cannot agree counsel was ineffective in this respect.

Lilly next argues that counsel was ineffective because he did not object to extraneous offenses and bad reputation testimony. However, under Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2004), such evidence is admissible during the punishment phase, and it is not apparent that any objections would have had any positive effect. Thus, error has not been shown in this regard. We know we must defer to counsel's decisions as far as strategic or tactical reasons for his action or inaction. In the absence of direct evidence of counsel's reasons for the challenged conduct, we are to assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814. In the absence of more information than is presently available, we cannot conclude counsel acted inappropriately by failing to object to the reputation testimony or the testimony about bad acts of the defendant.

Lilly finally argues counsel was ineffective because he allowed Lilly to testify about his eligibility for community supervision. We cannot conclude Lilly was necessarily less believable or effective from this vantage point, without something more in the record to support that position, nor could we conclude counsel was ineffective for failing to bring his own "good" reputation witnesses in the absence of some showing in the record that such was available. Under the record before us, we cannot conclude error has been shown.

The contention of error is overruled.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 5, 2003

Date Decided: December 8, 2003

Do Not Publish