Vernon Lee Jeffries v. The State of Texas--Appeal from 248th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-181-CR

VERNON LEE JEFFRIES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 248th District Court

Harris County, Texas

Trial Court # 662,524

O P I N I O N

This is an appeal by defendant Jeffries from his conviction for aggravated robbery, enhanced by two prior felony convictions, for which he was assessed sixty years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Defendant was charged by indictment with the offense of aggravated robbery. He pled "not guilty," but a jury found him guilty. Defendant then pled "true" to two enhancement paragraphs. The jury assessed punishment at sixty years confinement.

On the night of April 21, 1993, Juan Castro heard a knock at the door of his apartment. A guest who was present opened the door. Defendant and another man were standing outside the door. Defendant identified himself as a police officer and showed a badge. He then stepped inside the apartment and pulled his jacket aside revealing a gun in the waist band of his pants. Castro was afraid that defendant would shoot him. Defendant picked up Castro's television set and left. Castro followed defendant to another apartment in the complex and noted that he entered apartment 37. He then called the police who arrived and found defendant and the television inside apartment 37. Castro identified defendant as the man who came to his apartment and took his television.

As noted, defendant pled "true" to the two prior felony convictions, was convicted and assessed a sentence of 60 years. He appeals on three points.

Point one: "Jeffries' first conviction for aggravated robbery was an essential element of the offense of possession of a firearm away from the premises where he lived; thus, the conviction for possession of a firearm away from the premises where he lived would not be used to enhance punishment in the instant conviction for aggravated robbery and the trial court erred in submitting same to the jury."

The enhancement paragraphs read:

Before the commission of the offense alleged above (hereafter styled the primary offense), on March 14, 1986, in Cause No. 439214 in the 337th District Court of Harris County, Texas, defendant was convicted of the felony of Aggravated Robbery.

Before the commission of the primary offense, and after the conviction in Cause No. 439214 was final, the defendant committed the felony of intentionally and knowingly possess away from the premises where he lived, a firearm, namely a handgun, and was convicted on September 26, 1988, in Cause No. 508124 in the 185th District Court of Harris County, Texas

Defendant contends these allegations are improper because the conviction for a felon in possession of a firearm was elevated to felony level only because of his March 1986 conviction for aggravated robbery; therefore, he argues, the 1986 aggravated robbery conviction essentially was used twice: (1) as alleged in the first enhancement paragraph and (2) as the underlying conviction to support his prior conviction for a felon in possession of a firearm.

Our courts have previously addressed this exact issue and have held that the basis for the enhancement of punishment is the prior conviction, not the elements of the offense for which defendant was convicted. Steels v. State, (Tex. App. Houston [1st Dist.]) 858 S.W.2d 636; Kincheloe v. State, (Tex. Crim. App.) 553 S.W.2d 364, 366. The aggravated robbery was therefore not used twice to enhance the conviction here.

Point one is overruled.

Point two: "Jeffries was denied his Sixth Amendment right to effective assistance of counsel, under the Texas and U.S. Constitutions, because a prior conviction for possession of a firearm was used to enhance punishment, without objection, and due to other errors of defense counsel."

For defendant to establish ineffectiveness of counsel to secure a reversal, he must show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment; that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Strickland v. Washington, S.Ct., 466 U.S. 668, 687; Kimmel v. Morrison, S.Ct., 477 U.S. 365, 381. If the defendant meets this burden, the reviewing court must evaluate whether the deficient performance prejudiced the defendant and resulted in an unfair trial. Strickland, supra; Carr v. State, (Tex. App. Houston [14th Dist.]) 694 S.W.2d 123, 125. The defendant must prove his ineffectiveness claim by a preponderance of the evidence. Moore v. State, (Tex. Crim. App.) 694 S.W.2d 528. The issue of ineffectiveness is decided by reviewing the totality of the circumstances and the representation throughout the trial. Ex parte Carillo, (Tex. Crim. App.) 687 S.W.2d 320. As previously noted, the enhancement paragraphs alleged in the indictment were proper. An objection to them would have been without merit. Defense counsel cannot be found ineffective because he failed to raise a meritless objection. Sims v. State, (Tex. App. Houston [14th Dist.]) 848 S.W.2d 754, 757. From the totality of the record we conclude that defense counsel's representation of defendant was not ineffective.

Point two is overruled.

Point three: "The submission to the jury of article 37.07 4(b), Texas Code of Criminal Procedure, regarding parole laws, constitutes a violation of the separation of the powers doctrine as well as Jefferies' Sixth Amendment right to a fair trial under the Texas and U.S. Constitutions."

The trial court, in the punishment phase, submitted an instruction to the jury on parole in the exact words of article 37.07 4, Texas Code of Criminal Procedure. The Court of Criminal Appeals in Rose v. State, 752 S.W.2d 529 (1987), held that an instruction regarding parole violated a defendant's right under due course of law and violated the separation of powers doctrine. However, a constitutional amendment effective November 7, 1989, eliminated the Rose issue for trials held after that date. This amendment provided:

The Legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for it actions. The Legislature shall have authority to enact parole laws and laws that require or permit courts to inform juries about the effect of good conduct time and eligibility for parole or mandatory supervision on the period of incarceration served by a defendant convicted of a criminal offense.

The Court of Criminal Appeals held that this amendment removed the due course of law and the separations of powers constraints that plagued the statute addressed in Rose. Oakley v. State, (Tex. Crim. App.) 830 S.W.2d 107, 110-11. The statute is constitutional.

Point three is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 2, 1994

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