Opinion
Nos. 05-03-00201-CR, 05-03-00202-CR
Opinion filed January 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F02-34874-IJ, F02-34875-LJ.
Modified in part; Affirmed As Modified.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION
Derrick Lynn Haynes pleaded guilty to two indicted offenses of aggravated sexual assault of his step-daughter, C.R., a child younger than fourteen years of age, which are first degree felonies. See Tex. Pen. Code Ann. § 22.021(a)(1)(B), (a)(2)(B), (e) (Vernon Supp. 2004). The jury found him guilty of the offenses as charged in the indictments, and he was sentenced to twenty-four years' confinement in each case and assessed a fine of $10,000 in cause number F02-34874-IJ. In three issues, Haynes contends he is entitled to two additional days of back-time credit, he was denied effective assistance of counsel at the punishment phase of the trial, and the parole instruction in the punishment charge as applied to him was a denial of due process of law. For the reasons below, we modify the trial court's judgments in part to credit Haynes with two additional days of back-time credit. We affirm the judgments as modified.
Back-Time Credit
In his first issue, Haynes contends that he is entitled to two additional days of back-time credit because he was arrested and placed in jail on July 25, 2002, but the judgments show the back-time credit begins on July 27, 2002. A defendant is entitled to "credit on his sentence for the time that the defendant has spent in jail in said cause, . . ., from the time of his arrest and confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2004); see Ex parte Kuban, 763 S.W.2d 426, 427 (Tex.Crim.App. 1989). The State agrees that Haynes is entitled to credit for two additional days because the evidence shows Haynes was arrested and placed in jail on July 25, 2002, and the trial court stated that he was to receive credit for "however much time you have in the Dallas County Jail." Accordingly, we resolve Haynes's first issue in his favor.
Effective Assistance of Counsel
In his second issue, Haynes contends he was denied effective assistance of counsel in the punishment phase when his counsel elicited testimony, in the form of a nonresponsive answer, that Haynes took and failed a lie detector test. Haynes contends that his counsel should have objected to the nonresponsive answer, asked the trial court to instruct the jury to disregard, and then moved for a mistrial, pursuant to rule of evidence 103.
We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas as to the punishment phase of trial in Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). It is appellant's burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Our review of counsel's representation is highly deferential and presumes counsel's actions fell within a wide range of reasonable professional assistance. Mallett, 65 S.W.3d at 63. We do not judge counsel's strategic decisions in hindsight, and we strongly presume counsel's competence. Thompson, 9 S.W.3d at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813-14. Moreover, "[a]n appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions-whether those actions were of strategic design or the result of negligent conduct." Thompson, 9 S.W.3d at 814.
Here, Haynes filed a motion for new trial, but it did not include any grounds of ineffective assistance of counsel. Thus, the record provides no explanation of the motivation behind counsel's decision not to make a timely objection or request an instruction to disregard. We cannot conclude that such a decision under these circumstances constitutes per se ineffective assistance. See Thompson, 9 S.W.3d at 813. The record is silent regarding any explanation for counsel's actions. Haynes has not met his burden to overcome the strong presumption of reasonable assistance. See Mallett, 65 S.W.3d at 68; Thompson, 9 S.W.3d at 813-14. We resolve Haynes's second issue adversely to him.
Charge Instruction
In his third issue, Haynes contends, for the first time on appeal, that the parole instruction in the punishment charge as applied to him denied him due process of law. The charge states: "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." The instruction describes the conduct that might warrant good conduct time. The instruction also includes conditions for parole eligibility. The instruction tracks the language of article 37.07, section 4(a) of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004).
It is Haynes's contention that the parole instruction is unconstitutional because it requires the trial court to provide erroneous information to the jury. He claims the instruction is erroneous because he is ineligible for mandatory supervision. See Tex. Gov't Code Ann. § 508.149(a)(8) (Vernon Supp. 2004) (precluding release on mandatory supervision of those convicted of aggravated sexual assault). Accordingly, the information about "good conduct time" does not apply to him. The Texas Court of Criminal Appeals recently addressed this same issue involving a similar charge and similar arguments and concluded the appellant's due process rights were not violated. See Luquis v. State, 72 S.W.3d 355, 366 (Tex.Crim.App. 2002); see also Gallegos v. State, 76 S.W.3d 224, 229 (Tex. App.-Dallas 2002, pet. ref'd); Bui v. State, 68 S.W.3d 830, 841 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (en banc); Felan v. State, 44 S.W.3d 249, 256-58 (Tex. App.-Fort Worth 2001, pet. ref'd); Espinosa v. State, 29 S.W.3d 257, 261-62 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
In Luquis, the court of criminal appeals reviewed the statutory parole instruction pursuant to the standard enunciated in Estelle v. McGuire, 502 U.S. 62 (1991). Those courts determined that the parole instruction must be considered in the context of the instructions as a whole and the trial record. Further, it must be determined whether the challenged instruction "by itself so infected the entire trial that the resulting conviction violates due process" and "whether there is a 'reasonable likelihood' that the jury applied the challenged instruction in a 'way that violates the [federal and state constitutional right to due process].'" Luquis, 72 S.W.3d at 366 (quoting Estelle, 502 U.S. at 72). The court of criminal appeals concluded that the parole instruction itself was not misleading or erroneous, but would violate due process rights if "a reasonable jury probably was actually confused by this charge." Id. at 366-67. Thus, pursuant to Luquis, we consider whether Haynes has demonstrated that the parole law instruction in this case was calculated to mislead this jury or that there is a reasonable probability that it did mislead this jury.
The instruction itself includes the following language: "[Y]ou 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 my be applied to this particular defendant." This language is clear that the jury is not to consider good conduct time as it applied to Haynes. Moreover, Haynes points to nothing in the record indicating that the jury was misled, such as any argument or jury notes regarding good conduct time credit. See id. at 367-68. Further, Haynes does not argue that his sentence reflects that the instruction confused or misled the jury. See id. Thus, there is nothing in the record to show that the instruction was calculated to mislead the jury in this case or that there is a reasonable probability that it did mislead the jury. We resolve Haynes's third issue against him.
Conclusion
Because of our disposition of Haynes's first issue, we reform the judgments in cause numbers F02-34874-IJ and F02-34875-LJ to show the time credited begins July 25, 2002. See Tex.R.App.P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (noting appellate court has authority to reform judgment when it has all information necessary to make judgment speak truth). As modified, we affirm the trial court's judgments.