No. 05-03-00116-CR
Opinion Filed December 31, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F02-48236-I. Affirmed.
Before Justices JAMES, FITZGERALD and LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
Appellant Rickey Don Hinton appeals his conviction for theft, enhanced, for which the jury assessed punishment at twenty years in prison. In four issues, appellant complains of ineffective assistance of counsel. We affirm the judgment of the trial court.
BACKGROUND
Three loss prevention officers working for Ross Dress for Less saw appellant take twenty items of clothing from their store, put them in a Dillard's bag, and walk out of the store with the items without paying for them. Ross's three employees apprehended appellant as he stepped outside. They took him to the store's breakroom, where they took pictures of him, and took pictures and made a list of the stolen merchandise. They called the police, who arrested him for theft. The jury found appellant guilty of theft and that the state had proven two enhancement paragraphs. Consequently, the punishment range was imprisonment for from two to twenty years. Appellant signed a stipulation of evidence before the punishment stage of the trial began that listed his nine previous convictions. One of those convictions was for possession of a controlled substance, enhanced, for which the trial court had assessed punishment at twenty-five years in prison. The pen packet for that same conviction was admitted into evidence. There were two judgments in the pen packet, the first showing punishment at twenty-five years in prison and the second showing punishment at two years in prison with a $1000 fine. The second judgment, which reduced the first sentence, was the result of a decision by the Court of Criminal Appeals that state jail offenses could not be enhanced by Tex. Pen. Code Ann. § 12.42(d) (Vernon 2000). INEFFECTIVE ASSISTANCE OF COUNSEL Standard of Review
The standard for reviewing claims of ineffective assistance of counsel is stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland court held that the appellant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." Id. at 686; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Strickland established a two part test. First, appellant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687. In order to do so, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Id. at 688-90. Second, Strickland requires appellant to show that counsel's performance prejudiced his defense at trial. Id. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. He must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. Appellant's Arguments
Appellant complains that trial counsel was deficient in the following areas: 1) failing to review the pen packet that showed appellant's punishment for possession of a controlled substance was changed from twenty-five years in prison to two years in prison and a $1000 fine; 2) failing to realize that appellant should not stipulate to the prior twenty-five year sentence; 3) failing to object to the prosecutor's misstatement that the conviction was for a first degree felony; and 4) allowing the prosecutor to repeatedly argue that appellant had not learned from his prior sentences. We will consider them together because all of these "deficiencies" involve the second judgment for the possession conviction. Analysis
Without regard to whether appellant has established that counsel's performance was deficient, appellant has failed to show that counsel's performance prejudiced his defense at trial. Defense counsel proposed to the jury that appellant had "gotten the message" when it found him guilty, and that he should be sentenced to the lower range of punishment. In rebuttal, the state argued that appellant had been given many chances to reform, had never done so and had never "gotten the message." Because there were several other convictions, the state's argument could have been made even if the state had not been able to use the conviction in question. Defense counsel's other argument was that appellant should not be punished harshly for a simple misdemeanor theft. The state countered that not all of his previous convictions were so "insignificant," pointing out that appellant had convictions for voluntary manslaughter, burglary and robbery. The state then asked the jury "do we want someone like this, someone who commits crime after crime after crime after crime and knows he does it? Do we want someone like this walking around our streets, shopping in our stores, going to our gas stations? Do we want that person carrying a knife around, as you can see in his conviction for voluntary manslaughter? Is this the kind of man we want out on our streets?" This argument was based on the evidence of appellant's nine prior convictions and not based on the twenty-five year punishment that was reduced. Appellant has failed to show that there is a reasonable probability that he received the maximum sentence allowed by law because of what he contends were defense counsel's deficiencies. We overrule issues one through four. We affirm the trial court's judgment.