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holding counsel's failure to object to State's argument regarding parole law was not ineffective assistance of counsel
Summary of this case from Sanders v. StateOpinion
No. 06-04-00038-CR
Submitted: December 9, 2004.
Decided: December 10, 2004. DO NOT PUBLISH.
On Appeal from the 71st Judicial District Court, Harrison County, Texas, Trial Court No. 03-0275X.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Shawn Ladell Johnson pled guilty to delivery of cocaine as charged in the indictment. See Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2004 — 2005), § 481.112(a) (Vernon 2003). Because the amount of cocaine alleged to have been delivered was greater than four grams, but less than 200 grams, the charged offense was a first degree felony. See Tex. Health Safety Code Ann. § 481.112(d) (Vernon 2003). There was no plea agreement in the case, and Johnson asked that a jury be empaneled to assess his punishment. The jury assessed punishment at fifty years' imprisonment. The trial court sentenced Johnson in accordance with that jury verdict. It is from this judgment that Johnson now appeals. On August 16, 2004, Johnson's appellate counsel filed an Anders brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Johnson a copy of the appellate brief and informed Johnson of his right to file a response pro se and right to review the record. This Court informed Johnson at that time his response, if any, was due by September 15, 2004. We later granted Johnson's request for an extension, extending the due date for his responsive brief to October 21, 2004. As of this date, Johnson has not filed a response pro se. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there is no reversible error in this case. Johnson admitted his guilt to the offense, as charged in the indictment. The record before us supports the trial court's finding that Johnson's plea was entered knowingly, intelligently, and voluntarily. It is well established that in felony cases a plea of guilty before the jury admits the existence of all elements necessary to establish guilt and, in such cases, the introduction of evidence by the state is only to enable the jury to intelligently exercise the discretion the law vests in it to determine punishment. Addicks v. State, 15 S.W.3d 608, 612 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); see also Holland v. State, 761 S.W.2d 307, 312 (Tex.Crim.App. 1988); Williams v. State, 674 S.W.2d 315, 318, 319 n. 3 (Tex.Crim.App. 1984) (noting that no evidence need be entered when appellant pleads guilty before jury; evidence is necessary for guilty plea before court only). In such cases, the plea of guilty is conclusive as to the defendant's guilt, and there is no question of the sufficiency of the evidence on appeal. See Ex parte Martin, 747 S.W.2d 789, 792 (Tex.Crim.App. 1988); see also Stahle v. State, 970 S.W.2d 682, 688 (Tex.App.-Dallas 1998, pet. ref'd). In addition, the jury had Johnson's judicial confession which, by itself, is factually and legally sufficient to support the jury's finding of guilt in this case. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. [Panel Op.] 1979). His confession was also supported by testimony from Deputy Mike Couch of the Harrison County Sheriff's Department, a videotape of the drug transaction, and Johnson's own testimony. We therefore find the evidence legally and factually sufficient to support the trial court's judgment. Johnson's offense carried a punishment range of not less than five years' imprisonment or more than ninety-nine years or life. See Tex. Health Safety Code Ann. § 481.112(d). The punishment assessed is within the range provided for by statute. Accordingly, the record before us does not suggest any error in the sentence imposed. The record also would not support a claim of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must show both that his or her counsel's performance fell below professional norms and also that counsel's performance prejudiced the appellant's defense. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). "This means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The record suggests appellant's trial counsel pursued a strategy of trying to humanize the appellant while lessening the severity of his crimes in the jurors' eyes. While the jury ultimately sided with the State's sentencing recommendation of fifty years, on the record before us, we cannot say counsel's trial strategy was unsound or fell below professional norms. Therefore, the record does not establish the necessary proof under the first prong of a claim for ineffective assistance. One final issue, however, does cause concern. In its closing argument, the State made the following remarks to the jury:
The other thing she [the trial court, speaking through its jury charge] tells you [the jury] is, he [Johnson] will only have to serve one-fourth of whatever is imposed, plus good time credit. So, if he is getting one day of good time for every one day he serves, the most he will ever have to serve even on a life sentence is fifteen years and if he gets good time, one for one, seven and a half [years].(Emphasis added.) Later on, the State continued:
I don't think he [Johnson] told 100% of the truth upon the stand; but, give him credit on that [pleading guilty] if you wish. Don't set his sentence down there somewhere where it says no big deal. He is going to get out in two or three and we are going to be back in the same boat we are now.(Emphasis added.) The state's closing argument should be limited to four issues: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) responses to the argument of opposing counsel, and (4) pleas for law enforcement. Helleson v. State, 5 S.W.3d 393, 396 (Tex.App.-Fort Worth 1999, pet. ref'd). While the state may explain the parole law's existence, the state must avoid applying the parole law specifically to the defendant on trial. Taylor v. State, 911 S.W.2d 906, 911 (Tex.App.-Fort Worth 1995, pet. ref'd). In this case, the emphasized portions of the State's closing argument clearly show the State was trying to show the jury how the parole law might be applied to Johnson's case. Such argument is patently impermissible. Johnson did not object to the State's argument; thus, the error has not been preserved for appellate review. See Helleson, 5 S.W.3d at 396 (to preserve erroneous jury argument, appellant must object, request instruction to disregard, and move for mistrial). Even had Johnson objected to the argument, however, we do not believe the error would have required reversal. The harm resulting from an improper jury argument may generally be cured by a trial court's instruction to disregard. Id. In this case, the trial court instructed the jury,
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you 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 may be applied to this particular defendant.(Emphasis added.) The trial court expressly instructed the jury not to consider how the parole law might be applied in Johnson's case. There is nothing in the record before us suggesting the jury did not follow the trial court's instruction. Accordingly, we must conclude the emphasized portion of the trial court's jury charge cured the State's improper remarks. Cf. id. at 398. For the reasons stated, we affirm the trial court's judgment.
Anders v. California, 386 U.S. 738 (1967).
The failure of Johnson's counsel to object to the erroneous argument does not constitute ineffective assistance of counsel. Cf. Johnson v. State, 68 S.W.3d 644, 655 (Tex.Crim.App. 2002) (counsel's failure to object to state's argument that parole law may change did not amount to ineffective assistance given presumption of effectiveness and great deference reviewing court must give defense counsel when record did not reveal counsel's reasons for not objecting to state's comments).