Opinion
No. 06-06-00222-CR
Submitted: April 27, 2007.
Decided: May 17, 2007. DO NOT PUBLISH.
On Appeal from the Fifth Judicial District Court, Cass County, Texas, Trial Court No. 2006-F-00160.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
To avoid arrest for criminal trespass, Adafarasun Mack, also known as Adolphus Mack, tussled with police officer James Cromeans. In the course of their struggle, the two men wrestled, grabbed, pushed, and shoved each other. By Mack's actions, Cromeans was cut on the wrist, neck, and cheek. Cromeans also suffered a few bruises and was sore the next day. A jury convicted Mack of assault on a public servant. See Tex. Penal Code Ann. § 22.01(a), (b)(1) (Vernon Supp. 2006). Finding that Mack had previously been convicted of a felony, the jury considered an enhanced punishment range of two to twenty years and assessed a punishment of ten years' confinement and a $1,000.00 fine. The trial court sentenced Mack accordingly. Mack raises two issues on appeal, alleging ineffective assistance of counsel at the punishment phase of the trial in not objecting to (1) parole eligibility evidence and (2) the State's jury argument concerning Mack's parole eligibility. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail on a claim of ineffective assistance, an appellant must, by a preponderance of the evidence, prove: (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient representation prejudiced the appellant's defense. Strickland, 466 U.S. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). To meet this burden, an appellant must show that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). On the first prong, if "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App. 2003). On the second prong, merely showing that errors had some conceivable effect on the proceedings is inadequate proof. See Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). The appellant must prove 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. At the punishment phase, the State introduced, through a criminal investigator, testimony that "[w]hatever their sentence, they're not going to serve the full amount." The State also, in closing argument, explained that the charge's parole instruction meant that, "if you get twenty years, you don't serve twenty years. . . . So basically it's saying that you're not going to serve the sentence you get." These are misstatements of the parole law and are error. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2006). Mack cites Valencia v. State, 966 S.W.2d 188 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd), for the proposition that defense counsel's failure to object to the State's parole law evidence and argument constitutes ineffective assistance as a matter of law. Mack overstates the holding in Valencia. The court, in Valencia, found ineffective assistance on failure to object not just to the State's urging the jury's consideration of parole law, but, also, to the State's incorrect math and assertion that a forty-year sentence would result in parole in two years. Id. at 190. The State's misleading calculation of the parole formula was essential to the court's finding. Id. Despite Mack's assertions, the State never urged a similar — or any — mathematical computation to the jury in his punishment phase. The Valencia analysis — finding Strickland's first prong as a matter of law — is distinguishable and unpersuasive. Moreover, even if Mack had met the first prong, he fails to meet his burden under Strickland's second prong on the record presented on direct appeal. The undeveloped record does not demonstrate proof that the result of the punishment phase would have been different but for counsel's errors in not objecting to the State's improper evidence and argument. First, we generally presume the jury follows the trial court's instructions in the manner presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998) (parole charge and allegation of juror misconduct in considering parole); Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App. 1996) (jury presumed to follow court's instructions as given); Waldo v. State, 746 S.W.2d 750 (Tex.Crim.App. 1988) (jury presumed to follow instruction to disregard evidence). Here, the jury was charged "not to consider the extent to which the parole law may be applied to" Mack. As in Colburn, because Mack has offered nothing to demonstrate that the jury did not follow the court's instructions, he has not shown that the results were affected by the State's actions. See Colburn, 966 S.W.2d at 520. Second, comparing the evidence against Mack with the sentence that resulted, harm does not appear. The State presented evidence of "numerous thefts, resisting arrest, evading arrest, criminal trespass, felony drugs, felony indecency with a child, bond jumping, skipping out, basically a life of crime, as much of a career criminal as you're going to find." The State asked the jury to assess the maximum sentence of twenty years; Mack urged the minimum of two years', or, at most, five years' confinement. The jury assessed Mack's punishment at ten years' confinement, a sentence in the middle of the range, closer to Mack's suggested sentence, and well below the maximum possible sentence. We would only be speculating to suggest that the result would have been any different in the absence of the State's objectionable conduct. Mack may not meet his burden through conjecture and speculation. See Ex parte Cash, 178 S.W.3d 816, 818-19 (Tex.Crim.App. 2005). Mack has not established that counsel's representation so undermined the proper functioning of the adversarial process that the result was unjust.