Opinion
NO. 01-18-00625-CR
03-17-2020
HOWARD FORREST RISHER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court Harris County, Texas
Trial Court Case No. 1513823
MEMORANDUM OPINION
Howard Risher was convicted of third-degree felony assault of a family member, enhanced by two prior felony convictions, and sentenced to 35 years' confinement. See TEX. PENAL CODE §§ 22.01(a)(1), (b)(2)(B) (third-degree felony assault); see also id. § 12.42 (penalties for habitual offenders). In a single issue, Risher argues that he received ineffective assistance of counsel during the punishment phase of trial because his trial counsel did not prevent him from pleading true to the second enhancement allegation even though the State failed to present evidence sufficient to prove the finality of the second prior conviction.
Risher's argument assumes without evidentiary support that the State would not have been able to present sufficient proof of finality had Risher entered a plea of not true. Because Risher's claim of ineffectiveness is not firmly founded in the record, we hold that Risher has failed to show that trial counsel performed deficiently. Therefore, we affirm.
Background
This appeal arises from an incident of domestic violence in which Risher strangled his live-in girlfriend. Risher was indicted for third-degree felony assault of a family member, enhanced by two prior convictions for possession with intent to distribute cocaine. The case was tried to a jury in two phases. At the end of the guilt-innocence phase, the jury returned a verdict of guilty, and the trial proceeded to punishment.
During the punishment phase, the State presented evidence to prove that Risher had been finally convicted of the two prior felony offenses. The evidence included the trial court's judgment of conviction and sentence for each offense. These judgments showed that Risher had not filed an appeal of the first prior conviction but that he had filed an appeal of the second conviction. The State did not present an appellate court mandate or other proof that the second prior conviction had become final before Risher committed assault in this case. Risher's counsel did not move for a directed verdict or otherwise argue that the State failed to prove the finality of the second prior conviction.
After both sides had rested, the trial court held a brief charge conference and then arraigned Risher on the State's enhancement allegations. Risher pleaded "true" to both allegations, and both sides made their closing arguments. The trial court then submitted the case to the jurors, instructing them to find the enhancement allegations true and to assess Risher's punishment as confinement "for not less than 25 years nor more than 99 years or life." The jurors assessed Risher's punishment at 35 years' confinement.
The trial court convicted and sentenced Risher in accordance with the jury's verdict. Risher did not file a motion for new trial. He now appeals.
Ineffective Assistance of Counsel
In a single issue, Risher argues that he received ineffective assistance of counsel during the punishment phase of trial because his trial counsel did not prevent him from pleading true to the second enhancement allegation even though the State's evidence failed to prove the finality of his second prior conviction. Risher argues that he was prejudiced by his plea because it increased the applicable punishment range from 2-to-20 years' confinement to 25-to-99 years' confinement.
A. Applicable law and standard of review
To prevail on a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Macias v. State, 539 S.W.3d 410, 415 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Under the first prong, "the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. That is, the defendant must prove "that counsel's performance fell below an objective standard of reasonableness, considering the facts of the particular case and judged at the time of counsel's conduct." Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006). Under the second prong, "the defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
In reviewing a claim for ineffective assistance of counsel, we are "highly deferential" to trial counsel. Macias, 539 S.W.3d at 415-16. We indulge a "strong presumption" that trial counsel's performance "fell within the wide range of reasonable professional assistance." Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013).
To prove that counsel's performance was deficient, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (quoting Strickland, 466 U.S. at 689). "Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness." Blackwell, 193 S.W.3d at 21. And "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Thus, if the record does not contain affirmative evidence of counsel's reasoning or strategy, we normally presume that counsel's performance was not deficient. Blackwell, 193 S.W.3d at 21. "In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy." Id.
B. Analysis
Under Texas law, a prior conviction cannot be used to enhance the sentence of a subsequent conviction unless the prior conviction became final before the commission of the subsequent offense. Thomas v. State, 312 S.W.3d 732, 741 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). The burden to prove the finality of the prior conviction is on the State. Id.
But the evidence presented by the State here did not prove the finality of Risher's second prior conviction, as it showed that Risher had appealed the conviction but did not indicate whether the appellate court had issued its mandate. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007) (holding that if record shows prior conviction was appealed, presumption of finality is overcome, and State must "proceed with proof of finality"); Beal v. State, 91 S.W.3d 794, 796 (Tex. Crim. App. 2002) ("[A]n appealed prior conviction alleged in an indictment for enhancement purposes becomes final when the appellate court issues its mandate affirming the conviction."); Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986) (holding that judgment reflecting conviction was appealed raises issue of conviction's finality).
Nevertheless, Risher pleaded true to the second enhancement allegation, simultaneously satisfying the State's burden of proof and waiving any sufficiency challenge on appeal. Thomas, 312 S.W.3d at 741 ("If, however, a defendant pleads 'true' to the enhancement paragraph, the State's burden of proof is satisfied."); Harrison v. State, 950 S.W.2d 419, 422 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) ("[A] plea of true to enhancement paragraphs waives a challenge to sufficiency of the evidence on appeal.").
Risher now argues that his trial counsel should have prevented him from pleading true to the second enhancement allegation. Had he done so, Risher contends, the State's evidence would have been insufficient to prove the second prior conviction, and, as a result, Risher would have been subjected to a lower punishment range. Thus, Risher concludes, by failing to prevent him from pleading true to the second enhancement allegation, his trial counsel rendered ineffective assistance.
We reviewed a similar ineffective-assistance claim in Harrison v. State, 950 S.W.2d 419. In that case, the State sought to enhance a conviction for theft with evidence of a prior conviction for aggravated robbery. Id. at 420. To prove the prior conviction, the State presented the trial court's judgment of conviction for that offense. Id. The judgment, however, showed on its face that the defendant had filed an appeal and thus raised the issue of the conviction's finality. Id. Nevertheless, the defendant, on the advice of counsel, pleaded true to the enhancement allegation, waiving any challenge to the sufficiency of the evidence of the prior conviction. Id. at 420, 422.
On appeal, the defendant raised a claim of ineffective assistance of counsel based on trial counsel's advice to plead true to the enhancement allegation. Id. at 422. The defendant argued that trial counsel's advice constituted ineffective assistance because, had he pleaded not true, the State's evidence would have been insufficient to prove the prior conviction, and, as a result, the range of punishment for the theft conviction would have been much lower. Id. We rejected the defendant's argument, reasoning that it erroneously assumed that the State would not have been able to present further proof of finality had the defendant pleaded not true to the enhancement allegation. Id. at 423.
Like the defendant in Harrison, Risher pleaded true to an enhancement allegation even though the State's evidence raised the issue of the prior conviction's finality. And like the defendant in Harrison, Risher argues that, had he pleaded not true to the enhancement allegation, the State's evidence would have been insufficient to prove his prior conviction.
Despite these similarities, Risher argues that Harrison is distinguishable because of the "unusual sequence of events" at his punishment hearing. While the defendant in Harrison pleaded true to the enhancement allegation before the State presented its evidence, Risher did not plead true until after both sides had rested and closed. Risher argues that this difference in timing is important because a trial court has the discretion to reopen the evidence in a criminal prosecution before—but not after—the parties have closed. Thus, Risher concludes, had he pleaded not true to the enhancement allegation, the State would not have been able to present further evidence of finality because, by that point, the trial court had no discretion to reopen the evidence.
Assuming Risher is correct that a trial court has no discretion to reopen the evidence in a criminal prosecution after both sides have presented their closing arguments, his argument still fails because it is based on a mischaracterization of the sequence of events at his punishment hearing. The record does not show that Risher pleaded true to the enhancement allegation after both sides had rested and closed. Instead, it shows that Risher pleaded true after both sides had rested but before either party made its closing argument.
Under Texas law, there is "long-standing authority" that a trial court has the discretion to reopen the evidence in a criminal prosecution before—and even during—the State's closing argument. Felder v. State, No. 01-02-00131-CR, 2003 WL 164466, at *4 (Tex. App.—Houston [1st Dist.] Jan. 23, 2003, pet. ref'd) (mem. op., not designated for publication) (citing Welch v. State, 66 Tex. Crim. 525, 147 S.W. 572, 576 (Tex. Crim. App. 1912); Code of Criminal Procedure, 24th Leg., R.S., § 2, art. 698, 1895 Tex. Crim. Stat. 2, 98 (former TEX. CODE CRIM. PROC. art. 698, since repealed and recodified)); see also TEX. CODE CRIM. PROC. art. 36.02 ("The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice."); Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003) (concluding that "a 'due administration of justice' means a judge should reopen the case if the evidence would materially change the case in the proponent's favor").
Because Risher entered his plea before the State presented its closing argument, had Risher pleaded not true, the trial court would have had the discretion to reopen the evidence to allow the State to present sufficient evidence of the prior conviction's finality. Thus, Risher's argument fails for the same reason the defendant's argument failed in Harrison: It is not supported by record evidence but rather simply assumes that the State would not have been able to present sufficient proof of finality had Risher pleaded not true to the enhancement allegation.
Because Risher has failed to present evidence that his trial counsel had reason to believe the State could not present evidence sufficient to prove the finality of his prior conviction, Risher has failed to show the trial counsel's failure to prevent him from pleading true to the enhancement allegation constituted deficient performance. Accordingly, we overrule Risher's sole issue.
Conclusion
We affirm.
Gordon Goodman
Justice Panel consists of Justices Keyes, Goodman, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).