We presume defense counsel provided reasonable professional assistance and that his actions might be considered sound trial strategy. Jackson, 877 S.W

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NUMBER 13-05-513-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ARMANDO VELA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 319th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Wittig (1) Memorandum Opinion by Justice Wittig Appellant, Armando Vela, was convicted of aggravated robbery by a jury. An enhancement was found to be true and punishment was assessed by the jury at thirty years in prison. We affirm the judgment of the trial court. In two issues, appellant challenges the legal and factual sufficiency of the evidence, and the denial of a challenge for cause. In the remaining three issues, he alleges ineffective assistance of counsel. Appellant gave timely notice of appeal. We address his issues in order. 1. Standard of Review In reviewing legal sufficiency, we look at all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Legally sufficient evidence supporting a conviction exists if the court, after reviewing the evidence in the light most favorable to the prosecution, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Evidence may be factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A factual sufficiency review requires the reviewing court to consider all of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals in Roberts explained that a reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." Roberts, 220 S.W.3d at 524. 2. The Proof and Analysis Appellant and his girlfriend, co-defendant Maria Garcia, entered a Kohl's Department Store. A security employee started surveillance with a store camera and caught appellant on tape taking a pair of tennis shoes from the shoe department and placing them on a shelf in a different aisle. Garcia then took the shoes and put them in her purse. The two then went to the athletic department where appellant picked out a pair of male athletic shorts and a black T-shirt. He handed them to Garcia who took the items off their hangers and put them into her purse. Garcia exited the store first and did not pay for the merchandise. When caught, Garcia offered to return the property. She was escorted back to the store. The in-store security tape was received into evidence without objection. A security guard spotted appellant exiting the store and heading toward his vehicle. The vehicle was parked about ten spaces from the door. The guard held up his badge at face level and told appellant to come with him. Appellant pulled out a knife and headed toward the guard at a quick pace stating: "I don't have to go back with you. F-- you." Appellant then advanced toward the guard from a distance of thirty feet to thirty yards to within four or five feet. The pocket knife was open and pointed toward the guard, who testified that he was scared. Another security guard stepped in and appellant then fled the scene. Appellant was apprehended by police and brought back to the store within twenty minutes or less. The security guard's testimony was corroborated by witness Andrew Simpson. Garcia testified that she was appellant's girlfriend. They had been together for more than a year and had lived together. Garcia told appellant she did not want to go into the store and steal that day. The couple had stolen property together on other occasions. Friends would "order" items to be stolen. The shoes appellant took were to fill such an order. When Garcia left the store she was surprised that she had lost appellant. She thought appellant perhaps stayed in the store to see if she had been caught. She did not see appellant walk toward Silva, pull a knife, or swear at Silva. Garcia did not deny that these things occurred, but rather, stated that she did not see them because she was scared and ran from the scene. Garcia testified that she felt like she was hung out to dry when she learned appellant told police he did not know her. Appellant argues the evidence does not support a conviction because appellant "never maintained control of the property while exiting the store or outside of the store" sufficient to establish the intent necessary for aggravated robbery. In other words, appellant contends that he lacked the intent to maintain control of the property at the time of the assault to support a conviction of aggravated robbery. In any event, appellant contends that the confrontation in the parking lot was separate and apart from the theft in the store. Section 29.01 of the Texas Penal Code provides: (1) "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. (2) "Property" means: (A) tangible or intangible personal property including anything severed from land; or (B) a document, including money, that represents or embodies anything of value. Tex. Penal Code Ann. § 29.01 (Vernon 2003). Section 29.02(a), governing "robbery," provides, in pertinent part, that : A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.... Id. § 29.02 (Vernon 2003). Section 29.03(a), governing aggravated robbery, provides, in pertinent part, that "[a] person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he . . . uses or exhibits a deadly weapon." Id. § 29.03. Both parties cite White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984). White holds that the phrase "in the course of committing theft" includes conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. (citing Tex. Penal Code § 29.01). No completed theft is required in order for the proscribed conduct to constitute the offense of robbery under the penal code. Id. (citing Robinson v. State, 596 S.W.2d 130 (Tex. Crim. App. 1980); Earl v. State, 514 S.W.2d 273 (Tex. Crim. App. 1974)). Appellant further cites Lightner v. State, 535 S.W.2d 176, 178 (Tex. Crim. App. 1976). In Lightner, the Texas Court of Criminal Appeals affirmed a robbery conviction where the facts showed that the defendant had assaulted a police officer in an attempt to avoid arrest immediately following the theft of money from an unattended cash register in a store. See id. The defendant in that case argued that the evidence was insufficient to show robbery since the struggle with the police officer occurred after he had completed the theft. Id. The Lightner court held that: Under Sections 29.01 and 29.02, supra, the offense of robbery includes any violence in the course of effectuating the theft as well as any violence while in immediate flight from the scene of the theft. This new definition of robbery proscribes the use of violence not only in the taking of the property, but also in the immediate efforts of the thief to keep the stolen property . . . . Id. The element "intent to obtain or maintain control of the property" in section 29.02 "deals with the robber's state of mind regarding the property" involved in the theft or attempted theft, and not his state of mind in the assaultive component of the offense of aggravated robbery. Ex parte Santellana, 606 S.W.2d 331, 333 (Tex. Crim. App. 1980). Therefore, violence or intentional threats or placing another in fear of imminent bodily injury accompanying an escape immediately subsequent to an attempted theft can constitute robbery under section 29.02. See Ulloa v. State, 570 S.W.2d 954, 957 (Tex. Crim. App. 1978); Tex. Penal Code Ann. § 29.02, Practice Commentary; see also Yarbrough v. State, 656 S.W.2d 200, 201-02 (Tex. App.-Austin 1983, no pet.); Banks v. State, 638 S.W.2d 532, 535 (Tex. App.-Houston [1st Dist.] 1982, pet. ref'd.). Appellant is further burdened with the fact that his co-defendant had already completed the theft and the jury charge included an instruction on the law of parties. Accordingly, the jury could convict appellant under the evidence if he acted with intent to promote or assist the commission of theft by encouraging, directing, aiding, or attempting to aid Garcia. See Tex. Penal Code Ann. § 7.01 (Vernon 2003). Both the video tape of the theft and live testimony clearly demonstrate this. The law does not require that appellant had the intent to maintain control over the property at the time the assault took place. White, 671 S.W.2d at 40-41. The evidence is thus sufficient to prove the aggravated element that appellant exhibited or used a deadly weapon. See Tex. Penal Code Ann. § 29.03. We hold that there is legally and factually sufficient evidence to show that appellant committed the offense of aggravated robbery. See Lightner, 535 S.W.2d at 177-78; see also Tex. Penal Code Ann. § 29.03. Appellant's first issue is overruled. 3. Challenge for Cause In his second issue, appellant complains the trial court abused its discretion in denying his challenge for cause of venireman Louis Garcia. Appellant claims Garcia was biased because he had a niece who was murdered. Her killer received only six months in jail and some years of probation. Because of this experience, Garcia said he may lean towards a heavier sentence if appellant were found guilty. "[I]f I find him guilty and he's found guilty by a unanimous decision, depending on everything that I've heard, I may lean towards a more heavier sentence." Further, Garcia stated that he would judge the accused's truthfulness with "extreme prejudice" if he found out that appellant had a prior conviction. The venireman was challenged for cause and the trial count denied the motion. At that point, defense counsel stated: "Well, Your Honor, then I would ask the Court to allow me an extra challenge so that I can--because I'm going to strike this man, peremptory challenge. And I would like an extra challenge so that I can remove this man from the jury." The court denied the request. Appellant argues on appeal that counsel would have used another peremptory challenge on the next venireman. The State argues, and we agree, that the record does not support this assertion. In order to show harm from the erroneous denial of a challenge for cause, a defendant must demonstrate: (1) when a defendant exercises a peremptory challenge on a veniremember whom the trial court erroneously failed to excuse for cause at the defendant's request; (2) the defendant uses all of his statutorily allotted peremptory challenges; and (3) the defendant was denied a request for an additional peremptory challenge which he claims he would use on another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury. Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004) (citing Johnson 43 S.W.3d at 5-6; Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274, 280-81 (1944) (op. on reh'g)). In Wolfe, also cited by appellant, the court similarly held that the accused need not show why such juror was objectionable to him. Wolfe 178 S.W.2d at 281. However, the same authority requires that "a further juror be presented whom he states to be objectionable to him..." Id. In Moreno, the court noted: We also observe there is no support for the assertion that an objectionable juror served on the jury. While Wolfe does not require that a defendant show grounds for a challenge for cause nor show why a particular juror was objectionable, a defendant must at least state that a particular juror or jurors are objectionable to him, after he has exercised peremptory challenges on other prospective jurors who were disqualified and where his challenges for cause on such jurors were overruled. Moreno v. State, 587 S.W.2d 405, 408 (Tex. Crim. App. 1979); see also Newbury v. State, 135 S.W.3d 22, 30-31 (Tex. Crim. App. 2004). Appellant correctly cites Hernandez as reaffirming the court's holding in Wolfe. Hernandez v. State, 563 S.W.2d 947, 948 (Tex. Crim. App. 1978). However, the Hernandez court observed: "Appellant notified the court that had he been granted an additional challenge, he would have struck venireman Gary Carroll as being an unacceptable juror. These facts place appellant squarely within the rule laid down in Wolfe v. State . . . ." Here, unlike in Hernandez, appellant did not specify which veniremember he found objectionable. Because appellant has not shown harm arising out of the trial court's ruling, we need not address whether in fact the ruling was erroneous. This issue is overruled. 4. Ineffective Assistance of Counsel By issues three, four, and five, appellant complains of ineffective assistance of counsel. An appellate court reviews a trial court's ruling on a motion for mistrial and motion for new trial using an abuse of discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). We must view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. Review of an ineffective assistance of counsel claim is conducted under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement under Strickland states: "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The second prong sets out the general requirement that the defendant affirmatively prove prejudice, i.e., there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. When the record is silent as to defense counsel's rationale or strategy, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); see also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). 5. Failure to Call Witness In his third issue, Appellant contends trial defense counsel was ineffective because he failed to call a material witness. The witness, appellant's sister, Emma Vaca, testified at the hearing on the motion for new trial. She was at the Kohl's store during the time appellant and Garcia were arrested. She testified that she overheard one of the officers tell Garcia that he saw a bruise on her side and that all she had to do was tell the officer that appellant forced her to go there, and that appellant beat her, and the officer would "f... him up." Vaca was not contacted by defense counsel before trial and was stated to be available for trial testimony. Unquestionably, counsel should interview available, beneficial defense witnesses. Haynes v. State, 790 S.W.2d 824, 827 (Tex. App.-Austin 1990, no pet.) (counsel did not interview available, beneficial defense witnesses and did not visit scene of offense). Counsel has the duty to make an independent investigation of the facts and circumstances of the case by seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 395-96 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982); Duffy, 607 S.W.2d at 517; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Once counsel has investigated the facts and developed a defensive theory, counsel is obligated to present sufficient available evidence in support of that defensive theory. See Duffy, 607 S.W.2d at 518; Butler, 716 S.W.2d at 54-55; Shelton v. State, 841 S.W.2d 526, 527 (Tex. App.-Fort Worth 1992, no pet.). However, the burden is on the defendant to show that purported witnesses were available and that their testimony would have been helpful to him. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that failure to call a witness may support ineffective assistance of counsel claim only if it is shown witness was available and defendant would have benefitted from testimony); see also Butler, 716 S.W.2d at 55. Here, the witness was purportedly available but the question of benefit remains. Appellant argues Vaca's testimony would have tended to disprove the credibility and truthfulness of the co-defendant Garcia's testimony. The obvious problem with this argument is that appellant's trial counsel was the one who called Garcia. Defense counsel should not be expected to impeach his own witness. Defense counsel testified that appellant did not give him his sister's contact information. The family member could have been impeached with her lack of knowledge of appellant's criminal past. Even had defense counsel known of Vaca, he could well reason that her testimony would hurt and not help the defendant. Defense counsel specifically testified that he did not think Vaca's testimony would help appellant's case. Further, Vaca had a criminal record and was on probation for delivery and manufacture of cocaine and felony theft. We presume defense counsel provided reasonable professional assistance and that his actions might be considered sound trial strategy. Jackson, 877 S.W.2d at 771. We may also impute implicit factual findings that support the trial judge's ultimate ruling on that motion for new trial when such implicit factual findings are both reasonable and supported in the record. Charles, 146 S.W.3d at 206. Here, the record supports a finding that testimony by Vaca would not have been beneficial nor would have the result of the trial have been different had she testified. Thus, we hold that the trial court did not abuse its discretion in overruling the motion for new trial on this basis. 6. Failure to Call Mitigation Witnesses Appellant next challenges his counsel's effectiveness for failing to call witnesses to mitigate punishment. Mike Wanzer provided an affidavit which was admitted in the hearing on the motion for new trial. Wanzer's affidavit stated that he had known appellant in a working relationship for twenty years and that appellant was a trusted employee who was not prone to violence and not known to carry a knife. The affidavit also stated Wanzer was available and could have testified at the trial. Wazner did not appear live at the hearing. Appellant's niece appeared and testified post-trial that she saw appellant every day, that he was a good man who worked hard and was never violent toward her or her family. She was aware of his prior convictions but not the family violence charges or evading arrest. She indicated defense counsel's office had contacted her, but through miscommunication, they never called her back. Defense counsel testified that he talked with Wanzer, but did not think Wanzer's proposed testimony would have made an impact on the punishment. Counsel further testified that he had the impression that appellant had just started working with Wanzer and that Wanzer did not give him the impression that appellant had worked for him for years as indicated in the affidavit. Defense counsel also testified that it seemed that Wanzer didn't want to testify. Counsel called Wanzer two other times but Wanzer did not call back. Appellant points out that defense counsel initially called Wanzer "Bob Wanzer." Defense council then stated that "Wanzer" was the name he remembered. This confusion would likely have been cleared up with a live witness. Because only Wanzer's affidavit was used, the factfinder may also infer from a party's failure to call an available, competent, and material witness, that the witness's testimony would be unfavorable. Albiar v. State, 739 S.W.2d 360, 363 (Tex. Crim. App. 1987); Torres v. State, 552 S.W.2d 821, 825 (Tex. Crim. App. 1977). Defense counsel further testified that he had thirty years of legal experience. He worked in the District Attorney's office for almost eight years, and ninety percent of his practice during the last fifteen years had been in criminal law. He further opined his actions did not hurt appellant. According to counsel, his failure to call Wanzer as a witness was part of a sound trial strategy so that the prosecution could not ask a series of "did you know" type of questions. Defense counsel also stated that appellant would not give him any names of family members. Appellant told him: "I got into this myself, I'm going to get out of it myself." The evidence at the motion for new trial hearing was contradictory. We review the trial court's denial of the motion by an abuse of discretion standard. Biagas v. State, 177 S.W.3d 161, 170. (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd.). We may not substitute our judgment for that of the trial court; rather, we review whether the court's decision was arbitrary or unreasonable. Charles, 146 S.W.3d at 208. The fact finder is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. See Rodriguez v. State, 191 S.W.3d 428, 437 (Tex. App.-Corpus Christi 2006, pet ref'd). The fact finder is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. See id. We presume that all reasonable factual findings that could have been made against the losing party, were made against him. Charles, 146 S.W.3d at 211. Viewing the evidence in the light most favorable to the ruling, we hold the trial court did not abuse its discretion in overruling the motion for new trial on this basis. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Charles, 146 S.W.3d at 208. 7. Failure to File Discovery Request In his final contention of ineffectiveness, appellant asserts that his trial counsel failed to request until the day before trial all the evidence that the State intended to produce under rule 404(b) of the Texas Rules of Evidence. Tex R. Evid. 404(b) (providing for admission of other crimes, wrongs or acts). The State did not produce a printed version of appellant's extraneous offences at the hearing; however, the prosecutor stated at the hearing that she intended to use evidence of family violence. Defense counsel was apparently not aware of the conviction for family violence and asked for a continuance. The continuance was denied, and the trial court ordered the State to turn over copies of the information and pen packets. Appellant concludes that his trial attorney was thus unprepared for the punishment phase of the trial. In reply, the State replies that it has an open file policy, and the information sought was available to the defendant through the State's files and through public records. It is true as appellant argues, that appellant's ability to review the State's file does not equate to the State's indication that it will introduce such evidence in its case-in-chief. See Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995). Still, as appellant also admits, the mere failure to file an appropriate pretrial motion shall not be categorically deemed ineffective assistance of counsel. Madden v. State, 911 S.W.2d 236, 241 (Tex. App.-Waco 1995, pet. ref'd). Defense counsel testified at the motion for new trial hearing that he did file a specific discovery request for the surveillance tapes. The tape of the store's interior was produced without the necessity of a hearing. He was also provided access to the State's file, including appellant's history and extraneous offenses. Given the time constraints, he saw no need for a formal motion on the rule 404 matters. At the continuance hearing, defense counsel stated that the State had already told him about appellant's felony convictions, five burglaries, and one possession of a controlled substance plus "a whole lot of misdemeanors." The one thing counsel seemed to be unaware of was a family violence conviction pertaining to one of appellant's former girlfriends. The State indicated they did not intend to use any of the prior convictions under rule 404(b). The prosecutor and defense counsel had previously conferred and the prosecutor stated that she had furnished all the rule 404(b) information. Defense counsel agreed, except for the family violence matter. The record indicates that the seeming disagreement in front of the judge was an apparent misunderstanding that the family violence would somehow be used under 404(b). The prosecutor stated she had no intent to use that matter under rule 404(b). Rather, the State intended to use this conviction in the punishment phase. Defense counsel also stated he was attempting to try the case as soon as possible because appellant was in jail. Further, it is clear from the record that defense counsel thought he had been furnished all the information from the State's file and had no reason to suspect that the State was hiding any information. Thus, when he discovered he had not been told of the family violence conviction, he immediately moved for a continuance. He was then furnished this remaining bit of information in writing, even though it was not going to be used under rule 404(b). The State argues that appellant has not shown that having some information earlier through some formal procedure would probably have caused a different outcome to the case. We agree. The record supports an implied finding by the trial judge that defense counsel had in fact already discovered the rule 404(b) evidence without the necessity of filing a formal motion. The only evidence of which he was unaware did not come under the purview of rule 404(b). See Tex R. Evid. 404(b). Thus, even a formal motion would not have necessarily have provided the information about the family violence conviction. The record supports an implied finding that defense counsel used reasonable efforts to prepare for the punishment phase. Appellant failed to shoulder his burden to show both a deficient effort on the part of counsel and a reasonable probability of a different result. Strickland, 466 U.S. at 694. We accordingly hold that the trial court did not abuse its discretion by overruling the motion for new trial on this basis. We overrule issues three, four, and five. 8. Conclusion The judgment of the trial court is affirmed. DON WITTIG, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 30th day of May, 2008. 1. Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

Specifically, the trial court shall determine: (1) what facts were in Lino Garza's statement and why these facts were material, see Brady v. Maryland,

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. WR-62,073-02

EX PARTE STEPHEN EDWARD TATRO, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 00-07-10358 IN THE 155TH DISTRICT COURT

FROM WALLER COUNTY

Per curiam.

O R D E R


Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The First Court of Appeals affirmed his conviction. Tatro v. State, No. 01-01-00523-CR (Tex. App.-Houston [1st Dist.], delivered April 17, 2003, pet. ref'd).

On March 29, 2006, we remanded this application and directed the trial court to determine whether trial counsel rendered ineffective assistance for not challenging the State's hearsay objections and whether Applicant was entitled to a lesser-included offense instruction. On remand, after appointing counsel and holding an evidentiary hearing, the trial court concluded, among other things, that trial counsel rendered ineffective assistance and that the State engaged in prosecutorial misconduct. The trial court recommended that Applicant be granted relief.

We believe, however, that the record is not sufficient and that the trial court should make further findings of fact. Specifically, the trial court shall determine: (1) what facts were in Lino Garza's statement and why these facts were material, see Brady v. Maryland, 373 U.S. 83 (1963); (2) what other witness statements were not disclosed, what facts were in these statements, and why these facts were material; (3) whether the destruction of ballistics evidence was motivated by bad faith, see Arizona v. Youngblood, 488 U.S. 51 (1988); (4) what facts were not presented as a result of the State's objections to testimony from Glenn White, Patricia Barrett, Richard Tatro, Richard Casper, Ken Young, and Al Barrett, and how these facts would have affected the result of the proceeding; (5) how the testimony of a document examiner would have affected the result of the proceeding; (6) what specific evidence in the record showed that Applicant was entitled to instructions on self-defense, defense of property, and criminally negligent homicide; (7) how Ray Pederson's unimpeached testimony and the State's "double misconduct" prejudiced Applicant; (8) how counsel's requests for witness statements was deficient; (9) whether Applicant was indigent when he requested the appointment of experts and whether he was prejudiced, given that he requested $600 and received $500; and (10) whether the explanations in counsel's affidavit are credible.

The trial court may provide Applicant's trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

Applicant appears to be represented by counsel. If not and the trial court elects to hold a second evidentiary hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall then make further findings of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make further findings of fact as to whether the State engaged in prosecutorial misconduct. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.




Filed: March 5, 2008.

Do not publish.

appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense...Syntax?

NUMBER 13-02-218-CR

COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG



ALEJANDRO RODRIGUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.



On appeal from the 257th District Court of Hidalgo County, Texas.



O P I N I O N

Before Justices Yañez, Rodriguez and Baird Footnote

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

1.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.





2.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

3.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

4.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.



B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

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. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

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.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.



For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).



_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.