Brian Deshun Harrell v. State ( 2007 )

Affirmed as Reformed and Memorandum Opinion filed July 19, 2007

Affirmed as Reformed and Memorandum Opinion filed July 19, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00814-CR

NO. 14-06-00815-CR

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BRIAN DESHUN HARRELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1065951,1082364  

M E M O R A N D U M    O P I N I O N

In two charges tried in a single consolidated case, appellant Brian Deshun Harrell was convicted of possession with intent to deliver a controlled substance and evading arrest.  During voir dire, the trial court advised the venire panel incorrectly regarding the range of punishment applicable to the possession charge, and the misstatements were not corrected by defense counsel.  In addition, the trial court granted the State=s motion to stack appellant=s sentences for the two convictions. Appellant asserts that the order cumulating his sentences is void and that the trial court=s erroneous statements to the venire panel deprived him of due process and a fair trial.  He further argues that he received ineffective assistance of counsel during the jury selection process.  We modify the judgment to eliminate the cumulation order, and affirm the judgment as modified.

I.  Factual and Procedural Background

According to testimony presented at trial, Houston police officers heard a general broadcast on April 20, 2006 that appellant was wanted for two felony warrants and was driving an off-white Mitsubishi Galant toward the area the officers were patrolling.  The police found the described vehicle parked and unoccupied, and the officers waited until appellant returned and drove the vehicle away. Houston police officers testified that they followed and stopped Harrell, who pointed to a parking spot and indicated that he would park his car there, but instead sped away.  The State presented additional testimony that Harrell later stopped the car and dropped plastic bags as he ran away.  Police retrieved the bags and Harrell, and according to the evidence presented at trial, the bags contained 716.7 grams of cocaine.  The jury convicted appellant of possession of more than 400 grams of a controlled substance with intent to deliver, and sentenced him to seventeen years= confinement for this offense.  In addition, the jury convicted appellant of evading arrest and assessed punishment at confinement for one year.  The trial court granted the State=s motion requiring appellant to serve the sentences consecutively.

II.  Issues Presented

Appellant presents three issues for review.  First, he contends the trial court erred by ordering him to serve his sentences consecutively rather than concurrently. Appellant next contends that, by incorrectly advising the venire panel of the available range of punishment for the possession charge, the trial court violated his fundamental state and federal rights to due process and a fair trial.  Lastly, appellant argues that his trial counsel rendered ineffective assistance of counsel by failing to inform the venire panel of the correct range of punishment for possession of more than 400 grams of cocaine

III.  Analysis

A.        Improper Cumulation of Sentences

If a defendant is convicted of Amore than one offense arising out of the same criminal episode prosecuted in a single criminal action,@ the sentences for the offenses must run concurrently.^[1]  Tex. Penal Code Ann. ' 3.03(a) (Vernon Supp. 2006).  In the court below, the State argued that the charged offenses arose out of the same criminal episode, and the two charges were tried in a single consolidated case at the State=s request.  The State concedes that it would be inconsistent for it to take a contrary position on appeal.  We therefore sustain appellant=s first issue.

B.        Qualification of Venire Panel

The trial court incorrectly informed the venire panel that the range of punishment for possession of at least 400 grams of a controlled substance with intent to deliver was Afrom ten years to life in the penitentiary, and up to a $10,000 fine@ and that if a defendant had a prior final felony conviction, then the range of punishment Achanges to a minimum of 15 to life and up to a $10,000 fine.@  In fact, a defendant=s first such offense is punishable by imprisonment for Anot more than 99 years or less than 15 years, and a fine not to exceed $250,000.@  Tex. Health & Safety Code Ann. ' 481.112(f) (Vernon 2003).

After they were incorrectly informed that the minimum sentence was ten years, three veniremembers indicated that they could not consider the lower end of the punishment range because it was too low.  Appellant=s defense counsel successfully moved to strike each of these veniremembers for cause.  See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon 2006). 

Here, appellant argues that we must Atake notice of fundamental errors affecting substantial rights although they were not presented to the court.  Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001).  However, fundamental errors are those that Abear on the presumption of innocence or vitiate the impartiality of the jury.@  Id. at 421.  Appellant contends only that (a) the trial court=s misstatements deprived him of the effective use of his challenges for cause and his peremptory challenges because he may have struck a veniremember for cause based on information that the veniremember could not consider a minimum sentence of ten years, but he would have retained the same individual if the prospective juror could consider a minimum sentence of fifteen years; and (b) he was Adeprived of a jury that was committed to the true range of punishment@ that included a longer minimum sentence.

Appellant does not argue that he would have retained any particular excused veniremember in the absence of the incorrect instruction, and he cites no evidence in support of his contention that either of the possible results he describes constitutes reversible harm.  We therefore overrule appellant=s second issue.

C.        Ineffective Assistance of Counsel

1.         Standard of Review

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687, 104 S. Ct. at 2064.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at  690B94, 104 S. Ct. at 2066B68.  An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697, 104 S. Ct. at 2069.  This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).

Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that the attorney=s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When the record is silent as to trial counsel=s strategy, we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).     

2.         Defense Counsel=s Failure to Advise Venire Panel of Correct Range of Punishment

Here, the record does not affirmatively demonstrate the alleged ineffectiveness and is silent regarding defense counsel=s trial strategy.  See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Moreover, defense counsel=s performance was not so outrageous that no competent attorney would have engaged in it.  See generally Goodspeed, 187 S.W.3d 390 (holding that defense attorney=s failure to ask any questions during voir dire and the exercise of two peremptory challenges on jurors who had already been excused was not so outrageous that no competent attorney would have engaged in it); Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (noting that an attorney=s decision to strike particular veniremembers is Ainherently strategic in nature@).  We will not speculate regarding the reasons for defense counsel=s actions.  See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (en banc).  Instead, we conclude that appellant has failed to overcome the presumption that his attorney=s conduct  was reasonably professional and motivated by sound strategy.  Accordingly, we overrule appellant=s third issue.

IV.  Conclusion

Appellant has failed to demonstrate that the trial court committed fundamental error during voir dire or that he received ineffective assistance of counsel. However, because both of his convictions arose from the same criminal episode and the offenses were tried together, we agree the trial court erred in ordering that appellant serve his sentences consecutively. We therefore delete the cumulation order from the trial court=s judgment and affirm the judgment as modified.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed July 19, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  This rule is subject to exceptions not presented here.