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Robert Glenn Jones v. State ( 2007 )


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  • Affirmed and Memorandum Opinion filed April 12, 2007

    Affirmed and Memorandum Opinion filed April 12, 2007.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-06-00307-CR

    ____________

     

    ROBERT GLENN JONES, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 23rd District Court

    Brazoria County, Texas

    Trial Court Cause No. 49680

     

      

     

    M E M O R A N D U M   O P I N I O N

    A jury convicted appellant Robert Glenn Jones of murder and assessed punishment at life and a $10,000 fine.  On appeal, appellant contends the evidence is legally and factually insufficient to support his conviction, the trial court erred in admitting certain witness testimony, and he received ineffective assistance of counsel in the punishment phase.  We affirm.

    Factual and Procedural Background

    The following evidence was presented at trial to prove appellant=s guilt.  On Saturday, May 28, 2005, the body of the complainant, Derrick Dudley, was found in his trailer located in a trailer park in Angleton, Texas.  The body was lying on a bed in a pool of blood, and blood was splattered on the walls and ceiling.  Five .25 caliber bullet casings were laying on Dudley=s bed around his body.  The right pocket of Dudley=s shorts was pulled out and had blood on it.[1] The authorities later determined that Dudley had been shot in the head five times while he was asleep.  The first shot, fired from a greater distance than the others, fatally wounded Dudley.  The next four shots were fired close together at close range.

    Dudley was a drug dealer who was known as AD-Lo.@  A lot of people would visit Dudley at his trailer house to use and sell drugs.  Dudley would allow people to stay with him, and he sometimes gave out keys to his trailer. Dudley=s usual routine was to go to bed very late and get up around midday.


    Dudley and appellant had been friends.  Appellant, who was known as APooda,@ was from Houston, but he sometimes stayed with Dudley at his trailer.  Despite their friendship, J=Quay Peterson, who was a friend of Dudley=s and who had a sexual relationship with appellant, had often heard appellant say that he was Agoing to get@ Dudley.[2] Dudley=s girlfriend, Pauline Davidson, had also heard appellant make derogatory comments about Dudley behind Dudley=s back.[3]

    A few days before Derrick Dudley was killed, he and appellant argued and physically fought one another.  Several people in the trailer park witnessed the fight, in which Dudley apparently Agot the better@ of appellant. Reginald Dudley, Derrick Dudley=s father, broke up the fight, and when he did so he saw that appellant had blood on his mouth.  The police were called, and appellant was arrested and taken to jail.  After getting out of jail, appellant, driving a green Ford Explorer, returned to the trailer park to get his belongings from a neighbor and the trunk of Dudley=s car. 

    On the Friday night before Dudley was killed, appellant rented a room at the Sony Motel in Houston.  At approximately 1:30 a.m. on Saturday, Catrina Dudley, Derrick Dudley=s sister, overheard a telephone conversation between Derrick Dudley and appellant.  She heard appellant tell Dudley, AMan, I ain=t got your shit. Quit calling my phone.@  When Derrick Dudley told appellant to bring back money appellant had apparently taken from him, appellant responded, AYou better hope you make it to me before I make it to you.@[4]


    Around 1:45 that same morning, Kavin Campbell, who was known as AKK,@ and Latara Lovelace drove to Houston to pick up some money appellant owed Campbell.[5] At the Sony motel, Campbell and Lovelace went to appellant=s room, where Lovelace heard appellant say he was going to return to Angleton to Akill Derrick.@[6]  Appellant also said AI have a nine.@  Although neither Lovelace nor Campbell saw a gun, appellant told Campbell he had a gun in the dresser drawer and said his gun would be Awaiting on@ anyone who came looking for him.  However, appellant did not give Campbell the impression he was going to kill Dudley.  According to Campbell, appellant expressed concern that Dudley and his acquaintances would come looking for him, and he seemed both angry and afraid.  Appellant appeared Aparanoid@ and Adrugged up@ as he paced the room, acting Aprepared for anything.@

    Campbell and Lovelace left appellant at the Sony Motel and drove back to Angleton.  On the way, appellant called Campbell several times on a cell phone.  Campbell and Lovelace arrived in Angleton around 4:45 a.m. and went to bed.  Sometime between 5:00 and 5:30 a.m., appellant called and said he was on his way to Angleton.  A few minutes later, appellant called again to say he was almost there.  Around 6:15 a.m., appellant called again, sounding hysterical and loud, and said he was lost and needed to find his way back to Houston.  Shortly after that, appellant called and said that he had found his way and was going back to Houston.

    At trial, Gulab Bava, the manager of the Sony Motel, testified that appellant had rented a room Friday night, May 27, the day before Dudley was killed.  Bava also testified that he saw appellant leave the motel early Saturday morning, around 5:00 a.m., in a green Jeep-type vehicle.  Bava confirmed that the vehicle he saw appellant driving was the vehicle depicted in State=s Exhibit 31, a picture of a green Ford Explorer belonging to Shannon Smith, a girlfriend of appellant.  Bava testified appellant did not return.

    Around 1:30 p.m. that afternoon, Campbell went to Derrick Dudley=s trailer, where he met Reginald Dudley, who was standing on the porch.  They both tried to wake Derrick Dudley by banging on the doors and trailer.  After trying several different ways to awaken Derrick Dudley, Campbell looked in the window and, when he saw blood, he kicked in the trailer door.  Campbell and Reginald Dudley went to Derrick=s room and found him dead.  They called 911.  Police then arrived to secure the crime scene and search for evidence.

    Jermaine Williams, a friend of Derrick Dudley=s and an acquaintance of appellant, heard about Derrick=s death, and went to the trailer.  Williams used his cell phone to call appellant that afternoon, and he recorded his conversations with appellant.  When Williams told appellant he was at AD-Lo=s house,@ appellant responded, AWhat=s wrong with D-Lo?@  Williams said Ahe dead,@ to which appellant asked AWho killed him?@  In another recorded call between appellant and Campbell, appellant asks Campbell to Akeep his ear to the street@ and Akeep very quiet about this,@ which Campbell understood to be references to appellant=s murder of Derrick Dudley.  Appellant also told Campbell to Ashut his mouth . . [or] the same shit going to happen.@

    Appellant was arrested and taken to the Brazoria County jail.  At the jail, he was housed in a part of the facility identified as A-Row.  An inmate named Jerrell Donley was also housed in A-Row across from appellant.  At trial, Donley testified that he heard appellant talking loudly to another inmate, Daniel Johnson, who was in the cell adjoining appellant=s.  Donley testified he heard appellant say AKK need to keep his mouth closed@ and that appellant Aain=t got shit to worry about because they ain=t got no evidence on him.@  Appellant also told Donley that Athey didn=t have anything on him@ because he would not Aleave smoke in his trail.@  Regarding Derrick Dudley, appellant said, AA dead man can=t talk.@

    Daniel Johnson, the inmate in the cell adjoining appellant=s, testified that appellant confessed to him that he murdered Derrick Dudley.  Johnson testified that the confession came after appellant had been in jail about three days. Johnson told the jury that appellant said that he confessed because he could not sleep at night, his conscience was bothering him, and he didn=t trust anybody. Johnson testified that appellant said he killed Derrick Dudley because Dudley Awas in his business@ and they had gotten in a fight resulting in Dudley going to jail and getting out the next day.  Appellant told Johnson that he went to Derrick Dudley=s trailer and shot him in the head while he was asleep.  Appellant also said that, after he killed Derrick Dudley, he went to Houston to give the money he took to his wife, Shannon.  Johnson also testified that appellant said that Campbell told appellant that Dudley had gotten some people together to look for appellant and that Dudley was asleep at the trailer.  Appellant went on to say that this was when he jumped in his wife=s Explorer, went to Dudley=s trailer and shot him.  According to Johnson, appellant also stated that as long as Campbell did not Aopen his mouth@ the police would not have anything on him.  As for Dudley, appellant repeatedly said of him AA dead man can=t talk,@ as he smiled and laughed.  Because Johnson thought it was a cowardly way to kill somebody, he decided to inform law enforcement authorities about the information he had.  He denied having read newspaper accounts of the crime.

    Johnson also testified that he was in jail on a burglary charge, and that he had been in custody for eleven months.  He testified that the complainant in that case was a lady he was living with at the time.  He admitted that, with a prior enhancement, the punishment for the offense ranged from five to ninety-nine years or life.[7] Johnson had notified the authorities the day after he received the information from appellant, and admitted he was distressed when he did not immediately get a response.  Johnson testified that he rejected an offered plea bargain for two years in prison because he was not guilty of the charge.  The month before appellant=s trial began, Johnson again met with prosecutors to discuss the information he had against appellant, and he was offered a plea agreement on a reduced charge of criminal trespass, a Class A misdemeanor. When asked when he was scheduled to be released, Johnson stated that he was set to go to court that Friday after he testified.  According to Johnson, he was offered the plea agreement because he had been in jail eleven months and the State lacked evidence of a burglary.  Johnson further testified that he had agreed to wear a wire to record appellant when appellant confessed to him a second time, but the tape recorder did not work.

    At trial, photographs and evidence collected from the crime scene were presented to the jury.  Among other things, two large cookies of cocaine and three cell phones were found in appellant=s trailer. However, no physical evidence linking appellant to the crime scene was found. Officers had collected samples from the crime scene for DNA testing, but none of the samples matched appellant.  Tests for blood in the green Ford Explorer appellant drove were negative.  The gun used in the shooting apparently was never located.

    The jury found appellant guilty of murder.  After the punishment phase, the jury found one of two prior convictions true and assessed appellant=s punishment at life and a $10,000 fine.

    Appellant=s Issues

    On appeal, appellant raises five issues:  (1) the evidence is legally insufficient to show that appellant shot the deceased; (2) the evidence was factually insufficient to show that appellant shot the deceased; (3) the trial court abused its discretion by allowing a witness to speculate about what appellant meant when he said to Akeep quiet about this@; (4) appellant received ineffective assistance of counsel at punishment because counsel stated Ano objection@ to the admission of evidence of drugs found during the arrest and search of appellant; and (5) appellant received ineffective assistance of counsel at punishment when he failed to object to the prosecutor=s argument that allegedly asked the jury to ignore the law and evidence and to punish appellant as a second offender rather than as an habitual offender.  We address each below.

    1.       The Legal Sufficiency of the Evidence

    Appellant contends the evidence is legally insufficient to show that he shot Derrick Dudley.  First, appellant contends the only direct evidence against him was provided by Daniel Johnson, an inmate whose testimony was not credible because he was highly motivated to lie to get out of jail. Appellant argues it is not credible that appellant would make a confession to a complete stranger after three days in jail, or that the attempt to tape record appellant=s alleged second confession failed.  Appellant also argues the evidence shows that Johnson used appellant=s confession to obtain an advantageous plea agreement that enabled him to get out of jail shortly after testifying against appellant.

    Second, appellant argues that the circumstantial evidence at most casts suspicion on appellant but does not, taken in its entirety, place appellant at Dudley=s trailer at the time of the killing, and does not eliminate the Amany others@ who may have had a motive and opportunity to kill Dudley.  Appellant points out that no one saw appellant in Angleton at the time of the murder, no one saw him with a gun, and no physical evidence links him to the crime.  Further, appellant argues that any incriminating statements he made to others could have been references to the theft of money from Dudley rather than his murder.  Appellant also points out that Dudley was a drug dealer, he associated with people who came and went from his home twenty-four hours a day, and he allowed other people to stay with him.  Appellant further notes that the fact witnesses were involved in the Angleton drug culture, while appellant was from Houston.

    A.      Standard of Review

    In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  This standard of review applies to cases involving both direct and circumstantial evidence.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  Although we consider all evidence presented at trial, we may not re‑weigh the evidence and substitute our judgment for that of the jury.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

    B.      The Evidence is Legally Sufficient

    First, appellant contends the direct evidence of appellant=s confession, supplied by Johnson, was Anot entitled to belief@ because Johnson successfully negotiated a plea on a much-reduced charge and was set to be released shortly after giving his testimony.  However, the jury in this case heard the testimony concerning appellant=s confession and the circumstances of Johnson=s plea agreement, and it was charged with assessing Johnson=s credibility and the weight of his testimony.  The jury was entitled to believe all, some, or none of Johnson=s testimony concerning appellant=s confession, and we may not supplant our judgment for that of the jury in matters of witness credibility. 

    Additionally, ample circumstantial evidence was presented that is legally sufficient to support appellant=s conviction. Circumstantial evidence alone may be sufficient to support a conviction.  See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).  Here, the circumstances included the following:

    $ appellant stated he was Agoing to get@ Dudley;

    $ a few days before Dudley was murdered, appellant lost a fight to Dudley and was arrested and taken to jail;

    $ Catrina Dudley heard appellant say that Dudley had better get to appellant before appellant got to Dudley;

    $ appellant told Latara Lovelace that he was going to kill Dudley;

    $ appellant was seen leaving his rented motel room in Houston about 5:00 a.m. on May 28, 2005, in a green Ford Explorer;

    $ appellant called Kavin Campbell and said he was on his way to Angleton at approximately 5:30 that same morning;

    $ appellant again called Campbell, this time hysterical and loud, saying he was lost and needed to get back to Houston;

    $ appellant=s questions to Jermaine Williams on the recorded telephone conversations, when appellant asked AWhat=s wrong with D-Lo?@ and AWho killed him?@ when Williams said he was at Dudley=s trailer could be construed as admissions;

    $ appellant sometimes stayed with Dudley, and would have known his usual routine;

    $ Dudley was shot five times in the head at close range, indicating an intentional murder; 

    $ when appellant was in jail he stated that the State did not have any evidence on him and that Kavin Campbell needed to keep his mouth closed; and,

    $ appellant repeatedly said Aa dead man can=t talk.@

    Moreover, as with Johnson=s testimony, the jury was entitled to weigh the credibility of the witnesses, and it was entitled to resolve the evidence in the State=s favor.  Given the totality of the evidence, it was rational for the jury to believe beyond a reasonable doubt that appellant was guilty of Derrick Dudley=s murder.  We overrule appellant=s first issue.

    2.       The Factual Sufficiency of the Evidence

    In his second issue, appellant contends the evidence is factually insufficient to show that he shot Derrick Dudley.  Appellant advances many of the same arguments he made in his first issue and relies on the same evidence to assert that the record clearly shows Daniel Johnson was not credible and the circumstantial evidence was insufficient to establish his guilt beyond a reasonable doubt.

    A.      Standard of Review

    When conducting a factual‑sufficiency review, we view all of the evidence in a neutral light.  See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility.  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with unless it represents a manifest injustice even though supported by legally sufficient evidence).  Thus, while we are permitted to substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

    B.      The Evidence is Factually Sufficient

    In this case, as appellant recognizes, the majority of the evidence depends on the credibility of the witnesses.  He emphasizes that the only direct evidence of appellant=s guiltCDaniel Johnson=s testimony that appellant confessed to him that he killed Derrick DudleyCis not credible and cannot establish the essential elements of the offense.  Further, as argued in his first issue, appellant contends the circumstantial evidence does no more than cast suspicion on him and, therefore, does not establish his guilt beyond a reasonable doubt.

    Johnson testified that appellant told him that he killed Derrick Dudley in his sleep, in his trailer, by shooting him in the head. Appellant also said he drove his wife=s Ford Explorer, and afterwards went back to Houston and gave money to his wife, Shannon. Appellant also said that Kavin Campbell needed to keep his mouth shut, and Aa dead man can=t talk.@ Appellant contends Johnson=s credibility is Anil@ because his testimony was merely part of an ultimately successful scheme to avoid prison.  However, Johnson testified that he did not read any newspaper accounts of the crime, and there was no evidence that he learned the details he recounted from any other source.  And, according to Johnson, his burglary charge concerned a residence where he lived with the complainant, and he testified that he obtained the plea agreement because the evidence against him was very weak.  Moreover, Johnson=s testimony was corroborated by other evidence admitted during the trial.  Although appellant strenuously asserts that Johnson cannot be believed, a rational jury could have resolved the issues contrary to appellant=s view of the evidence.

    Further, we disagree with appellant=s conclusion that the circumstantial evidence does no more than cast suspicion on appellant.  It is correct that no one placed appellant at the scene and no physical evidence was found to link appellant to the crime.  However, the circumstantial evidence shows that, among other things, appellant had lived with Dudley and so would have been familiar with his routine, he lost a fight with Dudley in front of others and was taken to jail because of the fight, he made threats against Dudley, the day before Dudley was killed he said he was going to kill Dudley, his telephone calls placed him in Angleton around the time Dudley was killed, and he stated in jail that the police had no evidence on him and Aa dead man can=t talk.@  Although appellant suggests the witnesses who provided much of this evidence were untrustworthy because they were part of the Angleton drug culture, he does not provide specific references to evidence he contends support this contention. Moreover, although the evidence showed that Dudley was a drug dealer who frequently associated with others who used and sold drugs and often allowed others to stay with him, this evidence, and the credibility of the State=s witnesses, was for the jury to evaluate.

    Unless the available record clearly reveals a different result is appropriate, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor of the witnesses= testimony.  See Watson, 204 S.W.3d at 414; Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).  Although we may disagree with the jury=s conclusions, we may do so only Ato a very limited degree.@  See Marshall, 210 S.W.3d at 625.  Here, we cannot say that the jury=s decision is manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.

    Our review of the record as a whole, with consideration given to all of the evidence both for and against the jury=s finding, has not caused us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render appellant=s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury=s verdict.  We overrule appellant=s second issue.

    3.       Admission of Witness Testimony  

    In his third issue, appellant contends the trial court abused its discretion by allowing a witness to speculate as to what appellant meant when he said to Akeep quiet about this,@ which allowed the witness to opine that appellant murdered Dudley.  The testimony appellant complains of occurred as the State questioned Kavin Campbell about a conversation between Campbell and appellant after Dudley was killed:

    Prosecutor:  Did [appellant] ask you to keep quiet about anything?

    Campbell:     Yes, sir.

    Prosecutor:  What did he say?

    Campbell:     He wouldn=t say.  He just said, AKeep very quiet about this.@

    * * *

    Prosecutor:  What did you think that he meant by that?

    Campbell:     Oh, I knew B B

    Defense:      (Mr. McGee) Your Honor, that calls for speculation.

    The Court:    No.  It=s what he thought.

    Campbell:     I know what he meant.

    The Court:    Just a minute, now.

    Overruled.

    Read that last question back, and then you can answer it, sir.

    Reporter:      Question:  AWhat did you think he meant by that?@

    Campbell:     He meant that to keep quiet about him murdering Derrick.

    Appellant contends the testimony is not based on personal knowledge and therefore, under Rule of Evidence 602, Campbell was not competent to offer his opinion concerning what appellant meant by his statement.  See Tex. R. Evid. 602 (AA witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.@).  However, lay witness opinion testimony is admissible if it is A(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness= testimony or the determination of a fact in issue.@  Tex. R. Evid. 701.  Rule 701=s requirement that the testimony be based on the witness=s perception presumes the witness observed or experienced the underlying facts, thus meeting the personal‑knowledge requirement of Rule 602.  Turro v. State, 950 S.W.2d 390, 403 (Tex. App.CFort Worth 1997, pet. ref=d) (holding that testimony by victim=s sister about her reaction to overheard telephone conversation between defendant and victim was admissible when sister was personally listening to the conversation, was able to perceive inflections in voices, and had sufficient firsthand familiarity with both people to place a reasonable interpretation on the inflections).

    The initial requirement that an opinion be rationally based on the perceptions of the witness is itself composed of two parts.  First, the witness must establish personal knowledge of the events from which his opinion is drawn and, second, the opinion drawn must be rationally based on that knowledge.  Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997).  The perception requirement of Rule 701 requires the proponent of lay opinion testimony to establish that the witness has personal knowledge of the events upon which his opinion is based.  Id.  Although a witness cannot possess personal knowledge of another=s mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn.  Id. at 899.  Once the perception requirement is satisfied, the trial court must determine if the opinion is rationally based on that perception.  Id. at 899B900.  An opinion is rationally based on perception if it is an opinion that a reasonable person could draw under the circumstances.  Id. at 900.

    We review a decision admitting or excluding evidence under an abuse of discretion standard; absent an abuse of discretion, we will not reverse a trial judge=s decision.  See Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). If evidence exists supporting the decision to admit evidence, there is no abuse, and we must defer to that decision.  Id. at 538.

    Appellant contends Campbell=s testimony was speculative because Campbell could not know Athe mental workings of [appellant=s] mind.@  However, as an initial matter, we note that the question was not what did appellant mean by his statement, it was what did Campbell think appellant meant. Campbell knew appellant, and was with appellant the night before Dudley was murdered.  In appellant=s motel room, Campbell observed appellant=s anger toward Dudley and heard appellant state that he had a gun.  Campbell was also the recipient of multiple telephone calls from appellant that placed appellant in Angleton around the time of Dudley=s murder. Therefore, Campbell=s opinion was rationally based on his familiarity with appellant and his perception of the events.  Indeed, Campbell even testified that he Aknew what [appellant] meant.@ Campbell=s opinion also was one that a reasonable person could draw under those circumstances.  Thus, Campbell=s opinion testimony satisfied the first prong of Rule 701Cthat it was rationally based on the witness=s perception.

    Campbell=s opinion also satisfied the second prong of Rule 701, because it was helpful to the jury=s determination of the central fact at issueCwhether appellant was guilty of Dudley=s murder.  Even if the trial court did err in admitting Campbell=s testimony, it was harmless because the record as a whole contains substantial evidence inculpating appellant in this murder.  See Tex. R. App. P. 44.2; Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002).  Therefore, we overrule appellant=s third issue.

    4.       Ineffective Assistance of Counsel

    In his fourth and fifth issues, appellant contends he received ineffective assistance of counsel in two instances during the punishment phase of the trial:  (1) when counsel stated he had Ano objection@ to the admission of evidence of drugs found on appellant when he was arrested and stipulated to appellant=s possession of illegal narcotics; and (2) when counsel failed to object to the State=s argument, which allegedly asked the jury to ignore the law and evidence and to punish appellant as a second offender rather than as an habitual offender so that the jury could add a $10,000 fine to their verdict.

    A.      Standard of Review

    Ineffective assistance claims are governed by the two‑pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984).  To prove ineffective assistance, appellant must show (1) that counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence.  Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995).

    A strong presumption exists that counsel=s conduct fell within the wide range of reasonable professional assistance.  Salinas, 163 S.W.3d at 740.  To defeat this presumption, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).  When no specific reason is given for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813B14. Further, when counsel has not been afforded an opportunity to explain his or her decisions, we do not find deficient performance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  See 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)).

    B.      Appellant=s Possession of Drugs

    At the start of the punishment phase of the trial, the State read the two enhancement paragraphs contained in the indictment, both of which alleged prior convictions for felony possession of a controlled substance.  Appellant pleaded Anot true@ to both enhancements.  To prove the allegations in the enhancements, the State introduced evidence of appellant=s criminal history by certified copies of pen packets and judgments.  These documents reflected several convictions and sentences for possession of a controlled substance, as well as convictions for criminal trespass and evading arrest.  During the proceeding, the State also called Captain Chris Kinchloe of the Brazoria County Sheriff=s Office to testify concerning illegal drugs found on appellant when he was searched after his arrest.  However, appellant=s counsel repeatedly objected to the prosecutor=s questions to Kinchloe on the grounds that the State had not shown that appellant was lawfully in custody when he was searched.  The trial court sustained the objections.


    In response, the State then called Jerome Griffin, an investigator at the Brazoria County Sheriff=s Office.  Griffin testified that he obtained a warrant for appellant=s arrest, arrested appellant in Houston on June 1, 2005, took appellant to the Brazoria County jail around midnight, and filled out the return on the warrant shortly after midnight.  Captain Kinchloe was then recalled and testified that, during a search of appellant at the Brazoria County Jail, a plastic bag containing illegal drugs was found inserted into appellant=s rectum.  Defense counsel did not object to the State introducing the lab report describing the analysis of each drug found in the bag.[8] Defense counsel stated that he had interviewed the chief chemist for the Brazoria County Sheriff=s Department and agreed to stipulate to the contents of the bag; he also reiterated that he had Ano objection@ to the admission of the exhibit.

    On appeal, appellant complains that his counsel was ineffective because he did not continue to object to the admission of this Adamning evidence@ obtained as a result of the search after an allegedly illegal arrest,[9] and because counsel=s affirmative statement that he had Ano objection@ to the evidence waived appellant=s right to appeal its admission. Appellant contends the trial court had consistently sustained counsel=s objections to the evidence before the State showed the evidence was obtained after appellant=s incarceration on the arrest warrant, and there is no reason to believe it would not continue to sustain his objections thereafter. 


    However, the record shows that defense counsel=s objective was to require the State to prove appellant was in lawful custody before eliciting testimony regarding the search and subsequent discovery of the drugs.  In response to counsel=s objections, the State called investigator Griffin to testify about the execution and return of the arrest warrant for appellant.  Once this was done, the State recalled Captain Kinchloe to testify about the search and discovery of the drugs in the plastic bag. Following Griffin=s testimony, defense counsel no longer objected to Kinchloe=s testimony.  When the State then offered the lab report containing the results of the analysis of the drugs, defense counsel said he had interviewed the chemist and agreed to stipulate to the contents of the bag without objection.  We cannot say that defense counsel could be considered ineffective by requiring the State to prove a valid warrant of arrest and custodial search.  Further, the admitted evidence was no more Adamning@ than the other evidence of appellant=s criminal history.  Contrary to appellant=s assertion, this record contains nothing to rebut the presumption that appellant=s counsel=s actions were reasonable and professional.

    We therefore overrule appellant=s fourth issue.

    C.      The State=s Argument on Punishment

    In his fifth issue, appellant contends his trial counsel rendered ineffective assistance when he failed to object to the State=s closing argument.  According to appellant, the argument asked the jury to ignore the law and evidence and to punish appellant as a second offender rather than as an habitual offender, so that the jury could add a $10,000 fine to its verdict. Appellant asserts that, had counsel objected, the trial court likely would have sustained the objection and, upon request, instructed the jury to disregard the argument.  Without this argument, appellant claims, he would not have been assessed the fine. 

    The argument appellant complains of is the following, with particular emphasis on the highlighted portion:

    You 12 people, now it=s time to decide, what are you going to do with him, the choices that he has made?  I=m going to ask you to do something different.  In the jury charge on the second page, I encourage you to sign the second page.

    And this is why:  The law is if you=ve got two priors, sequential felony convictions and pen trips, it=s 25 to life.  The minimum doesn=t matter here.  What matters is the principal, the principal of the thing.  Whether you give him 99 or life, it doesn=t matter.  It=s one-half or 30 years before he=s eligible for parole.  It=s the same.  The principal of the thing is you give him life.  He took someone=s life; you give him life.

    And the reason why we sign the second verdict form, you give him the fine of $10,000.  That=s the maximum punishment that he deserves for this crime of murder.  Thou shalt not kill. The maximum that he deserves is life and a 10,000-dollar fine.  You can say in your verdict form that only one of the enhancement allegations is true.  Now, they=ve probably been proven beyond a reasonable doubt to both be true, but the principal of the thing is to give him life and a 10,000-dollar fine.

    Appellant=s counsel made no objection to this argument.  As the prosecution requested, the jury found only the first enhancement paragraph true, and assessed appellant=s punishment at life and a $10,000 fine.

    In the trial of a first-degree felony, if it is shown that the defendant has been once before convicted of a felony, the range of punishment is imprisonment in the institutional division of the Texas Department of Criminal Justice for 15 to 99 years or life.  See Tex. Penal Code ' 12.42(c)(1).  In addition, an individual may be punished by a fine not to exceed $10,000.  Id. If, however, it is shown that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, the range of punishment is imprisonment in the institutional division of the Texas Department of Criminal Justice for 25 to 99 years or life.  See id. ' 12.42(d).  There is no provision for a fine to be imposed in addition to imprisonment. 

    Thus, in appellant=s case, if the jury found only one enhancement paragraph true, it could assess a punishment of as low as 15 years= imprisonment, whereas if the jury found both enhancement paragraphs true, the minimum punishment it could assess would be 25 years= imprisonment.  However, if the jury was inclined to assess punishment at the higher end of the range, the maximum terms of imprisonment would be the same (99 years to life) if one or two enhancement paragraphs were found to be true.  The jury could assess a fine of up to $10,000 if it found only one enhancement paragraph true, but, if the jury found both enhancement paragraphs true, it could not assess any fine against appellant.  Thus, the prosecutor argued to the jury that it should find only one enhancement paragraph true so that it could impose not only the maximum period of imprisonment, but also the maximum fine.

    The State responds that this argument was Acreative@ and a proper plea for law enforcement.  See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000) (AProper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement.@).  The State argues that the enhancement paragraphs are merely allegations that must be proved beyond a reasonable doubt, and the jury is free to believe or disbelieve any evidence admitted before it.  And, because appellant pleaded Anot true@ to both enhancements, the jury could have found neither true.  Because the argument was proper, the State urges, appellant=s counsel had no reason to object to it.  Consequently, appellant=s counsel did not render ineffective assistance by failing to object.  Moreover, the State claims the argument aided appellant because he was not found to be a habitual offender.

    Assuming without deciding that the prosecutor=s argument was improper, we conclude appellant has not demonstrated that his counsel=s failure to object rises to the level of ineffective assistance.  Appellant fails to demonstrate that his counsel=s silence was not based on reasonable trial strategy.  Defense counsel may have taken the reasonable trial strategy of not objecting because the argument encouraged the jury to consider a punishment range with a lower minimum term of imprisonment.  Given the absence of evidence regarding counsel=s motives, the presumption of effectiveness granted counsel, and the great deference we accord decisions made by defense counsel, we cannot say that appellant proved that his counsel=s failure to object to the prosecutor=s argument evinced any deficiency in performance.  See Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002); see also Bone, 77 S.W.3d at 833 (discussing the applicable standard of review and stating that seldom will the record on direct appeal be sufficient to establish a claim).

    Conclusion

    We overrule appellant=s issues and affirm the trial court=s judgment.

     

    /s/      Wanda McKee Fowler

    Justice

    Judgment rendered and Memorandum Opinion filed April 12, 2007.

    Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

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


    [1]  The crime scene investigator explained that the pocket of Dudley=s shorts had Atransfer blood@ on it, meaning blood transferred from the hand of the person who shot Dudley, who likely would have had blood spatter on his hand.

    [2]  At trial, Peterson testified that she was under the influence of drugs when she heard appellant=s statements about Dudley, but denied that the drugs affected her memory or made her hallucinate.  She also appeared for trial in orange jail clothes because she had been convicted of possession of a controlled substance and failure to identify and was currently in jail.  She testified that a police officer had offered to make a deal with her for lesser time if she would write to appellant in jail to find out what happened, but she did not accept any deal.

    [3]  Davidson testified that she had been convicted of theft, theft-by-check, and credit card abuse, but she had made no deals in exchange for her testimony.

    [4]  On cross-examination, Catrina Dudley admitted her written statement to police did not include the statements appellant made to Derrick Dudley, but she stated that was because she was upset when she made the statement.

    [5]  Campbell testified that he and Derrick Dudley were cousins and very close friends.  At the time of trial, he testified that he was on deferred adjudication probation for possession of a controlled substance and a motion to revoke his probation was pending.  He also had a pending charge for making a terroristic threat toward his daughter=s mother.

    [6]  On cross-examination, Lovelace admitted she did not include appellant=s statement in her written statement to police, but stated that she did tell the investigator that took her statement about it.  She also testified she did not like appellant.

    [7]  Johnson admitted he had previously been convicted of burglary, aggravated assault, and theft.

    [8]  The lab report identified the drugs as cocaine, ecstasy, and methamphetamine.

    [9]  In support of this issue, appellant appears to include an attack on the sufficiency of the probable cause affidavit and warrant for his arrest; however, this issue was not raised at the trial court and so cannot be raised for the first time on appeal.  See Tex. R. App. 33.1.  Even if the evidence were inadmissible, however, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel.  See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).