Adrian Devonne Jones v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-08-00178-CR _____________________

ADRIAN DEVONNE JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-080059-R

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MEMORANDUM OPINION

Adrian Devonne Jones pled guilty, without a plea agreement, to aggravated robbery with a deadly weapon. The trial court sentenced him to thirty years in prison. On appeal, he argues his trial counsel was ineffective at the punishment phase. We overrule the issue presented. Because the judgment includes a clerical error, we modify the judgment and affirm the trial court's judgment as modified.

Standard of Review

We review a claim of ineffective assistance of counsel under the standards set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant must show his counsel's performance was deficient and that the deficient performance prejudiced his defense. Id; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To show deficient performance, the defendant must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. To show prejudice, the defendant must show reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id.

"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. The defendant has the burden of overcoming the strong presumption that an attorney's actions were sound trial strategy. Id. An allegation of ineffective assistance 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). "[T]he record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel's actions at trial." Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007) (footnote omitted). For that reason, the record on direct appeal will generally not be sufficient to show that trial counsel's representation was so deficient and so lacking as to overcome the presumption that counsel's representation was reasonable and professional. Bone, 77 S.W.3d at 833. If the record is silent regarding trial counsel's strategy, we "will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

Background

At the punishment hearing, the State presented two witnesses. Detective Sarah Jefferson-Simon testified she had known Jones throughout his life. She indicated that on a "couple of occasions" when she was working at the high school attended by Jones, he "was disrupting the classroom . . . ." The detective explained that normally when she talked with him she could get him to cooperate with her. She was aware he had broken rules at school and had broken the law as a juvenile. She testified she had participated in an investigation of Jones's involvement in a "robbery/carjacking" in Louisiana. The detective also explained she interviewed Jones about the aggravated robbery allegation in this case, and he ultimately confessed to his involvement in the crime. Jones's attorney did not cross-examine the detective.

The State's other witness, was Kelli Romano-Catron, who testified concerning the aggravated robbery that occurred on January 15, 2008. She was working the evening shift as a restaurant cashier. Two people entered the restaurant with something that looked like ski masks on their faces. Catron testified she thought her life was going to end. Both suspects had guns. She testified Jones pointed a gun at her face, and the other man held a gun down by his leg. Both demanded money. She handed over the money. The cashier testified she has had anxiety attacks since the robbery occurred. On cross-examination, trial counsel attempted to cast doubt on the cashier's memory, particularly as to whether Jones had a gun during the robbery.

Jones's attorney sought to have the other person charged in the aggravated robbery testify at the punishment phase. At the sentencing hearing, the trial judge stated the "co-defendant's" attorney indicated the co-defendant had no intention of testifying and would invoke the Fifth Amendment. Concluding the witness was unavailable for testimony, the trial judge did not "bring him over to go through the procedure in the courtroom."

Jones's attorney presented two witnesses at the punishment phase. Jones testified in his own behalf. He was seventeen at the time of trial. His trial attorney questioned him about the contents of the PSI report. Jones indicated he earlier had a charge of criminal mischief for which he received probation (later revoked); a charge for terroristic bomb threat (for which he was suspended from school); an evading arrest charge; charges for two carjackings; and two robbery charges from Louisiana (for which he spent time in jail). Explaining that the information in the PSI report was correct "[e]xcept for the weapon[,]" Jones testified he did not have a gun during the robbery. The other man had a revolver, and the robbery was the other man's idea. Jones "told [the other defendant] that I couldn't let him do nothing like that [himself]." Jones testified he "just stood by the [restaurant] door" and held it open, and the other defendant got the money and left with it. Jones indicated he went along to prevent somebody from getting hurt. He testified his participation was "stupid[,]" and that he was taking this "[v]ery serious."

Trial counsel presented evidence that Jones had been employed. Jones testified he understood he could be incarcerated for life; he "made the wrong choices"; and he asserted he was going to change and make positive choices in his life.

During the State's cross-examination, Jones acknowledged he initially lied to the detective about his involvement in the robbery. He indicated he knew there were people in the restaurant that night and someone could get hurt. Jones also knew the other man had a gun when they entered the restaurant. Jones netted approximately $350 from the robbery.

Ebonica Jones, Jones's sister also testified. She explained Jones has had trouble with anger because we did not "have [our] mother in our life, and we didn't have a father figure in our life." Their grandmother raised them. Other positive influences in Jones's life were a Mr. Brackin and Detective Jefferson. When Jones's grandmother died, "that's when things kind of went down the drain for him." The sister, a college student, indicated she would provide assistance, encouragement, and counsel to Jones to help him do what is right. She testified she had a job and was raising two girls, ages four and three. In spite of the good influences in Jones's life, the sister indicated he had made some bad choices.

Analysis

Jones argues his counsel was ineffective at the punishment phase of the trial, because counsel presented only the testimony of Jones and Jones's sister for mitigation purposes and failed to properly investigate and present an adequate defense. Trial counsel cross-examined the eyewitness and challenged her memory and credibility. Although trial counsel chose not to cross-examine the detective, Jones does not show how that decision was deficient performance or how it prejudiced his defense. The decision may have been sound trial strategy.

The record does not demonstrate that counsel failed to investigate other potential witnesses for mitigation testimony, and there is nothing in the record indicating what witnesses Jones might have called or the content of any testimony they may have given. See Lockett v. State, 874 S.W.2d 810, 817 (Tex. App.--Dallas 1994, pet. ref'd) (Record does not show extent of trial counsel's investigation or what evidence would have been discovered had counsel investigated further; record does not show deficient performance or prejudice.). Counsel may have had difficulty in finding witnesses to testify at punishment.

The witnesses presented by trial counsel revealed Jones's background, his absent mother, lack of a father figure, his grandmother's role in raising him, the death of his grandmother, his downward spiral after her death, his acknowledgment of wrong choices in his life, and the avowed support of his sister. The record does not affirmatively demonstrate the alleged ineffectiveness, and Jones has not overcome the presumption that counsel acted pursuant to sound trial strategy.

A reviewing court examines all the facts and circumstances involved in the case and "must be highly deferential" to trial counsel and avoid the "distorting effects of hindsight[.]" Strickland, 466 U.S. at 689-90; Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509) (Tex. Crim. App. 1984)). Based on the totality of the representation and the particular circumstances of this case, we conclude Jones has not met his burden of establishing ineffective assistance of counsel, or that the complained-of conduct is of a type that no reasonably competent defense attorney would have engaged in for any reason. See Mata, 226 S.W.3d at 428-29; Thompson, 9 S.W.3d at 813.

The document titled "Punishment Recommendation," the guilty plea hearing, and the certification of right to appeal all state there was no plea bargain in this case. The record of the punishment phase of the trial gives no indication of any plea bargain; yet the trial court's judgment states there is one. The judgment contains a clerical error. An appellate court may modify a judgment to correct a clerical error in the judgment. See Tex. R. App. P. 43.2(b); Nicholas v. State, 56 S.W.3d 760, 767 (Tex. App.--Houston [14th Dist.] 2001,pet. ref'd). Because there was no plea bargain, we modify the judgment to omit the following language:

"Terms of Plea Bargain: Serve thirty (30) years confinement in the Texas Department of Criminal Justice-Institutional Division."

The remainder of the judgment remains the same. We overrule Jones's appellate issue and affirm the judgment as modified.

AFFIRMED AS MODIFIED.

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DAVID GAULTNEY

Justice

Submitted on April 1, 2009

Opinion Delivered April 8, 2009

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.