Arthur Watts, Jr. v. State ( 2006 )

                                                NO. 12-05-00259-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ARTHUR WATTS, JR.,        §          APPEAL FROM THE FIRST

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

            Arthur Watts, Jr. appeals his convictions for two counts of delivery of a controlled substance.  In one issue, Appellant asserts that he was denied effective assistance of counsel.  We affirm.

Background

            Appellant was charged by indictment with two felony counts of delivery of a controlled substance, namely cocaine, in an amount of four grams or more but less than two hundred grams of cocaine.  See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003).  The indictment alleged that, on or about February 20 and March 9, 2004, in San Augustine County, Appellant “knowingly deliver[ed], by actual transfer, to Paul Hopson, a controlled substance, namely, cocaine, in an amount of four grams or more but less than 200 grams.”  Appellant pleaded “not guilty.”

            Prior to trial, Appellant’s trial counsel filed numerous pretrial motions.  Appellant’s trial counsel actively participated in voir dire and the guilt/innocence phase of trial.  At the conclusion of the guilt/innocence phase, the jury found Appellant guilty of both counts.  Prior to the punishment phase of the trial, Appellant’s trial counsel stated to the court that he had failed to file an election to have the jury assess punishment. Counsel asked the trial court to allow him to make that election at that time “in the interest of fairness.”  The State would not agree to the election. The trial court determined that in the absence of a timely filed written election or the State’s consent, it did not have discretion to allow the jury to assess punishment.  Thus, the trial court dismissed the jury and heard the punishment phase of the trial.  At the conclusion of the punishment phase, the trial court assessed punishment at forty-two years of imprisonment.¹  This appeal followed.

Ineffective Assistance of Counsel

            In his sole issue, Appellant argues that his former counsel provided ineffective assistance of counsel in three instances. Specifically, Appellant contends that his trial counsel failed to timely file an election for jury sentencing, thereby denying him the opportunity to have the jury render punishment. Appellant also contends that counsel provided ineffective assistance when he failed to object to lack of notice regarding State’s Exhibit 10, Appellant’s pen packet, and when he failed to produce mitigating evidence at the punishment phase of the trial. 

Standard of Review

            In reviewing an ineffective assistance of counsel claim, we apply the United States Supreme Court’s two pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).  Under the first prong of the Strickland test, an appellant must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  To be successful, an appellant must “show that counsel’s representation fell below an objective standard of reasonableness.”  Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

            Under the second prong, an appellant must show that the “deficient performance prejudiced the defense.”  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.  The appropriate standard for judging prejudice requires an appellant to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  The Strickland standard applies to ineffective assistance of counsel claims alleging a deficiency in attorney performance at both capital and noncapital sentencing proceedings.  Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999) (overruling Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980)).

            Review of a trial counsel’s representation is highly deferential.  Tong, 25 S.W.3d at 712.  We indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  It is Appellant’s burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Id.; Tong, 25 S.W.3d at 712.  Moreover, any 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, 813 (Tex. Crim. App. 1999).  Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.  Id.  Appellant must prove both prongs of the Strickland test by a preponderance of the evidence to prevail.  Tong, 25 S.W.3d at 712.

Failure to File a Punishment Election

            If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense.  Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (Vernon Supp. 2004-05).  However, where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury.  Id. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of who assesses the punishment.  Id.  There is no constitutional right to have the jury assess punishment.  Grim v. State, 923 S.W.2d 767, 769 (Tex. App.–Eastland 1996, no pet.)

            The right to reasonably effective assistance of counsel does not guarantee errorless counsel or counsel whose competency is to be judged by hindsight.  Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A single error by counsel renders performance ineffective only if it permeates the entirety of the representation. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005).  Further, isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective performance be established by isolating one portion of the trial counsel’s performance for examination.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).

            The record shows that trial counsel filed numerous pretrial motions, proficiently conducted voir dire, made numerous trial objections, cross examined witnesses, put on a defense, and made closing arguments. See Grim, 923 S.W.2d at 769.  Appellant’s trial counsel conceded that he failed to file a jury election for punishment with the court prior to trial.  On appeal, Appellant claims that he intended to have the jury sentence him and that trial counsel rendered competent advice to go to the jury for punishment.  He contends that trial counsel then failed to effectuate his decision when he failed to file an election for the jury to assess punishment.  However, we cannot conclude on the record before us that trial counsel’s error of omission permeated his entire performance, rendering it ineffective.

            Even if we assumed, without deciding, that trial counsel’s performance was deficient, Appellant must also show that his right to a fair trial was prejudiced by any such deficiency in his counsel’s performance.  Appellant claims in his brief that the trial judge “is widely known for harsh punishment” and that he “shows little leniency toward repeat offenders such as appellant.” However, there is no support of this contention in the record. In an offer of evidence before trial, the State showed two prior federal convictions in 1990 for distribution of cocaine and money laundering for which he was sentenced to 156 months in federal prison. The trial judge assessed Appellant’s punishment at imprisonment for forty-two years, less than half of the punishment range available for the convicted offense. Appellant claims that the trial judge assessed a more severe sentence than a jury would have rendered. However, we cannot speculate as to whether a jury would have assessed a lesser sentence.  See Ross v. State, 180 S.W.3d 172, 177 (Tex. App.–Tyler 2005, pet. ref’d).  Thus, Appellant has failed to meet the second prong of Strickland.  See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Failure to Object to Lack of Notice of Federal Pen Packet

            Appellant claims that trial counsel should have objected to lack of notice when the State offered Appellant’s federal pen packet into evidence.  The record shows that Appellant requested notice of the State’s intent to use extraneous offense evidence at trial.  Article 37.07 requires that the State provide notice of its intent to introduce extraneous offense evidence if the defendant makes a timely request.  See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (Vernon Supp. 2005).  However, Article 37.07 does not require that any particular notice be filed in the trial court record – simply that notice must be given to the defense.  Hayden v. State, 66 S.W.3d 269, 271-73 (Tex. Crim. App. 2001).  Thus, the record does not include notice of the State’s intent to introduce Appellant’s pen packet.  Nor does the record affirmatively show that the State failed to comply.

            We  note that the trial court granted Appellant’s request that the State not allude to or refer to any extraneous offenses by Appellant in the presence of the jury based on Appellant’s motion in limine filed March 14, 2005.  The trial judge qualified his granting of the motion by noting in the margin, “OK except pen packet at punishment.”  Given the judge’s noted exception, it is reasonable to infer that Appellant had actual notice of the pen packet and its admission had been discussed. Additionally, Appellant has not identified how the result would have been different had his trial counsel objected at trial for lack of notice. See Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.–Beaumont 1996, pet. ref’d) (trial counsel not ineffective for failing to request disclosure of the State’s intent to introduce extraneous offenses when appellant failed to identify how the motions would have been beneficial or how results would have been different). Appellant has failed to prove deficient performance by his counsel or that he was injured or prejudiced relating to this claim.  See Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068.

Failure to Present Mitigating Evidence at Punishment Phase 

        Appellant contends that trial counsel should have presented mitigating evidence at the punishment phase.  Upon reviewing the record, we cannot determine what mitigating evidence might have been available.  In the absence of evidence in the record regarding potential mitigating evidence, we could only speculate regarding whether counsel was effective in this instance. See Ross, 180 S.W.3d at 176-77.  Thus, Appellant has failed to satisfy either prong of Strickland relating to this claim.

Conclusion

            Based upon our review of the record, we conclude that Appellant has failed to meet both prongs of the Strickland test in asserting his three claims of ineffective assistance of counsel. Accordingly, his sole issue is overruled, and the judgment of the trial court is affirmed.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

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¹ Delivery of a controlled substance is a first degree felony. Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003).  The punishment range for a first degree felony is a term of imprisonment of not more than 99 years or life or less than five years and a fine not exceeding $10,000. Tex. Pen. Code Ann. § 12.32 (Vernon 2003).