David Wayne Gish v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00034-CR
DAVID WAYNE GISH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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In six points that all concern the alleged ineffectiveness of his trial counsel,
appellant David Wayne Gish appeals his forty-year sentence for burglary of a
habitation.2 Because we conclude that appellant has not satisfied his burden to
prove his points, we affirm.
1
See Tex. R. App. P. 47.4.
2
Appellant does not ask us to reverse his conviction; instead, he wants us
to remand this case to the trial court for a new punishment trial.
Background Facts
A grand jury indicted appellant with burglary of a habitation.3
The indictment alleged that he entered the habitation to commit theft, and it
asserted that he had already been convicted of three other burglaries.4 Appellant
elected the jury to assess punishment in the event of his conviction.
After a jury was selected following the parties’ voir dire, appellant pled
guilty in the presence of the jury and pled true to the indictment’s enhancement
allegations.5 The State called witnesses who testified about the burglary in this
case (in which appellant broke a glass door with a brick to enter a house and
steal money) and other burglaries appellant had committed. Appellant called his
ex-mother-in-law and ex-wife to testify about his character. Appellant’s ex-
mother-in-law said that appellant had good potential, that she ―just love[d]‖ him,
and that he could ―fix anything.‖
3
See Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003).
4
Burglary of a habitation with the intent to commit theft is usually a second-
degree felony that carries a punishment range of two to twenty years’
confinement. See Tex. Penal Code Ann. § 12.33(a) (Vernon Supp. 2010),
§ 30.02(c)(2). But when a defendant who has previously been convicted of a
felony is convicted of a second-degree felony, the second-degree felony is
punished as a first-degree felony, which carries a maximum punishment of
ninety-nine years or life in prison. Id. §§ 12.32(a), .42(b) (Vernon Supp. 2010).
5
A ―plea of guilty made to a jury is the functional equivalent of a jury verdict
of guilty. . . . The case simply proceeds with a unitary punishment hearing.‖
Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008), cert. denied, 129 S.
Ct. 904 (2009) (footnote omitted).
2
After the parties presented closing arguments, the jury assessed
appellant’s punishment at forty years’ confinement, and the trial court sentenced
him accordingly. Appellant filed a motion for new trial, contending that the verdict
was contrary to the law and the evidence and that he was represented
ineffectively by counsel. He also filed notice of this appeal.
Ineffective Assistance of Counsel
In six related points, appellant argues that his trial counsel was ineffective
for failing to object to various aspects of the State’s closing argument.
He contends that the State’s argument asked the jury to apply parole law to him,
which violated a provision in the code of criminal procedure and contradicted the
jury charge.
Standard of review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel=s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel=s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988
S.W.2d 770, 770 (Tex. Crim. App. 1999). In evaluating the effectiveness of
counsel under the first prong, we look to the totality of the representation and the
3
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel=s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688B89, 104 S. Ct. at 2065. 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. Salinas,
163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. It is not appropriate for an
appellate court to simply infer ineffective assistance based upon unclear portions
of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel=s errors
were so serious that they deprived the defendant of a fair and reliable trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must
show there is a reasonable probability that, but for counsel=s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104 S.
Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding in which the result is being challenged.
Id. at 697, 104 S. Ct. at 2070.
4
Analysis
In her closing argument, the prosecutor told the jury, in part,
Let’s look at the defendant’s record, because that’s something
else you can consider. January 31st, 2005, this defendant broke
into a home in Tarrant County, burglarized, was sentenced to four
years in prison. February 20th, 2005, not even a month later, he
does it again, Tarrant County, gets four years in prison.
And February 21st, the next day, does it again, gets four years in
prison. Now, he pled [guilty to] all of those on the same day, so all of
those ran concurrently, so even though he’s been sentenced to 12
years in prison total, you know, he had to serve four at one time.
Well, we know that he got sentenced in May of 2005 and he was
out, burglarizing homes in Hood County in March of 2008, so we
know he didn’t serve all four years, and we know he was on parole
when he was supposed to be being watched at that time. . . .
....
. . . He has already been sentenced to 12 years in prison and
has served some of that time, we don’t know how much, so he had a
shot to grow up.
Now, if the good Mr. Gish shows up in prison, Mr. Fix-it, then
the judge tells you that he can earn good time, and that can shorten
his sentence, because the time, amounts of time he served plus the
amount of good time he gets, when that equals 15 years or one-
fourth of his sentence, he gets out. So think about that when you’re
deliberating. We don’t have any reason to believe that he won’t be
good in prison. He hasn’t -- doesn’t have anything to steal there,
can’t break into people’s homes, so, you know, maybe he’ll get a job
fixing up something at the prison, he’ll get good time credit for that.
....
He hasn’t learned his lesson yet, ladies and gentlemen.
He hasn’t grown up yet. . . . This is a career burglar at age 23. . . .
And the only way, as I mentioned before, to keep him from
performing his chosen profession is to keep him in prison, the only
way we can be sure he’s not burglarizing your home or someone
else’s.
5
If you give this defendant, Mr. Gish, a sentence of sixty years,
we know that he could be out in 15. But we know that every -- he
can earn his way out in 15 years, and we know that for every single
day of that 15 years, those 15 years, he’s not going to be terrorizing
somebody else and breaking into their house. That, we can know
for sure. That, you can take to the bank. So without any hesitation,
I’m going to ask you for a sentence of 60 years on this defendant.
Make him serve that 15-year minimum and keep us safe for 15
years. Thank you. [Emphasis added.]
Appellant contends that his trial counsel’s failure to object to these statements
comprised ineffective assistance.6
We have recently explained that while it is not improper for the State to
explain how parole eligibility rules apply to certain sentences, the State may not
ask a jury to consider how good-conduct time may be awarded to a particular
defendant or how parole law will particularly affect the defendant’s sentence.
See Waters v. State, No. 02-10-00080-CR, 2010 WL 4570016, at *4–6 (Tex.
App.—Fort Worth Nov. 4, 2010, pet. filed) (citing Taylor v. State, 233 S.W.3d
356, 359 (Tex. Crim. App. 2007)). In other words,
What a jury can properly do . . . is determine how long a term
it wishes a defendant to serve before that defendant may become
eligible for parole . . . . A jury, however, may not consider when, if
ever, that defendant actually might be awarded parole (it must
disregard whether the defendant will receive or forfeit good-conduct
time and whether he will be awarded parole).
Id. at * 6 (citing Turner v. State, 87 S.W.3d 111, 116 (Tex. Crim. App. 2002), cert.
denied, 538 U.S. 965 (2003)).
6
Appellant raises his points through ineffective assistance claims because
absent an objection to a jury argument at trial, nothing is presented for review.
Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).
6
We affirmed the driving while intoxicated conviction in Waters because we
held that the prosecutor ―did not urge the jury to make a decision on punishment
based on speculation of matters that were not properly before it.‖ Id. at *7.
But the prosecutor did so in this case. Here, the prosecutor told the jury that
when appellant’s time served plus good-conduct time equals fifteen years or one-
fourth of his sentence, ―he gets out.‖ This is an incorrect statement of the law
because parole eligibility does not guarantee release. See Tex. Code Crim.
Proc. Ann. art. 37.07, § 4(b) (Vernon Supp. 2010); Ex parte Geiken, 28 S.W.3d
553, 556 (Tex. Crim. App. 2000); Felan v. State, 44 S.W.3d 249, 257 (Tex.
App.—Fort Worth 2001, pet. ref’d) (―Parole . . . is completely discretionary.‖).
For the same reason, the prosecutor incorrectly told the jury that appellant would
―earn his way out in 15 years.‖ Thus, we hold that at least part of the
prosecutor’s argument was improper under Waters.7
Appellant must show more than the impropriety of the prosecutor’s
argument, however, to prevail on his ineffective assistance claims; he must
demonstrate by a preponderance of the evidence that his counsel was ineffective
7
Appellant also contends, in his first two points, that the portion of the
prosecutor’s argument in which she told the jury, with respect to appellant’s
previous burglaries, that he ―got sentenced in May of 2005 and he was out,
burglarizing homes in Hood County in March of 2008, so we know he didn’t serve
all four years,‖ was improper. Appellant asserts that this statement ―argue[d] the
operation of parole laws,‖ and he relies on a provision of the code of criminal
procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(d) (―This section does not
permit the introduction of evidence on the operation of parole and good conduct
time laws.‖). Because of the reasoning in our disposition below, we will not
address whether this portion of the prosecutor’s argument was also improper.
7
by not objecting to the argument and that, if a proper objection was made, the
result of his trial—the jury’s forty-year punishment assessment—would have
been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other
words, appellant must show a reasonable likelihood that his counsel’s failure to
object to the prosecutor’s statements effectively increased his sentence.
Under the mandate from article 37.07, the trial court’s charge to the jury
included the following language:
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 plus any good conduct time
earned equals one-fourth of the sentence imposed or 15 years,
whichever is less. 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
8
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant. [Emphasis added.]
See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b).
In Colburn v. State, during deliberations in a capital murder case, the jury
sent out a note stating, ―Given a life sentence, is there a possibility of parole in
this case?‖ 966 S.W.2d 511, 519 (Tex. Crim. App. 1998). The trial court replied
by explaining, ―[T]he jury is prohibited from considering parole in any manner
when considering whether a Defendant should be sentenced to life or death.
You are instructed, therefore, to follow the law of this state and not consider
parole in any manner.‖ Id. The defendant moved for a mistrial on the ground
that the jury was considering parole in its deliberations. Id. But the court of
criminal appeals affirmed the trial court’s decision to overrule the mistrial motion,
reasoning in part,
We generally presume the jury follows the trial court’s
instructions in the manner presented. The presumption is
rebuttable, but appellant has pointed to no evidence in rebuttal.
Appellant did not file a motion for new trial alleging juror misconduct
or obtain a hearing to adduce facts not in the record. As such, the
only evidence that the jury considered parole is the jury note. Even
if the note constitutes evidence the jury discussed parole at a
preliminary point, we presume they followed the court’s instructions
and thereafter did not consider it in reaching their verdict.
Appellant says the jury’s consideration of parole deprived him
of a ―fair trial.‖ In light of the court’s proper instruction, we presume
the jury did not consider parole.
Id. at 520 (citations omitted).
9
Similarly, in Miles v. State, the prosecutor interrupted the defendant’s
closing argument through an objection in which the prosecutor incorrectly stated
that the presumption of the defendant’s innocence ended once the trial began.
204 S.W.3d 822, 823–24 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1266
(2007). The trial court sustained the prosecutor’s incorrect objection. Id. at 824.
The court of criminal appeals held that although the State’s objection (and the
trial court’s sustaining of that objection) was wrong, the error did not require
reversal of the conviction. Id. at 826–28. Citing Colburn, the court reasoned in
part, ―[T]he trial court’s charge to the jury included an accurate and thorough
explanation of the presumption of innocence and what it means in a court of law,
and, in the absence of evidence to the contrary, we will assume that the jury
followed its written instructions.‖ Id. at 827–28.
The presumption described in Colburn and Miles—that juries follow the
trial court’s instructions to them—is a longstanding maxim that has been
repeated many times by the court of criminal appeals. See Thrift v. State, 176
S.W.3d 221, 224 (Tex. Crim. App. 2005); Hutch v. State, 922 S.W.2d 166, 172
(Tex. Crim. App. 1996); Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim.
App. 1975). We have also relied on the maxim. See Walker v. State, 300
S.W.3d 836, 850 (Tex. App.—Fort Worth 2009, pet. ref’d); Tell v. State, 908
S.W.2d 535, 540 (Tex. App.—Fort Worth 1995, no pet.) (―The jury was charged
not to consider how good conduct time or the parole law might be applied to Tell.
Nothing in the record indicates that the jury did not follow the trial court’s
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instruction, and this court must presume that it did.‖); see also Jones v. State,
264 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (―Because a
jury is presumed to follow the trial court’s instructions, it is presumed that the jury
did not consider parole.‖); Boudreaux v. State, 723 S.W.2d 230, 232 (Tex. App.—
Beaumont 1986, no pet.) (―[T]he jury was charged that it could not consider the
. . . manner in which the parole law may be applied to this particular Appellant.
Intermediate appellate courts are to presume that the jury followed the trial
court’s instructions.‖).
Like in Tell, nothing in the record here indicates that the jury did not follow
the trial court’s unambiguous, explicit instruction—to not consider the manner in
which the parole law may be applied to appellant—that was contained in the
same document in which the jury wrote its punishment decision.8 Similarly,
nothing indicates that the jury was swayed in its punishment decision by the
objectionable parts of the State’s argument. In fact, while the State discussed
the potential for parole as background for specifically asking the jury to give
appellant sixty years’ confinement, the jury rejected the State’s request by giving
him only forty years. Thus, because appellant has not met his burden to show
the contrary, we will apply the well-founded presumption that the jury followed the
trial court’s explicit, unambiguous instructions. See Miles, 204 S.W.3d at 823–
8
We also note that the charge in this case told the jury, ―You are instructed
that any statements of counsel . . . not in harmony with the law as stated to you
by me in these instructions, are to be wholly disregarded.‖
11
24; Tell, 908 S.W.2d at 540; see also Ladd v. State, 3 S.W.3d 547, 570 (Tex.
Crim. App. 1999) (holding that the defendant’s failure to prove prejudice from his
defense counsel’s allegedly deficient performance during the punishment phase
of a capital murder trial precluded relief on an ineffective assistance claim), cert.
denied, 529 U.S. 1070 (2000); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim.
App. 1999) (explaining that a court of appeals may not assume prejudice in an
ineffective assistance of counsel claim).
Also, without any aid from the State’s closing argument, the jury could
have rationally found that the facts in this case justified a forty-year sentence,
which is on the lower end of the first-degree felony range. See Tex. Penal Code
Ann. § 12.32(a); see also Hawkins v. State, 135 S.W.3d 72, 85 (Tex. Crim. App.
2004) (concluding that the defendant’s other offenses that could have supported
a lengthy setence were relevant considerations in an analysis of the effect of a
prosecutor’s argument about the application of parole law); Perez v. State, 994
S.W.2d 233, 238 (Tex. App.—Waco 1999, no pet.) (holding that a prosecutor’s
argument about parole was improper but harmless because, among other facts,
evidence in the case supported the defendant’s sentence of life imprisonment).
The jury received evidence showing that appellant had already been convicted
for committing three burglaries in 2005 and that, despite therefore spending time
in the penetentiary, he committed three more buglaries after being released.
Appellant relies on Chester v. State to argue that the prosecutor’s
erroneous argument about parole law caused harm. 167 S.W.3d 935, 936–38
12
(Tex. App.—Amarillo 2005, pet. ref’d).9 But in Chester, the defendant timely
objected to the State’s parole argument; he therefore did not have a burden to
show, by a preponderance of the evidence in an ineffective assistance claim, that
the result of the trial would have been different. See id. at 936. Similarly, in
Hawkins, which is another case relied on by appellant, the defendant timely
objected, and the court of criminal appeals therefore applied the harm standard
for nonconstitutional error, in which the defendant does not have a burden.
135 S.W.3d at 74; see Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 5
(Tex. Crim. App. 2001) (holding that there is no burden on the defendant or the
State to demonstrate whether a defendant has been harmed under rule 44.2(b));
cf. Perez v. State, 310 S.W.3d 890, 893–94 (Tex. Crim. App. 2010) (reiterating
that the ―defendant bears the burden of proving ineffectiveness by a
preponderance of the evidence‖ and explaining that showing only that an error
had a conceivable effect on the outcome of a proceeding does not suffice).
For these reasons, without deciding whether appellant’s trial counsel fell
below the standard of prevailing professional norms by not objecting to the
State’s improper jury argument, we hold that appellant has not shown by a
preponderance of the evidence that there is a reasonable probability that, but for
counsel’s alleged deficiency, the jury’s assessment of forty years’ confinement
9
In Waters, we questioned the validity of the Amarillo Court of Appeals’s
holding in Chester about the propriety of the prosecutor’s argument.
See Waters, 2010 WL 4570016 at *4.
13
would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;
see also Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)
(declining to address the second prong of Strickland when the defendant did not
prove the first prong). Thus, we overrule appellant’s six points.
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 13, 2011
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