Jorge Moreno, Jr. v. the State of Texas ( 2021 )

Opinion filed October 28, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00396-CR
__________
JORGE MORENO, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 118th District Court
Martin County, Texas
Trial Court Cause No. 1723
MEMORAND UM OPI NI ON
Appellant, Jorge Moreno, Jr., entered an open plea of guilty to the third-degree
felony offense of evading arrest with a motor vehicle. See TEX. PENAL CODE ANN.
§ 38.04(b)(2)(A) (West 2016). Appellant pleaded true to the enhancement paragraph
alleged in the indictment, and the jury assessed his punishment at imprisonment for
fifteen years in the Institutional Division of the Texas Department of Criminal
Justice (TDCJ) and a $5,000 fine. In his sole issue on appeal, Appellant claims that
he received ineffective assistance of counsel during the punishment phase of his trial.
We affirm.
I. Factual Background
Following voir dire, Appellant elected to plead guilty to the indicted offense
of evading arrest with a motor vehicle and to have a jury trial as to punishment only.
At the inception of the punishment phase, Appellant pleaded true to the enhancement
paragraph in the indictment, which alleged that Appellant had been finally convicted
of the felony offense of burglary of a habitation in 2006.
During Appellant’s punishment trial, the State adduced evidence that
Appellant had methamphetamine paraphernalia in his vehicle at the time of his
arrest. Testimony from the arresting officer established that Appellant admitted “that
he had actually smoked methamphetamine about an hour before” his arrest.
Appellant testified during the punishment phase that he served the entire ten-
year sentence that he had received for his prior 2006 felony conviction. Appellant
explained that he had intentionally sabotaged his chances for parole each time he
became eligible. Additionally, Appellant acknowledged that he did not participate
in any of the educational, trade school, or drug-treatment programs offered by the
TDCJ and that he began using methamphetamine after his release from prison.
Appellant further testified that he intended to take advantage of the TDCJ’s programs
this time because he was now a father.
On appeal, Appellant asserts that he received ineffective assistance of counsel
because his trial counsel did not object to the prosecutor’s allegedly improper jury
arguments.
II. Standard of Review
We review an ineffective-assistance-of-counsel claim under a two-part
standard. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310
2
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). First, Appellant must show that trial
counsel’s performance was deficient in that it fell below an objective standard of
reasonableness. Perez, 310 S.W.3d at 892–93. Second, Appellant must show that
trial counsel’s deficient performance prejudiced his defense, i.e., there is a
reasonable probability that the result of his trial would have been different but for
trial counsel’s errors. Id. at 893; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999) (citing Strickland, 466 U.S. at 687–88). A reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 694.
III. Analysis
During his closing argument, the prosecutor stated that, according to the
arresting officer’s testimony, when Appellant was arrested for the evading offense,
he “seemed certainly intoxicated or at least under the influence of something.” In
his rebuttal argument, the prosecutor remarked that perhaps Appellant needed “a
sentence long enough that he is motivated to do the right thing while he’s in
there . . . to take advantage of those programs . . . to go participate in those programs
and try to get out early.” Appellant now contends that his trial counsel rendered
ineffective assistance because he failed to object to the statements made by the
prosecutor. We cannot agree.
To establish deficient performance, a defendant must show that trial counsel’s
representation was objectively unreasonable based on “prevailing professional
norms.” Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 688). We assess
trial counsel’s performance in light of all of the circumstances and apply a strong
presumption that counsel’s representation fell within “the wide range of reasonable
professional assistance.” Id. (quoting Strickland, 466 U.S. at 688–89). “[C]ounsel
is strongly presumed to have rendered adequate assistance and made all significant
3
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690. To overcome this presumption, a defendant must establish that, under the
circumstances, counsel’s actions could not be considered sound trial strategy. Id. at
689.
Moreover, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Regarding the deficient-performance prong in particular, the
record on direct appeal is generally undeveloped and rarely sufficient to overcome
the presumption that trial counsel rendered effective assistance. Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see Bone v. State, 77 S.W.3d 828, 833
(Tex. Crim. App. 2002). As such, if trial counsel did not have an opportunity to
explain his actions, we will not find deficient performance unless the challenged
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); see also Rylander v.
State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (“[T]rial counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective.”).
Generally, proper jury argument falls into four categories: (1) summation of
the evidence; (2) reasonable deduction from the evidence; (3) answer to argument
of opposing counsel; and (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d
133, 154 (Tex. Crim. App. 1999); Hathorn v. State, 848 S.W.2d 101, 117 (Tex. Crim.
App. 1992). Here, because the prosecutor’s challenged statements fell within the
bounds of proper jury argument, we cannot conclude that trial counsel’s failure to
object to those statements constituted deficient performance. See Ex parte Martinez,
330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (“To successfully assert that trial
4
counsel’s failure to object amounted to ineffective assistance, the applicant must
show that the trial judge would have committed error in overruling such an
objection.”); see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App.
2005) (trial counsel is not required to engage in useless or futile acts); Templeton v.
State, No. 11-19-00192-CR, 2021 WL 1706761, at *5 (Tex. App.—Eastland
Apr. 30, 2021, no pet.) (“Trial counsel does not render ineffective assistance of
counsel when he fails to object to admissible evidence.” (citing Gross v. State,
No. 11-17-00060-CR, 2019 WL 613686, at *8 (Tex. App.—Eastland Feb. 14, 2019,
pet. ref’d) (mem. op., not designated for publication))).
First, the prosecutor’s statement about Appellant’s demeanor was a proper
summation of the evidence. Second, the prosecutor’s statements concerning the
duration of the sentence that the jury should assess against Appellant constituted
both a response to opposing counsel’s argument on that issue and a reasonable
deduction from the evidence. Appellant testified that, unlike his previous sentence,
he intended, this time, to take advantage of the programs offered by the TDCJ, and
his trial counsel presented that very argument to the jury during his closing
summation. The prosecutor’s remark that a longer sentence might motivate
Appellant to take advantage of those programs was, therefore, both responsive to
defense counsel’s argument and a conclusion drawn from Appellant’s testimony
regarding the aspects of his prior term of imprisonment.
Furthermore, because Appellant did not claim that he received ineffective
assistance of counsel in his motion for new trial, Appellant’s trial counsel did not
have an opportunity to explain his decision or strategy for failing to object to the
prosecutor’s arguments that Appellant now claims were improper. Based on the
record before us, we cannot conclude that trial counsel’s performance was deficient.
Accordingly, we overrule Appellant’s sole issue on appeal.
5
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
October 28, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
6