Isal Behis v. State ( 2004 )

Opinion issued November 10, 2004.

  In The

Court of Appeals

For The

First District of Texas

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NOS. 01-03-00747-CR

          01-03-00748-CR

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ISAL BEHIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 924287 & 931609

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MEMORANDUM OPINION

          A jury found appellant, Isal Behis, guilty of two counts of intoxication manslaughter and assessed punishment at 15 years’ confinement for each offense. In two issues, appellant contends that (1) his trial counsel rendered ineffective assistance, when, during voir dire, his trial counsel failed to object to a hypothetical posed by the trial court and (2) the trial court erred in “cumulating” his two sentences. We reform the judgment of the trial court and, as reformed, affirm.

Background

          Appellant was charged with intoxication manslaughter after he was involved in an automobile accident that resulted in the death of Latonya Johnson and Cathie Lathan. During voir dire, the trial court stated that the sentencing range for intoxication manslaughter was two years community supervision up to 20 years’ confinement, and it asked each venireperson if he would be able to consider the full range of punishment. Some veniremembers revealed their reluctance to consider the lower end of the punishment range. To address one veniremember’s concern about the lesser punishment, the trial court, in open court, offered the following hypothetical as an example of when a lesser punishment might be appropriate: Trial court:Let me ask you this question: There’s not a case where you can imagine that 2 years’ probation would be an appropriate sentence? You don’t have to come up with it in your mind.

          Veniremember:     I cannot imagine a case where two people died and the defendant was found guilty. . . .

          Trial court:            We’re only talking—remember, we can’t talk about this case. We’re talking about a conviction for intoxication assault.

Let me throw something out to you. Let’s say you got into a situation where you had somebody who’s never been in trouble before and they found out that their mother dropped dead of a heart attack, who they were very close to, and went out and had—not a drinker, went out and had two drinks. On the way home, caused an accident. Didn’t intend to cause an accident, obviously, and somebody died. Went out the next day, got themselves into a treatment program—even though he probably didn’t need it—did everything they were supposed to do. Can you see where that might be a situation where—rather than a person who goes to a bar and drinks every single night and gets in their car and drives?

          Veniremember:     I can see that.

          Trial court:            That’s why I throw that out. I’m just saying there might be a set of facts and circumstances where, you know . . . .

          Veniremember:     Well . . . .

          Trial court:            That’s why I’m kind of throwing that one out as opposed to somebody who goes out every night and drinks and has five DWI convictions and was driving 90 miles an hour with no regard for anything. That person—and after somebody died, didn’t do anything about their drinking problem.

          Veniremember:     (Nods head affirmatively.)

          Trial court:            See?

          Veniremember:     Yes.

Neither side objected to the above exchange. Shortly thereafter, a jury was chosen and appellant’s trial began. The jury found appellant guilty of causing the deaths of two young women as a result of driving while intoxicated. At the close of the punishment stage, the jury imposed 15-year sentences for each offense. The State then asked the trial court to cumulate these sentences. The trial court granted this motion and sentenced appellant to two, consecutive 15-year sentences.

Ineffective Assistance

          In his first issue, appellant contends that his trial counsel rendered ineffective assistance when, during voir dire, his trial counsel failed to object to a hypothetical posed by the trial court. Specifically, appellant argues that the judge posed the hypothetical in an attempt to commit the veniremembers to a particular set of facts and, because his trial counsel failed to object, the veniremembers formulated an unfair opinion as to when it was appropriate to give someone probation as opposed to incarceration.

          The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See also Hernandez v. State, 726 S.W.2d 53-55 (Tex. Crim. App. 1986). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel’s error, the result of the proceedings would have been different. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).

          Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. There is a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id., at 689, 104 S. Ct. at 2065. Thus, to prevail on an ineffective assistance of counsel claim, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). In the absence of a record reference concerning counsel’s reasoning, we must generally presume that appellant’s trial counsel had a plausible reason for his actions. Thompson, 9 S.W.3d at 814.

          In this case, there was no motion for new trial; therefore, the record is silent regarding counsel’s tactics or strategy concerning his reason for not objecting to the trial court’s hypothetical. To find that appellant’s trial counsel was ineffective would call for speculation, which this Court will not do. See Gamble, 916 S.W.2d at 93.

          We overrule appellant’s first issue.

  Sentencing

          In his second issue, appellant contends that the trial court erred in “cumulating” his two sentences. According to appellant, “the judgments reflect that cause number 924287 was ordered to be served after the sentence in cause number 931609 had been served, and cause number 931609 was ordered to be served after the sentence in cause number 924287 has been served[]” and, thus, the order is an “impossibility.” (Emphasis added.)

          We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Cumulative sentencing is permitted only as provided by statute. Cook v. State, 824 S.W.2d 634, 641 (Tex. App.—Dallas 1991, writ ref’d). When a defendant has been convicted in two or more cases, the trial court has discretion to order the judgment and sentence imposed in the second conviction either to (1) begin to run after the judgment and sentence imposed in the preceding conviction has ceased to operate or (2) run concurrently with the judgment and sentence imposed in the preceding conviction. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2005). If the convictions arise out of the “same criminal episode” and the cases are tried together, the sentences must run concurrently unless the convictions are for certain specified offenses, including intoxication manslaughter, and the trial court exercises its discretion to cumulate or stack the sentences. Tex. Pen. Code Ann. § 3.03 (Vernon Supp. 2005); Hurley v. State, 130 S.W.3d 501, 504 (Tex. App.—Dallas 2004, no pet.).

          Appellant asks us to “order that the judgment in the lower cause number, 924287, be amended to delete the order that it be served consecutively to cause number 931609” so that the Texas Department of Criminal Justice may have “a court order that can be understood and enforced without undue confusion.” The State responds that appellant has misinterpreted the judgment addendums and that the order simply reflects that the two sentences are to be served consecutively, but does not mandate which sentence should be served first. In the alternative, the State asks us to reform the judgment to reflect the sentence actually imposed by the trial court.

          Here, appellant was convicted of two counts of intoxication manslaughter and

the trial exercised its discretion in imposing consecutive sentences. Thus, we hold that the trial court did not abuse its discretion. Tex. Pen. Code Ann. § 3.03; Hurley, 130 S.W.3d at 504. We do, however, reform the judgment to reflect the sentence imposed by the trial court. Accordingly, the sentence in cause number 931609 will not begin until the sentence in cause number 924287 is completed. 

          We overrule appellant’s second issue.  

Conclusion

          We reform the judgment in cause number 931609 to reflect that the sentence imposed by the trial court will not begin until the completion of the sentence imposed in cause number 924287, and, as reformed, we affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).