Wilbert Burse v. State

Opinion issued September 24, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01030-CR
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WILBERT BURSE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1582168
MEMORANDUM OPINION
Wilbert Burse appeals from his conviction for aggravated assault. He contends
that his counsel was ineffective during the punishment phase and that the punishment
assessed by the trial court is cruel and unusual. We affirm the trial court’s judgment.
BACKGROUND
The state charged Burse with committing the second-degree felony offense of
aggravated assault against Shannon Dawson, a person with whom he had a dating
relationship, using and exhibiting a deadly weapon—a handgun—in the commission
of the offense. See TEX. PENAL CODE § 22.02(a)(2), (b).
Burse pleaded guilty to the charged offense, and he filed a sworn motion for
community supervision. In his motion, Burse swore that he had never been convicted
of a felony or placed on community supervision for a felony offense. See TEX. CODE
CRIM. PROC. art. 42A.055(b)(1) (sworn motion that defendant has not been convicted
of felony required to be eligible for jury-recommended community supervision).
Punishment was tried to the court. Dawson testified that she and Burse had
dated for almost two years and had lived together for some portion of that time. Their
relationship began to deteriorate in November 2017. Burse accused her of infidelity.
On one occasion, he thought he had discovered her talking to another man in the
parking lot of the apartment complex where they resided, and Burse reacted by firing
a handgun into the air and ordering her into his car. On several subsequent occasions,
Burse arrived home from work, took out his handgun, paced back and forth for a few
hours, and barred Dawson from leaving their bedroom.
One morning in March 2018, Dawson told Burse that she “was done” and
“couldn’t do it anymore.” Burse responded, “As long as you’re on this earth, we are
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together.” Later that morning, Dawson called Burse from her workplace and asked
him to bring her cell phone to her. After Burse telephoned Dawson that he had
arrived with her phone, she went outside to retrieve it. When Dawson opened his car
door, he fired his handgun at her. The bullet went through the car door and hit
Dawson in the leg.
The record contains little information as to the type of handgun Burse used,
the caliber of bullet, or the extent of Dawson’s injuries. Dawson described the
firearm as “a small silver handgun.” She indicated that the bullet grazed her and said
that her “physical injuries” were limited to “just a permanent scar.” Dawson was
able to flee to safety after Burse shot her.
Burse testified in support of his motion for community supervision. He
acknowledged his guilt. He characterized the shooting as “a mistake,” apologized to
Dawson, and said that he “never meant to hurt her.” Out of court, Burse previously
had stated that he merely meant “to scare her.”
In closing, the prosecutor asked the trial court to impose the statutory
maximum 20 years’ incarceration. She argued that Burse “almost killed the
complainant” and that his conduct evinced “no value for human life.” Defense
counsel in turn requested community supervision or, in the alternative, a sentence
closer to the statutory minimum of two years’ incarceration.
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The trial court stated that community supervision was inappropriate under the
circumstances: “This isn’t a probation case. It’s far from a probation case. You’ve
already exhibited the gun several times now and you shot through the door and shot
her. So, what if she hadn’t have run?” The trial court assessed Burse’s punishment
at 13 years’ confinement. In the court’s judgment, it also found that Burse had used
a deadly weapon, specifically a firearm, in the commission of the offense.
DISCUSSION
I. Ineffective Assistance
Burse contends that his attorney was ineffective by failing to (1) prove that
Burse was eligible for probation; (2) object to the prosecutor’s improper closing
argument; and (3) object that the trial court’s punishment was cruel and unusual.
A. Standard of review and applicable law
We assess claims of ineffective assistance under the test articulated by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Under this test, Burse
must establish two elements. First, he must prove by a preponderance of the evidence
that his lawyer’s representation fell below an objective standard of reasonableness
under prevailing professional norms. Id. Second, he must show that his lawyer’s
deficient performance prejudiced his defense by demonstrating that there is a
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reasonable probability, or a probability that suffices to undermine confidence in the
outcome, that the result would have differed. Id.
B. Analysis
1. Failure to prove eligibility for probation
Burse contends that his attorney provided ineffective assistance by failing to
introduce evidence that Burse was eligible for community supervision. In particular,
he complains of his lawyer’s failure to show that he had no prior felony conviction.
After a defendant is convicted and punishment is assessed, the trial court in
certain circumstances may suspend the sentence and place the defendant on
community supervision. See TEX. CODE CRIM. PROC. art. 42A.051(a)(1); Ex parte
Lea, 505 S.W.3d 913, 915 (Tex. Crim. App. 2016). But the trial court is not required
to place a defendant on community supervision simply because he is eligible;
whether to do so rests entirely within the trial court’s discretion and its decision is
not reviewable. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); see also
Hassan v. State, 440 S.W.3d 684, 687 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (trial court’s decision as to community supervision wholly discretionary).
The Code of Criminal Procedure distinguishes between judge-ordered and
jury-recommended community supervision. Compare TEX. CODE CRIM. PROC. arts.
42A.053, 42A.054, with TEX. CODE CRIM. PROC. arts. 42A.055, 42A.056. Certain
circumstances render a defendant ineligible for judge-ordered community
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supervision; these include a finding that he used or exhibited a deadly weapon during
the commission of a felony as well as the imposition of a sentence of 10 or more
years of imprisonment. TEX. CODE CRIM. PROC. arts. 42A.053(c)(1),
42A.054(b)(1)(A).
Burse’s appellate argument fails to distinguish between jury-recommended
and judge-ordered community supervision. When punishment is tried to a jury, the
defendant must file a sworn pretrial motion denying that he has been convicted of a
felony and the jury must find his motion to be true in order to recommend community
supervision. See TEX. CODE CRIM. PROC. art. 42A.055(b). No such motion is
required in order for a judge to impose community supervision when punishment is
tried to the bench. See TEX. CODE CRIM. PROC. art. 42A.053(a). Because Burse was
not required to prove that he was not a felon in order to receive judge-ordered
community supervision, his attorney was not deficient by failing to introduce
evidence that Burse had not been convicted of a felony. See Young v. State, 425
S.W.3d 469, 472 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
Moreover, the trial court found that Burse used a deadly weapon, a firearm, in
the commission of the offense. See TEX. PENAL CODE § 1.07(a)(17)(A). The trial
court also sentenced Burse to 13 years’ imprisonment. Each of these circumstances
made Burse ineligible for judge-ordered community supervision. TEX. CODE CRIM.
PROC. arts. 42A.053(c)(1), 42A.054(b)(1)(A). Thus, even if defense counsel’s
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failure to present evidence that Burse previously had not been convicted of a felony
had been deficient, it would not have been not prejudicial. See Sifuentes v. State, 494
S.W.3d 806, 815 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (relying on
Gonzales v. State, 748 S.W.2d 510, 512–13 (Tex. App.—Houston [1st Dist.] 1988,
pet. ref’d)).
2. Failure to object during closing argument
Burse contends that his attorney provided ineffective assistance by failing to
object to statements made by the prosecutor in closing argument, specifically that
Burse did not value human life and had almost killed Dawson. Burse also contends
that defense counsel should have objected to the prosecutor’s argument that a 20-
year sentence was appropriate and probation was not. Burse argues that these
arguments were “improper, inflammatory, and highly prejudicial.”
Proper jury argument generally is limited to summarizing the evidence,
drawing reasonable deductions from the evidence, answering opposing counsel’s
arguments, and pleading for law enforcement. Freeman v. State, 340 S.W.3d 717,
727 (Tex. Crim. App. 2011). These limitations exist because arguments outside of
these approved categories often put “before the jury unsworn, and most times
believable, testimony of the attorney.” Brown v. State, 270 S.W.3d 564, 570 (Tex.
Crim. App. 2008). It is debatable whether or to what degree this same concern is
implicated in a non-jury trial. Because the state does not dispute that closing
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arguments in a non-jury trial are subject to the same standard as ones made before a
jury, however, we assume without deciding that the same standard applies.
The prosecutor’s argument as to the appropriate punishment—20 years’
confinement, not probation—was a permissible plea for law enforcement. See Bacon
v. State, 500 S.W.2d 512, 514 (Tex. Crim. App. 1973) (argument against probation
was plea for law enforcement); Asay v. State, 456 S.W.2d 903, 905–06 (Tex. Crim.
App. 1970) (argument for maximum sentence allowed by law was plea for law
enforcement); Rische v. State, 834 S.W.2d 942, 948–49 (Tex. App.—Houston [1st
Dist.] 1992, pet. ref’d) (argument that jury should assess punishment of confinement
instead of probation was plea for law enforcement). Because this argument was
unobjectionable, Burse’s attorney was not ineffective by failing to object to it.
The prosecutor’s argument that Burse did not value human life was a
permissible deduction from the evidence. See Garcia v. State, 887 S.W.2d 862, 879
(Tex. Crim. App. 1994) (evidence supported state’s argument that defendant did not
have “regard for human life”). After exhibiting a handgun in Dawson’s presence on
multiple occasions and firing it into the air in one instance, Burse lured her to his car
on the pretext of returning her phone and instead shot her—an act that evinces little
or no value for human life. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim.
App. 2012) (intent to kill can be inferred from shooting victim with firearm). Even
in Burse’s own account, in which he asserted that he merely intended to frighten
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Dawson, he admitted to pointing a handgun in her direction and firing it, which still
evidences a disregard for human life. See Bell v. State, 501 S.W.2d 137, 138–39
(Tex. Crim. App. 1973) (intent to kill could be inferred from shooting firearm at
another person). The trial court was not obliged to agree with the prosecutor’s
argument. See Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988)
(purpose of closing is to assist factfinder in drawing proper conclusions from
evidence; factfinder is free to accept or reject conclusions proposed by counsel in
argument). But the prosecutor was entitled to argue that Burse did not value human
life and Burse’s attorney therefore was not ineffective by failing to object to this
argument.
Burse’s complaint about the prosecutor’s argument that he almost killed
Dawson is a different matter. A handgun is a deadly weapon, and firing it in the
direction of another person risks serious bodily injury or death. See TEX. PENAL
CODE § 1.07(a)(17)(A). But the record does not suggest that Burse almost killed
Dawson. According to Dawson, the bullet grazed her, causing a scar. The record
does not contain any evidence that her injuries were nearly fatal. The prosecutor’s
argument therefore was outside of the record and was objectionable for this reason.
See Freeman, 340 S.W.3d at 728 (reference to facts neither in nor inferable from
evidence is improper in closing argument).
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Nonetheless, Burse has not shown that there is a reasonable probability that
the result would have differed had his trial attorney objected to the prosecutor’s
mischaracterization of Dawson’s injuries. Burse pleaded guilty and punishment was
tried to the bench. The punishment hearing was brief and the evidence was minimal,
straightforward, and largely uncontested. The prosecutor’s argument that Burse had
almost killed Dawson was confined to a single remark. In assessing punishment, the
trial court implicitly indicated that it understood that Dawson did not almost die from
her injury; instead, the trial court focused on what could have happened to her if she
had not run away after Burse shot her. On this record, it is not reasonably probable
that the trial court would have imposed a different sentence on Burse if his lawyer
had objected to the prosecution’s misstatement. See Freeman, 340 S.W.3d at 728–
29 (improper argument harmless on record as a whole given brevity of prosecutor’s
remark, lack of prejudice, and strength of evidence supporting conviction).
3. Cruel and unusual punishment
Burse contends that his trial counsel was ineffective in failing to object to his
13-year sentence as cruel and unusual punishment. He reasons that his 13-year
sentence is cruel or unusual because he was eligible for probation.
To the extent that Burse’s argument rests on his eligibility for community
supervision, it fails because he was not eligible for community supervision. The trial
court’s deadly-weapon finding and its 13-year sentence each made Burse ineligible.
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TEX. CODE CRIM. PROC. arts. 42A.053(c)(1), 42A.054(b)(1)(A). Even if he had been
eligible, however, community supervision is a privilege, not a right. Speth, 6 S.W.3d
at 533; Hassan, 440 S.W.3d at 687. Burse pleaded guilty to the offense of aggravated
assault for causing his live-in girlfriend bodily injury by shooting her with a
handgun. This is a second-degree felony punishable by a term of imprisonment
between 2 and 20 years. TEX. PENAL CODE §§ 12.33(a), 22.02(a)(2), (b). The
imposition of a sentence within the range prescribed by a valid statute does not
constitute cruel and unusual punishment. Duran v. State, 363 S.W.3d 719, 724 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d); Swinney v. State, 828 S.W.2d 254, 259
(Tex. App.—Houston [1st Dist.] 1992, no pet.). The trial court’s punishment thus
was neither cruel nor unusual. See Young, 425 S.W.3d at 473–74 (rejecting
defendant’s argument that 15-year sentence for aggravated sexual assault of a child
was cruel and unusual given defendant’s eligibility for deferred adjudication);
Combs v. State, 652 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1983, no pet.)
(rejecting defendant’s argument that 20-year sentence for murder was cruel and
unusual given defendant’s eligibility for probation). Burse’s lawyer consequently
did not render ineffective assistance by failing to object that Burse’s punishment is
cruel and usual, because his punishment is not.
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II. Cruel and Unusual Punishment
Burse also contends on the merits that his punishment of 13 years’
incarceration is cruel and unusual punishment, given his eligibility for probation.
We have rejected this contention in connection with his ineffective-assistance claim.
CONCLUSION
We affirm the judgment of the trial court.
Gordon Goodman
Justice
Panel consists of Justices Lloyd, Goodman, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
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