Crawford v. State, No. 11-03-00056-CR (Tex. App. 2/12/2004)

• Decision Date: 12 February 2004
• Docket Number: No. 11-03-00056-CR.,11-03-00056-CR.
• Parties: JEFFREY TYRONE CRAWFORD Appellant, v. STATE OF TEXAS Appellee.
• Court: Texas Court of Appeals

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JEFFREY TYRONE CRAWFORD Appellant, v. STATE OF TEXAS Appellee.

No. 11-03-00056-CR.

Court of Appeals of Texas, Eleventh District, Eastland.

February 12, 2004.

Do Not Publish. See Tex.R.App.P. 47.2(b).

On Appeal from Dallas County.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCLOUD, S.J.¹

Opinion

AUSTIN McCLOUD, Senior Justice.

The jury found Jeffrey Tyrone Crawford guilty of delivering less than one ounce of cocaine; and, after appellant pleaded true to the enhancement paragraph in the indictment, the jury assessed appellant's punishment at confinement for ten years. Appellant appeals. We affirm.

Appellant contends in his first point of error that he was denied effective assistance of counsel in the trial court in violation of U.S. CONST. amend. VI and TEX. CONST. art. I, § 10.

Appellant had the burden to demonstrate (1) that his trial counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). The right to counsel does not guarantee errorless counsel or counsel whose competency is judged by hindsight. Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991). A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong. Garcia v. State, 57 S.W.3d 436 (Tex.Cr.App.2001).

Appellant urges that trial counsel's performance fell below an objective standard of reasonableness on three occasions when trial counsel objected to comments by the prosecutor and the objections were sustained by the trial court, but then failed to request the court to instruct the jury to disregard and failed to move for a mistrial.

During the prosecutor's argument on guilt/innocence, the prosecutor informed the jury that, in the next phase of the trial, the jury would consider punishment. Appellant's objection was sustained, and the prosecutor did not return to the subject. We hold that appellant was not harmed by the brief mention of the penalty phase of the trial. The record shows that the prosecutor was making a proper plea for law enforcement.

Appellant next complains of two instances when the prosecutor referred to appellant as a "pimp." The first instance was when the prosecutor was introducing appellant's prior criminal record. The record reflects:

[PROSECUTOR]: April 14th, 1998 he committed the crime of misdemeanor promotion of prostitution. The crime for that, of course, is pimping —.

[DEFENSE COUNSEL]: Your Honor, we would object to this comment.

THE COURT: All right. Sustained.

In the prosecutor's closing argument at the penalty phase, the record reflects:

[PROSECUTOR]: We talked a lot about his rights, but in the punishment phase it's time to consider the needs of the community. What I know from his record is that he was a pimp and that there was victims like the 14- to 16-year-old prostitute you heard about. I think it's a reasonable deduction from the evidence —

[DEFENSE COUNSEL]: Your Honor, I'm going to object. That's totally outside the evidence.

THE COURT: Sustain.

[PROSECUTOR]: We've got a pimp who breaks into people's cars, who violates the rights of other people. We know that he's dealt drugs before in the past, because he's already gone to the state jail for it. He's already been down for nine years and he's still doing the same things.

The record showed that appellant had previously been convicted of promotion of prostitution. "Pimp" is defined in BLACK'S LAW DICTIONARY 1148 (rev. 6th ed. 1990) as: "One who obtains customers (`tricks') for a whore or prostitute." The record showed that, at the time of the sale of cocaine to the undercover officers, appellant was with a young girl who was working as a prostitute. One of the officers testified that the "very young" girl who was with appellant and who was working as a prostitute was "possibly about 16 years old." The prosecutor's referral to appellant as a pimp was a reasonable deduction from the evidence. See Wade v. State, 627 S.W.2d 777 (Tex.App. — Waco 1981, no pet'n).

It is not ineffective assistance when an attorney does not preserve those "errors" which are not reversible errors. Matthews v. State, 960 S.W.2d 750 (Tex.App. — Tyler 1997, no pet'n). Moreover, even if appellant's trial counsel's representation was deficient, appellant has failed to demonstrate that, but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. The record showed that appellant delivered the cocaine to the undercover officers. Appellant had previously been convicted of 5 felonies, including 3 controlled substance felonies, and had spent 9 of the past 12 years in prison. Appellant's first point of error is overruled.

In his final point, appellant argues that his 10-year sentence was grossly disproportionate to the offense, resulting in cruel and unusual punishment, in violation of U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; and TEX. CODE CRIM. PRO. ANN. art. 1.09 (Vernon 1977).

We note that appellant has not separately urged his state and federal constitutional claims. See Moore v. State, 54 S.W.3d 529, 541 (Tex.App. — Fort Worth 2001, pet'n ref'd). This court in Bradfield v. State, 42 S.W.3d 350, 353 (Tex.App. — Eastland 2001, pet'n ref'd), stated:

The Eighth Amendment prohibits punishments that are "grossly disproportionate" to the offense for which the defendant has been convicted. Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); McGruder v. Puckett, 954 F.2d 313 (5th Cir.), cert. den'd, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992); Hicks v. State, 15 S.W.3d 626 (Tex.App. - Houston [14th Dist.] 2000, pet'n ref'd); Hernandez v. State, 10 S.W.3d 812 (Tex.App. - Beaumont 2000, pet'n filed); Dunn v. State, 997 S.W.2d 885 (Tex.App. - Waco 1999, pet'n ref'd); Jackson v. State, 989 S.W.2d 842 (Tex.App. - Texarkana 1999, no pet'n). The reviewing court must first compare the gravity of the offense with the severity of the sentence. Harmelin v. Michigan, supra; McGruder v. Puckett, supra; Hicks v. State, supra; Hernandez v. State, supra; Dunn v. State, supra; Jackson v. State, supra.

In this case, appellant's 10-year sentence was proportionate to the offense. Appellant was convicted of delivery of cocaine, a state jail felony enhanced to a third degree felony by his prior criminal record. TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (Vernon 2003); TEX. PENAL CODE ANN. § 12.35(c)(2)(A) (Vernon 2003). The punishment for a third degree felony is confinement for 2 to 10 years and an optional fine of $10,000. TEX....