Jackson v. State

• Decision Date: 26 April 2018
• Docket Number: NO. 14-16-00050-CR,14-16-00050-CR
• Parties: Deshawn JACKSON, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

550 S.W.3d 238

Deshawn JACKSON, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00050-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 26, 2018

Douglas M. Durham, Houston, TX, for Appellant.

Eric Kugler, Houston, TX, for State.

Panel consists of Justices Jamison, Busby, and Donovan.

Martha Hill Jamison, Justice

This appeal concerns allegations of ineffective assistance of counsel at both the trial and appellate levels. Appellant Deshawn Jackson pleaded guilty to, and the trial court found him guilty of, aggravated robbery. After a presentence investigation hearing, the trial court sentenced appellant to 20 years in prison. Appellant’s first appellate counsel filed a motion for new trial alleging appellant received ineffective assistance from his trial counsel but failed to obtain a timely hearing or ruling on the motion, and it was overruled by operation of law. Appellant’s second, appointed appellate counsel filed an Anders brief asserting that there was no arguable basis for reversal.¹ We disagreed and ordered the appeal abated for the trial court to appoint new counsel on appeal. Current counsel now argues appellant received ineffective assistance of counsel from both his appointed trial and first appellate counsel. Because the record before us does not support reversal for ineffective assistance of counsel, we affirm.

Background

Appellant was charged with the aggravated robbery of Luisa Alvarado occurring on or about January 15, 2014. See Tex. Penal Code § 29.03(a)(2). The indictment further alleged the use and exhibition of a firearm during the course of the robbery. Appellant pleaded guilty and a presentence-investigation (PSI) report was prepared.

At the subsequent PSI hearing, the State presented evidence that appellant was part of a group of three men who robbed a Family Dollar store where Alvarado worked. One of the men pointed a gun at Alvarado while appellant removed cash from two registers. As they were leaving, the men also robbed a customer who had just entered the building. There was also evidence that the group had robbed someone on a street near the store shortly before entering the building. Appellant acknowledged at the hearing that he associated with a group who called themselves the Money Grabbing Mafia, but he denied that the group was a gang.

The State introduced evidence at the PSI hearing that appellant also was arrested in July 2014 for misdemeanor evading arrest. Appellant reportedly fled after the vehicle he was riding in, which was suspected of being used in an armed robbery, was pulled over by police. Also, in September 2015, appellant was arrested for possession of a controlled substance after police pulled over the vehicle he was riding in; this vehicle was also suspected of being used in a robbery, and three handguns were found in the vehicle.

The State additionally presented evidence regarding the two robberies that were connected to the cars mentioned above in which appellant was a passenger. However, there was no evidence directly connecting appellant to those crimes; the State did not allege appellant participated in the offenses; and appellant denied any involvement other than driving a man shot during one of the robberies to the hospital. Appellant’s trial counsel did not object to the admission of evidence regarding any of the extraneous offenses. During his testimony at the hearing, appellant requested that the court place him on deferred adjudication. Trial counsel also requested the court place appellant on deferred adjudication during his closing argument.

On January 15, 2016, the trial court sentenced appellant to 20 years' imprisonment. Appellant’s first appointed appellate counsel then timely filed a motion for new trial, alleging, among other things, ineffective assistance of counsel because trial counsel had (1) failed to object to the evidence of extraneous offenses at the PSI hearing, (2) failed to properly prepare for the PSI hearing, and (3) induced appellant to plead guilty by indicating he would receive probation from the trial court. Appellant and his mother signed affidavits that were attached to the motion in which they averred that trial counsel had promised them appellant would receive probation if he pleaded guilty.

The trial court’s plenary power expired before the court held a hearing or ruled on the motion for new trial; thus, the motion was overruled by operation of law. See Tex. R. App. P. 21.8(a), (c) ; State v. Holloway , 360 S.W.3d 480, 485 (Tex. Crim. App. 2012). The trial court nonetheless held a hearing on the motion on April 13, after its plenary power had expired. The judge asked the parties to return for argument on April 25, 2016; however, instead of allowing argument on that date, the judge explained that he lacked plenary power over the motion for new trial as it had been overruled by operation of law. He then granted first appellate counsel’s motion to withdraw. In the motion to withdraw, first appellate counsel explained that she had made a mistake when rescheduling the hearing on the motion for new trial and that this mistake cost appellant the opportunity to have the motion timely heard. As mentioned above, appellant’s second appointed appellate counsel filed an Anders brief, which we rejected. When we abated the appeal, the trial court appointed appellant’s current counsel. Current counsel then filed a new motion for new trial, which the trial court declined to hear because our abatement order only authorized the appointment of current counsel.

On appeal, appellant now complains that he received ineffective assistance of counsel (1) from his first appellate counsel because she failed to secure a hearing and a ruling on the first motion for new trial before expiration of the trial court’s plenary power and (2) from his trial counsel because he failed to object to the evidence of extraneous offenses and improperly promised appellant that he would receive probation if he pleaded guilty and submitted to a PSI report.² In his first issue, appellant specifically requests that we reverse his conviction and remand for a new trial. In his second issue, he requests, in the alternative, that we abate the appeal and remand for a hearing on his motion for new trial.³

Standards of Review

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI ; Tex. Const. Art. I, § 10. The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel’s performance was deficient and not reasonably effective. Id. at 688–92, 104 S.Ct. 2052. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693, 104 S.Ct. 2052. Essentially, appellant must show his counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. ; Lopez v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

Judicial scrutiny of counsel’s performance must be highly deferential, and we are to indulge a strong presumption counsel was effective. Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel’s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is appellant’s burden to rebut this presumption by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect representation. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). It is not sufficient for the appellant to show, with the benefit of hindsight, that his counsel’s actions or omissions during trial were merely of questionable competence. Mata , 226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were outside the range of professionally competent assistance, appellant "must show that counsel’s errors were so serious that he was not functioning as counsel." Patrick v. State , 906 S.W.2d 481, 495 (Tex. Crim. App. 1995). We may not assume a lack of sound trial strategy on the part of trial counsel merely because we are unable to discern any particular strategic or tactical purpose in counsel’s trial presentation. See Bone v. State , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent.... [A] defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.").

If appellant proves his counsel’s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland , 466 U.S. at 693, 104 S.Ct. 2052. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Appellate Assistance

Appellant’s complaint regarding his first appellate counsel is that she was ineffective for failing to obtain a hearing and a ruling on the motion for new trial prior to expiration of the trial court’s plenary power. Indeed, counsel filed a ...