Terrell v. State
| Decision Date | 16 August 2016 |
| Docket Number | NO. 01-14-00746-CR,01-14-00746-CR |
| Parties | ZACKERY TERRELL, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 149th District Court Brazoria County, Texas
A jury convicted appellant Zackery Terrell of possession of a controlled substance, cocaine, in an amount less than one gram. See TEX. HEALTH & SAFETY CODE § 481.115(b). He pleaded true to two enhancement allegations, specifically that he previously had been convicted of aggravated assault with a deadly weapon and possession with intent to deliver a controlled substance, cocaine, in an amount between one and four grams. The trial court assessed punishment of 50 years in prison.
On appeal, Terrell contends that he received ineffective assistance of counsel, asserting that his trial counsel failed to advise him properly of the full range of punishment before he rejected a plea-bargain offer. He also contends that the trial court entered an illegal sentence. We affirm.
Zackery Terrell was stopped for a traffic offense and arrested for driving with a suspended license and without insurance. Police officers conducted an inventory search, which uncovered a loaded handgun, drug paraphernalia containing a residue of cocaine, more than $12,000 in cash, and approximately 530 grams of liquid codeine and promethazine.
Approximately six weeks after his arrest, Terrell was charged by indictment with possession of less than one gram of cocaine. See TEX. HEALTH & SAFETY CODE § 481.115(b). The indictment included two enhancement paragraphs, alleging that prior to the commission of the indicted offense, Terrell had been convicted of two sequential crimes. In 1995, he committed the felony offense of aggravated assault with a deadly weapon. After that conviction became final, Terrell was convicted of the felony offense of possession of between one and four grams of cocaine. The Statelater gave notice of its intent to request an instruction and jury finding that the handgun used in the commission of the charged offense was a deadly weapon.
Prior to jury selection, the trial court considered Terrell's motion in limine, which sought to exclude all evidence regarding extraneous crimes or misconduct. Although the charged offense of possession of less than a gram of cocaine is a state-jail felony, the punishment range could be enhanced to 25 years to life in prison if the State proved that Terrell used a deadly weapon in the commission of the charged offense and previously had been convicted of the two sequential felonies charged in the enhancement paragraphs of the indictment. See TEX. PENAL CODE § 12.42(d). The trial court agreed that the State should be prohibited from mentioning any prior convictions during the guilt-or-innocence phase of trial but stated, "they are going to get to voir dire on the possible ranges of punishment." The court and counsel then discussed how the voir dire could be conducted to meet both objectives. During this discussion, the possible enhanced punishment range of 25 years to life in prison was mentioned 11 times by counsel and the court, and the minimum sentence of 25 years was mentioned an additional two times. There was no mention of any plea offer, and there was no indication that Terrell misunderstood the possible punishment range. The record shows that the 25 years to life punishment range was not mentioned in front of the jury.
The jury found Terrell guilty, and the court assessed punishment of 50 years in prison. After trial counsel failed to timely file a notice of appeal, Terrell filed a petition for writ of habeas corpus seeking an out of time appeal. The trial court agreed that trial counsel was ineffective for failing to file a motion for new trial, and the Court of Criminal Appeals granted an out-of-time appeal.
Terrell then filed a motion for new trial and motion in arrest of judgment. His motion for new trial alleged that his trial counsel was ineffective in 11 different ways, including failing to advise him properly of the range of punishment and the possible results of trial. The motion for new trial did not mention a plea offer or assert that if trial counsel had given proper advice about the range or punishment and possible results of trial, that Terrell would have accepted the plea agreement rather than go to trial.
The trial court held a hearing on the motion for new trial about 18 months after the trial. Terrell testified that his retained trial counsel, Arthur Washington, told him at their first meeting that he had been charged with a state-jail felony. Terrell testified that Washington later advised him that the range of punishment was two to ten years in prison, but on the day of trial, he said that the punishment range was two to twenty years. Terrell also testified that on the day of trial, the judge informed him, in front of the jury, that the punishment range was 25 years to life in prison. Terrellalleged that Washington never discussed with him the deadly-weapon allegation or mentioned a punishment range of 25 years to life in prison.
Terrell acknowledged that Washington conveyed a plea offer of seven years, which he rejected because he thought the range of punishment was two to ten years in prison, and he believed the only difference between a seven- and a ten-year sentence was the amount of time he would spend on parole. Terrell thought that with either sentence he would most likely have the same parole date. But he did not speak up when he heard the court say that the range of punishment was 25 years to life in prison. He testified that he was surprised, did not think he could "say something then," and believed that he no longer had the right to accept the plea offer. Terrell had hoped for a two-year plea bargain, but he would have taken the seven-year plea bargain if he had thought the range of punishment allowed a sentence as long as 20 years.
Arthur Washington also testified at the motion for new trial hearing. Most of the questioning centered on the legal question of what level felony had been alleged and the appropriate range of punishment. At first, Washington testified that he had advised Terrell that the range of punishment would be two to ten years in prison. He later recalled that the offense was indicted as a state-jail felony, enhanced by the notice seeking to prove that Terrell used a deadly weapon, and further enhanced by two habitual offender allegations, all of which raised the punishment range to 25years to life in prison. Neither Terrell's appellate counsel nor the prosecutor asked Washington if he had advised Terrell that the range of punishment could be 25 years to life in prison if all the enhancements were proven. Washington testified that the State made a final plea offer of seven years in prison, which would have resulted in the dismissal of all other pending cases against him in Brazoria County, but Terrell rejected it.
The trial court denied the motion for new trial, and Terrell appealed.
Terrell raises two issues on appeal. First, he argues that he received ineffective assistance of counsel. He asserts that his trial counsel mistakenly advised him about the range of punishment and that he relied on this erroneous advice when he rejected a plea-bargain offer for seven years in prison. Second, he argues that the trial court's sentence was greater than that allowed by statute.
When a defendant claims his plea was involuntary due to ineffective assistance of counsel, often he has pleaded guilty but argues he would have gone to trial but for counsel's erroneous advice. See, e.g., Labib v. State, 239 S.W.3d 322, 333 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999)). Terrell raises the opposite complaint: he argues that his trial counsel erroneously advised him of the range of punishmenthe could face, and if he had known the steep penalty he faced at trial, he would have pleaded guilty and accepted a seven-year prison term.
A claim of ineffective assistance of counsel must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). To prove a claim of ineffective assistance of counsel, an applicant must show that trial counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that but for counsel's unreasonable error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Because the record must affirmatively demonstrate the alleged ineffectiveness, a defendant's uncorroborated testimony about counsel's errors will not establish ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
At the hearing on the motion for new trial, Terrell testified about the advice he received. He said that Washington initially told him that he was charged with a state-jail felony. The punishment range for a state-jail felony is 180 days to two years in state jail. TEX. PENAL CODE § 12.35(a). Terrell testified that after the State lateralleged prior felony convictions to enhance the offense, Washington told him that the range of punishment was two to ten years in prison. Terrell also testified that on the day of trial, Washington advised him the punishment range was two to twenty years in prison. According to Terrell, his trial counsel never discussed with him the deadly-weapon allegation or a punishment range of 25 years to life in prison.
Terrell's testimony arose in a hearing on a...
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