James Lamond Cerf v. State

• Court: Court of Appeals of Texas
• Decided: November 23, 2005
• Docket: 01-04-01065-CR
• Status: Published

Opinion

Opinion issued November 23, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-01065-CR

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JAMES LAMOND CERF, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 994792

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MEMORANDUM OPINION

          Appellant, James Lamond Cerf, was charged by indictment with burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). The indictment included an enhancement paragraph alleging two prior felony convictions of burglary of a habitation. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004–2005). A jury found him guilty of burglary, found the allegations in the enhancement paragraph to be true, and assessed punishment at 99 years in prison and a fine of $10,000.

          In six points of error, appellant argues that he received ineffective assistance of counsel.

          We affirm.

Background

           On July 9, 2004, appellant and a friend drove a rented Chevy Impala through a residential neighborhood. A painter working on another house, William Flores, observed them driving up to the house of the complainant, Salvador Arevalo. Flores saw them walk around to the back of the house. Moments later he saw them exit through the garage with some of the complainant’s family’s belongings. When the police were called to the scene, Flores told the police what he had seen and gave them the license plate number to the Impala, which he had written down. The police traced the rented car back to appellant, and Flores identified appellant in a photo spread. All of this information was presented at trial, and the jury returned a verdict of guilty.

          During the punishment phase, evidence was introduced from searches of two apartments where appellant had resided. Both searches produced evidence of prior burglaries that had been reported. Additionally, the State entered into evidence a stipulation of evidence showing six criminal convictions on appellant’s record along with the records of a sentence and judgment for each of the convictions. From this information, the jury assessed punishment at 99 years in prison and a fine of $10,000.

Ineffective Assistance of Counsel

          In six points of error, appellant argues he received ineffective assistance of counsel during the punishment phase of his trial because trial counsel (1) failed to request notice of the State’s intent to introduce evidence of other crimes, wrongs, or acts; (2) failed to conduct discovery; (3) failed to properly object to evidence discovered during a search of appellant’s residence; and (4) failed to object to the testimony of three witnesses concerning extraneous acts of appellant.A. Standard of Review and Applicable Law

          Appellant was entitled to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. In considering whether counsel’s assistance was so defective that a reversal of the conviction is warranted, we follow the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999). Under the Strickland standard, we determine (1) whether counsel’s performance was deficient and (2) whether, but for counsel’s deficient performance, the result of the proceeding would have been different. Id. The Strickland standard applies to both guilt and punishment phases. Id. at 772.

          To prevail, appellant must show ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In addition, appellant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” or might reasonably be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

          As the reviewing court, we consider the adequacy of assistance as viewed at the time of trial, not through hindsight. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983). We cannot speculate as to the reasons why trial counsel behaved as he did; rather, we must be highly deferential and presume that counsel’s actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

          The Court of Criminal Appeals has held that, normally, trial counsel should be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Otherwise, “the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Id. at 110–11 (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)).

B.      Analysis

          As to the first prong of the Strickland standard, appellant must show errors “firmly founded in the record” to support his claim of deficient performance. Thompson, 9 S.W.3d at 813. The record on direct appeal leaves us with little evidence concerning trial counsel’s strategy. We will not speculate regarding trial counsel’s strategy, nor do we find the errors appellant complains of so egregious that no trial strategy could justify their occurrence.

          As evidence of trial counsel’s ineffectiveness, appellant points to statements that trial counsel made during the closing of the penalty phase where the attorney told the jury he was surprised and overwhelmed by the number of witnesses the State brought forth at trial. Statements made by trial counsel during opening and closing statements, however, are not evidence. Bigby v. State, 892 S.W.2d 864, 886 (Tex. Crim. App. 1994); United States v. Mitchell, 166 F.3d 748, 753 (5th Cir. 1999). Additionally, we have no reason to believe that this also was not a part of trial counsel’s strategy.

          Because of the lack of evidence in the record indicating trial counsel’s trial strategy, we cannot find trial counsel’s performance was deficient.

          We overrule appellant’s points of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Laura Carter Higley

                                                                        Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

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