Kenneth Edward Carter v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 10, 2022
• Docket: 01-20-00725-CR
• Status: Published

Opinion

Opinion issued March 10, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00725-CR ——————————— KENNETH EDWARD CARTER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1653345

MEMORANDUM OPINION

Appellant Kenneth Edward Carter appeals his conviction for possession of a

controlled substance. In two points of error, he contends that: (1) he received

ineffective assistance of counsel at the adjudication hearing; and (2) the judgment

should be reformed to reflect that he pleaded “not true” to the allegations in the State’s motion to adjudicate. We modify the trial court’s judgment and affirm as

modified.

BACKGROUND

In November 2019, Carter pleaded guilty to possession of a controlled

substance weighing more than four grams and less than 200 grams, a second-degree

felony. He was placed on deferred adjudication community supervision for three

years and ordered to report to his community supervision officer as directed, to

successfully complete the education program entitled “Effective Decision Making,”

and to successfully complete an intensive outpatient treatment program. Carter met

with his assigned community supervision officer, Kimberly Tambe, one time in

December 2019, when she gave him referrals to enroll in the education program and

intensive outpatient treatment program. After that meeting, Carter failed to report

back to Tambe, and he did not complete either program.

The State then moved to adjudicate guilt. At the hearing on the motion to

adjudicate, Carter pleaded “not true” to each of the State’s allegations that he: (1)

failed to report to his community supervision officer; (2) did not complete the

educational program; and (3) did not complete the intensive outpatient treatment

program. After hearing testimony from Tambe, Carter’s community supervision

officer, the trial court found “true” that Carter violated the conditions of his

2 community supervision, found him guilty of the underlying offense, and sentenced

him to 15 years in prison.

DISCUSSION

I. Ineffective assistance of counsel

In his first point of error, Carter asserts three claims to show that he received

ineffective assistance of counsel: (1) his defense counsel presented evidence that

was harmful to his defense; (2) his defense counsel introduced evidence for no valid

reason; and (3) his defense counsel failed to object to his 15-year sentence as cruel

and unusual punishment.

A. Standard of review

The Sixth Amendment to the United States Constitution guarantees the right

to the reasonably effective assistance of counsel in criminal prosecutions. U.S.

CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);

see also TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art. 1.05; Hernandez v.

State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (test for ineffective assistance

of counsel same under both federal and state constitutions). To prove a claim of

ineffective assistance of counsel, an appellant must show: (1) his trial counsel’s

performance fell below an objective standard of reasonableness; and (2) the deficient

performance prejudiced the defense such that there is a reasonable probability that,

but for his counsel’s unprofessional errors, the result of the proceeding would have

3 been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The appellant has the burden

to prove ineffective assistance of counsel by a preponderance of the evidence. Ex

parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that counsel’s performance fell within the wide range of reasonable

professional assistance or trial strategy. Lopez, 343 S.W.3d at 142–43. For us to find

that counsel was ineffective, counsel’s deficiency must be affirmatively

demonstrated in the trial record; we may not engage in retrospective speculation. Id.

at 142. When direct evidence is not available, we will assume that counsel had a

strategy if any reasonably sound strategic motivation can be imagined. Id. at 143.

The presumption of a sound trial strategy cannot be overcome absent evidence in the

record of the attorney’s reasons for his conduct. Martinez, 330 S.W.3d at 901.

B. Analysis

1. Presenting harmful evidence for no valid reason

Carter’s first two claims are similar: he argues that his defense counsel

presented evidence that was harmful to his defense and that counsel introduced the

evidence for no valid reason. Specifically, his defense counsel introduced copies of

the referral forms Tambe gave to Carter at their first meeting—referral forms that

4 provided him information about his two court-ordered programs, the “Effective

Decision Making” education program and intensive outpatient treatment program—

and introduced Tambe’s notes that described the office visit and that stated she

referred him to those programs. Carter argues this evidence bolstered the State’s case

against him and could not have been part of a sound trial strategy. Carter also argues

that because defense counsel stated in closing that her argument was “a legal one,”

and not about Tambe’s testimony, there was no valid purpose for introducing the

evidence.

The record is silent as to defense counsel’s reasons for introducing the referral

forms and notes. Defense counsel may have been trying to discredit Tambe or

establish that Tambe did not actually give the referral forms to Carter; she asked

Tambe on cross-examination, regarding the referral forms, “So is this what you gave

to Mr. Carter? . . . So it’s just a general, that you give this to everybody? It’s not—

his name’s not on there or anything like that?” Tambe responded: “No, everyone

receives that.” Defense counsel then asked Tambe, “So then, do you have notes in

your file that you, in fact, gave these two referrals to Mr. Carter?” Tambe provided

those notes, and defense counsel entered the referral forms and the notes into

evidence. Although this strategy ultimately appears to have been unsuccessful, we

must avoid the “distorting effects of hindsight” and “evaluate the conduct from

counsel’s perspective at the time,” while indulging the “strong presumption” that the

5 conduct was reasonable and a sound trial strategy. Strickland, 466 U.S. at 689; see

also Lopez, 343 S.W.3d at 142–43. Because the record is silent as to why defense

counsel introduced the evidence, Carter has not overcome the presumption that

defense counsel’s performance was part of a sound trial strategy, and he has not

proven the first prong of the Strickland test. See Strickland, 466 U.S. at 688; Lopez,

343 S.W.3d at 142.

Nor has Carter shown there is a reasonable probability that, but for his defense

counsel’s introduction of the evidence, the result of the proceeding would have been

different. When defense counsel introduced the evidence, Tambe had already

testified that she gave those referral forms to Carter, and the trial court found her

testimony credible. Thus, Carter has failed to satisfy the second prong of the

Strickland test. See Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142.

The cases to which Carter cites are distinguishable because they each involve

defense counsel eliciting harmful testimony that would otherwise have been

inadmissible. White v. Thaler, 610 F.3d 890, 900 (5th Cir. 2010) (defense counsel

ineffective because their questioning about post-arrest silence opened door for

prosecutor’s otherwise inadmissible questioning); Ex parte Walker, 777 S.W.2d 427,

432 (Tex. Crim. App. 1989) (applying then-accepted Duffy standard of review,

which did not require proof of prejudice, court found defense counsel ineffective

because she introduced otherwise inadmissible evidence of extraneous offenses);

6 Stone v. State, 17 S.W.3d 348, 353 (Tex. App.—Corpus Christi–Edinburg 2000, pet.

ref’d) (defense counsel ineffective because he elicited testimony from defendant

regarding prior murder conviction that would otherwise have been inadmissible);

Cooper v. State, 769 S.W.2d 301, 304–05 (Tex. App.—Houston [1st Dist.] 1989,

pet. ref’d) (defense counsel ineffective because he questioned defendant regarding

prior void conviction in front of jury, which opened door to prosecution’s

questioning about 14 other prior convictions). These cases all differ from the present

case in which defense counsel introduced evidence that corroborated the testimony

of the State’s witness. Stone and Cooper do not, as Carter argues, stand for the

proposition that introducing evidence for no valid purpose constitutes ineffective

assistance of counsel. Rather, the court in each of those cases discussed defense

counsel’s possible purpose in introducing inadmissible evidence: preempting the

prosecutor’s questioning about a prior murder conviction, Stone, 17 S.W.3d at 352,

and securing testimony that a prior conviction was void, Cooper, 769 S.W.2d at 305.

But each court concluded that introducing harmful evidence that otherwise would

have been inadmissible, even though there was a purpose, fell below an objective

standard of reasonableness and caused prejudice. See Stone, 17 S.W.3d at 353–54;

Cooper, 769 S.W.2d at 305.

Carter also argues that his defense counsel’s deficient performance in

introducing harmful evidence for no reason resulted in a higher sentence, showing

7 that he was prejudiced by the errors. However, Carter does not explain how defense

counsel’s introduction of evidence that corroborated existing testimony caused the

trial court to impose a higher sentence. The trial court, just before imposing the 15-

year sentence, said that he was taking into consideration the fact that Carter pleaded

“not true” when the allegations were then proven true. The Supreme Court has not

held, as Carter contends, that imposing a higher sentence within sentencing

guidelines necessarily constitutes prejudice to satisfy the second prong of the

Strickland test; rather, the Supreme Court stated there was no minimum amount by

which a sentence must be increased for a court to consider the second prong. Glover

v. United States, 531 U.S. 198, 204 (2001). In other words, a minimal amount of

additional time in prison can constitute prejudice, but the Court declined to express

an opinion on the ultimate merits of whether the defendant in that case received

ineffective assistance of counsel. Id. at 203–04. Although the trial court here

imposed a 15-year sentence when the State requested a “sentence that is substantially

high, at least ten years if not higher,” Carter has not shown that his counsel’s

performance caused the trial court to impose a higher sentence. Carter has not shown

a reasonable probability that defense counsel’s performance resulted in a different

outcome. See Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142.

8 Carter’s first two claims, that his defense counsel introduced harmful evidence

and she introduced that evidence for no valid purpose, have failed to demonstrate

ineffective assistance of counsel.

2. Failure to object to sentence as cruel and unusual

Carter next argues that his defense counsel was ineffective because she failed

to object to his 15-year prison sentence as cruel and unusual when the State requested

a 10-year sentence and thus failed to preserve error; such a failure to preserve error,

he contends, shows ineffective assistance of counsel.

To successfully assert that defense counsel’s failure to object amounted to

ineffective assistance of counsel, the appellant must show that the trial court would

have committed error in overruling the objection. Martinez, 330 S.W.3d at 901.

Here, the trial court sentenced Carter to 15 years’ imprisonment. The statutory range

for a second-degree felony offense is two to 20 years. TEX. PENAL CODE § 12.33.

Generally, punishments assessed within the statutory limits do not violate federal

and state constitutional prohibitions of cruel and unusual punishment. Toledo v.

State, 519 S.W.3d 273, 285 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). Thus,

even if defense counsel had objected to Carter’s sentence, the objection would have

been meritless, and the trial court would not have committed error in overruling it.

See Martinez, 330 S.W.3d at 901; see also Jagaroo v. State, 180 S.W.3d 793, 800

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“It is not ineffective assistance

9 for counsel to forego making frivolous arguments and objections.”). Carter has not

shown that defense counsel’s failure to object fell below an objective standard of

reasonableness, nor has he shown there is a reasonable probability that if she had

objected, the result of the proceeding would have been different; he has failed to

satisfy both prongs of the Strickland test. See Strickland, 466 U.S. at 687–88, 694;

Lopez, 343 S.W.3d at 142. Carter’s third claim, that his defense counsel failed to

object to his sentencing as cruel and unusual punishment, has failed to demonstrate

Carter’s first point of error is overruled.

II. Error in written judgment

Carter next argues that the written judgment incorrectly states that he pleaded

“true” to the State’s allegations in the motion to adjudicate guilt; he acknowledges

this error is not a basis for reversing the judgment but asks that we modify the

judgment to comport with the record, which reflects that he pleaded “not true” to the

State’s allegations. The State agrees that the judgment should be so modified.

The record reflects that Carter pleaded “not true” to each of the State’s

allegations at the adjudication hearing. However, the trial court’s judgment states

that he entered a plea of “true.” An appellate court has the power to correct and

reform a trial court judgment to “make the record speak the truth when it has the

necessary data and information to do so.” Nolan v. State, 39 S.W.3d 697, 698 (Tex.

10 App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526,

529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the trial court’s

judgment to reflect that Carter pleaded “not true” to each of the allegations in the

State’s motion to adjudicate his guilt. TEX. R. APP. P. 43.2(b) (court of appeals may

modify the trial court’s judgment and affirm it as modified); see also Torres v. State,

391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (modifying

judgment to state that defendant pleaded “true” to allegations in enhancement

paragraphs).

Carter’s second point of error is sustained.

CONCLUSION

We modify the trial court’s judgment to reflect that Carter pleaded “not true”

to the State’s allegations in its motion to adjudicate. We affirm the trial court’s

judgment as modified.

Gordon Goodman Justice

Panel consists of Justices Kelly, Goodman, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).