In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00074-CR ______________________________
SHARON RENEA SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 241st Judicial District Court Smith County, Texas Trial Court No. 241-1730-08
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION
A jury found Sharon Renea Sanders guilty of delivery of less than one gram of cocaine.1
After finding the two enhancement paragraphs in the indictment true, the jury assessed twenty years'
imprisonment and a $10,000.00 fine. Sanders's sole point of error on appeal alleges she received
ineffective assistance of counsel when her trial attorney failed to object to the State's closing
argument urging the jury to calculate parole eligibility in determining Sanders's sentence. Because
the State's comments could be considered proper jury argument, alleviating the need for counsel to
object, we affirm Sanders's conviction.
The questioned statements made by the State included the following:
And the range is anywhere from two years to 20 years.
Now, there's a lot of language in this charge about you cannot consider essentially the parole laws in fixing the punishment in the case. Okay. But you're entitled to know about them. Now, when you look at the parole laws in this case this is what we essentially would call a quarter time offense. So if you were to return a verdict in this case of 20 years['] confinement -- and that's what we're asking you to do -- the defendant, depending on her good conduct time, would be eligible for parole after she does five years. So, again, eligible for parole after a quarter of the time of whatever y'all assess her. And a quarter of the time of a 20 year sentence would make her eligible in about five years.
Now, the reason y'all can't go back there and say well 16 and 14 that's -- we don't control it. You know, those are decisions made by individuals that are independent of us.
1 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX . GOV 'T CODE ANN . § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX . R. APP . P. 41.3.
2 ....
Well, there's no way we can control it. That's why technically you're entitled to know about it, but you can't use it as a guide.
I. Standard of Review
Any allegation of ineffectiveness must be firmly founded in the record received by this Court.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). Sanders bears the burden of proving that counsel was ineffective
by a preponderance of the evidence. Cannon v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App.
2008); Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813. We apply the two-pronged
Strickland test handed down by the United States Supreme Court to determine whether Sanders
received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Stated
succinctly, the first prong of the Strickland test is a determination that counsel's performance was
deficient and the second prong is a determination that there is a reasonable probability that, but for
the deficient performance, the outcome of the proceeding would have been different. Ex parte
Imoudu, No. AP-75,964, 2009 Tex. Crim. App. LEXIS 730 (Tex. Crim. App. June 3, 2009). Failure
to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex.
Crim. App. 2006). Thus, we need not examine both Strickland prongs if one cannot be met.
Strickland, 466 U.S. at 697.
Sanders must show counsel's performance fell below an objective standard of reasonableness
when considering prevailing professional norms. Id. at 687–88. "This requires a showing that
3 counsel made errors so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment." Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004)
(quoting Strickland, 466 U.S. at 687). Our review of counsel's performance is highly deferential.
Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004). There is a strong presumption that
counsel's conduct fell within the wide range of reasonable professional assistance and that the
challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689; White, 160
S.W.3d at 51; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Therefore, we will not
second guess the strategy of counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592
(Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet.
ref'd). Where the record is silent as to why counsel failed to make an objection or take certain
actions, we will assume it was due to any strategic motivation that can be imagined, and the
appellant will have failed to rebut the presumption that trial counsel's actions were in some way
reasonable. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57 S.W.3d
436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485–86 (Tex. App.—Texarkana
2005, pet. ref'd). In other words, we will not conclude the challenged conduct deficient unless it was
so outrageous that no competent attorney would have engaged in it. Thompson, 9 S.W.3d 808; Fox,
175 S.W.3d at 485–86.
Next, it is not enough for Sanders to show that the errors had some conceivable effect on the
outcome of the proceeding. Strickland, 466 U.S. at 693. To meet the second prong of the Strickland
4 test, she must show that the deficient performance damaged her defense such that there was a
reasonable probability the result of the trial would have been different. Id.; Tong, 25 S.W.3d at 712.
We evaluate this factor while taking into consideration the totality of representation and the
particular circumstances of this case. Thompson, 9 S.W.3d at 813; Ex parte Felton, 815 S.W.2d 733,
735 (Tex. Crim. App. 1991).
II. Statements Made by the State Were Proper
In accordance with Article 37.07 of the Texas Code of Criminal Procedure, the trial court's
punishment charge stated:
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00074-CR ______________________________
SHARON RENEA SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 241st Judicial District Court Smith County, Texas Trial Court No. 241-1730-08
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION
A jury found Sharon Renea Sanders guilty of delivery of less than one gram of cocaine.1
After finding the two enhancement paragraphs in the indictment true, the jury assessed twenty years'
imprisonment and a $10,000.00 fine. Sanders's sole point of error on appeal alleges she received
ineffective assistance of counsel when her trial attorney failed to object to the State's closing
argument urging the jury to calculate parole eligibility in determining Sanders's sentence. Because
the State's comments could be considered proper jury argument, alleviating the need for counsel to
object, we affirm Sanders's conviction.
The questioned statements made by the State included the following:
And the range is anywhere from two years to 20 years.
Now, there's a lot of language in this charge about you cannot consider essentially the parole laws in fixing the punishment in the case. Okay. But you're entitled to know about them. Now, when you look at the parole laws in this case this is what we essentially would call a quarter time offense. So if you were to return a verdict in this case of 20 years['] confinement -- and that's what we're asking you to do -- the defendant, depending on her good conduct time, would be eligible for parole after she does five years. So, again, eligible for parole after a quarter of the time of whatever y'all assess her. And a quarter of the time of a 20 year sentence would make her eligible in about five years.
Now, the reason y'all can't go back there and say well 16 and 14 that's -- we don't control it. You know, those are decisions made by individuals that are independent of us.
1 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX . GOV 'T CODE ANN . § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX . R. APP . P. 41.3.
2 ....
Well, there's no way we can control it. That's why technically you're entitled to know about it, but you can't use it as a guide.
I. Standard of Review
Any allegation of ineffectiveness must be firmly founded in the record received by this Court.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). Sanders bears the burden of proving that counsel was ineffective
by a preponderance of the evidence. Cannon v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App.
2008); Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813. We apply the two-pronged
Strickland test handed down by the United States Supreme Court to determine whether Sanders
received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Stated
succinctly, the first prong of the Strickland test is a determination that counsel's performance was
deficient and the second prong is a determination that there is a reasonable probability that, but for
the deficient performance, the outcome of the proceeding would have been different. Ex parte
Imoudu, No. AP-75,964, 2009 Tex. Crim. App. LEXIS 730 (Tex. Crim. App. June 3, 2009). Failure
to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex.
Crim. App. 2006). Thus, we need not examine both Strickland prongs if one cannot be met.
Strickland, 466 U.S. at 697.
Sanders must show counsel's performance fell below an objective standard of reasonableness
when considering prevailing professional norms. Id. at 687–88. "This requires a showing that
3 counsel made errors so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment." Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004)
(quoting Strickland, 466 U.S. at 687). Our review of counsel's performance is highly deferential.
Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004). There is a strong presumption that
counsel's conduct fell within the wide range of reasonable professional assistance and that the
challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689; White, 160
S.W.3d at 51; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Therefore, we will not
second guess the strategy of counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592
(Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet.
ref'd). Where the record is silent as to why counsel failed to make an objection or take certain
actions, we will assume it was due to any strategic motivation that can be imagined, and the
appellant will have failed to rebut the presumption that trial counsel's actions were in some way
reasonable. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57 S.W.3d
436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485–86 (Tex. App.—Texarkana
2005, pet. ref'd). In other words, we will not conclude the challenged conduct deficient unless it was
so outrageous that no competent attorney would have engaged in it. Thompson, 9 S.W.3d 808; Fox,
175 S.W.3d at 485–86.
Next, it is not enough for Sanders to show that the errors had some conceivable effect on the
outcome of the proceeding. Strickland, 466 U.S. at 693. To meet the second prong of the Strickland
4 test, she must show that the deficient performance damaged her defense such that there was a
reasonable probability the result of the trial would have been different. Id.; Tong, 25 S.W.3d at 712.
We evaluate this factor while taking into consideration the totality of representation and the
particular circumstances of this case. Thompson, 9 S.W.3d at 813; Ex parte Felton, 815 S.W.2d 733,
735 (Tex. Crim. App. 1991).
II. Statements Made by the State Were Proper
In accordance with Article 37.07 of the Texas Code of Criminal Procedure, the trial court's
punishment charge stated:
It is possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, she will not become eligible for parole until the actual time served, without consideration of any good conduct time she may have, equals one-quarter of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.
It cannot be accurately predicted how the parole law and good conduct time might be applied to this defendant if [she] is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. . . . .You are not to consider the manner in which the parole law may be applied to this particular defendant.
See Byrd v. State, 192 S.W.3d 69, 71 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd); see also
TEX . CODE CRIM . PROC. ANN . art. 37.07 (Vernon Supp. 2008).
5 We recently addressed the meat of Sanders's complaint in an opinion entitled Ruiz v. State,
No. 06-08-00136-CR, 2009 WL 36670 (Tex. App.—Texarkana Jan. 8, 2009, no pet.) (mem. op., not
designated for publication); see also Johnson v. State, No. 06-04-00038-CR, 2004 WL 2826815,
at *2–3 (Tex. App.—Texarkana Dec. 10, 2004, no pet.) (not designated for publication) (holding
counsel's failure to object to State's argument regarding parole law was not ineffective assistance of
counsel). In Ruiz, the State made the jury argument that if a person was sentenced to twenty years'
imprisonment, a quarter of that time was five years, and they would be eligible for parole. Id. at *3.
As clarified in Ruiz, the State may explain the existence of parole law. Taylor v. State, 233 S.W.3d
356, 358 (Tex. Crim. App. 2007); see also Taylor v. State, 911 S.W.2d 906, 911–12 (Tex.
App.—Fort Worth 1995, pet. ref'd) (State's jury argument that "if a person is sentenced to 20
years . . . then they become eligible to be considered for release on parole after one quarter, which
is five" merely discussed the trial court's charge and was proper.).
This issue has also been decided by the Texas Court of Criminal Appeals. Taylor, 233
S.W.3d at 358. In Taylor, the trial court's jury charge tracked the parole language employed by the
trial court in this case. Id. During closing argument, the State argued, "A 40-year sentence means
the defendant becomes eligible for parole after serving 20 years. . . . A 60-year sentence means he
becomes eligible after 30 years. A sentence of life or 75 still means he becomes eligible after 30
years." Id. The Texas Court of Criminal Appeals held this argument was proper because the State
"did not convey any information beyond what was properly contained in the charge when he
6 explained how the parole eligibility rules set out in the charge worked with forty, sixty and seventy-
five year sentences." Id.
Our sister courts have also decided this issue against Sanders's interests. In Sanchez v. State,
No. 07-06-0435-CR, 2008 WL 2405889, at *1 (Tex. App.—Amarillo June 13, 2008, no pet.)
(mem. op., not designated for publication), the defendant complained the State's argument that the
jury would "see that the only protection of the community that you can be assured of would be half
of whatever you send him," and the State's calculation if "you send him for 40 years, he would only
be there for 20," was an "attempt to inappropriately apply the parole law" to the defendant. Id. at *2.
The Amarillo court of appeals held defendant's counsel was not ineffective in failing to object
because the State committed no error since the language regarding parole during jury argument
merely tracked the trial court's jury charge. Id. at *2–3.
Here, as in Ruiz, Taylor, and Sanchez, the State merely tracked the language in the jury
charge and explained the application of the parole formula. As such, no error was committed.
Because the State did not commit error, counsel was not obligated to object to statements regarding
parole.
7 III. Conclusion
We affirm the trial court's judgment.
Bailey C. Moseley Justice
Date Submitted: July 16, 2009 Date Decided: July 24, 2009
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