                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00113-CR


JOE DON MCDONALD                                                    APPELLANT

                                      V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12488

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                       MEMORANDUM OPINION 1

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      Appellant Joe Don McDonald pled guilty to the delivery of a controlled

substance, methamphetamine, in the amount of one gram or more but less than

four grams, 2 after the jury was selected.      He entered a plea of true to the


      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Health & Safety Code Ann. § 481.112(a)(c) (West 2010).
enhancement paragraph of the indictment, increasing the punishment range to

that of a first-degree felony. 3 The jury assessed his punishment at forty years’

confinement and no fine. The trial court sentenced him accordingly.

      Appellant brings two points. In his first point, Appellant argues in various

ways that trial counsel provided ineffective assistance at guilt, rendering his guilty

plea involuntary. In his second point, Appellant argues that trial counsel provided

ineffective assistance at punishment by failing to object to questions and

argument concerning the effect of parole and good-time laws on Appellant.

Because Appellant has failed to sustain his burden of showing ineffective

assistance of counsel, we affirm the trial court’s judgment.

Brief Facts

      Hood County Sheriff’s Department investigators received a tip that

Appellant was selling methamphetamine and would sell to anyone. They called

and texted Appellant and arranged to buy methamphetamine from him for $175.

As soon as the investigators had purchased the drugs, they arrested Appellant.

The delivery was captured on video.

Ineffective Assistance of Counsel

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation was deficient



      3
       See Tex. Penal Code Ann. § 12.42(b) (West Supp. 2014).



                                          2
and that the deficiency prejudiced the defense. 4 An ineffective-assistance claim

must be “firmly founded in the record,” and “the record must affirmatively

demonstrate” the meritorious nature of the claim. 5

      In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular

circumstances of each case. 6 The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. 7      Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct was not deficient. 8

      The prejudice prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, that is, a trial with

a reliable result. 9 In other words, an appellant must show there is a reasonable


      4
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez
v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
      5
       Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
      6
       Id.
      7
      See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415
S.W.3d at 307.
      8
       Nava, 415 S.W.3d at 307–08.
      9
       Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.



                                          3
probability that, without the deficient performance, the result of the proceeding

would have been different. 10 A reasonable probability is a probability sufficient to

undermine confidence in the outcome. 11 The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. 12

       Guilt Phase Allegations

       In his first point, Appellant argues that his guilty plea was involuntary

because his trial counsel committed ineffective assistance by (1) arguing with

Appellant in front of prospective jurors, (2) failing to advise Appellant of a

possible entrapment defense, and (3) refusing to request a continuance.

Appellant concedes that because the claims raised in his first point were raised

by a motion for new trial, the Strickland prongs are viewed through the prism of

an abuse of discretion standard and that, looking at the evidence in the light most

favorable to the trial court’s ruling, this court should reverse the case only if no

reasonable view of the record could support the trial court’s finding. 13 Appellant



       10
        Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.
       11
        Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308.
       12
        Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.
       13
       See Arroyos v. State, Nos. 02-11-00135-CR, 02-11-00136-CR, 2012 WL
1555900, at *1 (Tex. App.—Fort Worth May 3, 2012, no pet.) (mem. op., not
designated for publication). See also Colyer v. State, 428 S.W.3d 117, 122 (Tex.


                                         4
argues, however, that no reasonable view of the record could support the trial

court’s refusal to grant the motion for new trial and that given the evidence

presented at the hearing, the refusal to grant the motion for new trial was

arbitrary or unreasonable, citing a case from the Texas Court of Criminal Appeals

as well as a case from this court. 14 He further argues that his ineffective

assistance claims rise to the level of a violation of his constitutional rights under

the Fifth, Sixth, and Fourteenth Amendments.

      We address each allegation below.

             Argument in the Hallway

      Appellant and his sister testified at the hearing on his motion for new trial

that Appellant and his trial attorney had a ten-minute argument in the hallway

before jury selection. Trial counsel doubled up his fists and hit himself in the face

in frustration with Appellant in the presence of venire members, lawyers, and

other people who were in the hallway outside the courtroom before jury selection

began. Appellant wanted counsel to request a continuance or to “do something

other than what was getting done.” Both Appellant and his sister testified that

prospective jurors were present during the argument. No other evidence of the

argument was presented to the trial court.

Crim. App. 2014) (providing that we review the denial of a motion for new trial for
an abuse of discretion).
      14
        See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Thomas v.
State, 31 S.W.3d 422, 428 (Tex. App.—Fort Worth 2000, pet. ref’d).



                                         5
      Appellant presents his issue as an instance of ineffective assistance of

counsel that caused him to plead guilty. It is unclear whether Appellant is arguing

that the future members of the jury were negatively influenced by the argument.

We conclude from the record and brief that Appellant contends that the argument

contributed to his decision to plead guilty.

      The trial judge alone determines the credibility of the witnesses at a hearing

on a motion for new trial. 15 Although Appellant and his sister both testified to the

argument, the trial judge was free to believe or to disbelieve them.16 Nothing in

the record shows that the jurors who actually sat on the case were in any way

affected by the argument. Appellant entered his guilty plea three days after the

argument.    In accepting Appellant’s plea, the conscientious trial judge made

detailed inquiry into the voluntariness of the plea, whether Appellant understood

what he was doing, and whether Appellant had any complaints about his counsel.

Appellant stated on the record at that time that he was satisfied with trial counsel’s

representation. He also said that his plea was voluntary and that he understood

what he was doing when he entered his plea. Neither the record nor argument of

counsel shows that Appellant would not have entered his guilty plea except for the




      15
        Colyer, 428 S.W.3d at 122.
      16
        See id.



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argument in the hallway. 17 Accordingly, he has not met his burden to prove

ineffective assistance in this instance. 18

             Entrapment Defense and Conspiracy Evidence

      Entrapment is a statutory defense:

      It is a defense to prosecution that the actor engaged in the conduct
      charged because he was induced to do so by a law enforcement
      agent using persuasion or other means likely to cause persons to
      commit the offense.       Conduct merely affording a person an
      opportunity to commit an offense does not constitute entrapment. 19

      Appellant argues that because one sheriff’s department investigator called

him repeatedly to get him to make the drug delivery, he had a viable entrapment

defense. The record does not support that conclusion. The Texas Court of

Criminal Appeals has explained,

      The question becomes whether the persuasion used by the law
      enforcement agent was such as to cause a hypothetical person—an
      ordinarily lawabiding person of average resistance—to commit the
      offense, not whether it was such as to cause the accused himself,
      given his proclivities, to commit it. 20

      The record does reflect that Appellant told the officer who interviewed him

that he always got his drugs from the same person in Fort Worth but that if



      17
       See Tex. Code Crim. Proc. Ann. art. 26.13(b) (West Supp. 2014);
Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).
      18
        See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      19
        Tex. Penal Code Ann. § 8.06(a) (West 2011).
      20
        England v. State, 887 S.W.2d 902, 908 (Tex. Crim. App. 1994).



                                              7
people wanted drugs he had, he usually just gave the drugs to them. Appellant’s

statement therefore seems to suggest that he usually did not demand payment.

But a delivery offense does not require payment for the drugs. 21 The gravamen

of the offense here is the transfer from Appellant to another person. 22 Thus, the

record as it stands after the hearing on the motion for new trial does not reflect a

viable entrapment defense. Consequently, the failure to advise Appellant of the

possibility of an entrapment defense, under the facts of this case, is not failure to

provide effective assistance of counsel. 23

      Appellant also argues that his plea was involuntary and unknowing

because trial counsel did not present evidence that there was a conspiracy in the

Hood County Sheriff’s Department to arrest Appellant. Appellant testified at the

hearing on his motion for new trial that he had been contacted by the Texas

Rangers to be an informant against the Aryan Brotherhood gang. Afterward,

Appellant came to know another informant for law enforcement. Appellant later

was assaulted and robbed, and he believed that the informant he had met was

partly responsible for his assault. Appellant testified that he reported the assault

to Investigator Watt and then complained to the Attorney General’s Office and


      21
        See Tex. Health & Safety Code Ann. § 481.002(8)–(9) (West Supp.
2014); Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. App. 2003).
      22
        See Lopez, 108 S.W.3d at 297.
      23
        See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.



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the Governor’s Office when the Hood County Sheriff’s Department did not arrest

his assailants. Appellant testified that he believed that the Hood County Sheriff’s

Department wanted him “put away” because of the complaints he had made to

the Attorney General’s Office and the Governor’s Office.

      The State argues that even assuming that such a conspiracy existed,

Appellant has not shown how trial counsel was ineffective for not presenting

evidence of a conspiracy. We agree. 24 Further, the State points out that unless

Appellant had evidence that he did not discuss at the hearing on his motion for

new trial, he was the only witness who could testify in support of the conspiracy

allegation.   That means that he would been required to waive his Fifth

Amendment right to remain silent, take the stand, and admit his criminal record

and that he was associated with drug users, drug dealers, and the Aryan

Brotherhood gang.     As the State argues, “In all, this evidence would have

reflected poorly on Appellant’s character, and done little to prove whether or not

Appellant delivered methamphetamine to Investigator Ray Miller on February 17,

2013.”

              No Request for Continuance

      Finally, Appellant argues within his first point that trial counsel rendered

ineffective assistance by refusing to request a continuance. Appellant contends

that he would have benefitted from trying to find a new lawyer and by exploring

      24
         See id.



                                        9
facts raised in the motion for new trial. But Appellant does not cite a legal ground

for the continuance, nor does he show us how the outcome of the trial would

have been different. 25

      In sum, none of the subissues Appellant raises in his first point satisfies his

burden to prove that trial counsel rendered ineffective assistance resulting in an

unknowing or involuntary plea. 26 Because Appellant did not meet his burden of

showing ineffective assistance of counsel in any one instance, he cannot show it

cumulatively. 27 The trial court therefore did not abuse its discretion by denying

Appellant’s motion for new trial. We overrule Appellant’s first point.

      Punishment Phase Allegations

      In his second point, Appellant contends that trial counsel also committed

ineffective assistance by failing to object to the prosecutor’s questions of

Appellant’s sister regarding his prior sentences and actual time served and by

failing to object to the State’s argument to the jury about how the parole law

would apply to Appellant. The prosecutor argued, in part,

      All we know is when that time, the good conduct time plus the actual
      time served, meaning what he’s already served plus what he will

      25
        See id.
      26
        See id.
      27
        See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999),
cert. denied, 528 U.S. 1082 (2000); Deer v. State, No. 02-10-00443-CR, 2012
WL 42954, at *4 (Tex. App.—Fort Worth Jan. 5, 2012, no pet.) (mem. op., not
designated for publication).



                                         10
       serve, when that equals one-quarter of his sentence, he will become
       eligible for parole. And if it’s over 60—60 or over, he’ll—he’ll
       become eligible at 15, even if it’s 99. Okay? Everybody understand
       that? Okay. So where do you set that punishment? Now, there’s
       no guarantee that he’s going to get out on parole, but we already
       heard that he got sentenced to two 10-year sentences and served
       19 months. Okay? So those are just the facts, right?

       It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. 28 Trial counsel “should

ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” 29 If trial counsel is not given that opportunity, we

should not conclude that counsel’s performance was deficient unless the

challenged conduct was “so outrageous that no competent attorney would have

engaged in it.” 30

       We therefore do not address whether the prosecutor’s argument went

beyond that permitted by law because nothing in the record explains trial

counsel’s reasoning for failing to object either to the argument or to the questions

of Appellant’s sister. Because the reasons for trial counsel’s omissions do not

appear in the record, Appellant has failed to rebut the presumption that trial


       28
        Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v.
State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
       29
        Menefield, 363 S.W.3d at 593.
       30
        Nava, 415 S.W.3d at 308.



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counsel’s decisions were reasonable. 31 We consequently overrule Appellant’s

second point.

Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.



                                              /s/ Lee Ann Dauphinot
                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2015




      31
       See Thompson, 9 S.W.3d at 814.



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