Opinion issued November 7, 2019




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-18-01030-CR
                             ———————————
                          WILBERT BURSE, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Case No. 1582168


                           MEMORANDUM OPINION

      Wilbert Burse appeals from his conviction for aggravated assault. He contends

that his counsel was ineffective during the punishment phase and that the punishment

assessed by the trial court is cruel and unusual. We affirm the trial court’s judgment.
                                 BACKGROUND

      The state charged Burse with committing the second-degree felony offense of

aggravated assault against Shannon Dawson, a person with whom he had a dating

relationship, using and exhibiting a deadly weapon—a handgun—in the commission

of the offense. See TEX. PENAL CODE § 22.02(a)(2), (b).

      Burse pleaded guilty to the charged offense, and he filed a sworn motion for

community supervision. In his motion, Burse swore that he had never been convicted

of a felony or placed on community supervision for a felony offense. See TEX. CODE

CRIM. PROC. art. 42A.055(b)(1) (sworn motion that defendant has not been convicted

of felony required to be eligible for jury-recommended community supervision).

      Punishment was tried to the court. Dawson testified that she and Burse had

dated for almost two years and had lived together for some portion of that time. Their

relationship began to deteriorate in November 2017. Burse accused her of infidelity.

On one occasion, he thought he had discovered her talking to another man in the

parking lot of the apartment complex where they resided, and Burse reacted by firing

a handgun into the air and ordering her into his car. On several subsequent occasions,

Burse arrived home from work, took out his handgun, paced back and forth for a few

hours, and barred Dawson from leaving their bedroom.

      One morning in March 2018, Dawson told Burse that she “was done” and

“couldn’t do it anymore.” Burse responded, “As long as you’re on this earth, we are


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together.” Later that morning, Dawson called Burse from her workplace and asked

him to bring her cell phone to her. After Burse telephoned Dawson that he had

arrived with her phone, she went outside to retrieve it. When Dawson opened his car

door, he fired his handgun at her. The bullet went through the car door and hit

Dawson in the leg.

      The record contains little information as to the type of handgun Burse used,

the caliber of bullet, or the extent of Dawson’s injuries. Dawson described the

firearm as “a small silver handgun.” She indicated that the bullet grazed her and said

that her “physical injuries” were limited to “just a permanent scar.” Dawson was

able to flee to safety after Burse shot her.

      Burse testified in support of his motion for community supervision. He

acknowledged his guilt. He characterized the shooting as “a mistake,” apologized to

Dawson, and said that he “never meant to hurt her.” Out of court, Burse previously

had stated that he merely meant “to scare her.”

      In closing, the prosecutor asked the trial court to impose the statutory

maximum 20 years’ incarceration. She argued that Burse “almost killed the

complainant” and that his conduct evinced “no value for human life.” Defense

counsel in turn requested community supervision or, in the alternative, a sentence

closer to the statutory minimum of two years’ incarceration.




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      The trial court stated that community supervision was inappropriate under the

circumstances: “This isn’t a probation case. It’s far from a probation case. You’ve

already exhibited the gun several times now and you shot through the door and shot

her. So, what if she hadn’t have run?” The trial court assessed Burse’s punishment

at 13 years’ confinement. In the court’s judgment, it also found that Burse had used

a deadly weapon, specifically a firearm, in the commission of the offense.

                                  DISCUSSION

I.    Ineffective Assistance

      Burse contends that his attorney was ineffective by failing to (1) prove that

Burse was eligible for probation; (2) object to the prosecutor’s improper closing

argument; and (3) object that the trial court’s punishment was cruel and unusual.

      A.    Standard of review and applicable law

      We assess claims of ineffective assistance under the test articulated by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Under this test, Burse

must establish two elements. First, he must prove by a preponderance of the evidence

that his lawyer’s representation fell below an objective standard of reasonableness

under prevailing professional norms. Id. Second, he must show that his lawyer’s

deficient performance prejudiced his defense by demonstrating that there is a




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reasonable probability, or a probability that suffices to undermine confidence in the

outcome, that the result would have differed. Id.

      B.     Analysis

      1.     Failure to prove eligibility for probation

      Burse contends that his attorney provided ineffective assistance by failing to

introduce evidence that Burse was eligible for community supervision. In particular,

he complains of his lawyer’s failure to show that he had no prior felony conviction.

      After a defendant is convicted and punishment is assessed, the trial court in

certain circumstances may suspend the sentence and place the defendant on

community supervision. See TEX. CODE CRIM. PROC. art. 42A.051(a)(1); Ex parte

Lea, 505 S.W.3d 913, 915 (Tex. Crim. App. 2016). But the trial court is not required

to place a defendant on community supervision simply because he is eligible;

whether to do so rests entirely within the trial court’s discretion and its decision is

not reviewable. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); see also

Hassan v. State, 440 S.W.3d 684, 687 (Tex. App.—Houston [14th Dist.] 2012, no

pet.) (trial court’s decision as to community supervision wholly discretionary).

      The Code of Criminal Procedure distinguishes between judge-ordered and

jury-recommended community supervision. Compare TEX. CODE CRIM. PROC. arts.

42A.053, 42A.054, with TEX. CODE CRIM. PROC. arts. 42A.055, 42A.056. Certain

circumstances render a defendant ineligible for judge-ordered community


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supervision; these include a finding that he used or exhibited a deadly weapon during

the commission of a felony as well as the imposition of a sentence of 10 or more

years    of   imprisonment.    TEX. CODE CRIM. PROC.           arts.   42A.053(c)(1),

42A.054(b)(1)(A).

        Burse’s appellate argument fails to distinguish between jury-recommended

and judge-ordered community supervision. When punishment is tried to a jury, the

defendant must file a sworn pretrial motion denying that he has been convicted of a

felony and the jury must find his motion to be true in order to recommend community

supervision. See TEX. CODE CRIM. PROC. art. 42A.055(b). No such motion is

required in order for a judge to impose community supervision when punishment is

tried to the bench. See TEX. CODE CRIM. PROC. art. 42A.053(a). Because Burse was

not required to prove that he was not a felon in order to receive judge-ordered

community supervision, his attorney was not deficient by failing to introduce

evidence that Burse had not been convicted of a felony. See Young v. State, 425

S.W.3d 469, 472 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

        Moreover, the trial court found that Burse used a deadly weapon, a firearm, in

the commission of the offense. See TEX. PENAL CODE § 1.07(a)(17)(A). The trial

court also sentenced Burse to 13 years’ imprisonment. Each of these circumstances

made Burse ineligible for judge-ordered community supervision. TEX. CODE CRIM.

PROC. arts. 42A.053(c)(1), 42A.054(b)(1)(A). Thus, even if defense counsel’s


                                           6
failure to present evidence that Burse previously had not been convicted of a felony

had been deficient, it would not have been not prejudicial. See Sifuentes v. State, 494

S.W.3d 806, 815 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (relying on

Gonzales v. State, 748 S.W.2d 510, 512–13 (Tex. App.—Houston [1st Dist.] 1988,

pet. ref’d)).

       2.       Failure to object during closing argument

       Burse contends that his attorney provided ineffective assistance by failing to

object to statements made by the prosecutor in closing argument, specifically that

Burse did not value human life and had almost killed Dawson. Burse also contends

that defense counsel should have objected to the prosecutor’s argument that a 20-

year sentence was appropriate and probation was not. Burse argues that these

arguments were “improper, inflammatory, and highly prejudicial.”

       Proper jury argument generally is limited to summarizing the evidence,

drawing reasonable deductions from the evidence, answering opposing counsel’s

arguments, and pleading for law enforcement. Freeman v. State, 340 S.W.3d 717,

727 (Tex. Crim. App. 2011). These limitations exist because arguments outside of

these approved categories often put “before the jury unsworn, and most times

believable, testimony of the attorney.” Brown v. State, 270 S.W.3d 564, 570 (Tex.

Crim. App. 2008). It is debatable whether or to what degree this same concern is

implicated in a non-jury trial. Because the state does not dispute that closing


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arguments in a non-jury trial are subject to the same standard as ones made before a

jury, however, we assume without deciding that the same standard applies.

      The prosecutor’s argument as to the appropriate punishment—20 years’

confinement, not probation—was a permissible plea for law enforcement. See Bacon

v. State, 500 S.W.2d 512, 514 (Tex. Crim. App. 1973) (argument against probation

was plea for law enforcement); Asay v. State, 456 S.W.2d 903, 905–06 (Tex. Crim.

App. 1970) (argument for maximum sentence allowed by law was plea for law

enforcement); Rische v. State, 834 S.W.2d 942, 948–49 (Tex. App.—Houston [1st

Dist.] 1992, pet. ref’d) (argument that jury should assess punishment of confinement

instead of probation was plea for law enforcement). Because this argument was

unobjectionable, Burse’s attorney was not ineffective by failing to object to it.

      The prosecutor’s argument that Burse did not value human life was a

permissible deduction from the evidence. See Garcia v. State, 887 S.W.2d 862, 879

(Tex. Crim. App. 1994) (evidence supported state’s argument that defendant did not

have “regard for human life”). After exhibiting a handgun in Dawson’s presence on

multiple occasions and firing it into the air in one instance, Burse lured her to his car

on the pretext of returning her phone and instead shot her—an act that evinces little

or no value for human life. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim.

App. 2012) (intent to kill can be inferred from shooting victim with firearm). Even

in Burse’s own account, in which he asserted that he merely intended to frighten


                                           8
Dawson, he admitted to pointing a handgun in her direction and firing it, which still

evidences a disregard for human life. See Bell v. State, 501 S.W.2d 137, 138–39

(Tex. Crim. App. 1973) (intent to kill could be inferred from shooting firearm at

another person). The trial court was not obliged to agree with the prosecutor’s

argument. See Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988)

(purpose of closing is to assist factfinder in drawing proper conclusions from

evidence; factfinder is free to accept or reject conclusions proposed by counsel in

argument). But the prosecutor was entitled to argue that Burse did not value human

life and Burse’s attorney therefore was not ineffective by failing to object to this

argument.

      Burse’s complaint about the prosecutor’s argument that he almost killed

Dawson is a different matter. A handgun is a deadly weapon, and firing it in the

direction of another person risks serious bodily injury or death. See TEX. PENAL

CODE § 1.07(a)(17)(A). But the record does not suggest that Burse almost killed

Dawson. According to Dawson, the bullet grazed her, causing a scar. The record

does not contain any evidence that her injuries were nearly fatal. The prosecutor’s

argument therefore was outside of the record and was objectionable for this reason.

See Freeman, 340 S.W.3d at 728 (reference to facts neither in nor inferable from

evidence is improper in closing argument).




                                         9
      Nonetheless, Burse has not shown that there is a reasonable probability that

the result would have differed had his trial attorney objected to the prosecutor’s

mischaracterization of Dawson’s injuries. Burse pleaded guilty and punishment was

tried to the bench. The punishment hearing was brief and the evidence was minimal,

straightforward, and largely uncontested. The prosecutor’s argument that Burse had

almost killed Dawson was confined to a single remark. In assessing punishment, the

trial court implicitly indicated that it understood that Dawson did not almost die from

her injury; instead, the trial court focused on what could have happened to her if she

had not run away after Burse shot her. On this record, it is not reasonably probable

that the trial court would have imposed a different sentence on Burse if his lawyer

had objected to the prosecution’s misstatement. See Freeman, 340 S.W.3d at 728–

29 (improper argument harmless on record as a whole given brevity of prosecutor’s

remark, lack of prejudice, and strength of evidence supporting conviction).

      3.     Cruel and unusual punishment

      Burse contends that his trial counsel was ineffective in failing to object to his

13-year sentence as cruel and unusual punishment. He reasons that his 13-year

sentence is cruel or unusual because he was eligible for probation.

      To the extent that Burse’s argument rests on his eligibility for community

supervision, it fails because he was not eligible for community supervision. The trial

court’s deadly-weapon finding and its 13-year sentence each made Burse ineligible.


                                          10
TEX. CODE CRIM. PROC. arts. 42A.053(c)(1), 42A.054(b)(1)(A). Even if he had been

eligible, however, community supervision is a privilege, not a right. Speth, 6 S.W.3d

at 533; Hassan, 440 S.W.3d at 687. Burse pleaded guilty to the offense of aggravated

assault for causing his live-in girlfriend bodily injury by shooting her with a

handgun. This is a second-degree felony punishable by a term of imprisonment

between 2 and 20 years. TEX. PENAL CODE §§ 12.33(a), 22.02(a)(2), (b). The

imposition of a sentence within the range prescribed by a valid statute does not

constitute cruel and unusual punishment. Duran v. State, 363 S.W.3d 719, 724 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d); Swinney v. State, 828 S.W.2d 254, 259

(Tex. App.—Houston [1st Dist.] 1992, no pet.). The trial court’s punishment thus

was neither cruel nor unusual. See Young, 425 S.W.3d at 473–74 (rejecting

defendant’s argument that 15-year sentence for aggravated sexual assault of a child

was cruel and unusual given defendant’s eligibility for deferred adjudication);

Combs v. State, 652 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1983, no pet.)

(rejecting defendant’s argument that 20-year sentence for murder was cruel and

unusual given defendant’s eligibility for probation). Burse’s lawyer consequently

did not render ineffective assistance by failing to object that Burse’s punishment is

cruel and usual, because his punishment is not.




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II.   Cruel and Unusual Punishment

      Burse also contends on the merits that his punishment of 13 years’

incarceration is cruel and unusual punishment, given his eligibility for probation.

We have rejected this contention in connection with his ineffective-assistance claim.

                                  CONCLUSION

      We affirm the judgment of the trial court.

               SUPPLEMENTAL OPINION ON REHEARING

      Burse moves for rehearing. He argues that our analysis of his eligibility for

judge-ordered community supervision is inapposite because he remained eligible for

deferred adjudication community supervision. See TEX. CODE CRIM. PROC. arts.

42A.101–.111. Thus, Burse argues, his trial attorney’s failure to introduce evidence

that he had no felony convictions was ineffective assistance because the trial court

could have imposed deferred adjudication instead of 13 years’ confinement.

      We deny Burse’s motion for rehearing, but withdraw our opinion of

September 24, 2019, and substitute this opinion, including its supplemental opinion

on rehearing, in the original opinion’s place. Our judgment remains unchanged.

      Burse is correct that he was eligible for deferred adjudication community

supervision. See TEX. CODE CRIM. PROC. arts. 42A.101–.102; see also State ex rel.

Mau v. Third Court of Appeals, 560 S.W.3d 640, 647 (Tex. Crim. App. 2018)

(whether to grant deferred adjudication rests solely in trial court’s discretion). But


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Burse was not required to show that he had not previously committed a felony to

receive deferred adjudication. See TEX. CODE CRIM. PROC. arts. 42A.101–.102;

Hampton v. State, 435 S.W.3d 303, 307 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d) (trial court may grant deferred adjudication even if defendant has prior

felonies). His trial attorney therefore was not deficient in failing to introduce

evidence showing that Burse was not a felon. See Young, 425 S.W.3d at 472

(attorney was not deficient for failing to file sworn motion seeking deferred

adjudication because motion not required to receive deferred adjudication).

      Moreover, even if Burse could prove that his attorney’s performance was

deficient, he could not show prejudice. To do so, Burse must establish that there was

a reasonable probability that the trial court would have imposed deferred

adjudication if his attorney had proven he had no prior felony convictions. See Poole

v. State, No. 01-18-01005-CR, 2019 WL 3023975, at *3 (Tex. App.—Houston [1st

Dist.] July 11, 2019, no pet.) (mem. op., not designated for publication). Burse

pleaded guilty to aggravated assault. He used a deadly weapon, a firearm, during the

offense. The record shows that he repeatedly had used this firearm to control or

intimidate his victim before the shooting. Given these facts, the trial court stated that

probation was not appropriate. On this record, Burse cannot show a reasonable

probability that his sentence would have differed but for his attorney’s failure to

introduce evidence that he had not previously been convicted of a felony. See id.


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                                                Gordon Goodman
                                                Justice

Panel consists of Justices Lloyd, Goodman, and Landau.

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




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