                                    NO. 12-10-00123-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

GERALD LANE BOURQUE,                                 §            APPEAL FROM THE114TH
APPELLANT

V.                                                   §            JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §            SMITH COUNTY, TEXAS


                                      MEMORANDUM OPINION
       Gerald Lane Bourque appeals his conviction for intoxication manslaughter. In one issue,
Appellant argues that he received ineffective assistance of counsel. We affirm.


                                              BACKGROUND
       Appellant pleaded guilty as charged to the offense of intoxication manslaughter. As part
of the plea proceedings, Appellant pleaded true to the allegation that he used or exhibited a deadly
weapon in the commission of the charged offense. There was no plea agreement, and the offense
is a second degree felony.1
       During the sentencing hearing, Appellant’s counsel asked the trial court to suspend any
prison sentence and to place Appellant on community supervision. The trial court considered that
request. However, the trial court ultimately determined that community supervision was not
appropriate in this case and assessed a sentence of imprisonment for seventeen years. This appeal
followed.




       1
           See TEX. PENAL CODE ANN. § 49.08(b) (Vernon Supp. 2010).


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                              INEFFECTIVE ASSISTANCE OF COUNSEL
        In his sole issue, Appellant argues that counsel was ineffective because he misunderstood
the law regarding community supervision and requested community supervision when that option
was not available to the trial court.
Applicable Law
        Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires an appellant to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
Counsel’s representation is not reviewed for isolated or incidental deviations from professional
norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104
S. Ct. at 2069.
        The second step requires the appellant to show prejudice from the deficient performance of
his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To
establish prejudice, an appellant must show that there is a reasonable probability that the result of
the proceeding would have been different but for counsel’s deficient performance.                See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
        We begin with the strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994). As part of this presumption, we presume counsel’s actions and decisions were reasonable
and were motivated by sound trial strategy. See id. An appellant has the burden of proving
ineffective assistance of counsel. See id.
        The Strickland test applies to an analysis of counsel’s representation during the sentencing
or punishment phase of a trial. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App.
1999) (overruling precedent holding that Strickland did not apply to sentencing hearings). In the
context of an attorney who advises his client to have the trial court assess punishment under the
mistaken belief that the trial court can assess community supervision, the court of criminal appeals
has held that an attorney is not ineffective if the record does not show that (1) the defendant was
otherwise eligible for community supervision, (2) there was no strategic reason to have the judge
assess the sentence, (3) the defendant’s decision not to seek community supervision was based on



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counsel’s erroneous advice, and (4) the defendant would have made a different decision if his
counsel had correctly informed him of the law. State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim.
App. 1991).2
Analysis
         Texas law provides two ways for a convicted person to serve a sentence for a felony
offense that do not involve going to prison. Deferred adjudication community supervision is an
option for certain offenses in which a defendant pleads guilty, but the trial court defers a finding on
the issue of guilt for a period of time and places the person on community supervision. See TEX.
CODE CRIM. PROC. ANN. art. 42.12 §§ 2(2)(A), 5 (Vernon Supp. 2010). Alternately, a jury or a
trial court may assess a sentence of ten years or less, suspend that sentence, and place a defendant
on community supervision. See id. art. 42.12 §§ 2(2)(B), 3, 4.
         These alternatives to a prison sentence are subject to a variety of limitations.
Accordingly, the decision to waive trial by jury for the sentencing phase of a trial can be very
important, not only for the customary strategic reasons but also because of the differences between
the sentencing options available to a judge or a jury. For example, neither a judge nor a jury may
place a person convicted of the offense of murder on community supervision, but a judge may
place a person on deferred adjudication community supervision for that offense. See id. art. 42.12
§§ 3g(a)(1)(A) (judge may not order community supervision for murder offense); 4(d)(8), 3(e)(2)
(jury may not recommend community supervision for murder offense); 5(d) (murder not one of
offenses for which deferred adjudication community supervision is unavailable).
         A similar rule is the basis for Appellant’s argument in this case. A trial court may not
place a defendant on deferred adjudication community supervision for intoxication manslaughter
and may not place a defendant on community supervision if the trial court has made an affirmative
finding on a deadly weapon allegation. See id. art. 42.12 §§ 3g(a)(2), 5(d)(1)(A). On the other
hand, a jury may recommend that a similarly situated defendant be placed on community
supervision providing certain other requirements are met. See id. art. 42.12 §§ 4(d), 4(e). In
such an instance, a trial court is required to follow that recommendation, although the court may
send the defendant to prison for a short period of time before the community supervision begins if


         2
           At the time the decision was reached in the Recer case, effective assistance of counsel during the sentencing
phase of a trial was governed by a standard other than the familiar Strickland standard. See Ex parte Duffy, 607
S.W.2d 507, 516 (Tex. Crim. App. 1980). Nevertheless, the factors outlined in the Recer decision continue to be
cited and are consistent with the two step deficient performance/prejudice test set forth in Strickland.


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the deadly weapon is a firearm. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3g(b).
       Although there was no agreement for him to do so, Appellant pleaded true to the allegation
in the indictment that he used or exhibited a deadly weapon in the commission of the offense.
Appellant’s counsel asked the trial court to suspend a prison sentence and place Appellant on
community supervision. Counsel marshaled letters and other evidence to show that Appellant
would be a good risk for community supervision, and his entire argument was devoted to
requesting community supervision for Appellant. The State responded by stating that it was
opposed to a community supervision and requesting the maximum executed sentence.
       The trial court judge carefully explained her decision not to place Appellant on community
supervision. The judge candidly stated that she regularly placed defendants on community
supervision and explained why, despite the favorable evidence Appellant had presented, she
would not place Appellant on community supervision.           The judge did not describe her
consideration of community supervision as if it was not an option by virtue of a deadly weapon
finding. In fact, the judge found the deadly weapon allegation to be true only after she announced
that she would not be suspending the sentence and placing Appellant on community supervision.
       For this reason, we conclude that counsel’s performance was not deficient. At the time
counsel was arguing for community supervision, there had not been a finding on the deadly
weapon allegation. Appellant had pleaded true to the allegation, but the trial court was not
obligated to find that allegation to be true. See Fanniel v. State, 73 S.W.3d 557, 559-60 (Tex.
App.–Houston [1st Dist.] 2002, no pet.); Shute v. State, 945 S.W.2d 230, 232 (Tex. App.–Houston
[1st Dist.] 1997, pet. ref’d); Campos v. State, 927 S.W.2d 232, 235-36 (Tex. App.–Waco 1996, no
pet.); Ex parte Lucke, 742 S.W.2d 818, 819–20 (Tex. App.–Houston [1st Dist.] 1987, no pet.).
       As such, the trial court’s consideration of community supervision was not foreclosed by a
deadly weapon finding because no finding had been made. This reading of the hearing is
consistent with Appellant’s counsel’s argument, with the position the State took–the prosecutor
opposed community supervision but never argued that it was foreclosed by a deadly weapon
finding–and with the court’s careful consideration of the entire range of punishment, including a
suspended sentence with community supervision.
       Because community supervision was available at the time counsel recommended it, we
cannot conclude that counsel misunderstood the relevant law or that his performance fell below an
objective standard of reasonableness under prevailing professional norms.           We overrule



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Appellant’s sole issue.


                                       THE TRIAL COURT’S JUDGMENT
         We note that the judgment does not reflect the trial court’s oral finding of the deadly
weapon allegation to be true. Instead, in the space in the judgment for a finding on a deadly
weapon allegation, the judgment reads “to-wit: [sic] a vehicle” but does not reflect an affirmative
finding. As a general rule, when the oral pronouncement of sentence and the written judgment
differ, the oral pronouncement controls. See Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim.
App. 2005). While a trial court has discretion to make a deadly weapon finding, entry of that
finding into the judgment is not discretionary. See TEX. CODE CRIM. PROC. ANN. art. 3g(a)(2).
The trial court orally pronounced an affirmative deadly weapon finding. That finding is lacking
in the judgment because of what appears to be a typographical error. We have the power to
correct a trial court judgment to make the record speak the truth when we have the necessary data
and information to do so. See TEX. R. APP. P. 43.2(b); Nolan v. State, 39 S.W.3d 697, 698 (Tex.
App.–Houston [1st Dist.] 2001, no pet.).


                                                    DISPOSITION
         We reform the judgment to reflect an affirmative deadly weapon finding and affirm the
judgment of the trial court as modified.


                                                                SAM GRIFFITH
                                                                    Justice



Opinion delivered May 18, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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