                                   NO. 07-06-0435-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JUNE 13, 2008
                          ______________________________

                       JIMMY JOSEPH SANCHEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

              NO. 2672.01; HONORABLE GORDON H. GREEN, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellant, Jimmy Joseph Sanchez, pleaded guilty to the offense of aggravated

robbery, a first degree felony. A jury assessed his punishment at confinement for 30 years

in the Texas Department of Criminal Justice-Institutional Division. By two issues, appellant

contends that the State’s closing argument was egregiously harmful and that, by failing to

object to the State’s argument, trial counsel provided ineffective assistance. We affirm.
                          Factual and Procedural Background


       Appellant and a co-defendant broke into the rural residence of David Sides. Sides

arrived home while appellant was still at the house. The record reflected that appellant

produced a hand gun and forced Sides to go into the residence while appellant and his co-

defendant searched the residence for valuables. Sides’s wife arrived on the scene and

was warned away. While attempting to flee the residence, she was fired upon by

appellant. Sides was able to escape from appellant and hide. Appellant and his co-

defendant then fled the scene, but were later apprehended.


       At trial, appellant pleaded guilty to aggravated robbery. The facts of the case were

presented by the testimony of Mr. and Mrs. Sides and other witnesses. The State also

produced a judgment and sentence showing appellant had pled guilty in New Mexico to the

offenses of aggravated battery upon a peace officer, a third degree felony; possession of

a controlled substance, methamphetamine; and resisting, evading, or obstructing an

officer. The record reflected that appellant had received a partially suspended sentence.

The record further showed that appellant’s suspended sentence had been revoked and

appellant was sentenced to a term of confinement of five and a half years in New Mexico.

Appellant presented testimony from his uncle and aunt who requested leniency on behalf

of appellant. The uncle testified about appellant’s drug use and that appellant could

benefit from the rehabilitative services of the Texas Department of Corrections.


       The jury returned a verdict of confinement for 30 years in the Texas Department of

Criminal Justice-Institutional Division.   It is from this verdict that appellant appeals.


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Appellant contends, that at the conclusion of trial, the prosecutor referenced parole law.

Further, appellant contends that his counsel was ineffective by failing to object to the

prosecutor’s harmful statement.


                                         Jury Argument


       Appellant’s complaint about alleged improper jury argument was not preserved as

required under the Texas Rules of Appellate Procedure. See Tex. R. App. P. 33.1(a). The

preservation requirement is mandatory for an alleged improper argument. See Cockrell

v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Failure to object to improper jury

argument forfeits an appellant’s right to complain on appeal. Id. Accordingly, appellant’s

first complaint is overruled.


                                Ineffective Assistance of Counsel


       Claims of ineffective assistance of counsel are measured against the two prong

standard of Stickland v. Washington. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 57

(Tex.Crim.App.1986) (adopting Strickland as applicable standard under Texas

Constitution). Under the first prong of the Strickland test, an appellant must show that

counsel's performance was "deficient." Strickland, 466 U.S. at 687. "This requires

showing that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Id. To be successful in this

regard, an appellant "must show that counsel's representation fell below an objective

standard of reasonableness." Id. at 688. Under the second prong, an appellant must

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show that the deficient performance prejudiced the defense. Id. at 687. The appropriate

standard for judging prejudice requires an appellant to "show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694. Appellant must prove both prongs of Strickland

by a preponderance of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712

(Tex.Crim.App. 2000); McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App.1992).


       When applying the standards of Strickland, we are mindful that, as an appellate

court, we are to be highly deferential and presume that counsel’s actions fell within the

wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833

(Tex.Crim.App. 2002). Therefore, appellant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy. Ex

parte Ellis, 233 S.W.3d 324, 330 (Tex.Crim.App. 2007). Any allegation of ineffective

assistance of counsel must be firmly founded in the record and the record must

affirmatively demonstrate the alleged ineffectiveness. Bone, 77 S.W.3d at 835. Failure

to make the required showing of either deficient performance or sufficient prejudice defeats

the ineffectiveness claim. Strickland, 466 U.S. at 700. Appellate courts look to the totality

of the representation and the particular circumstances of each case in evaluating the

effectiveness of counsel. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex.Crim.App. 2004).

Finally, we must remember that we are not to make these determinations by application

of hindsight. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).




                                             4
       Appellant contends that trial counsel was ineffective when counsel failed to object

to the State’s erroneous statements during final arguments. Appellant’s complaint is about

the State’s statements contained in the beginning of its closing arguments on punishment.

The State stated,


       You’ve heard suggested to you for five to 50. When you read this, you will
       see that the only protection of the community that you can be assured of
       would be half of whatever you send him. So if you send him for 40 years, he
       would only be there for 20. That’s what that instruction says, if he–if he
       makes parole and if he does all of those things.


According to appellant’s theory, this was an attempt to inappropriately apply the parole law

to the appellant during a plea for a lengthy sentence. See TEX . CODE CRIM . PROC . ANN . art.

37.07, § 4 (Vernon Supp. 2007) (providing that the jury shall be instructed about the

existence of parole and good time credit, however, they are not to consider the extent to

which good conduct time and parole are to be applied to the individual defendant).

Appellant cites the court to Valencia v. State for the proposition that it is ineffective

assistance of counsel if trial counsel fails to object to an improper jury argument of this

nature. Valencia v. State, 966 S.W.2d 188, 190-91 (Tex.App.–Houston [1st Dist.] 1998,

pet. ref’d). Appellant’s analysis of the facts of this case and the application of Valencia are

in error.


       When analyzing the facts of Valencia, it is very clear that not only did the prosecutor

make a direct application to the defendant in that case, he also applied the court’s charge

erroneously. In fact, the State’s appellate attorney admitted such before the appellate

court. In our case, the quoted portion of the argument appears to track the court’s charge


                                              5
correctly. Further, in this case, the State’s attorney qualified the statement by stating, “if

he makes parole and if he does all of those things.” The “all of those things” referred to

by the State’s attorney is easily discernable as the elements of good time credit of which

the trial court advised the jury in the court’s charge.


       Next, appellant seems to be stating that Valencia stands for the proposition that trial

counsel’s failure to object to the State’s parole law argument constitutes ineffective

assistance as a matter of law. That was not the court’s holding. The Valencia court found

ineffective assistance based on the failure to object to the direct application of the parole

law to that defendant and the incorrect math that lead to the State’s attorney asserting that

a 40 year sentence would result in parole in two years. Mack v. State, No. 06-06-00222-

CR, 2007 Tex.App. LEXIS 3765, at *4 (Tex.App.–Texarkana May 17, 2007) (not

designated for publication). It was the State’s misleading calculation that was essential to

the holding in Valencia. Id. Therefore, we are left with the proposition that failure to object

to a parole law argument may be ineffective assistance of counsel; however, we are

mindful that any assertion of ineffective assistance of counsel must be firmly founded in

the record. Bone, 77 S.W.3d at 835. In this, case we have no record of counsel’s strategy,

other than the record of the trial, and it does not meet the requirements of overcoming the

presumption that the challenged action might be considered sound strategy. Ex parte Ellis,

233 S.W.3d at 330. A review of trial counsel’s argument leads to a conclusion that trial

counsel may not have objected because he felt the issue of whether the argument was

improper was a very close one and he may have decided not to alienate the jury with




                                              6
overruled objections. Accordingly, we overrule appellant’s contention regarding ineffective

assistance of counsel.


                                        Conclusion


       Having overruled both of appellant’s issues, we affirm the judgment of the trial court.




                                                  Mackey K. Hancock
                                                      Justice




Do not publish.




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