









IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



PD-1724-04

ALEJANDRO RODRIGUEZ MATA, Appellant

v.

THE STATE OF TEXAS



On Discretionary Review of Case 13-02-00218-CR of the 
Thirteenth Court of Appeals,
Hidalgo County

Womack, J., delivered the opinion of the Court, in which Keller, P.J., and
Meyers, Price, Keasler, Hervey, and Cochran, JJ., joined. Johnson and
Holcomb, JJ., concurred in the judgment.
 
	The issue in this appeal is whether the record shows that the appellant was denied his
Sixth Amendment right to counsel when his attorney failed to object to the court's charge and the
prosecutor's argument at the punishment stage of his trial. We shall reverse the judgment of the
Court of Appeals on that point and remand the case to that court for its consideration of other
points of error.
Trial
	An indictment alleged that the appellant murdered Omar Munoz and that he had been
convicted previously of a felony. The issues of guilt and punishment were decided by a jury.
	The jury received evidence that the appellant committed the murder on the night of
December 31, 2000, outside the apartment where he lived with his brother, Leo. That evening
Leo, Omar Munoz, and Dean Sanchez had gone out to buy some cocaine. On the way back to the
apartment, Leo and Munoz had an argument. When they got out of the car at the apartment
complex, they started fighting. Sanchez went to the apartment to ask the appellant to stop the
fight. Instead, the appellant intervened to assist Leo. At some point Munoz fell to the ground, and
witnesses saw the appellant stab Munoz repeatedly with a screwdriver. The appellant then
directed Leo to go back to the apartment and find a knife. The appellant stabbed Munoz several
more times, and fled from the scene with Leo. Munoz died from the multiple stab wounds. The
jury found the appellant guilty of first-degree murder.
	The appellant elected to have the jury assess his punishment. In such a case, Article
37.07, Section 4(a) of the Code of Criminal Procedure requires the court to charge the jury:
		Under the law applicable in this case, if the defendant is sentenced to a
term of imprisonment, he will not become eligible for parole until the actual time
served equals one-half of the sentence imposed or 30 years, whichever is less,
without consideration of any good conduct time he may earn.  Eligibility for
parole does not guarantee that parole will be granted.
		It cannot accurately be predicted how the parole law and good conduct
time might be applied to this defendant if he 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.
However, you are not to consider the extent to which good conduct time may be
awarded to or forfeited by this particular defendant. You are not to consider the
manner in which the parole law may be applied to this particular defendant.

	The district court gave the jury a charge that incorrectly included words that are shown in
italics:
	Under the law applicable in this case, if the Defendant is sentenced to a term of
imprisonment, he will not become eligible for parole until the actual time served
plus any good conduct time earned equals one-half of the sentence imposed or 30
years, whichever is less, without consideration of any good conduct time he may
earn.

Neither party objected to the charge.
	After the court read its charge to the jury, the State argued. The argument included:
		The other thing that's important in here there is a lot of language regarding
your, you know, that he can get good time credit, that there is such a thing as
parole. That's to let you know there is parole in Texas. What it is for the, okay, for
you to do is go back and say, Let's do him. Give him this because he will get out
in this amount of time because you don't know how the parole laws will be
applied today. They can change those laws in two years from now or ten years
from now or fifteen years from now, but it is to let you know that they do exist
and you may consider the existence of them, the fact that he may at some point be
eligible for parole in considering the amount of time you think is appropriate in
this case.
		For example when you look at that pen packet you can see that he was
sentenced and the date he was sentenced. And the date you'll see it was a sentence
for five years on the burglary of a habitation, and possession of a prohibited
weapon, and the date of that sentence. And this one you'll see on 0096-96-E
revocation of Community Supervision, and he was originally placed on probation
. He committed a new offense . And so you know he was sentenced to a
period of five years in 1998, and this offense was committed on January 1st of the
year 2001, less than five years later.
		So you know parole does exist and in reality. And so that will help you
understand those issues.

	Counsel for the appellant made no objection to any part of the State's argument. Nor did
counsel make any reference to good conduct time or the Texas parole laws during her own
closing argument to the jury at the punishment phase.
	A jury found the allegation of a prior felony conviction to be true, and it assessed
punishment at ninety-nine years in prison and a $10,000 fine.
Appeal
	On appeal, the appellant presented eight complaints that he had been denied effective
assistance of counsel.
	A claim of ineffective assistance of counsel is reviewed under standards articulated by the
United States Supreme Court in Strickland v. Washington. (1) The Strickland standards first require,
"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the
defendant must show that counsel's representation fell below an objective standard of reasonableness." (2)
	The court must then determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that
counsel's function, as elaborated in prevailing professional norms, is to make the
adversarial testing process work in the particular case. At the same time, the court
should recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment. (3)

Judicial scrutiny of counsel's performance must be highly deferential. (4)
	This court has recognized an exception to the presumption of reasonable professional
judgment when the complained-of conduct by trial counsel is of a type that no reasonably
competent defense attorney would have engaged in for any reason. (5)
 Strickland set out another requirement. "Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement
that the defendant affirmatively prove prejudice." (6) Strickland requires, "The defendant must
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." (7)
	The Court of Appeals overruled the first four of the appellant's eight complaints of
ineffective assistance of counsel. (8) On the fifth complaint, it held that the jury instructions on
sentencing were clearly erroneous, such that trial counsel's failure to object to them satisfied the
first prong of Strickland. (9) Without considering the prejudice factor, the Court took up the
appellant's sixth complaint against his attorney's performance, which was that counsel did not
object to the State's argument at the punishment stage.
	The Court of Appeals held that the appellant satisfied the first Strickland requirement,
because there was no conceivably legitimate basis for defense counsel's failure to object to the
State's jury argument, (10) which "was improper in several respects":
		First, the prosecutor stated a person convicted of murder "can get good
time credit." . . . [T]his argument is a misstatement of the law; a person convicted
of murder is required to serve one-half of his actual sentence (or thirty years)
without regard for any good conduct time. Even if the trial judge had accurately
instructed the jury, this argument would have been improper because the statutory
instruction specifically prohibits the consideration of good conduct time in a
particular case . . .
		Second, the State specifically asked the jury to apply the law of parole to
appellant . . . This argument violates the express language of the statutory instruction: "You are not to consider the manner in which the parole law may be applied
to this particular defendant."
		Third, . . . the State circumvented [(d) of Article 37.07, section 4] by
specifically referring the jury to the pen packet and arguing "And so you know he
was sentenced to a period of five years in 1998, and this offense was committed
on January 1st of the year 2001, less than five years later. So you know parole
does exist in reality." This argument was clearly improper. (11)
 
	The Court of Appeals found that prejudice was shown by the maximum sentence that the
jury assessed. 		

	While the decedent's death was tragic and senseless, as are all murders, we do not
find that the circumstances of the instant offense, in light of the decedent's illicit
drug use and unlawful attack on Leo, to be especially heinous. The jury certainly
could have believed the crime warranted the maximum sentence. On the other
hand, we must accept the probability that the jury accepted the State's improper
invitation to "go back and say, Let's do him." Consequently, our confidence in the
punishment verdict is undermined by defense counsel's deficient performance.
Therefore, we hold the [prejudice requirement] of Strickland has been met. (12)

	"Additionally," and perhaps alternatively, the Court of Appeals held that "the cumulative
effect" of counsel's failure to object to the State's argument "and the deficient conduct" in the
fifth complaint "-- failing to object to the erroneous good conduct time instruction -- amounted
to a denial of effective assistance of counsel at the punishment phase of appellant's trial." (13)
Therefore it reversed the judgment of punishment and remanded for a new trial on punishment.
	We granted review.
Review

	As we have said on more than one occasion, a reviewing court on direct appeal will rarely
be able to fairly evaluate the merits of an ineffective-assistance claim, because the record on
direct appeal is usually undeveloped and inadequately reflective of the reasons for defense
counsel's actions at trial. (14)
	The lack of a clear record usually will prevent the appellant from meeting the first part of
the Strickland test, as the reasonableness of counsel's choices and motivations during trial can be
proven deficient only through facts that do not normally appear in the appellate record. (15) It is not
sufficient that the appellant show, with the benefit of hindsight, that his counsel's actions or
omissions during trial were merely of questionable competence. Rather, the record must
affirmatively demonstrate trial counsel's alleged ineffectiveness. (16) The Thirteenth Court rightly
acknowledged this crucial element of any Strickland analysis, yet concluded from the record that
trial counsel's failure to object to the State's argument was so clearly contrary to his objective of
having the jury assess the least amount of punishment possible against the appellant, that it was
in fact "so outrageous that no competent attorney would have engaged in it." (17) Such a situation
serves as an exception to the presumption that trial counsel's performance was reasonable. (18)
	We disagree, however, that an examination of the record necessarily leads to such a
narrow conclusion. Although the Court of Appeals found there to be no conceivable reason for
trial counsel to have failed to object to the State's improper argument, the fact remains that the
appellate record is still silent as to why trial counsel failed to so object. Therefore, the appellant
has failed to rebut the presumption that trial counsel's decision was in some way -- be it
conceivable or not -- reasonable. (19) 
	Indeed, the presumption that trial counsel's performance was reasonably based in sound
trial strategy, coupled with the absence of any supporting evidence in the record of unreasonableness, compels a reviewing court to consider ways in which trial counsel's actions were within the
bounds of professional norms. (20) We shall consider the points in the order in which the Court of
Appeals addressed them.	
	First, on our review of the record, the prosecutor's statement to the jury that a person
convicted of murder "can get good time credit" is not so clearly a misstatement of the law as the
Court of Appeals claimed. A defendant convicted of murder is neither more nor less eligible to
receive good conduct time credit during his or her sentence. (21) The only criteria for determining
an inmate's eligibility to receive good time are his classification by the Texas Department of
Criminal Justice and his conduct while incarcerated. (22) The statutory instruction at issue here
serves only to inform the jury of the limitations imposed upon the convicted person's ability to
have his or her accrued good conduct time considered by a parole board in determining whether
he should be eligible for release. It explicitly states that, whatever good conduct time the
defendant may receive during his incarceration, no amount of good conduct time accrued will be
calculated as part of his time served until he has served a sufficient amount of actual time. (23) It
also informs the jury that such decisions are exclusively the province of the prison and parole
board. (24) Thus, it was not a misstatement of law for the State to tell the jury that the appellant
could "get good time credit," even if the State omitted the statutory condition under which his
good time credit could be considered by a parole board.
	Second, our review of the State's jury argument leads to a similar conclusion: the record
does not clearly support the Court of Appeals' holding. It read the argument as "the State's
improper invitation to 'go back and say, Let's do him.'" (25) A reading that is at least as possible,
and it seems to us more probable, is that it admonished the jury not to try to outguess or nullify
the parole laws by "go[ing] back and say[ing], 'Let's do him. Give him this because he will get
out in this amount of time,' because you don't know how the parole laws will be applied today.
They can change those laws in two years from now or ten years from now or fifteen years from
now." In the context of the entire jury argument it can be reasonably inferred that the State was
directing the jury to comply with the statute, by asking them to do precisely as the statute
admonishes them to do: sentence the appellant with the knowledge that parole laws exist in
Texas but without considering how those laws will affect him specifically. Reasonable minds
could differ on this point, but that is precisely the problem with the Thirteenth Court's analysis.
From the record as preserved for review, the statement is simply confusing. Possible confusion
by the jury, however, is insufficient in and of itself to show that trial counsel's performance was
ineffective for neglecting to address that confusion. (26) It is not appropriate for an appellate court to
simply infer ineffective assistance based upon unclear portions of the record. 
	Finally, the Thirteenth Court held that it was improper for the State to have referred to the
appellant's pen packet in his closing argument to the jury, when the prosecutor said: "And so you
know he was sentenced to a period of five years in 1998, and this offense was committed on
January 1st of the year 2001, less than five years later. So you know parole does exist in reality."
(Emphasis in original). The Court held this to be a clear violation of Section 4(d): "This section
does not permit the introduction of evidence on the operation of parole and good conduct laws." (27)
	Again, on our review of the record, it is questionable whether this was improper or not.
While the State did clearly refer to the pen packet, the State's intention in doing so, as discussed
above, was just as likely for the proper purpose of informing the jury that parole and good
conduct time do exist in Texas, and that the existence of such laws may be considered as part of
assessing punishment even if the operation of those laws may not. The appellant's pen packet
was merely a simple and available example for the jury to understand that parole laws apply to all
incarcerated persons, including the appellant. We note also from the record that the appellant's
pen packet was not "introduced" as "evidence on the operation of parole and good conduct laws,"
as prohibited by the statute. (28) Rather, the pen packet had been introduced into evidence at the
punishment phase in order to prove the alleged enhancing factors of the appellant's prior
crimes. (29) We have held that, under Article 37.07, the admissibility of evidence in a non-capital
trial is a matter of policy, including the policy of giving complete information to the jury to allow
it to tailor an appropriate sentence for the defendant. (30) The result is that what is relevant for the
jury to hear during punishment is determined by whatever is helpful to the jury. (31) While the
appellant's pen packet does make reference to the dates on which he was paroled from his prior
sentences, such information is clearly helpful to a jury whose job it is to assess punishment.
While that information deals in a very broad sense with the concept of the "operation" of parole,
it is at least arguable whether that kind of information is what is contemplated by the Section
4(d). At any rate, the appellant's pen packet is still admissible as evidence of his prior crimes. (32)
At the very least, it is not clear that the State's reference to the appellant's pen packet in this
instance necessitated an objection by appellant's trial counsel.
	After reviewing the record, we hold that the appellant has not shown that his trial
counsel's actions at the punishment phase to be so outrageous that no reasonable competent trial
attorney would have done likewise. Nor do we find that the appellant rebutted the presumption
that his trial counsel's actions were part of some sound trial strategy.  Since the first prong of
Strickland standard has clearly not been met, we need not address the second prong.
Conclusion
	The Thirteenth Court of Appeals' ruling that the appellant received ineffective assistance
of counsel during the punishment phase of his trial is not supported by the record as preserved for
appeal. We therefore reverse and remand for consideration  of the appellant's other points of
error.

Delivered June 6, 2007.
Publish.
1.  466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770 (Tex. Cr. App. 1999).
2.  Strickland, 466 U.S., at 687-88.
3.  Id., at 690.
4.  Id., at 695.
5.  Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Cr. App. 1992).
6.  Strickland, 466 U.S., at 692.
7.  Id., at 694.
8.  Mata v. State, 141 S.W.3d 858, 864-66 (Tex. App. -- Corpus Christi-Edinburg 2004). 
9.  Id., at 867.
10.  Id., at 869.
11.  Id., at 867-68 (citations omitted).
12.  Id., at 869.
13.  Ibid.
14.  "As a general rule, one should not raise an issue of ineffective assistance of counsel on direct appeal. This
is so because a trial record is generally insufficient to address claims of ineffective assistance of counsel in light of
the 'strong presumption that (trial) counsel's conduct falls within the wide range of reasonable professional
assistance.'" Jackson v. State, 877 S.W.2d 768, 772 (Tex. Cr. App. 1994) (Baird, J., concurring). Accord, e.g.,
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Cr. App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Cr. App.
2001); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Cr. App. 1999); Jackson v. State, 973 S.W.2d 954, 957 (Tex.
Cr. App. 1998). See Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Cr. App. 1980) ("Experience has taught us that in
most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not
in a shape, perhaps because of the very alleged ineffectiveness below, that would adequately reflect the failings of
trial counsel.").
15.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Cr. App. 2003) (quoting Mitchell v. State, 68 S.W.3d 640,
642 (Tex. Cr. App. 2002)). 
16.  Bone v. State, 77 S.W.3d 828, 835 (Tex. Cr. App. 2002).
17.  Mata, 141 S.W.3d at 869 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Cr. App. 2001)).
18.  Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Cr. App. 1992); Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Cr. App. 2001).
19.  Rylander, 101 S.W.3d at 110; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Cr. App. 1999).
20.  Garcia, 57 S.W.3d at 440.
21.  Gov't Code  § 498.003(a).
22.  Id., §§ 498.002 & 498.003(a).
23.  Code Crim. Proc. art. 37.07, § 4(a) ("...[the defendant] will not become eligible for parole until the
actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of
any good conduct time he may earn.").
24.  Id. ("'...the application of these laws will depend on decisions made by prison and parole authorities.'").
25.  141 S.W.3d, at 869.
26.  Luquis, 72 S.W.3d at 366-67; See also Williams v. State, 937 S.W.2d 479, 490 (Tex. Cr. App. 1996)
(juries assumed to have followed instructions and reversal unwarranted without evidence of actual jury confusion);
Boyde v. California, 494 U.S. 370, 380 (1990).
27.  Code Crim. Proc.  art. 37.07, § 4(d).
28.  Id.
29.  Code Crim. Proc. art. 37.07, § 3(a)(1).
30.  Erazo v. State, 144 S.W.3d 487, 491 (Tex. Cr. App. 2004); Mendiola v. State, 21 S.W. 3d 282, 285 (Tex.
Cr. App. 2000).
31.  Rogers v. State, 991 S.W.2d 263, 265 (Tex. Cr. App. 1999).
32.  Id.; Beck v. State, 719 S.W.2d 205, 209 (Tex. Cr. App. 1986).
