                 M63-/&
               PDR NO. 1263-16
                                                   mtblhAL

                    IN THE


       TEXAS COURT OF CRIMINAL APPEALS

              AT AUSTIN, TEXAS


            CARL ANTHONY WILSON,               COURT OF CISAL APPEALS
            APPELLANT-PETITIONER,

                     v.
                                                   DEC 23 2018
             THE STATE OF TEXAS,                UW; *,
             APPELLEE-RESPONDENT
                                                    Mmi&, Oer



APPELLANT'S PETITION FOR DISCRETIONARY REVIEW- .         FILED JA!
          FROM THE DECISION BY THE
                                               CO^RT OF CRIMINAL A?PFi»L<5
                                                                        ^

 TWELFTH COURT OF APPEALS IN TYLER, TEXAS ON

          APPEAL NO. 12-16-0O014-CR                 Abei Acosta, Clerk




                                      FILED BY:

                                      CARL ANTHONY WILSON
                                      PETITIONER, PRO SE
                                      TDCJ # 2045989
                                      ELLIS UNIT
                                      1697 FM $80
                                      HUNTSVILLE, TX 77343
                              TABLE OF CONTENTS


Table of contents                                                      i

Identity of judge, parties and counsel                                ii

Index of authorities                                                  iii

Statement regarding oral argument                                      iv

Statement of the case                                                  iv

Statement of procedural history                                        iv

Argument                                                              1

Ground for review                                                      1

   Whether the court of appeals erred in concluding that Petitioner

    failed to show that his trial counsel's performance prejudiced
    him.

Prayer                                                                 5

Certificate of service                                                 5

Appendix(Court of Appeals opinion)                                    v_
                       IDENTITY OF JUDGE, PARTIES AND COUNSEL

TRIAL JUDGE

Honorable Judge Christi Kennedy
114th Judicial District Court-Smith County
100 N. Broadway Ave. Rm. 212
Tyler, TX 75702

TRIAL COUNSEL-DEFENSE


Melvin Thompson
2108 S. Wall Ave.
Tyler, TX 75701
Bar No. 19950900

TRIAL COUNSEL-STATE


Jacob Putman                                    Bryan M. Jiral
Smith County Asst. D.A.                         Smith County Asst. D.A.
100 N. Broadway Ave. 4th Floor                  100 N. Broadway Ave. 4th Floor
Tyler, TX 75702                                 Tyler, TX 75702
Bar No. 24065929                                Bar No. 24075502

APPELLATE COUNSEL-APPELLANT

Austin Reeve Jackson
305 S. Broadway, Ste. 700
Tyler, TX 75702
Bar No. 24046139

APPELLATE COUNSEL-STATE

Smith County District Attorney
Appellate Section
100 N. Broadway Ave.
Tyler, TX 75702




                                        n.
                             INDEX OF AUTHORITIES


CASES

Andrews v. State, 159 S.W.3d 98(Tex.Crim.App.2005)           3

Bone v. State, 77 S.W.3d 828(Tex.Crim.App.2002)              2_
Branch v. State, 335 S.W.3d 893(Tex.App.-Austin 2011)       3,4
Garcia v. State, 57 S.W.3d 436(Tex.Crim.App.2001)            1

Hawkins v. State, 135 S.W.3d 72(Tex.Crim.App.2004)          3,4
Roldan v. State, 739 S.W.2d 868(Tex.Crim.App.1987)           5_
Spriggs v. Collins, 993 F.2d 85(5th Cir.1993)                4_
Strickland v. Washington, 446 U.S. 668(1984)                passim
Taylor v. State, 911 S.W.2d 906(Tex.App.-Fort Worth 1995)    4
Tong v. State, 25 S.W.3d 707(Tex.Crim.App.2000)              1


STATUTES

Tex. Code Crim. Pro. Art. 37.07 § 4                         2,3



RULES

Tex. R. App. Pro. 66.3(a)                                   4,5
Tex. R. App. Pro. 66.3(f)                                   4,5
Tex. R. App. Pro. 68                                         iv




                                      in.
                               PDR NO. 1263-16




                                    IN THE


                       TEXAS COURT OF CRIMINAL APPEALS

                               AT AUSTIN, TEXAS



                APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

    COMES NOW, Carl Anthony Wilson, Appellant-Petitioner, pro se and files

this petition for discretionary review pursuant to Tex. R. App. Pro. 68.

                      STATEMENT REGARDING ORAL. ARGUMENT

    Oral argument is not necessary. Should this Court determine that oral ar

gument is necessary, Petitioner would then request oral argument.

                            STATEMENT OF THE CASE

    Petitioner pled not guilty to the charge of Driving While Intoxicated

("DWI"), third or more, in the 114th Judicial District Court in Smith County,
Texas. After a jury trial, Petitioner was found guilty and sentenced to 60

years imprisonment.

   The court of appeals being presented one point of error, affirmed the judg

ment by determining that Petitioner's trial attorney's performance did not pre
judice the defense. This petition challenges that determination.

                       STATEMENT OF PROCEDURAL HISTORY


    Petitioner presented one point of error on appeal. Rejecting this point,

the court of appeals affirmed the trial court judgment on September 21, 2016.

There was no motion for rehearing or motion for en banc reconsideration filed

in this case.
                                     iv.
                                   ARGUMENT


GROUND FOR REVIEW: Whether the court of appeals erred in concluding that the

Petitioner failed to show that his trial counsel's performance prejudiced
him. (slip op. at 4).

    Petitioner contends that the court of appeals erred in concluding that the

Petitioner failed to show that his trial counsel's failure to object to im

proper jury argument by the state prejudiced him.

A. STANDARD OF REVIEW

    An appellant complaining of ineffective assistance must satisfy a two-

prong test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052(1984). Un

der the first-prong, the appellant must show that counsel's performance was

"deficient." Id; Tong v. State, 25 S.W.3d 707,712(Tex.Crim.App.2000). "This

requires showing that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687. The appellant must show that "counsel's repre

sentation fell below an objective standard of reasonableness." Id at 688;

Tong, 25 S.W.3d at 712. Absent evidence of counsel's reasons for the challenged

conduct, we assume a strategic motivation if one can be imagined, and we will

not conclude that challenged conduct is deficient unless it was so outrageous

that no competent attorney would have engaged in it. Garcia, 57 S.W.3d 436,440

(Tex.Crim.App.2001).

    Under the second prong, an appellant must show that the "deficient perform
ance prejudiced the defense." Strickland, 466 U.S. at 687; Tong, 25 S.W.3d at

712. Prejudice requires a showing of a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694; Tong, 25 S.W.3d at 712. The appellant

must establish both prongs by a preponderance of the evidence. Tong, supra.

    Review of trial counsel's representation is highly deferential. Id. We
                                      1.
indulge a "strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance." Strickland, 466 U.S. at 689. The

appellant bears the burden of overcoming the presumption that, under the cir

cumstances, the challenged action might be considered sound trial strategy. Id.

Any allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness..Bone v.

State, 77 S.W.3d 828,835(Tex.Crim.App.2002). The record on direct appeal is
rarely sufficiently developed to fairly evaluate a claim of ineffectiveness. Id.

B. DISCUSSION


   The issue at bar is whether trial counsel's failure to object to the pro
secutor's improper closing argument was ineffective assistance. Petitioner con

tends that it is.

   When assessing punishment, a jury is entitled to consider the existence of

parole law. Tex. Code Crim. Pro. Art. 37.07 § 4. A prosecutor may accurately

restate the law given in the jury charge, including parole law, or ask the jury

to consider that law when assessing punishment. Hawkins v. State, 135 S.W.3d

72,84(Tex.Crim.App.2004). However, " a jury is simply prohibited from consider

ing how parole law and good time would be applied to a particular defendant."
Id. Whether improper jury argument is harmful at the punishment phase of trial

depends on the following: "(1) the severity of the misconduct(prejudicial ef
fect), (2) curative measures, and (3) the likelihood of same punishment absent
the misconduct." Hawkins, 135 S.W.3d at 77.

    During closing arguments, the state made the following argument:

        In this case, if you assess a life sentence like we're asking, then
        after 15 years, he would be eligible for parole. And if he made pa
        role, he would be on parole for the rest of his life. If you give
        him 60 years, he'll be eligible for parole at 15 years. And if he
        made parole, then he would be on parole until his 60-year sentence
        is done, whenever he's released. Similarly, whatever sentence you
        give, if he's eligible for parole and makes parole, then he'll be
        on parole until the sentence is completed.
(RR8:103).



                    If defense counsel's argument is correct that when [Appellant's]
                    on parole he's not committing more crimes, then I think we would
                    want him oih parole for the rest of his life, because it's work
                    ing.

(RR8:104).
    •   •   •   •




                    If you give him a life sentence, he's eligible at 15 years, But if
                    he ever gets parole and gets out, we know for sure somebody's
                    going to be supervising him every single day for the rest of his
                    life, and that's the best you can do to make him stop.
(RR8:109).

   The court of appeals in evaluating the issue, erroneously concluded that

the majority of the state's argument focused on Petitioner's ability to make
parole under various scenarios, as opposed to speculating about when he might

actually be paroled.(Slip op. at 4). Petitioner contends that the prosecutor's
arguments were improper, because they went well beyond merely explaining the

parole-law portion of the juryicharge.

    The Austin Court of Appeals has addressed a similiar issue in Branch v.

State, 335 S.W.3d 893(Tex.App.-Austin 2011). The Branch court found the argu
ment improper, found trial counsel's failure to object deficient performance,

and that the deficient performance prejudiced the defense. Id(quoting And
rews v. State, 159 S.W.3d 98,102(Tex.Crim.App.2005)).
    In the instant case, the prosecution's violating Tex. Code Crim. Pro. Art.

37.07s}§ 4 is unduly prejudicial. There were no curative measures taken by

the defense once the arguments were made. Given the factors as set forth in

Hawkins, 135 S.W.3d at 77, the same punishment would not have been assessed ab

sent the misconduct.

    There can be no sound trial strategy in failing to object to this improper

jury argument. Andrews, 159 S.W.3d at 102(finding counsel ineffective for fail-
                                                  3.
ing to object to improper argument). On that basis alone, the court of ap
peals opinion warrants review. Tex. R. App. Pro. 66.3(a),(f).
    The court of appeals also gave an additional reason upon which it believed

the jury could have found the 60 year sentence justified.(Slip op. at 4). It
noted that the jury did not assess the life sentence as requested by the st

ate. (Slip op. at 4).

    The court of appeals fails to recognize that there is "... no practical

difference in a 60 year sentence and a 99 year sentence." Taylor v. State,

911 S.W.2d 906,914(Tex.App.-Fort Worth 1995). That same rationale applies with

equal force in the instant case, where the state sought a life sentence and

Petitioner only got a 60 year sentence.

    The jury was also made aware that whether they assessed Petitioner's pun
ishment at 60 years or life, he would be eligible for parole in the same a-

mount of time, as argued by the state in jury argument.(RR8:103). Given that
there are no categorical or practical differences in a 60 year sentence when

compared to a life sentence, the sentence was not justified.

    Moreover, "... when the discretionary sentencing range is great, practi

cally any error committed by counsel could have resulted in a harsher sentence,

even if only by a year or two." Spriggs v. Collins, 993 F.2d 85,88(5th Cir.
1993). By allowing the jury to hear the prosecutor's jury argument without an
objection, Petitioner's punishment was affected, especially considering that
his 60 year sentence is the functional equivalent of a life sentence.
    Under the circumstances of this case, the jury argument was harmful error.

Hawkins, 135 S.W.3d at 77. Petitioner argues that he would have received a les

ser sentence, but for his trial counsel's failure to object. Spriggs, 993 F.2d
at88-90; Branch, 335 S.W.3d at 893. Review is warranted. Tex. R. App. Pro.

66.3(a),(f).
    Since the argument is based on a question of law, and not a factual dis-
pute with the court of appeals opinion, review is warranted. Roldan v. State,

739 S.W.2d 868(Tex.Crim.App.1987).

                                     PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court Grant the Pe

tition For Discretionary Review. Petitioner prays for any other relief that is

just and equitable under the circumstances. Petitioner prays for general re

lief.

                                                      Respectfully Submitted,



                            CERTIFICATE OF SERVICE

I hereby certify that the foregoing petition for discretionary review was de
livered to prison authorities for mailing by U.S. Mail, postage pre-paid,
first-class to the Texas Court of Criminal Appeals, Clerk of the Court,
P.O. Box 12308, Austin, TX 78711-2308, State Prosecuting Attorney, P.O. Box
13046, Austin, TX 78711-3046 and the Smith County District Attorney, 100 N.
Broadway Ave., Tyler, TX 75702 on this the /£ day of December, 2016^^,
                                   NO. 12-16-00014-CR


                          IN THE COURT OF APPEALS


               TWELFTH COURT OF APPEALS DISTRICT


                                     TYLER, TEXAS


CARL ANTHONY WILSON,                              §      APPEAL FROM THE 114TH
APPELLANT


V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION                    ~       "            ===
       Carl Anthony Wilson appeals from his conviction for driving while intoxicated. In one
issue, he contends that he received ineffective assistance of counsel at trial. We affirm.


                                          Background

       Deputy Jason Railsback with the Smith County Sheriffs Office stopped Appellant for
speeding. He testified that Appellant's vehicle smelled of alcohol, his speech was slurred, he had
difficulty forming concise sentences, he appeared nervous, and he had glassy, bloodshot eyes.
Railsback conducted field sobriety tests, which indicated that Appellant was intoxicated.       A
blood test revealed that Appellant's blood alcohol ratio was two times the legal limit, at 0.153.
Appellant pleaded "not guilty" to felony driving while intoxicated. The jury found Appellant
guilty and assessed punishment of imprisonment for sixty years.


                                    Ineffective Assistance

       In his sole issue, Appellant contends that trial counsel rendered ineffective assistance by
failing to object to the State's closing argument during the punishment phase of trial.
Standard of Review and Applicable Law

       An appellant complaining of ineffective assistance must satisfy a two-pronged test. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under the first prong, the appellant
must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064; Tong, 25 S.W.3d at 712. "This requires showing that counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The appellant must show that
"counsel's representation fell below an objective standard of reasonableness." Id., 466 U.S. at
688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Absent evidence of counsel's reasons for the
challenged conduct, we assume a strategic motivation if one can be imagined, and we will not
conclude that challenged conduct is deficient unless it was so outrageous that no competent
attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
        Under the second prong, an appellant must show that the "deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712.    Prejudice requires a showing of "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.                         A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104
,S. Ct. at 2068; Tong, 25 S.W.3d at 712.                 The appellant must establish both prongs by a
preponderance of the evidence or the ineffectiveness claim fails. Tong, 25 S.W.3d at 712.
        Review of trial counsel's representation is highly deferential. Id. We indulge a "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant bears the burden of
overcoming the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Any allegation of ineffectiveness
must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). The record on
direct appeal is rarely sufficiently developed to fairly evaluate a claim of ineffectiveness. Id. at
833.

Facts

        During closing arguments, the State made the following comments:


        In this case, if you assess a life sentence like we're asking, then after 15 years, he would be
        eligible for parole. And if he made parole, he would be on parole for the rest of his life. If you give
       him 60 years, he'll be eligible for.parole at 15. And if he made parole, then he would be on parole
       until his 60-year sentence is done, whenever he's released. Similarly, whatever sentence you give,
       if he's eligible for parole and makes parole, then he'll be on parole until the sentence is completed.



       If [defense counsel's] argument is correct that when [Appellant's] on parole he's not committing
       more crimes, then I think we would want him on parole for the rest of his life, because it's
       working.



       If you give him a life sentence, he's eligible at 15 years. But if he ever gets parole and gets out, we
       know for sure somebody's going to be supervising him every single day for the rest of his life, and
       that's the best you can do to make him stop.



Appellant's trial counsel did not object to the State's argument.
       In the punishment charge, the trial court instructed the jury as follows:

                Under the law applicable in this case, the defendant, if sentenced to a term of
       imprisonment, may earn time off the period of incarceration imposed through the award of good
       conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good
       behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a
       prisoner engages in misconduct, prison authorities may also take away all or part of any good
       conduct time earned by the prisoner.

                It is also possible that the length of time for which the defendant will be imprisoned
       might be reduced by the award of parole.

               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-fourth of the sentence imposed or i5 years, whichever is less.
       Eligibility for parole does not guarantee that parole will be granted.

                It cannot be accurately 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 charge also instructed the jury that "[sjtatements made by the lawyers are not evidence."
Analysis

       A jury is entitled to consider the existence of parole law when assessing punishment.
Tex. Code Crim. Proc. Ann. art. 37.07 § 4 (West Supp. 2016). A prosecutor may accurately
restate the law given in the jury charge, including parole law, or ask the jury to consider that law
when assessing punishment. Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).
"[T]he jury is simply prohibited from considering how parole law and good time would be
applied to a particular defendant." Id.; Tex. Code Crim. Proc. Ann. art. 37.07 § 4. Whether
improper jury argument is harmful at the punishment phase of trial depends on the following
factors: "(1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the
certainty of the punishment assessed absent the misconduct (likelihood of the same punishment
being assessed)." Hawkins, 135 S.W.3d at 77.
        Assuming, without deciding, that the State's argument was improper and trial counsel
was deficient by failing to object, Appellant has not shown that such performance prejudiced his
defense. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Tong, 25 S.W.3d at 712.
The majority of the State's argument focused on Appellant's eligibility for parole under various
scenarios, as opposed to speculating about when Appellant might actually be paroled.             See
Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007); see also Spencer v. State, 460
)S.W.3d 180, 187 (Tex. App.—Eastland 2015, pet. ref d). The trial court instructed the jury in
accordance with article 37.07 and further instructed that the attorneys' arguments are not
evidence. We presume the jury followed the trial court's instructions, and the record does not
indicate otherwise. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003).
        Additionally, when assessing Appellant's punishment, the jury could consider both
evidence admitted at the guilt phase of trial and evidence of Appellant's prior criminal history,
which included convictions for possession of marijuana, burglary of a habitation, and burglary of
a vehicle. See Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999); see also Rayme v.
State, 178 S.W.3d 21, 27 (Tex. App.—Houston [1st Dist] 2005, pet. ref d); Tex. Code Crim.
Proc. Ann. art. 37.07 § 3. Thus, even without the State's argument, the jury could have found
that a sixty-year sentence is justified. Notably, the jury did not assess the life sentence requested
by the State.
        Under the circumstances of this case, we conclude that any improper argument by the
State with regard to parole law was harmless. See Hawkins, 135 S.W.3d at 77. Appellant has
failed to demonstrate a reasonable probability that, but for trial counsel's failure to object to the
State's argument, the result of Appellant's punishment proceeding would have been different.
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Tong, 25 S.W.3d at 712. We
overrule Appellant's sole issue.
                                                                                                        f*-.




                                  COURT OF APPEALS


      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT


                                        SEPTEMBER 21, 2016



                                         NO. 12-16-00014-CR



                                   CARL ANTHONY WILSON,
                                                Appellant
                                                     V.
                                      THE STATE OF TEXAS,
                                                 Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0948-15)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, CJ., Hoyle, J., and Neeley, J.
                                       6~
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