                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00227-CR

JOE SIDNEY WILLIAMS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2009-110-C2


                          MEMORANDUM OPINION


         Joe Sidney Williams appeals his conviction for possession of a controlled

substance less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon

2003).    After finding two enhancement allegations true, the trial court sentenced

Williams to confinement for ten (10) years in the Texas Department of Criminal Justice –

Institutional Division pursuant to the jury’s verdict. Williams complains that (1) the

trial court erred by allowing the State to withdraw its earlier abandonment of an

enhancement allegation; (2) the sentence imposed was illegal because of improper

enhancement; (3) the judgment was illegal as to the place of confinement in the
Institutional Division rather than in a state jail; (4) his trial counsel rendered ineffective

assistance of counsel; (5) the trial court erred by denying his motion for new trial based

on newly discovered evidence; (6) the trial court erred in the admission of evidence; (7)

the trial court erred in allowing perjured testimony; (8) the trial court erred by not

admitting a police report and allowing the prosecutor and police to mislead the jury;

and (9) the trial court erred by not striking a comment made by Williams’s trial counsel

regarding his guilt.1 Because we find no reversible error, we affirm the judgment of the

trial court.

Improper Enhancements

        Williams complains that the trial court erred by allowing the State to abandon

and then, in essence, to resurrect an enhancement allegation contained in the

indictment. Williams concedes that the enhancement allegation was not part of the

substance of the indictment. See Stautzenberger v. State, 232 S.W.3d 323, 328 (Tex. App.—

Houston [14th Dist.] 2007, no pet.).              However, he contends that once the State

abandoned that enhancement prior to the empanelling of the jury, jeopardy attached to

that allegation and that it was error for the trial court to allow the State to rescind its

abandonment during the guilt-innocence stage of the trial.

        When the State requested the trial court to allow them to rescind their

abandonment of the enhancement allegation, Williams objected on the basis of surprise.

1The first three issues were contained in a brief filed by Williams’s appointed counsel on appeal prior to
this Court abating this appeal to the trial court for a determination of whether or not Williams desired to
represent himself on appeal. Williams was allowed by the trial court to represent himself in this appeal.
This Court allowed Williams to file his own brief supplementing the brief previously filed by his
appellate counsel prior to that abatement. The final six issues are from Williams’s pro se supplemental
brief.

Williams v. State                                                                                   Page 2
Williams asked for additional time to respond, which the trial court apparently granted.

Prior to the start of the punishment phase of the trial, the State provided Williams with

an amended notice of enhancements that included the abandoned allegation but deleted

a third enhancement.2 At this point, Williams objected on the basis of the trial court

erroneously allowing a trial amendment to the indictment and asked for a continuance

to the next morning in order to do research on the issue, which the trial court granted.

The next morning, Williams did not raise the issue again. Williams then pled true to

each of the enhancement paragraphs pursuant to the amended notice, including the

first abandoned enhancement.

        Under the United States Supreme Court’s decision in Monge v. California,

enhancement allegations do not place a defendant in jeopardy of being tried twice for

an “offense” or constitute an additional punishment for the previous offense. See Monge

v. California, 524 U.S. 721, 728, 118 S. Ct. 2246, 2250, 2251, 141 L. Ed. 2d 615 (1998).

Although the Court’s holding in Monge has been severely restricted by subsequent

holdings beginning with Apprendi v. New Jersey, Apprendi specifically excluded prior

convictions in its opinion. 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (“Other

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” (emphasis added)); see also Ex parte Watkins, 73 S.W.3d 264, 271 n.27

2 The first enhancement paragraph, which the State initially abandoned, was for a state jail felony
conviction. The third enhancement paragraph was for a third degree felony conviction. The State
originally sought to have Williams punished for a second degree felony, but after the filing of the
amended notice only sought to have him punished for a third degree felony, because Williams’s prior
convictions did not give rise to the second degree punishment enhancement. See TEX. PEN. CODE ANN. §
12.42(a)(1) (Vernon 2005).

Williams v. State                                                                            Page 3
(Tex. Crim. App. 2002); see also Wilson v. State, 267 S.W.3d 215, 221 (Tex. App.—Waco

2008, pet. ref’d). The Texas Constitution provides no greater protection than the United

States Constitution regarding double jeopardy except in cases where the State causes a

mistrial. Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990).

        The enhancements sought against Williams pursuant to section 12.42 of the Penal

Code were not elements of the offense for which Williams was being tried. Therefore,

Williams was not placed in jeopardy for those offenses. As such, there was no error by

the trial court’s reinstating the first enhancement prior to the sentencing phase of the

trial. Because this was not error, Williams was not subjected to an illegal sentence due

to the length of incarceration or as to the place of incarceration. We overrule issues one,

two, and three.

Ineffective Assistance of Counsel

        Williams complains that he received ineffective assistance of counsel for a litany

of perceived errors by his trial counsel relating to the admission of evidence, by making

a misstatement defeating Williams’s presumption of innocence, by failing to file pre-

trial motions, failing to produce a witness’s statement, and by failing to request a

mistrial.

        To prevail on an ineffective-assistance claim, Williams must prove (1) counsel’s

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel’s deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

Williams v. State                                                                    Page 4
1999).    Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813.

         In considering an ineffective-assistance claim, we indulge a strong presumption

that counsel’s actions fell within the wide range of reasonable professional behavior.

Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective assistance

must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. It is critical that

the necessary record be obtained in the trial court to rebut the Strickland presumption

that counsel’s conduct was strategic for purposes of appeal. Thompson, 9 S.W.3d at 814;

McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref'd.). When the record is silent as to counsel’s reason for failing to act in some

manner, the presumption that counsel acted reasonably is not rebutted. See Thompson, 9

S.W.3d at 814.

         Williams did file a pro se motion for new trial but did not allege ineffective

assistance of counsel in the motion. The motion was overruled without a hearing by a

written order.

Trial Counsel’s Misstatement

         In his closing argument, trial counsel for Williams stated: “At this point in time

that man right there is guilty. It’s been their job – I mean, is innocent. My apology.”

Williams contends that this statement constituted ineffective assistance of counsel

because it violated his presumption of innocence. However, while clearly Williams’s

trial counsel made an erroneous statement, he corrected himself almost immediately.

Williams v. State                                                                      Page 5
Trial counsel had argued vigorously throughout the trial that Williams was innocent,

and the remark that appears to have been wholly inadvertent was made in the midst of

a closing argument where trial counsel sought to demonstrate reasonable doubt in the

State’s case. Williams has not demonstrated in his brief that there is a reasonable

probability that, but for this alleged deficiency, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Other Alleged Errors

        The record is silent as to any strategy of Williams’s trial counsel regarding

Williams’s other complaints. Therefore, Williams has not rebutted the presumption that

his trial counsel acted reasonably.     See Thompson, 9 S.W.3d at 814.        We overrule

supplemental issue one.

Denial of Motion for New Trial and Failure to Declare Mistrial

        Williams contends that the trial court erred by denying his motion for new trial

and by not declaring a mistrial because of newly discovered evidence. The defense

presented a witness, Crestine Morales, who testified that she possessed the cocaine that

was found in the vehicle, which was powder cocaine, and that Williams did not know

that there were drugs in the vehicle. In his brief, Williams includes a typed copy of an

affidavit purported to be signed by Morales, but it was never presented to the trial court

and we will not consider it for purposes of this appeal. Additionally, he includes

statements regarding Morales’s subsequent plea of guilty for possession of cocaine. An

appellate court may not consider factual assertions that are outside the record, and a

Williams v. State                                                                     Page 6
party cannot circumvent this prohibition by submitting an affidavit for the first time on

appeal. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); see also

Rodriguez v. State, 996 S.W.2d 402, 403 (Tex. App.—Waco 1999, no pet.). Therefore, we

will not consider those allegations as they are outside of the record.

        It is unclear on what basis Williams contends that the trial court should have

declared a mistrial. Williams’s trial counsel did not ask the trial court to grant a

mistrial, therefore, any potential error was waived. See TEX. R. APP. P. 33.1(a). We

overrule supplemental issue two.

Admission of Evidence

        Williams complains that the trial court erred in the admission of photographic

evidence because he contends that upon Morales’s testimony that she was the owner of

the drugs, those photographs should have been stricken from the record. He also

contends that a videotape admitted into evidence and played for the jury should have

been excluded because he believes that it was altered. However, no objection was made

to either the photographs or the videotape at the time of their admission. Williams did

attempt to raise the issue of the alleged alteration of the videotape with the trial court

later; however, upon further questioning by the trial court, Williams finally stated that

he was only seeking an internal investigation of the police department. Any possible

error to these exhibits was waived when they were admitted without a timely objection.

See TEX. R. APP. P. 33.1(a). We overrule supplemental issue three.




Williams v. State                                                                   Page 7
Perjured Testimony

        Williams complains that the trial court erred by allowing one of the arresting

officers to testify falsely without admitting either the offense report or a report on ethnic

racial profiling into evidence. See TEX. CODE CRIM. PROC. ANN. art 2.132 (Vernon 2005).

The offense report from Williams’s arrest was neither offered nor admitted into

evidence.     Further, Williams does not explain how the admission of these reports

affected his trial or would have been admissible in the first place. See TEX. R. EVID.

803(8); TEX. R. APP. P. 38.1(h). Any error regarding this issue is waived. See TEX. R. APP.

P. 33.1(a). We overrule supplemental issue four.

        Williams complains that the trial court erred by allowing the State: (1) to bring

conflicting testimony by an officer; (2) by not admitting the offense report and a racial

profiling report into evidence; and (3) by misleading the jury by not bringing in the

laser to prove the allegation that Williams was speeding prior to being pursued by law

enforcement. Williams contends that the officer was lying when he stated that he got a

speed reading of 50 miles per hour in a 30 mile per hour zone by laser because a

speeding ticket he received was allegedly dismissed for insufficient evidence.

However, after a review of the record, this allegation regarding his speeding ticket is

not mentioned in the record, and Williams has not cited to any testimony or other

evidence regarding the ticket or subsequent dismissal.         We will not consider facts

outside the record. See Whitehead, 130 S.W.3d at 872.

        Further, the issue of whether a witness was being truthful or not was within the

province of the jury as the exclusive judge of the credibility of the witnesses and of the

Williams v. State                                                                      Page 8
weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim.

App. 1996). Williams has not cited to, nor have we found, anything in the record to

show that Williams was not speeding when the police began pursuit. We overrule

supplemental issue five.

Presumption of Innocence

        Williams complains that the trial court erred by not admonishing the jury and

striking a misstatement by his trial counsel that he contends violates his presumption of

innocence without a request to do so by either his trial counsel or the State. Williams

contends that his trial counsel’s misstatement basically rose to the level of a concession

of guilt. We disagree with that characterization. Williams has already contended that

this one comment constituted ineffective assistance of counsel, which we have

overruled. No objection was lodged at the trial court to this comment nor was a request

made to strike the comment. Williams’s argument as he has presented it in this issue

was waived by the failure to seek any remedy from the trial court. See TEX. R. APP. P.

33.1(a). We overrule supplemental issue six.

Conclusion

        We find that jeopardy does not attach to enhancement paragraphs pled in an

indictment, and therefore, the trial court did not err by allowing the State to rescind its

prior abandonment of an enhancement paragraph. Thus, Williams’s sentence was not

illegal either due to the length or location of incarceration. Williams failed to meet his

burden to establish that he received ineffective assistance of counsel. Williams’s other




Williams v. State                                                                    Page 9
objections were waived because they were not preserved at trial.   We affirm the

judgment of the trial court.


                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed May 12, 2010
Do not publish
[CR25]




Williams v. State                                                         Page 10
