                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-09-00034-CR


DAVID WAYNE GISH                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                            STATE


                                     ------------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                     ------------

                         MEMORANDUM OPINION1
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      In six points that all concern the alleged ineffectiveness of his trial counsel,

appellant David Wayne Gish appeals his forty-year sentence for burglary of a

habitation.2 Because we conclude that appellant has not satisfied his burden to

prove his points, we affirm.


      1
       See Tex. R. App. P. 47.4.
      2
       Appellant does not ask us to reverse his conviction; instead, he wants us
to remand this case to the trial court for a new punishment trial.
                                Background Facts

      A   grand    jury   indicted   appellant   with   burglary   of   a   habitation.3

The indictment alleged that he entered the habitation to commit theft, and it

asserted that he had already been convicted of three other burglaries.4 Appellant

elected the jury to assess punishment in the event of his conviction.

      After a jury was selected following the parties’ voir dire, appellant pled

guilty in the presence of the jury and pled true to the indictment’s enhancement

allegations.5 The State called witnesses who testified about the burglary in this

case (in which appellant broke a glass door with a brick to enter a house and

steal money) and other burglaries appellant had committed. Appellant called his

ex-mother-in-law and ex-wife to testify about his character.            Appellant’s ex-

mother-in-law said that appellant had good potential, that she ―just love[d]‖ him,

and that he could ―fix anything.‖



      3
       See Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003).
      4
       Burglary of a habitation with the intent to commit theft is usually a second-
degree felony that carries a punishment range of two to twenty years’
confinement. See Tex. Penal Code Ann. § 12.33(a) (Vernon Supp. 2010),
§ 30.02(c)(2). But when a defendant who has previously been convicted of a
felony is convicted of a second-degree felony, the second-degree felony is
punished as a first-degree felony, which carries a maximum punishment of
ninety-nine years or life in prison. Id. §§ 12.32(a), .42(b) (Vernon Supp. 2010).
      5
        A ―plea of guilty made to a jury is the functional equivalent of a jury verdict
of guilty. . . . The case simply proceeds with a unitary punishment hearing.‖
Fuller v. State, 253 S.W.3d 220, 227 (Tex. Crim. App. 2008), cert. denied, 129 S.
Ct. 904 (2009) (footnote omitted).


                                          2
      After the parties presented closing arguments, the jury assessed

appellant’s punishment at forty years’ confinement, and the trial court sentenced

him accordingly. Appellant filed a motion for new trial, contending that the verdict

was contrary to the law and the evidence and that he was represented

ineffectively by counsel. He also filed notice of this appeal.

                       Ineffective Assistance of Counsel

      In six related points, appellant argues that his trial counsel was ineffective

for failing to object to various aspects of the State’s closing argument.

He contends that the State’s argument asked the jury to apply parole law to him,

which violated a provision in the code of criminal procedure and contradicted the

jury charge.

Standard of review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel=s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel=s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999).         In evaluating the effectiveness of

counsel under the first prong, we look to the totality of the representation and the

                                          3
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

is whether counsel=s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688B89, 104 S. Ct. at 2065. Review of counsel=s representation is

highly deferential, and the reviewing court indulges a strong presumption that

counsel=s conduct fell within a wide range of reasonable representation. Salinas,

163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.        It is not appropriate for an

appellate court to simply infer ineffective assistance based upon unclear portions

of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel=s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must

show there is a reasonable probability that, but for counsel=s unprofessional

errors, the result of the proceeding would have been different. Id. at 694, 104 S.

Ct. at 2068. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. The ultimate focus of our inquiry must be on the

fundamental fairness of the proceeding in which the result is being challenged.

Id. at 697, 104 S. Ct. at 2070.




                                        4
Analysis

     In her closing argument, the prosecutor told the jury, in part,

           Let’s look at the defendant’s record, because that’s something
     else you can consider. January 31st, 2005, this defendant broke
     into a home in Tarrant County, burglarized, was sentenced to four
     years in prison. February 20th, 2005, not even a month later, he
     does it again, Tarrant County, gets four years in prison.
     And February 21st, the next day, does it again, gets four years in
     prison. Now, he pled [guilty to] all of those on the same day, so all of
     those ran concurrently, so even though he’s been sentenced to 12
     years in prison total, you know, he had to serve four at one time.
     Well, we know that he got sentenced in May of 2005 and he was
     out, burglarizing homes in Hood County in March of 2008, so we
     know he didn’t serve all four years, and we know he was on parole
     when he was supposed to be being watched at that time. . . .

           ....

            . . . He has already been sentenced to 12 years in prison and
     has served some of that time, we don’t know how much, so he had a
     shot to grow up.

            Now, if the good Mr. Gish shows up in prison, Mr. Fix-it, then
     the judge tells you that he can earn good time, and that can shorten
     his sentence, because the time, amounts of time he served plus the
     amount of good time he gets, when that equals 15 years or one-
     fourth of his sentence, he gets out. So think about that when you’re
     deliberating. We don’t have any reason to believe that he won’t be
     good in prison. He hasn’t -- doesn’t have anything to steal there,
     can’t break into people’s homes, so, you know, maybe he’ll get a job
     fixing up something at the prison, he’ll get good time credit for that.

           ....

            He hasn’t learned his lesson yet, ladies and gentlemen.
     He hasn’t grown up yet. . . . This is a career burglar at age 23. . . .
     And the only way, as I mentioned before, to keep him from
     performing his chosen profession is to keep him in prison, the only
     way we can be sure he’s not burglarizing your home or someone
     else’s.



                                        5
             If you give this defendant, Mr. Gish, a sentence of sixty years,
      we know that he could be out in 15. But we know that every -- he
      can earn his way out in 15 years, and we know that for every single
      day of that 15 years, those 15 years, he’s not going to be terrorizing
      somebody else and breaking into their house. That, we can know
      for sure. That, you can take to the bank. So without any hesitation,
      I’m going to ask you for a sentence of 60 years on this defendant.
      Make him serve that 15-year minimum and keep us safe for 15
      years. Thank you. [Emphasis added.]

Appellant contends that his trial counsel’s failure to object to these statements

comprised ineffective assistance.6

      We have recently explained that while it is not improper for the State to

explain how parole eligibility rules apply to certain sentences, the State may not

ask a jury to consider how good-conduct time may be awarded to a particular

defendant or how parole law will particularly affect the defendant’s sentence.

See Waters v. State, No. 02-10-00080-CR, 2010 WL 4570016, at *4–6 (Tex.

App.—Fort Worth Nov. 4, 2010, pet. filed) (citing Taylor v. State, 233 S.W.3d

356, 359 (Tex. Crim. App. 2007)). In other words,

             What a jury can properly do . . . is determine how long a term
      it wishes a defendant to serve before that defendant may become
      eligible for parole . . . . A jury, however, may not consider when, if
      ever, that defendant actually might be awarded parole (it must
      disregard whether the defendant will receive or forfeit good-conduct
      time and whether he will be awarded parole).

Id. at * 6 (citing Turner v. State, 87 S.W.3d 111, 116 (Tex. Crim. App. 2002), cert.

denied, 538 U.S. 965 (2003)).

      6
      Appellant raises his points through ineffective assistance claims because
absent an objection to a jury argument at trial, nothing is presented for review.
Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).


                                         6
      We affirmed the driving while intoxicated conviction in Waters because we

held that the prosecutor ―did not urge the jury to make a decision on punishment

based on speculation of matters that were not properly before it.‖      Id. at *7.

But the prosecutor did so in this case. Here, the prosecutor told the jury that

when appellant’s time served plus good-conduct time equals fifteen years or one-

fourth of his sentence, ―he gets out.‖ This is an incorrect statement of the law

because parole eligibility does not guarantee release.     See Tex. Code Crim.

Proc. Ann. art. 37.07, § 4(b) (Vernon Supp. 2010); Ex parte Geiken, 28 S.W.3d

553, 556 (Tex. Crim. App. 2000); Felan v. State, 44 S.W.3d 249, 257 (Tex.

App.—Fort Worth 2001, pet. ref’d) (―Parole . . . is completely discretionary.‖).

For the same reason, the prosecutor incorrectly told the jury that appellant would

―earn his way out in 15 years.‖       Thus, we hold that at least part of the

prosecutor’s argument was improper under Waters.7

      Appellant must show more than the impropriety of the prosecutor’s

argument, however, to prevail on his ineffective assistance claims; he must

demonstrate by a preponderance of the evidence that his counsel was ineffective

      7
        Appellant also contends, in his first two points, that the portion of the
prosecutor’s argument in which she told the jury, with respect to appellant’s
previous burglaries, that he ―got sentenced in May of 2005 and he was out,
burglarizing homes in Hood County in March of 2008, so we know he didn’t serve
all four years,‖ was improper. Appellant asserts that this statement ―argue[d] the
operation of parole laws,‖ and he relies on a provision of the code of criminal
procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(d) (―This section does not
permit the introduction of evidence on the operation of parole and good conduct
time laws.‖). Because of the reasoning in our disposition below, we will not
address whether this portion of the prosecutor’s argument was also improper.


                                        7
by not objecting to the argument and that, if a proper objection was made, the

result of his trial—the jury’s forty-year punishment assessment—would have

been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, appellant must show a reasonable likelihood that his counsel’s failure to

object to the prosecutor’s statements effectively increased his sentence.

      Under the mandate from article 37.07, the trial court’s charge to the jury

included the following language:

             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 15 years,
      whichever is less. 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



                                        8
      defendant. You are not to consider the manner in which the parole
      law may be applied to this particular defendant. [Emphasis added.]

See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b).

      In Colburn v. State, during deliberations in a capital murder case, the jury

sent out a note stating, ―Given a life sentence, is there a possibility of parole in

this case?‖ 966 S.W.2d 511, 519 (Tex. Crim. App. 1998). The trial court replied

by explaining, ―[T]he jury is prohibited from considering parole in any manner

when considering whether a Defendant should be sentenced to life or death.

You are instructed, therefore, to follow the law of this state and not consider

parole in any manner.‖ Id. The defendant moved for a mistrial on the ground

that the jury was considering parole in its deliberations. Id. But the court of

criminal appeals affirmed the trial court’s decision to overrule the mistrial motion,

reasoning in part,

             We generally presume the jury follows the trial court’s
      instructions in the manner presented.             The presumption is
      rebuttable, but appellant has pointed to no evidence in rebuttal.
      Appellant did not file a motion for new trial alleging juror misconduct
      or obtain a hearing to adduce facts not in the record. As such, the
      only evidence that the jury considered parole is the jury note. Even
      if the note constitutes evidence the jury discussed parole at a
      preliminary point, we presume they followed the court’s instructions
      and thereafter did not consider it in reaching their verdict.

             Appellant says the jury’s consideration of parole deprived him
      of a ―fair trial.‖ In light of the court’s proper instruction, we presume
      the jury did not consider parole.

Id. at 520 (citations omitted).




                                         9
      Similarly, in Miles v. State, the prosecutor interrupted the defendant’s

closing argument through an objection in which the prosecutor incorrectly stated

that the presumption of the defendant’s innocence ended once the trial began.

204 S.W.3d 822, 823–24 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1266

(2007). The trial court sustained the prosecutor’s incorrect objection. Id. at 824.

The court of criminal appeals held that although the State’s objection (and the

trial court’s sustaining of that objection) was wrong, the error did not require

reversal of the conviction. Id. at 826–28. Citing Colburn, the court reasoned in

part, ―[T]he trial court’s charge to the jury included an accurate and thorough

explanation of the presumption of innocence and what it means in a court of law,

and, in the absence of evidence to the contrary, we will assume that the jury

followed its written instructions.‖ Id. at 827–28.

      The presumption described in Colburn and Miles—that juries follow the

trial court’s instructions to them—is a longstanding maxim that has been

repeated many times by the court of criminal appeals. See Thrift v. State, 176

S.W.3d 221, 224 (Tex. Crim. App. 2005); Hutch v. State, 922 S.W.2d 166, 172

(Tex. Crim. App. 1996); Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim.

App. 1975). We have also relied on the maxim.          See Walker v. State, 300

S.W.3d 836, 850 (Tex. App.—Fort Worth 2009, pet. ref’d); Tell v. State, 908

S.W.2d 535, 540 (Tex. App.—Fort Worth 1995, no pet.) (―The jury was charged

not to consider how good conduct time or the parole law might be applied to Tell.

Nothing in the record indicates that the jury did not follow the trial court’s


                                         10
instruction, and this court must presume that it did.‖); see also Jones v. State,

264 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (―Because a

jury is presumed to follow the trial court’s instructions, it is presumed that the jury

did not consider parole.‖); Boudreaux v. State, 723 S.W.2d 230, 232 (Tex. App.—

Beaumont 1986, no pet.) (―[T]he jury was charged that it could not consider the

. . . manner in which the parole law may be applied to this particular Appellant.

Intermediate appellate courts are to presume that the jury followed the trial

court’s instructions.‖).

      Like in Tell, nothing in the record here indicates that the jury did not follow

the trial court’s unambiguous, explicit instruction—to not consider the manner in

which the parole law may be applied to appellant—that was contained in the

same document in which the jury wrote its punishment decision.8              Similarly,

nothing indicates that the jury was swayed in its punishment decision by the

objectionable parts of the State’s argument. In fact, while the State discussed

the potential for parole as background for specifically asking the jury to give

appellant sixty years’ confinement, the jury rejected the State’s request by giving

him only forty years. Thus, because appellant has not met his burden to show

the contrary, we will apply the well-founded presumption that the jury followed the

trial court’s explicit, unambiguous instructions. See Miles, 204 S.W.3d at 823–


      8
       We also note that the charge in this case told the jury, ―You are instructed
that any statements of counsel . . . not in harmony with the law as stated to you
by me in these instructions, are to be wholly disregarded.‖


                                          11
24; Tell, 908 S.W.2d at 540; see also Ladd v. State, 3 S.W.3d 547, 570 (Tex.

Crim. App. 1999) (holding that the defendant’s failure to prove prejudice from his

defense counsel’s allegedly deficient performance during the punishment phase

of a capital murder trial precluded relief on an ineffective assistance claim), cert.

denied, 529 U.S. 1070 (2000); Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim.

App. 1999) (explaining that a court of appeals may not assume prejudice in an

ineffective assistance of counsel claim).

      Also, without any aid from the State’s closing argument, the jury could

have rationally found that the facts in this case justified a forty-year sentence,

which is on the lower end of the first-degree felony range. See Tex. Penal Code

Ann. § 12.32(a); see also Hawkins v. State, 135 S.W.3d 72, 85 (Tex. Crim. App.

2004) (concluding that the defendant’s other offenses that could have supported

a lengthy setence were relevant considerations in an analysis of the effect of a

prosecutor’s argument about the application of parole law); Perez v. State, 994

S.W.2d 233, 238 (Tex. App.—Waco 1999, no pet.) (holding that a prosecutor’s

argument about parole was improper but harmless because, among other facts,

evidence in the case supported the defendant’s sentence of life imprisonment).

The jury received evidence showing that appellant had already been convicted

for committing three burglaries in 2005 and that, despite therefore spending time

in the penetentiary, he committed three more buglaries after being released.

      Appellant relies on Chester v. State to argue that the prosecutor’s

erroneous argument about parole law caused harm. 167 S.W.3d 935, 936–38


                                         12
(Tex. App.—Amarillo 2005, pet. ref’d).9 But in Chester, the defendant timely

objected to the State’s parole argument; he therefore did not have a burden to

show, by a preponderance of the evidence in an ineffective assistance claim, that

the result of the trial would have been different. See id. at 936. Similarly, in

Hawkins, which is another case relied on by appellant, the defendant timely

objected, and the court of criminal appeals therefore applied the harm standard

for nonconstitutional error, in which the defendant does not have a burden.

135 S.W.3d at 74; see Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 5

(Tex. Crim. App. 2001) (holding that there is no burden on the defendant or the

State to demonstrate whether a defendant has been harmed under rule 44.2(b));

cf. Perez v. State, 310 S.W.3d 890, 893–94 (Tex. Crim. App. 2010) (reiterating

that the ―defendant bears the burden of proving ineffectiveness by a

preponderance of the evidence‖ and explaining that showing only that an error

had a conceivable effect on the outcome of a proceeding does not suffice).

      For these reasons, without deciding whether appellant’s trial counsel fell

below the standard of prevailing professional norms by not objecting to the

State’s improper jury argument, we hold that appellant has not shown by a

preponderance of the evidence that there is a reasonable probability that, but for

counsel’s alleged deficiency, the jury’s assessment of forty years’ confinement


      9
       In Waters, we questioned the validity of the Amarillo Court of Appeals’s
holding in Chester about the propriety of the prosecutor’s argument.
See Waters, 2010 WL 4570016 at *4.


                                       13
would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;

see also Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)

(declining to address the second prong of Strickland when the defendant did not

prove the first prong). Thus, we overrule appellant’s six points.

                                   Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.



                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 13, 2011




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