                                   NO. 12-14-00126-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

CHRISTOPHER WILEY,                               §      APPEAL FROM THE 241ST
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
         Christopher Wiley appeals his conviction for murder, for which he was sentenced to
imprisonment for life. In one issue, Appellant argues he received ineffective assistance of
counsel. We affirm.


                                          BACKGROUND
         Appellant was charged by indictment with murder and pleaded “not guilty.” A jury
found Appellant “guilty” as charged and assessed his punishment at imprisonment for life. The
trial court sentenced Appellant accordingly, and this appeal followed.




                             INEFFECTIVE ASSISTANCE OF COUNSEL
         In his sole issue, Appellant argues that he received ineffective assistance of counsel at
trial.
Governing Law
         Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel’s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
        In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).      We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that
specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]
1994, pet. ref’d).
        Before being condemned as unprofessional and incompetent, defense counsel should be
given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828, 836 (Tex.
Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim
must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
        Moreover, after proving error, the appellant must affirmatively prove prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
appellant must prove that his attorney’s errors, judged by the totality of the representation and
not by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not
enough for the appellant to show that the errors had some conceivable effect on the outcome of
the proceedings. Id. He must show that there is a reasonable probability that, but for his
attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the extent of
his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d at 837.



                                                2
Failure to Object to Prosecutor’s Statement Applying Parole Law to Defendant
       Appellant argues that his trial counsel was ineffective because he failed to object to the
following statement made by the prosecuting attorney during his closing argument.

                 Don’t feel sorry for him. Life is what he deserves. And I tell you, a sentence of life will
       - - I mean, he’s still - - the parole eligibility also applies to a life sentence as well. I only say that
       because sometimes I’ve gotten notes before where they were confused. It’s - - he’s eligible for
       parole in 30 years or half time of 30 years, whichever is less. So that means 60-plus, he’s eligible
       for parole at 30. Why do we keep using that word “eligibility”? It’s because we can’t say when
       he will actually make parole. And that makes sense, because once he gets to prison[,] it’s up to
       him. The parole authorities will grant him parole based on his conduct in prison. So he’s the one
       that gets to decide when he paroles.


(emphasis added).
       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 Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007); Gish v. State, No.
02-09-00034-CR, 2011 WL 167076, at *3 (Tex. App.–Fort Worth Jan. 13, 2011, no pet.) (mem.
op., not designated for publication). In other words,


       [w]hat 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).


Waters v. State, 330 S.W.3d 368, 374 (Tex. App.–Fort Worth, 2010, pet. ref’d) (citing Turner v.
State, 87 S.W.3d 111, 116 (Tex. Crim. App. 2002)).
       In Waters, the court of appeals affirmed the appellant’s conviction for driving while
intoxicated, holding 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.” Waters, 330 S.W.3d at 375.
Here, despite the fact that the prosecutor initially emphasized Appellant’s “eligibility” for parole,
he later repeatedly referred to Appellant’s parole as if his eventual release were not in doubt.
That is, he discussed Appellant’s parole in terms of “when” it would happen rather than “if” it
would happen. The prosecutor’s statements to that effect were an incorrect statement of the law
because parole eligibility does not guarantee release. See TEX. CODE CRIM. PROC. ANN. art.
37.07, § 4(b) (West Supp. 2014); Ex parte Geiken, 28 S.W.3d 553, 556 (Tex. Crim. App. 2000);


                                                           3
Gish, 2011 WL 167076, at *3 (holding that prosecutor’s telling jury “when appellant’s time
served plus good-conduct time equals fifteen years or one-fourth of his sentence, ‘he gets out’”
was incorrect statement of law); Felan v. State, 44 S.W.3d 249, 257 (Tex. App.–Fort Worth
2001, pet. ref’d) (“Parole . . . is completely discretionary.”). Therefore, we conclude that the
prosecutor's argument was improper in this regard.
        In Andrews v. State, 159 S.W.3d 98, 102–03 (Tex. Crim. App. 2005), the court of
criminal appeals reversed a conviction for ineffective assistance of counsel in a “rare case” when
trial counsel did not object to a misstatement of law by the prosecutor during argument. There,
the same prosecutor who filed a motion to cumulate the sentences in four counts of sexual abuse
later argued to the jury, “You give him 20 years in each case, it’s still just 20 years. It’s still not
80. You can give different amounts if you want. You can give 20, 10, 10, five, it’s still just 20.”
Id. at 100. The appellant’s trial counsel did not object to the prosecutor’s misstatement of the
law. Id. The trial court ultimately granted the State’s motion to cumulate the sentences and
imposed a combined prison sentence of seventy-eight years. Id. The court concluded that the
argument left the jury with the incorrect impression that the appellant’s sentences could not be
stacked and that the appellant would serve no more than twenty years in prison for all four
counts. Id. at 103. Therefore, the court held that, under the “extremely unusual circumstances of
[the] case,” the record contained all of the information it needed to conclude that there could be
“no reasonable trial strategy for failing to object” to the prosecutor’s misstatement of the law.
Id.
        Much like in Andrews, Appellant’s counsel’s reasons, if any, for failing to object to the
prosecutor’s misstatement of the law during jury argument are unnecessary to resolve the
ineffective assistance of counsel claim. Thus, based on our review of the record, we conclude
that the facts before us support that Appellant’s counsel’s failure to object could not have been
based on any reasonable trial strategy.
Prejudice
        We next consider whether Appellant has demonstrated by a preponderance of the
evidence that, if a proper objection had been made, the result of his trial––the jury’s assessment
of a life sentence––would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at
2064.




                                                  4
       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 defendant. You are not to consider the manner in which the parole law may be applied
       to this particular defendant.


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 a note to
the court stating, “Given a life sentence, is there a possibility of parole in this case?” Colburn,
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, as follows:

                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.




                                                        5
                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).
       Similarly, in Miles v. State, the prosecutor interrupted the defendant’s closing argument
by an objection, in which he incorrectly stated that the presumption of the defendant's innocence
ended once the trial began. See Miles, 204 S.W.3d 822, 823–24 (Tex. Crim. App. 2006). 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
were wrong, these errors did not require reversal of the conviction. See 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, e.g., Gish, 2011 WL 167076, at *5 (citing 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)). This court also has relied on
the maxim. See, e.g., Seery v. State, No. 12-11-00095-CR, 2013 WL 683327, at *9 (Tex. App.–
Tyler Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication) (applying presumption
that jury followed instructions in court’s charge and noting the appellant must rebut that
presumption by pointing to evidence that jury failed to follow it); Mayfield v. State, No. 12-07-
00266-CR, 2008 WL 5235618, at *4 (Tex. App.–Tyler Dec. 17, 2008, pet. ref’d) (mem. op., not
designated for publication) (applying presumption that jury followed instruction to base its
decision on instructions and definitions given in court’s charge).
       Similar to the facts in Seery, nothing in the record here indicates that the jury did not
follow the trial court's unambiguous, explicit instruction in its charge—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. The charge further instructed the jury
that “any statements of counsel made during the course of the trial or during argument, not
supported by the evidence, or statements of law made by counsel not in harmony with the law as



                                                         6
stated to you by the Court in these instructions, are to be wholly disregarded.” There is nothing
in the record before us that indicates the jury was swayed in its punishment decision by the
objectionable parts of the State’s argument. 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 Seery, 2013 WL 683327, at *9; 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 punishment phase
of capital murder trial precluded relief on ineffective assistance claim).
         Moreover, without any aid from the State’s closing argument, the jury still could
rationally have found that the facts in this case justified a life sentence. See Hawkins v. State,
135 S.W.3d 72, 84–85 (Tex. Crim. App. 2004) (concluding that the defendant’s other offenses
that could have supported lengthy sentence were relevant considerations in analysis of effect of
prosecutor’s argument about application of parole law); Perez v. State, 994 S.W.2d 233, 238
(Tex. App.–Waco 1999, no pet.) (holding that prosecutor’s argument about parole was improper
but harmless because, among other facts, evidence in case supported defendant's life sentence).
Here, the jury heard evidence that Appellant and the victim had a violent history. The record
further reflects that Appellant first shot the victim while he lay in bed. That first shot hit the
victim’s arm. Afterward, the victim moved off the bed to the floor. Moments later, Appellant
fired a pistol at the victim’s head at close range. The evidence indicates that the bullet passed
into the victim’s left temple, killing him almost instantly. Appellant then left the scene and
traveled to his parents’ house. Appellant’s mother described Appellant’s appearance upon his
arrival that night as “clean” and “neat as a pin.”
         In sum, based on the evidence of record, we conclude that Appellant has not met his
burden of proving that but for his counsel’s deficiencies, he would have received a lesser
sentence. Appellant’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                  GREG NEELEY
                                                                     Justice
Opinion delivered June 17, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                             (DO NOT PUBLISH)


                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 17, 2015


                                         NO. 12-14-00126-CR


                                      CHRISTOPHER WILEY,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1239-13)

                       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 the decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
