Affirmed as Modified and Opinion Filed April 6, 2015




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00210-CR

                       STEPHEN SHAQUILLE BROOKS, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416-82826-2013

                            MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                   Opinion by Justice Francis
       A jury convicted Stephen Shaquille Brooks of two counts of sexual assault and assessed

punishment at ten years in prison on both counts but recommended the sentence in the first count

be suspended and appellant be placed on community supervision.          The trial court ordered

appellant’s prison sentence to begin immediately and his ten-year community supervision to

begin in five years. In one issue, appellant asserts he did not receive effective assistance of

counsel. In a cross-issue, the State requests that we modify the judgment in count one to reflect

that the sentences run concurrently. We overrule appellant’s issue and sustain the State’s cross-

issue. We affirm the judgment in count two and affirm the judgment as modified in count one.

       In August 2012, fifteen-year-old Jenny Choctaw (a pseudonym) sneaked out of her

parents’ house around midnight and met four male friends. The group rode around for a while
before ending up at the home of the then-eighteen-year-old appellant. Appellant provided the

group with alcohol and marijuana. Jenny drank vodka and wine and became intoxicated. At one

point, she was lying on the floor spitting up. Her friends became concerned she would not be

able to sneak back into her house and decided to leave her with appellant. Jenny said that after

her friends left, appellant sexually assaulted her vaginally and anally.

       In his sole issue on appeal, appellant argues defense counsel did not provide effective

representation because he failed to object to an improper closing argument by the State.

Specifically, he asserts the prosecutor mentioned a tattoo on appellant’s arm that read, “Treat

Bitches Like Bitches,” even though photographs of the tattoo were excluded from evidence. The

complained-of argument was as follows:

       And you know what kind of person he is. You heard about his tattoos. You heard
       about the “Treat bitches like bitches.” That gives him some attitude about how he
       feels for girls. They’re just there for him, and if they’re too drunk, if there’s a
       drunk little girl, too bad for her.

       To successfully assert an ineffective assistance of counsel challenge, an appellant must

show that (1) counsel’s representation fell below an objective standard of reasonableness and (2)

the deficient performance prejudiced him; that is, but for the deficiency, there is a reasonable

probability that the result of the proceeding would have been different. Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003). Proper jury argument must fall within one of four

general areas: summation of the evidence, reasonable deduction from the evidence, answer to

argument of opposing counsel, and pleas for law enforcement. Brown v. State, 270 S.W.3d 564,

6750 (Tex. Crim. App. 2008). A prosecutor may not use closing argument to present evidence

that is outside the record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011).

       The record shows that although photographs of appellant’s tattoos were excluded during

the guilt-innocence phase of trial, a video recording of appellant’s interview with the police was

admitted into evidence. The recording shows that at the end of the interview, the detective
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mentioned appellant had “cool tattoos” and asked what they all said. As appellant explained his

tattoos, the detective leaned forward, lifted appellant’s sleeve, and asked about one above his

elbow that read, “Treat Bitches Like Bitches.” Appellant said he was “sorry,” explained he got

the tattoo a year and a half ago when he was “young,” and said he would get it removed.

         Having reviewed the record, we conclude that evidence of the tattoo was not outside the

record, and the prosecutor’s argument regarding it was not only a proper summation of the

evidence but a reasonable deduction. As such, it was not objectionable and appellant cannot be

ineffective for failing to object. See Weinn v. State, 281 S.W.3d 633, 641 (Tex. App.—Amarillo

2009), aff’d on other grounds, 326 S.W.3d 189 (Tex. Crim. App. 2010). We overrule the sole

issue.

         In its cross-issue, the State asks that we modify the judgment in count one to reflect a

commencement date of December 20, 2013 instead of December 20, 2018. At the time the judge

accepted the jury’s verdict and assessed punishment on both cases, he asked both the prosecutor

and defense counsel for their positions on whether the sentences should run concurrently or

consecutively. Defense counsel urged the former while the prosecutor urged the latter. The

judge then ordered appellant’s ten-year prison sentence in count two to begin immediately and

his ten-year community supervision in count one to begin in five years. Both judgments provide

that “confinement ordered shall run concurrently,” but the judgment for the first count provides

that appellant’s sentence will commence in 2018.

         In these cases, the trial court was authorized to order concurrent or consecutive sentences.

See TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2014). The State, however, asserts it

has found no authority to support a “delayed, partial stacking” and further asserts that all parties

involved previously reached an agreement that appellant’s sentences would run concurrently.

Given the State’s assertion of an agreement, we modify the judgment in count one to reflect a

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commencement date of December 20, 2013, such that appellant’s two sentences run

concurrently. See TEX. R. APP. P. 43.2(b).

       We affirm the trial court’s judgment in count two and affirm the judgment in

count one as modified.




Do Not Publish
TEX. R. APP. P. 47.2(b)                            /Molly Francis/
140210F.U05                                        MOLLY FRANCIS
                                                   JUSTICE




                                             –4–
                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

STEPHEN SHAQUILLE BROOKS,                         On Appeal from the 416th Judicial District
Appellant                                         Court, Collin County, Texas
                                                  Trial Court Cause No. 416-82826-2013.
No. 05-14-00210-CR        V.                      Opinion delivered by Justice Francis;
                                                  Justices Lang-Miers and Whitehill
THE STATE OF TEXAS, Appellee                      participating.

       Based on the Court’s opinion of this date, the judgment on Count 2 is AFFIRMED.

The judgment on Count 1 is MODIFIED as follows:

       To reflect December 20, 2013 as the Date Sentence Imposed and Date Sentence to
       Commence.

As MODIFIED, the judgment on Count 1 is AFFIRMED.


Judgment entered April 6, 2015.




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