
                                          NO. 07-10-0098-CR
                                          NO. 07-10-0322-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                             MAY 12, 2011








                                   JAMES TERRY SHELNUTT, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                            FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                        NOS. 59,233-D & 59,234-D; HONORABLE DON EMERSON, JUDGE





Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION


      Appellant, James Terry Shelnutt, was convicted following a jury trial of the murders of  Robert
Phillips and Phyllis Fassauer in Cause Nos. 59,233-D and 59,234-D,  respectively,  and  sentenced  to
confinement for life and fined $10,000 in each case.[1]   In two issues, Appellant asserts:  (1)  the
trial court erroneously joined the two causes in a single trial and (2) his counsel  was  ineffective
for not presenting mitigation evidence during his punishment trial.  We modify the judgment in  Cause
No. 59,233-D to reflect the correct amount of  court  costs  and,  as  modified,  is  affirmed.   The
judgment in Cause No. 59,234-D is affirmed.

                                              Background

      On February 4, 2009,  a  Potter  County  Grand  Jury  returned  separate  indictments  charging
Appellant  with  two  murders  allegedly  committed  more  than  twenty-seven  years  prior  to   the
indictments.  In Cause No. 59,233-D, Appellant was charged with intentionally  or  knowingly  causing
the death of Robert Phillips on November 16, 1981, by shooting him with  a  firearm.   In  Cause  No.
59,234-D, Appellant was charged  with  intentionally  or  knowingly  causing  the  death  of  Phyllis
Fassauer on November 16, 1981, by  shooting  her  with  a  firearm.   The  State's  theory  was  that
Appellant was guilty under the law of parties because he solicited, aided, assisted,  and  encouraged
William Randall Bennett to kill Phillips, and that Bennett then also killed Fassauer  in  the  course
of killing Phillips.

      On February 22, 2010, Appellant filed a motion to quash and exception to the substance  of  the
indictment underlying Cause No. 59,234-D, the Fassauer murder.   In  his  motion,  Appellant  alleged
that the State could not prove that Appellant "intentionally or  knowingly  caus[ed]"  the  death  of
Fassauer under the law of transferred intent.  On February 24, 2010, the trial court held a  pretrial
hearing where the motion to quash was addressed.  During the hearing,  Appellant's  counsel  asserted
that the indictment alleging Appellant murdered Fassauer was invalid because it was not supported  by
the law existing at the time of the offense and there was no legal or factual basis  to  support  the
State's allegations in that cause.[2]

      The trial court ultimately denied Appellant's motion to quash; however, during  the  course  of
that hearing, the discussion turned to whether or not the two indictments should be  tried  together.
In response to the trial court's  query  as  to  whether  they  were  going  to  be  tried  together,
Appellant's counsel responded: "No."  Appellant's  counsel  contended  that  evidence  of  Fassauer's
murder would be  prejudicial  and  unduly  aggravate  any  punishment  Appellant  might  receive  for
Phillips's murder because Fassauer was merely an innocent bystander.  The  State  asserted  that  the
cases should be tried together because  Fassauer's  death  and  Phillips's  death  were  inextricably
intertwined as a double homicide that occurred during the same criminal episode and evidence of  both
murders would necessarily be introduced during the prosecution  of  either  indictment.   Thereafter,
the trial court made a determination that the two indictments would be  tried  together  even  though
the State had never filed written notice of consolidation or joinder.

      A four day jury trial commenced on March 1, 2010.  The day trial commenced, Appellant  filed  a
motion entitled "Motion For Continuance" wherein he requested  the  trial  court  to  reconsider  its
ruling on Appellant's motion to quash the indictment and further requested  a  continuance  of  Cause
No. 59,234-D, the Fassauer murder, because the State had not filed a motion  for  joinder  or  served
notice as contemplated by section 3.02(b) of the Texas Penal Code.[3]

      Prior to denying Appellant's motion for continuance, the trial court asked Appellant's  counsel
to explain the reason for the request and received the following responses:

      Your Honor, as previously that we argued (sic) in a pretrial motion to quash the indictment  in
      59,234, there are two different and separate indictments.  We believe that because there was no
      motion for joinder filed, or a notice as required of 30 days, there should be no joinder.

                                             *    *     *

      Yes, sir, and I'm only requesting a continuance in 59,234.  I'm sorry if I wasn't clear.




      At the trial, the State presented testimonial evidence from a number  of  witnesses,  including
Bennett,  that  Appellant  solicited  Bennett  to  kill  Phillips  in  return   for   an   ounce   of
methamphetamine.  Appellant gave Bennett a gun and drove him to  a  location  near  Phillips's  house
where he let Bennett out of his car.  After entering Phillips's house, Bennett spoke to Phillips  and
his girlfriend, Fassauer, in the living room.  He then went into  the  kitchen  to  get  a  drink  of
water.  When he returned to the living room, he first shot Phillips from behind in the  back  of  the
head and then shot Fassauer because she witnessed  Bennett  shooting  Phillips.   He  then  left  the
house.  Shortly thereafter, Appellant picked Bennett up while he  was  walking  down  the  street  as
planned.[4]  Based on this evidence, the jury returned a verdict of guilty on both indictments.

      At the punishment trial, the State re-offered the evidence presented in its  case-in-chief  and
introduced a  penitentiary  package  containing  information  on  Appellant's  four  previous  felony
convictions.  Appellant's counsel presented no  mitigation  evidence.   During  closing  argument  by
Appellant's counsel, however, she argued that Appellant was not present at the time the  two  persons
were killed  and  Bennett  was  the  shooter.   She  indicated  favorable  character  witnesses  were
unavailable because Appellant had built his own prison using and selling drugs  in  a  culture  where
survival was always an issue.  The jury assessed punishment for each indictment  at  confinement  for
life and a $10,000  fine.   The  trial  court's  subsequent  judgments  sentenced  Appellant  to  two
concurrent sentences of confinement for life and a $10,000 fine.[5]  This appeal followed.

                                         Joinder / Severance

      Appellant asserts the trial court erroneously joined the two causes in a single  trial  because
the State did not move to consolidate or  give  thirty  days  written  notice  that  it  intended  to
consolidate pursuant to section 3.02(b).  Appellant  further  asserts  that  severance  was  mandated
pursuant to section 3.04(a) because Appellant objected to a joint trial.  Appellant  asserts  he  was
harmed because the State's evidence underlying Fassauer's murder was weak and  the  trial  court  did
not give its legal analysis when it denied Appellant's motion to quash.

      The State contends Appellant waived his right to a severance or acquiesced  to  a  consolidated
trial because Appellant never requested that the causes be tried separately either  orally  or  in  a
written motion.  The State also asserts that, if error was committed, it was harmless error  because,
if separate trials were had, Phillips's and Fassauer's murders would be admissible in  either  action
because the murders occurred in the same criminal episode and, as such, constituted same  transaction
contextual evidence.

      Although we consider  it  doubtful  whether  Appellant  affirmatively  asserted  his  right  to
severance prior to trial,[6] we need not consider this issue because assuming  severance  was  raised
and erroneously denied by the trial court, any error was harmless.   To  judge  the  likelihood  that
harm occurred, we must consider everything in the record, including  all  the  evidence  admitted  at
trial, the closing arguments, and the juror's comments during voir dire.  Llamas v. State, 12  S.W.3d
469, 471 (Tex.Crim.App. 2000).  In order to properly conduct a harm analysis under Rule  44.2(b),  an
appellate court need only determine whether or not the error affected  a  substantial  right  of  the
defendant.  See Tex. R. App. P. 44.2(b).  To make this determination, appellate  courts  must  decide
whether the error had a substantial or injurious affect on the jury verdict.   White  v.  State,  190
S.W.3d 226, 231 (Tex.App.--Houston [1st Dist.] 2006, no pet.).

      Here, the evidence of Appellant's two offenses was admissible in a single trial  as  contextual
evidence.[7]  See Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993), cert. denied, 510  U.S.
1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994) (where two persons were kidnapped  in  Texas  and  later
murdered in Oklahoma, kidnapping and double murder were  part  of  the  same  transaction  contextual
evidence); Nelson v. State, 864 S.W.2d 442, 498-99  (Tex.Crim.App.  1993),  cert.  denied,  510  U.S.
1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994) (where two women were simultaneously sexually  assaulted
and one woman murdered, evidence of one victim's sexual assault and murder was  admissible  in  other
victim's  trial  alleging  sexual  assault  and  attempted  murder  as  same  transaction  contextual
evidence).  Thus, the jury would have heard the same evidence  regardless  of  whether  the  offenses
were tried separately in a different trial or together in one.  See Dominguez  v.  State,  62  S.W.3d
203, 208 (Tex.App.--El Paso 2000, pet. ref'd).  Accordingly,  because  the  same  evidence  would  be
admissible regardless of whether the offenses were tried separately or  jointly,  we  hold  that  any
joinder / severance error did not affect a substantial right.   See  White,  190  S.W.3d  at  231-32;
Tovar v. State, 165 S.W.3d 785, 795 (Tex.App.--San Antonio 2005, no pet.); Dominguez,  62  S.W.3d  at
208.  Appellant's first issue is overruled.

                                  Ineffective Assistance of Counsel

      Appellant next asserts that his trial counsel was ineffective because he failed to present  any
mitigating evidence during the punishment trial.  The State counters that the record is  insufficient
to conclude that Appellant's trial counsel was ineffective.

      We examine ineffective assistance of counsel claims by the standard  enunciated  in  Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674  (1984)  and  adopted  by  Texas  in
Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986).  Appellant has the burden to  show  by
a preponderance of evidence (1) trial counsel's performance was deficient in that it fell  below  the
prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for  the
deficiency, there is a reasonable probability that the result  of  the  proceeding  would  have  been
different.  See Thompson v. State, 9 S.W.3d 808, 812  (Tex.Crim.App.  1999).   Counsel's  conduct  is
viewed with great deference; Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.  2005),  and  any
allegation  of  ineffectiveness  must  be  firmly  founded  in  the  record,  and  the  record   must
affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 812.

      In the usual case in which an ineffective assistance claim  is  made,  "the  record  on  direct
appeal will not be sufficient to show that counsel's representation was so deficient and  so  lacking
in tactical or strategic decision-making as to overcome the presumption that  counsel's  conduct  was
reasonable and professional."  Bone v. State, 77 S.W.3d  828,  833  (Tex.Crim.App.  2002).   This  is
generally the case because a  silent  record  provides  no  explanation  for  counsel's  actions  and
therefore will not overcome the strong presumption of reasonable assistance.  Freeman v.  State,  125
S.W.3d 505, 506 (Tex.Crim.App. 2003).  The proper  procedure  for  raising  a  claim  of  ineffective
assistance is almost always habeas corpus.  Aldrich v. State,  104  S.W.3d  890,  896  (Tex.Crim.App.
2003).

      This case demonstrates the inadequacies inherent in evaluating such claims  on  direct  appeal.
See Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.--Fort Worth 2001, pet. ref'd).  Like  Patterson,
Appellant's motion for new trial did not claim ineffective assistance of  counsel,  the  trial  court
did not hold a hearing to determine whether Appellant's complaint involved actions that  may  or  may
not have been grounded in sound trial strategy.  The only indication in the  record  why  Appellant's
trial counsel did not present any mitigation evidence is  her  closing  argument  in  the  punishment
proceeding where she indicated such evidence was unavailable.  On appeal, Appellant  does  not  point
to any evidence that was available or describe how such evidence  would  have  created  a  reasonable
probability that the result of the proceeding would have been different.

      On this record, to find Appellant's counsel ineffective, we would have to engage in  prohibited
speculation.  See Stafford v. State, 101 S.W.3d 611,  613-14  (Tex.App.--Houston  [1st  Dist.]  2003,
pet. ref'd).  Absent evidence  of  counsel's  strategy,  we  cannot  denounce  counsel's  actions  as
ineffective nor can we determine there is a reasonable probability that the outcome would  have  been
different.   For  this  reason,  Appellant  has  not  met  either  prong  of  the  Strickland   test.
Accordingly, Appellant's second issue is overruled.

                                           Attorney's Fees

      We also note an issue not raised by Appellant regarding the assessment of  attorney's  fees.[8]
The written judgment in Cause No. 59,233-D reflects the assessment of court costs in accordance  with
the attached list of costs, fees and fines.  The attached Bill of Costs then reflects total costs  of
$28,757.91, which sum includes court-appointed attorney's fees of $10,433.06.  Also contained in  the
clerk's record is an order directing the Institutional Division of the Texas Department  of  Criminal
Justice to withhold from Appellant's inmate account sums sufficient to pay the $28,757.91.  In  order
to assess attorney's fees as court costs, a  trial  court  must  determine  that  the  defendant  has
financial resources that enable him to offset in part  or  in  whole  the  costs  of  legal  services
provided.  Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009).  Here, the clerk's  record  reflects
the trial court found Appellant indigent and unable to afford the cost of legal  representation  both
before trial in February of 2010, and again after trial in March 2010.  Unless a material  change  in
his financial resources occurs, once a criminal defendant has  been  found  to  be  indigent,  he  is
presumed to remain indigent for the remainder of the proceedings.  Tex. Code Crim.  Proc.  Ann.  art.
26.04(p) (West Supp. 2010).  Therefore, because  there  is  evidence  of  record  demonstrating  that
immediately following rendition of judgment Appellant was indigent and qualified for  court-appointed
counsel, we presume that his financial status has not changed.

      Furthermore, the record must reflect some factual basis to support the determination  that  the
defendant is capable of paying attorney's fees.  Barrera v. State, 291 S.W.3d  515,  518  (Tex.App.--
Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.).

      We note that the record in this case  does  not  contain  a  pronouncement,  determination,  or
finding that Appellant had financial resources that enable him to pay all or any  part  of  the  fees
paid his court-appointed counsel, and  we  are  unable  to  find  any  evidence  to  support  such  a
determination.  Therefore, we conclude that the order to pay  attorney's  fees  was  improper.    See
Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010).   No  trial  objection  is  required  to
challenge the sufficiency of the evidence regarding the defendant's ability to pay.   Id.   When  the
evidence does not support an order to pay attorney's fees, the proper remedy is to delete the  order.
 Id. at 557; see also Anderson v.  State,  No.  03-09-00630-CR,  2010  Tex.App.  LEXIS  5033,  at  *9
(Tex.App.--Austin July 1, 2010, no pet.) (mem. op., not designated for publication)  (also  modifying
judgment to delete attorney's fees).   Accordingly,  in  Cause  No.  59,233-D,  we  modify  both  the
judgment and the order to withdraw funds so as  to  delete  any  obligation  to  pay  court-appointed
attorney's fees.  We further note that the judgment in Cause No. 59,234-D does not contain  the  same
error.


                                              Conclusion

      Having modified the  trial  court's  judgment  in  Cause  No.  59,233-D  to  delete  the  order
obligating Appellant to pay $10,433.06 in attorney's fees, that judgment  is  affirmed  as  modified.
The trial court's judgment in Cause No. 59,234-D is affirmed.



                                        Patrick A. Pirtle
                                              Justice

Do not publish.






-----------------------
[1]See Tex. Penal Code Ann. § 19.02 (b)(1) (West 2003).

[2]Ultimately, Appellant does not contest the applicability of the law of parties as  a  legal  basis
for the conviction, nor does he contest the legal and factual sufficiency of the evidence to  support
that conviction.

[3]Throughout the remainder of this opinion, references to "section ____" or "§ ___" are references
to the Texas Penal Code.

[4]Bennett's account of his agreement with Appellant, the  murder  and  subsequent  events  taken  by
Appellant to hide his participation in the murders was  corroborated  by  four  other  witnesses  who
overheard statements made by Appellant shortly after the murders occurred.

[5]See Tex. Penal Code § 3.03(a) (West 2003) (absent an exception, when an accused is found guilty
of more than one offense arising out of the same criminal episode prosecuted in a single action, the
sentences shall run concurrently).

[6]Appellant's motions asked only that the trial court quash the indictment or  grant  a  continuance
of Cause No. 59,234-D.  No written or oral motion for a separate trial was ever  made.   See  Coleman
v. State, 788 S.W.2d 369, 373 (Tex.Crim.App. 1990) (where appellant's  motion  did  not  apprise  the
trial court that it was a motion  to  sever  offenses  for  separate  trials,  appellant's  right  to
severance was waived).  Furthermore, Appellant  does  not  argue  or  explain  why  the  right  to  a
severance under § 3.04(a) should apply to the facts of this case.  See § 3.04(c)  (providing  that  §
3.04(a) does not apply to a prosecution of  multiple  offenses  arising  out  of  the  same  criminal
episode).

[7]Same transaction contextual evidence results when an extraneous matter is so intertwined with  the
State's proof of the charged crime that  avoiding  reference  to  it  would  make  the  State's  case
incomplete or difficult to understand.  Rogers v. State, 853  S.W.2d  29,  33  (Tex.Crim.App.  1993).
"It is well settled that where one offense or transaction  is  one  continuous  episode,  or  another
offense or transaction is part of the case on trial  or  blended  or  closely  interwoven  therewith,
proof of all facts is proper."  Moreno v. State, 721  S.W.2d  295,  301  (Tex.Crim.App.  1986).   The
purpose of admitting extraneous evidence as same  transaction  contextual  evidence  is  to  put  the
instant offense in context.  Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993).

[8]Courts of appeals may review unassigned error in criminal cases,  particularly  where  the  record
discloses error that should be addressed in the interest of justice.  Hammock v.  State,  211  S.W.3d
874, 878 (Tex.App.--Texarkana 2006, no pet.).  Where, as here, the error appears on the face  of  the
judgment and does not involve the merits of the criminal trial,  but  instead  solely  addresses  the
clerical correctness of the judgment, we find that the interest of justice dictated that  we  address
the issue.



