Opinion filed October 15, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-13-00271-CR
                                     __________

                    PHILLIP DEVON DEEN, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 350th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 9902-D

                      MEMORANDUM OPINION
      Phillip Devon Deen appeals his jury conviction for the offense of possession
of cocaine in an amount of less than one gram, a state jail felony. See TEX.
HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(b) (West 2010). The
State alleged a prior conviction for aggravated robbery as an enhancement. See TEX.
PENAL CODE ANN. § 12.35(c)(2)(A) (West Supp. 2014). Appellant pleaded “true”
to the prior aggravated robbery conviction, and the trial court assessed his
punishment at confinement for a term of four years in the Texas Department of
Criminal Justice, Institutional Division. Appellant raises four issues on appeal,
challenging both his conviction and his punishment. We modify the judgment of
conviction to correct an error concerning the level of the offense for which he was
convicted. As modified, the judgment of conviction is affirmed. However, we
reverse the judgment with respect to Appellant’s punishment and remand for a new
trial on punishment.
                                 Background Facts
      Chris Collins, a police officer with the Abilene Police Department, received
an alert to look for a white Infinity with Louisiana license plates because of a
suspicion that the driver was selling cocaine. Officer Collins located the vehicle,
observed a traffic violation, and initiated a traffic stop. Appellant was the driver of
the vehicle. Officer Collins spoke with Appellant, and based on that conversation
and the information Officer Collins had received about Appellant, Officer Collins
asked Appellant to exit the vehicle—whereupon Officer Collins handcuffed
Appellant.
      Officer Collins requested assistance from a K-9 officer, and Ismael Jaimes, a
K-9 officer with the Abilene Police Department, arrived with his dog, Chavo, and
conducted an open-air sniff around Appellant’s vehicle with Chavo. Based upon
Chavo giving a positive alert, Officer Jaimes and Chavo searched the inside of
Appellant’s vehicle.     Officer Jaimes found a pill bottle inside the center
console/armrest. The pill bottle contained four small rocks that the DPS chemist
confirmed consisted of less than one gram of cocaine. Officer Collins questioned
Appellant about what the officers had found in Appellant’s vehicle without first
telling him or showing him what they had found, and Appellant said that it was the
“stuff I smoke,” “crack.” Appellant told Officer Collins that “four rocks” were
located in the armrest.      Officer Collins’s dash-cam equipment recorded his
conversation with Appellant.

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                                   Issues on Appeal
      In his first issue, Appellant alleges ineffective assistance of counsel.
Appellant’s first issue is comprised of six sub-issues. The first four sub-issues deal
with counsel’s performance during the guilt/innocence phase, and the last two sub-
issues relate to the punishment phase. Appellant’s second issue deals with the trial
court’s admission of evidence during the guilt/innocence phase. In his third issue,
Appellant challenges his sentence based upon the contention that his prior conviction
for aggravated robbery was void. In his fourth issue, Appellant asks for the judgment
to reflect that the jury convicted him of a state jail felony rather than a third-degree
felony.
                         Ruling on Nonresponsive Objection
      We begin our analysis by addressing Appellant’s second issue because it
concerns the guilt/innocence phase and is related to one of the sub-issues contained
within his first issue alleging ineffective assistance of counsel. Appellant contends
that the trial court erred when it overruled Appellant’s “nonresponsive” objection to
Officer Collins’s testimony about Appellant being recently released from prison.
The following dialogue occurred between defense counsel and Officer Collins
during cross-examination:
             Q. Okay. You talked to him for a little while and then he gets
      out of the car and you handcuff him?

             A. That’s correct.

             Q. Is that normal procedure?

            A. Based on the conversation we had and while I was standing at
      the vehicle, I placed him in handcuffs for my safety.

             Q. Based on conversation you had. You’ve said that several
      times, but you’re not telling us anything about what the conversation is
      that led you to believe that you had a reason to arrest him.

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            A. He told me his driver’s license was suspended, that he wasn’t
      supposed to be driving, and that he was just recently released from
      prison.

             Q. Did he tell you -- did he tell -- let me back up.

             [DEFENSE COUNSEL]: Your Honor, I’m going to have to
      object to the last thing he said about being -- about prison. I don’t think
      that my question led to that. I'm asking him what he’s based this on,
      and surely he didn’t base it on that.

            THE COURT: [Defense Counsel], I took the question to be what
      did he tell you, even though that wasn’t the words -- you haven’t told
      us what he said -- so your objection for nonresponsive is overruled. I
      believe the door was opened for that response.

             [DEFENSE COUNSEL]: Okay.

      We review the trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.
App. 2006). A trial court abuses its discretion when it acts outside the zone of
reasonable disagreement. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003). We conclude that the trial court did not abuse its discretion by overruling
Appellant’s “nonresponsive” objection because the officer’s answer appeared to be
responsive to trial counsel’s question about the conversation that the officer had with
Appellant that led to Appellant’s arrest.
      Moreover, a “‘nonresponsive’ objection alone, however, merely informs the
trial court why the objection was not made prior to the answer being given.”
Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.—Houston [14th Dist.] 1994, pet.
ref’d) (quoting Smith v. State, 763 S.W.2d 836, 841 (Tex. App.—Dallas 1988, pet.
ref’d)). Even after the “nonresponsive” portion of the objection is made, there
remains the question of the testimony’s admissibility. Id. In this context, in order


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to properly exclude evidence or obtain an instruction to disregard, a party must
address in its objection both the nonresponsiveness and the inadmissibility of the
answer.   Id.   Furthermore, a blanket “nonresponsive” objection alone is an
insufficient objection to preserve error where the response is a hybrid answer—that
is, where a portion of the answer is objectionable and a portion of the answer is not
objectionable. Id. Accordingly, trial counsel’s objection solely on the basis that the
officer’s answer was not responsive did not present a valid basis for the trial court
to exclude the officer’s answer. We overrule Appellant’s second issue.
                          Ineffective Assistance of Counsel
      In his first issue, Appellant asserts ineffective assistance of counsel in six sub-
issues. He contends that his trial counsel’s performance was deficient because he
(1) failed to object to the admissibility of Officer Collins’s dash-cam video,
(2) elicited testimony that police officers suspected Appellant of selling cocaine,
(3) opened the door to the admissibility of Officer Collins’s testimony that Appellant
had recently been released from prison, (4) failed to request a jury instruction on
extraneous offenses, (5) failed to object to an invalid conviction used to enhance
punishment, and (6) failed to object to the prosecutor’s questions at punishment that
violated the attorney-client privilege.     To determine whether Appellant’s trial
counsel rendered ineffective assistance, we must first determine whether Appellant
has shown that his counsel’s representation fell below an objective standard of
reasonableness and, if so, then determine whether there is a reasonable probability
that the result of the proceeding would have been different but for his counsel’s
errors. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726
S.W.2d 53, 55–57 (Tex. Crim. App. 1986).
      We must indulge a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action might be

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considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of ineffective assistance of
counsel must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999). With respect to allegations of ineffective assistance of
counsel, the record on direct appeal is generally undeveloped and rarely sufficient
to overcome the presumption that trial counsel rendered effective assistance. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813–14.
The Court of Criminal Appeals has said that “trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
trial counsel did not have an opportunity to explain his actions, we will not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001). We note at the outset of our analysis that Appellant did not
file a motion for new trial. Accordingly, the appellate record does not contain an
explanation from trial counsel concerning his actions.
      Appellant’s first sub-issue concerns trial counsel’s failure to object to the
admissibility of Officer Collins’s dash-cam video, specifically the audio portion of
the recording. In order to prevail on this contention, Appellant must establish that
the evidence was inadmissible because the failure to object to admissible evidence
does not constitute ineffective assistance. See Ex parte Jimenez, 364 S.W.3d 866,
887 (Tex. Crim. App. 2012).
      Appellant contends that the dash-cam video was inadmissible because the
State could not establish the predicate for its admissibility. Article 38.22, section 3
of the Texas Code of Criminal Procedure requires that oral statements of an accused
be electronically recorded by a device that can make an accurate recording. TEX.

                                          6
CODE CRIM. PROC. ANN. art. 38.22 § 3(a) (West Supp. 2014). Appellant contends
that the recording device was incapable of making an accurate recording because
“the voices and the words within the recording were garbled and at points
incomprehensible.”
      Officer Collins testified that his mobile video recording equipment was
capable of making an accurate recording of his conversation with Appellant and that
he had reviewed the video for accuracy. He explained, however, that the microphone
attached to his chest was not working. Accordingly, there was no audio recorded
for a large portion of Officer Collins’s encounter with Appellant.           The only
functioning microphone was the one located in the backseat of Officer Collins’s
patrol car. Appellant’s trial counsel did not object to the prosecutor’s offer of a
portion of the recording into evidence. The prosecutor then published approximately
twenty-three minutes of the recording to the jury. The first several minutes of the
recording did not contain any audio. Afterward, Officer Collins read Appellant his
Miranda1 rights and began questioning him. In response to Officer Collins’s
question about what would be found in Appellant’s car, Appellant stated that the
officers would find four rocks of “crack” in his car. After the recording was played
for the jury, the prosecutor questioned Officer Collins about the recording as
follows:
            Q. Officer Collins, it’s difficult to understand, but initially after
      being read his rights, there was something about smoke. Do you recall
      what that question was?

            A. Yes, I asked him what we found in the vehicle, and he said,
      The stuff I smoke. And I asked him what he smokes, and he said,
      Crack.

              Q. And was he able to describe for you where it was located?

      1
       Miranda v. Arizona, 384 U.S. 436 (1966).


                                                  7
            A. He said the crack was in the armrest, which is the same as the
      center console in that vehicle.

             Q. Is that where it was found?

             A. Yes.

             Q. And was he able to describe for you how many crack rocks?

            A. We asked him how much was in the car, and he said there was
      $40 worth. We asked him how much was -- you know, how many rocks
      were $40 worth, and he said there’s four rocks.

      As noted previously, Officer Collins testified that his video equipment was
capable of making an accurate recording. Accordingly, Appellant’s trial counsel
may have concluded that this testimony was sufficient to establish the requisite
predicate for the admissibility of the recording. To show ineffective assistance of
counsel for the failure to object during trial, the appellant must show that the trial
judge would have committed error in overruling the objection. Ex parte White, 160
S.W.3d 46, 53 (Tex. Crim. App. 2004). The record does not establish that the trial
court would have erred in overruling the predicate objection that Appellant contends
should have been made. Accordingly, Appellant’s trial counsel’s failure to object to
the recording’s admissibility was not deficient.
      Appellant asserts in his second sub-issue that trial counsel was ineffective
when he elicited testimony from Officer Collins that officers suspected Appellant of
being a drug dealer. Specifically, trial counsel asked Officer Collins why he was on
the lookout for Appellant’s vehicle, and Officer Collins responded that the driver of
the vehicle was suspected of selling cocaine.
      Evidence of other crimes, wrongs, or acts is inadmissible at the
guilt/innocence phase of trial to show the accused’s conformity with those other acts.
TEX. R. EVID. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App.


                                          8
1992). Rule 404(b) incorporates the fundamental tenet of our criminal justice system
that an accused may be tried only for the offense for which he is charged, not for his
criminal propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996).
For an extraneous offense to be admissible, it must be relevant apart from supporting
an inference of character conformity. Montgomery v. State, 810 S.W.2d 372, 387
(Tex. Crim. App. 1991).
      Appellant contends that there could have been no strategic reason for trial
counsel to have questioned Officer Collins on the reason the police were interested
in Appellant and his automobile. We disagree. It appears that trial counsel was
attempting to establish that the officer’s reason for stopping and arresting Appellant
was pretextual in nature. Thus, trial counsel’s questioning about the conversation
that Officer Collins had with Appellant leading to Appellant’s arrest may have been
based on trial strategy. The record does not affirmatively demonstrate that trial
counsel’s question seeking to determine the officer’s basis for stopping Appellant
fell below an objective standard of reasonableness.
      Appellant’s third sub-issue alleging ineffective assistance of counsel is related
to his second issue that we have already addressed. As noted above, the trial court
concluded that “the door was opened” to Officer Collins’s response that Appellant
was recently released from prison. Appellant contends that trial counsel’s alleged
act of opening the door constituted ineffective assistance of counsel. We disagree.
      An accused may make otherwise inadmissible evidence admissible by
“opening the door” through questions that elicit testimony about extraneous
offenses. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). While
the trial court ruled that “the door was opened” by trial counsel, the record does not
demonstrate that counsel’s conduct constituted ineffective assistance of counsel. As
was the case with the second sub-issue, it appears that trial counsel was attempting
to establish that the officer’s reason for stopping and arresting Appellant was

                                          9
pretextual in nature. Thus, trial counsel’s questioning about the conversation that
Officer Collins had with Appellant leading to Appellant’s arrest may very well have
been based on trial strategy.     Accordingly, the record does not affirmatively
demonstrate that trial counsel’s questioning of Officer Collins was deficient.
      Appellant’s fourth sub-issue alleging ineffective assistance concerns trial
counsel’s failure to request a jury instruction limiting the jury’s consideration of
extraneous offenses. The Texas Court of Criminal Appeals has noted that trial
counsel might deliberately forego a limiting instruction for extraneous offenses as a
part of “trial strategy to minimize the jury’s recollection of the unfavorable
evidence.” Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007) (quoting
United States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995)). Without evidence
in the record of trial counsel’s strategy, we will not speculate why he did not request
a limiting instruction.
      In considering Appellant’s first four sub-issues alleging ineffective assistance,
we have determined that the performance of Appellant’s trial counsel during the
guilt/innocence phase did not fall below an objective standard of reasonableness.
We additionally conclude that Appellant has failed to show there is a reasonable
probability that, but for his counsel’s alleged errors, the result of the proceeding
would have been different. The evidence of Appellant’s guilt was overwhelming in
that he confessed on the recording to possession of the controlled substance.
      Appellant’s fifth and sixth sub-issues concern alleged instances of ineffective
assistance of counsel occurring during the punishment phase. If Appellant were to
prevail on either of these claims, he would be entitled to a new punishment hearing.
CRIM. PROC. art. 44.29(b); see Milburn v. State, 15 S.W.3d 267, 271–72 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d). As set forth below, we conclude that
Appellant is entitled to a new trial on punishment with respect to his third issue.
Accordingly, we need not address his fifth and sixth sub-issues concerning alleged

                                          10
ineffective assistance of counsel during the punishment phase.           We overrule
Appellant’s first issue alleging ineffective assistance of counsel.
                  Illegal Sentence Based on Void Prior Conviction
      In his third issue, Appellant contends that his enhanced, four-year sentence of
confinement for a state jail felony is illegal. The State relied upon Appellant’s prior
conviction for the first-degree felony offense of aggravated robbery to seek an
enhanced sentence under Section 12.35(c)(2)(A) of the Penal Code.               PENAL
§ 12.35(c)(2)(A). Appellant contends that this prior conviction was void and
unavailable for enhancement purposes because his sentence of confinement for the
first-degree felony was below the statutory minimum. We agree.
      Possession of less than one gram of cocaine is a state jail felony offense
punishable by confinement for any term of not more than two years or less than 180
days and a fine not to exceed $10,000. HEALTH & SAFETY §§ 481.102(3)(D),
481.115(b); PENAL § 12.35(a), (b). A state jail felony offense may be punishable as
a third-degree felony offense by enhancement with a prior felony conviction for an
offense listed in Section 3g(a)(1) of Article 42.12 of the Texas Code of Criminal
Procedure. PENAL § 12.35(c)(2)(A); CRIM. PROC. art. 42.12, § 3g(a)(1). Aggravated
robbery is an offense listed in Article 42.12, section 3g(a)(1).         CRIM. PROC.
art. 42.12, § 3g(a)(1)(F).
      The indictment alleged that Appellant had previously been convicted of
aggravated robbery in 2009. Aggravated robbery is a first-degree felony with a
minimum sentence of confinement of five years. See PENAL §§ 12.32, 29.03(b)
(West 2011). Appellant pleaded “true” to the prior conviction at the outset of the
punishment hearing. The State offered a copy of the judgment from the 2009
conviction for aggravated robbery into evidence. The judgment indicates that
Appellant was originally placed on deferred adjudication for a term of eight years
but that the trial court subsequently entered a judgment adjudicating guilt on

                                          11
August 27, 2009. However, Appellant was only sentenced to confinement for a term
of four years.
      Appellant’s challenge to the enhancement allegation in this case constitutes a
collateral attack on the prior judgment of conviction. See Rhodes v. State, 240
S.W.3d 882, 887 (Tex. Crim. App. 2007). Such a collateral attack is permitted only
if the prior judgment is void, and not merely voidable. Id.; see Nix v. State, 65
S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (“A void judgment is a ‘nullity’ and
can be attacked at any time.”). The Court of Criminal Appeals addressed an
analogous situation in Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984). In
Wilson, the defendant’s punishment was enhanced with a prior conviction for a first-
degree felony. 677 S.W.2d at 520, 524. However, the defendant was only sentenced
to confinement for a term of four years. Id. at 524. The court stated as follows: “It
is now axiomatic that the punishment assessed must always be within the minimum
and maximum fixed by law. When the punishment assessed is less than the
minimum provided by law, this renders the judgment of conviction a nullity.” Id.
The court determined that the defendant’s prior judgment of conviction was void
and should not have been used against the defendant for enhancement purposes. Id.
      The State contends that Appellant should be estopped from complaining that
his prior sentence was too lenient because he enjoyed the benefits of a sentence that
was below the statutory minimum. The State cites Rhodes in support of this
proposition. We conclude that Rhodes is distinguishable from the facts in this case.
      The defendant in Rhodes was serving time in the penitentiary when he
escaped. Rhodes, 240 S.W.3d at 884. When recaptured, he was tried and convicted
of escape and was sentenced to imprisonment for a term of ten years. Id. The trial
judge did not expressly order the escape sentence to be served consecutively with
the sentences the defendant was serving when he escaped as required by the Code
of Criminal Procedure. Id.; see CRIM. PROC. art. 42.08(b). The defendant later

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committed more felonies, and the State alleged the prior escape conviction for
enhancement purposes. Rhodes, 240 S.W.3d at 884. The defendant objected to the
use of the escape conviction for enhancement purposes, asserting that the judgment
was void because the sentence was ordered to run concurrently with the sentences
he was serving when he escaped. Id. The court concluded that the judgment for the
escape conviction was not void because it could be reformed through a judgment
nunc pro tunc to correct the error alleged by the defendant. Id. at 887–89. As noted
by the court, a judgment of conviction is only void if “the infirmity cannot be cured
without resort to resentencing.” Id. at 888.
      The court additionally stated in Rhodes that “[a] defendant who has enjoyed
the benefits of an agreed judgment prescribing a too-lenient punishment should not
be permitted to collaterally attack that judgment on a later date on the basis of the
illegal leniency.” Id. at 892. The court premised this conclusion on the principle of
estoppel. Id. at 891–92. The record before the court in Rhodes did not show whether
the concurrent serving of the sentence for the escape conviction was pursuant to a
plea agreement. Id. at 886–87. Accordingly, the court did not rely upon estoppel
grounds for its resolution in Rhodes.
      The State concedes in this appeal “that there is insufficient documentation to
show whether the prior conviction was a result of a plea-bargain agreement.”
Irrespective of this omission, the State contends that Appellant should still be
estopped from attacking the prior conviction because he reaped the benefit of a
sentence that was too lenient. In light of Rhodes’s requirement of a plea agreement
before applying the estoppel doctrine, we decline the State’s request to extend the
estoppel doctrine in the absence of a plea agreement.
      Under Rhodes, the controlling question as to whether Appellant may
collaterally attack his prior judgment of conviction for aggravated robbery is
whether it was void or voidable. The Texas Court of Criminal Appeals determined

                                         13
in Wilson that a four-year sentence for a first-degree felony rendered the judgment
of conviction void. Wilson, 677 S.W.2d at 524. Rhodes does not change this result
because the infirmity with the judgment of conviction for aggravated robbery cannot
be cured without resort to resentencing. See Scott v. State, 988 S.W.2d 947, 948
(Tex. App.—Houston [1st Dist.] 1999, no pet.) (A judgment of conviction cannot be
reformed by adding punishment.).
      As noted previously, a state jail felony is only punishable by up to two years’
confinement in state jail. PENAL § 12.35(a). Appellant was sentenced to a term of
confinement for four years based upon the enhancement alleged under Section
12.35(c)(2)(A). Appellant’s prior judgment of conviction for aggravated robbery
was void and could not be used to enhance the punishment to that of a third-degree
felony. Accordingly, we sustain Appellant’s third issue. We reverse the trial court’s
judgment as to punishment, and we remand the cause to the trial court for a new
punishment hearing. See CRIM. PROC. art. 44.29(b).
                              Correction of Judgment
      In his fourth issue, Appellant asserts that the trial court’s judgment incorrectly
shows that he was convicted of a third-degree felony. We agree. The jury actually
convicted Appellant of a state jail felony offense. The enhancement only affected
the applicable punishment range and not the degree of the offense for which he was
convicted. See PENAL § 12.35(c) (“An individual adjudged guilty of a state jail
felony shall be punished for a third degree felony if it is shown on the trial of the
offense that . . . .” (emphasis added)). Accordingly, we sustain Appellant’s fourth
issue. We modify the trial court’s judgment to correctly show that the jury convicted
Appellant of a state jail felony offense. See TEX. R. APP. P. 43.2(b).
                                 This Court’s Ruling
      We modify the judgment of the trial court to reflect that Appellant was
convicted of a state jail felony offense. As modified, the judgment of conviction is

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affirmed. However, we reverse the trial court’s judgment as to punishment and
remand the cause for a new punishment hearing consistent with this opinion.




                                                  JOHN M. BAILEY
                                                  JUSTICE


October 15, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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