                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00503-CR


ANTHONY GEORGE HANNON                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      Upon his plea of guilty to one count of theft over $20,000 but less than

$100,000 and his pleas of true to enhancement paragraphs, a jury convicted

Appellant Anthony George Hannon of the charged offense and assessed his

punishment at ninety years’ confinement.         The trial court sentenced him

accordingly.   In two issues, Appellant contends that the trial court erred by

denying his objection to the jury charge and that he received ineffective
      1
       See Tex. R. App. P. 47.4.
assistance of counsel at trial. Because the trial court did not err by denying

Appellant’s objection to the jury charge and because Appellant has failed to

sustain his burden to prove ineffective assistance of counsel at trial, we affirm the

trial court’s judgment.

Facts

        On February 2, 2011, Appellant was indicted on one count of theft over

$20,000 but less than $100,000.       The indictment contained an enhancement

paragraph alleging that he had previously been convicted of possession of four

grams or more but less than two hundred grams of cocaine and that the

conviction had become final before the commission of the theft.

        At his arraignment on March 1, 2011, Appellant pled not guilty. On August

10, 2011, the State filed a notice of enhancement, stating that it intended to use

five prior convictions (including the conviction previously alleged in the

enhancement paragraph in the indictment) to elevate the punishment range for

the third-degree felony theft offense to that of a habitual felony offender. The

notice then listed the five prior convictions that the State intended to use. Each

paragraph stated that the conviction “became final before the commission of the

aforesaid offense.” At his trial on October 18, 2011, Appellant changed his plea

to guilty. He pled true to the enhancement paragraph in the indictment and to the

enhancement paragraphs alleged in the notice of enhancement.

        Appellant elected to have his punishment determined by a jury. At the

charge conference, Appellant objected “to the Court’s entire charge on


                                         2
punishment,” arguing that he had not been given notice “that the Court could

submit a charge of 25 to life under the habitual [offender] provision of the Penal

Code.” Appellant then elaborated,

             Specifically, Your Honor, the allegations that are made on the
      notice of enhancement fail to allege in any specificity that—each of
      those enhancements, and the same objection would apply to each
      one, Your Honor, that it was—had become final before the
      commission of the offense before it. They all refer to they became
      final before the commission of the aforesaid offense to the primary
      charge in the indictment.

            Your Honor, we believe that failure to allege the    consecutive
      nature or that one became final before commission          of the prior
      offense that’s alleged as the enhancement fails to give    the defense
      notice that the provisions of the Penal Code and           intention to
      enhance to 25 to life are effective.

           Because of failure of those two, Your Honor, the notice of
      enhancement and the indictment taken in whole, we object to the
      submission of the Court’s charge on punishment as provided to
      counsel.

             Specifically, Your Honor, we think the appropriate charge
      would contain a—under the pleas would contain, Your Honor, an
      instruction to the jury that this is a third degree felony enhanced to a
      second with a primary—appropriate punishment range, Your Honor,
      of 2 to 20 and up to a $10,000 fine, that being because a third
      degree felony being alleged and pled to with the enhancement count
      would elevate an enhancement to a second degree only. So we
      have that objection to the Court’s charge on punishment.

The trial court overruled the objection.




                                           3
Charge Error

      In his first issue, Appellant argues that the trial court improperly instructed

the jury on the range of punishment for a habitual offender and improperly

allowed the jury to assess his sentence under the habitual offender provision

because neither the indictment nor the enhancement notice informed him that

“the Court could submit a charge of 25 to life under the habitual [offender]

provision of the Penal Code.” Appellant also argues that “there is no evidence to

show that the offenses were committed and became final in the proper

sequence . . . .”

      The State’s notice of enhancement provided that the State sought to

sentence Appellant as a habitual felon.       Appellant pled true to each of the

enhancements.       Appellant’s three penitentiary packets were admitted into

evidence to show that he had been convicted of those offenses contained in the

penitentiary packets and had been to the penitentiary at least three times in the

past. The State also proved the sequence of convictions. Additionally, the trial

court instructed Appellant on the habitual range of punishment. Appellant did not

claim surprise and did not ask for a continuance.

      Appellant argues that each of the enhancement allegations provided that

the enhancement provision became final prior to the commission of “the

aforesaid offense,” and that the offense referred to as “the aforesaid offense”

could be only the new offense for which Appellant was on trial. Appellant is




                                         4
correct that the enhancement notice lists the enhancement offenses in reverse

order. This court has held, however, that

         [b]ecause it was not necessary for the State to allege the dates on
         which the enhancing convictions became final or the sequence of
         the enhancing convictions, the indictment[’]s nonsequitur allegation
         that the 2003 DWI conviction was final before the commission of the
         1998 assault is immaterial. The enhancement allegation[]s recited
         the counties, courts, cause numbers, and dates of conviction for
         both enhancements; this was sufficient to enable [defendant] to find
         the record and prepare for trial regarding whether he is the convict
         named in the convictions.2

It is therefore likewise of no consequence that the enhancement offenses were

not listed in proper sequential order in the case before us. Nor did Appellant

claim surprise at trial when the jury was instructed on habitual offender

punishment. Appellant received ample notice from the State (more than two

months) and the trial court that the State would seek to punish him as a habitual

offender.3

         Finally, if his complaint is that the evidence is insufficient to prove him

guilty as a habitual offender, we disagree. Appellant correctly argues that section

12.42(d) of the penal code requires the State to prove a particular chronological

sequence of convictions: The first conviction becomes final, the offense leading

to a later conviction is committed, the later conviction becomes final, and the



         2
         Derichsweiler v. State, 359 S.W.3d 342, 350 (Tex. App.—Fort Worth, no
pet.).
         3
         See Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).


                                          5
offense for which the defendant presently stands accused is committed.4 Having

closely reviewed the entire record, we hold that the evidence sufficiently proves

the appropriate chronological sequence of convictions.

      At the beginning of the punishment phase of his trial, Appellant

acknowledged all five of the prior convictions used for enhancement and entered

his pleas of true to five prior felony convictions contained in three separate

penitentiary packets that were admitted into evidence. He acknowledged that he

could be sentenced to a term of twenty-five years up to ninety-nine years or life

imprisonment if the State proved the convictions in the appropriate sequence.

The record reflects that the State proved the prior convictions at trial and that

they are properly sequenced.

      Because Appellant had ample notice that the State would seek to prove

that he was a habitual offender and pled true to the enhancement allegations and

because the State additionally proved that he was a habitual offender, we hold

that the trial court did not err by overruling Appellant’s objection to the jury

charge.   Consequently, there is no need for a harm analysis.5 We overrule

Appellant’s first issue.




      4
      See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011); Ex parte Miller,
330 S.W.3d 610, 624 (Tex. Crim. App. 2009).
      5
       See Throneberry v. State, 109 S.W.3d 52, 60 (Tex. App.—Fort Worth
2003, no pet.).


                                       6
Ineffective Assistance of Counsel

      Appellant frames his second issue as a general claim of ineffective

assistance of counsel. Specifically, he states, “APPELLANT HAD INEFFECTIVE

ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.” Essentially, he argues

generally that trial counsel made bad decisions and failed to act at various times

during trial and thereby hampered Appellant’s chances of success at trial.

Appellant claims that trial counsel did not acquaint himself with the facts of the

case “as his cross examination of all witness [sic] was sorely lacking.” Appellant

also contends, “Had defense counsel acquainted himself with the facts of the

case, he would not have advised Appellant to plead guilty. There was a potential

unlawful search issue that defense counsel failed to investigate prior to trial and

failed to thoroughly examine while taking the witness on voir dire.” Appellant also

points out that trial counsel filed no pretrial motions.

      To establish ineffective assistance of counsel, an 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.6




      6
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009); Hernandez
v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).


                                           7
      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.7

The issue is whether counsel’s assistance was reasonable under all the

circumstances and prevailing professional norms at the time of the alleged error. 8

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.9 A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim. 10 “In

the majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel’s actions.”11 To overcome the

presumption     of   reasonable   professional   assistance,    “any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.”12 It is not appropriate for




      7
       Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
      8
       See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
      9
       Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
      10
          Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.
      11
          Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).
      12
          Id. (quoting Thompson, 9 S.W.3d at 813).


                                          8
an appellate court to simply infer ineffective assistance based upon unclear

portions of the record.13

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

were so serious that they deprived the defendant of a fair trial, that is, a trial with

a reliable result.14   In other words, an appellant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.15          A reasonable probability is a

probability sufficient to undermine confidence in the outcome.16 The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in

which the result is being challenged.17

      The evidence showed that Appellant and two friends stole an El Camino in

Fort Worth, drove to Granbury, used the vehicle to smash through the front

window of the First National Bank of Granbury, stole the ATM machine out of the

bank, and put it into the back of the stolen El Camino.            The break-in was

captured on the bank surveillance video.         After a high-speed chase, the El

Camino crashed, and the men ran. As Appellant ran, he jumped over a fence


      13
        Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
      14
        Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      15
        Id. at 694, 104 S. Ct. at 2068.
      16
        Id.
      17
        Id. at 697, 104 S. Ct. at 2070.


                                          9
and hurt his leg, allowing peace officers to capture him. Inside Appellant’s truck

parked near the bank, the officers found a list of addresses of banks that they

suspected were targets for possible burglaries.

      The trial court thoroughly admonished Appellant regarding his right to a

trial and the consequences of pleading guilty and of pleading true to the

enhancement counts.      Appellant had an extensive criminal record, and the

evidence of his guilt was overwhelming.

      Appellant filed a motion for new trial, but alleged only that the verdict was

contrary to the law and the evidence. He did not raise ineffective assistance of

counsel, nor did he inquire regarding trial counsel’s trial preparation or strategy.

From our review of the record, trial counsel’s strategy appears to have been to

have Appellant assume responsibility for his actions, of which there was

overwhelming evidence, and to ask for mercy by putting on evidence of

Appellant’s good character and the fact that family members needed him to care

for them.

      Applying the appropriate standard of review, we hold that Appellant has

failed to sustain his burden of showing that trial counsel rendered ineffective

assistance. We overrule Appellant’s second issue.




                                        10
Conclusion

      Having overruled Appellant’s two issues on appeal, we affirm the trial

court’s judgment.



                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: June 14, 2012




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