                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00439-CR
                              __________________

                       JIMMY DEE TURNER, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 356th District Court
                       Hardin County, Texas
                       Trial Cause No. 23644
__________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Jimmy Dee Turner was charged with burglary of a habitation, and

he pleaded “not guilty.” See Tex. Penal Code Ann. § 30.02 (West 2019).1 A jury

found Turner guilty, and the court assessed punishment at fourteen years in prison.




      1
         We cite the current statutes as subsequent amendments do not affect our
disposition.
                                          1
      In a single issue, Turner appeals his conviction, arguing that he was denied

the effective assistance of counsel. Turner contends that his trial counsel failed to

argue that he was eligible for community supervision under article 42A.053 of the

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42A.053 (West

2018). According to Turner, his trial counsel’s failure to know that article 42A.053

allows a trial court to grant community supervision fell below an objective standard

of reasonableness, and but for this error, the result of the proceeding would have

been different. Turner argues in the alternative that he is not required to show that,

but for his counsel’s deficient performance, there is a reasonable probability that the

result of the proceeding would have been different because his trial counsel’s

deficiency constitutes a complete denial of any assistance of counsel and prejudice

is presumed.

                          Effective Assistance of Counsel

      A defendant has a Sixth Amendment right to the effective assistance of

counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 685-86

(1984). To establish that he received ineffective assistance of counsel, Turner must

demonstrate that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. See Strickland, 466

                                          2
U.S. at 687-88, 694. The party alleging ineffective assistance has the burden to

develop facts and details necessary to support the claim. See Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-assistance

claim must overcome the “strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An appellant’s

failure to make either of the required showings of deficient performance or sufficient

prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.”).

      The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and does not require that counsel must be perfect or that the

representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation, and

counsel is not to be judged on isolated portions of his representation. See Thompson,

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990).

      Ordinarily, on direct appeal, the record will not have been sufficiently

developed during the trial to demonstrate in the appeal that trial counsel provided

                                          3
ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d

591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel’s actions as

ineffective, counsel should normally be given an opportunity to explain the

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). When counsel has not been given an opportunity to explain the challenged

actions, we will find deficient performance only if the conduct was “so outrageous

that no competent attorney would have engaged in it.” Id. (internal citations

omitted).

                                      Analysis

      During the sentencing phase of trial, the following exchange occurred:

      [Defense counsel]: Mr. Turner, you obviously heard the testimony and
      all the evidence presented at trial; is that correct?

      [Turner]: Yes, sir.

      [Defense counsel]: And [you] also heard the jury’s verdict in this case
      and they found you guilty; is that true?

      [Turner]: Yes, sir.

      [Defense counsel]: And you understand that today what we’re doing is
      appearing before the judge for him to decide what your punishment
      should be; is that correct?

      [Turner]: Yes, sir.



                                         4
      [Defense counsel]: And you understand that since you have felony
      convictions, although they are State jail, they are felony convictions,
      and you are not eligible for probation; is that correct?

      [Turner]: Yes, sir.

      [Defense counsel]: So you understand that the judge has a range of
      punishment from two years to twenty years; is that correct?

      [Turner]: Yes, sir.

      [Defense counsel]: What are you asking the judge to do in this case?

      [Turner]: Well, for him to be as lenient as he can.

The State’s attorney argued to the trial court that “There is no question his criminal

history goes back to at least 2000, so over 18 years of criminal history. And the

offense, the first one was state jail in 2000, actually happened before that.” After a

presentencing investigation and hearing evidence, the trial court explained

              Mr. Turner, your criminal history is terrible. Very lengthy. And
      that is one thing the court certainly considers. And something that kind
      of bothered me about this is as much as anything was the fact that this
      was your friend. You’d been over at their house on a social occasion
      the weekend before, the Saturday before, as I recall, . . . .
              I’m going to sentence you to 14 years to do TDC. I’m going to
      give you credit for time served. . . .

      Turner argues that his trial counsel’s statement was inaccurate because of

article 42A.053. Burglary of a habitation as charged in the indictment is a second-

degree felony, punishable by a term of imprisonment of not less than two years and

not more than twenty years. See Tex. Penal Code Ann. §§ 12.33 (West 2019),
                                     5
30.02(a), (c)(2). Article 42A.053 permits a trial court to suspend imposition of the

sentence and place a defendant on community supervision provided the sentence

imposed is less than ten years. See Tex. Code Crim. Proc. Ann. art. 42A.053(a), (c).

That said, under subsection (c)(1), a defendant is not eligible for community

supervision under article 42A.053 if he is sentenced to serve a term that exceeds ten

years. Id. § 42A.053(c)(1). Turner was sentenced to serve a term of fourteen years.

As a result, under article 42A.053, the trial court could not have placed Turner on

community supervision. Id. Even assuming without deciding that Turner’s trial

counsel may have failed to state accurately on the record that article 42A.053 may

allow for community supervision if Turner received a sentence that was less than ten

years, we note that the record does not reflect that Turner’s trial counsel was given

an opportunity to explain the statement Turner challenges, nor does Turner explain

how his trial counsel’s conduct was “so outrageous” that no competent attorney

would have so acted. See Goodspeed, 187 S.W.3d at 392.

      Considering the totality of the representation, we cannot say that Turner has

met his burden under the first Strickland prong to show that his trial counsel’s

performance fell below an objective standard of reasonableness. See Strickland, 466

U.S. at 687-88; Thompson, 9 S.W.3d at 813. Because Turner has failed to meet his

burden under the first Strickland prong, we need not consider the second prong. See

                                         6
Rylander, 101 S.W.3d at 110; see also Williams, 301 S.W.3d at 687. We overrule

Turner’s issue and affirm the trial court’s judgment.

      AFFIRMED.



                                                    _________________________
                                                         LEANNE JOHNSON
                                                              Justice

Submitted on May 30, 2019
Opinion Delivered June 12, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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