                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NOS. 2-07-362-CR
                                  2-07-363-CR


SHAWN VAHID KHARRAZI                                APPELLANT

                                      V.

THE STATE OF TEXAS                                         STATE

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         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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                               I. Introduction




    1
        … See Tex. R. App. P. 47.4.
      In four points, Appellant Shawn Vahid Kharrazi challenges his conviction

for possession of a controlled substance, four grams or more but less than 400

grams.2 We affirm.

                                 II. Background

      Arlington Police Detective Jason Rash testified that on May 27, 2005, at

roughly 2:00 a.m., he “heard the squealing of tires coming up behind [him.]”

He saw Kharrazi run two red lights, drive at a high rate of speed, and cross

three lanes on Interstate 30 without signaling. Rash testified that he turned on

his overhead lights and siren, but Kharrazi did not immediately stop. Kharrazi

eventually stopped at a red light. Rash said he told Kharrazi to turn off his

vehicle, but Kharrazi then quickly sped away. Rash testified that at this time

another officer joined the pursuit; Kharrazi refused to stop for either officer.

Rash said that Kharrazi ultimately pulled into the driveway of his mother’s

house, jumped out of the car, and took off running. Rash testified that Kharrazi

resisted multiple officers’ attempts to take him into custody before he was

ultimately apprehended.




      2
      … See Tex. Health & Safety Code Ann. § 481.116 (Vernon 2003).
Kharrazi states in his brief that he offers no points of error with respect to his
conviction for evading arrest or detention using a vehicle. See Tex. Penal Code
Ann. § 38.04 (Vernon 2003).

                                        2
      Arlington Police Officer Brian Hamilton testified that on February 23,

2006, he heard Kharrazi revving his engine and screeching his tires in the

parking lot of Fantasy Ranch—a strip club. Hamilton testified that he witnessed

Kharrazi fail to use his turn signal and travel at a high rate of speed. Hamilton

initiated a traffic stop.     After stopping Kharrazi, Hamilton testified that

Kharrazi’s vehicle smelled of marihuana and that he and a field-training officer

searched Kharrazi’s vehicle and found fifty ecstasy tablets,3 a small amount of

marihuana, and $480.00.

      In separate indictments, the State charged Kharrazi with possession with

intent to deliver a controlled substance and with evading arrest or detention

using a vehicle. The cases were consolidated and heard by the same jury. The

jury found Kharrazi guilty of possession of a controlled substance and of

evading arrest or detention with a vehicle. The jury assessed punishment at

eighteen years’ incarceration and a $10,000 fine for the possession charge and

one year’s incarceration and a $5,000 fine for the evading arrest charge. 4 This

appeal followed.

                                   III. Discussion



      3
       … The ecstasy tablets, methylendioxy methamphetamine, were the basis
of the possession charge.
      4
          … Kharrazi’s sentences will run concurrently.

                                         3
      The basis of all four of Kharrazi’s points is ineffective assistance of

counsel. Specifically, although his overarching complaint is that trial counsel

should have moved to sever his two cases, he contends that he received

ineffective assistance because trial counsel failed to make objections based on

evidence rules 401, 403, and 404(b); lacked a coherent trial strategy; failed to

present more defense testimony on the possession charge; and failed to object

to the State’s closing argument during the punishment phase.5

A. Standard of Review

      We apply a two-pronged test to ineffective assistance of counsel claims.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, an

appellant must show that his counsel’s performance was deficient; second, an

appellant must show the deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

      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. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms


      5
       … Although he alleges that trial counsel made “hundreds of errors,”
these are the errors he specifically lists.

                                       4
at the time of the alleged error. Strickland, 466 U.S. at 688–89, 104 S. Ct. at

2065. “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.”    Id. at 690, 104 S. Ct. at 2066.       An allegation of ineffective

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

affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at

814. Our scrutiny of counsel’s performance must be highly deferential, and

every effort must be made to eliminate the distorting effects of hindsight.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

      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

whose result is reliable. Id. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. at 694, 104 S. Ct. at 2068.       A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding whose result

is being challenged. Id. at 697, 104 S. Ct. at 2070.

B. Analysis




                                        5
      When ineffective assistance is raised on direct appeal, as it has been in

this case, appellate counsel and the court must proceed on a trial record not

developed for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose. 6     Freeman v. State, 125 S.W.3d

505, 506–07 (Tex. Crim. App. 2003). Some claims may be disposed of on

direct appeal where trial counsel’s ineffectiveness is “apparent from the

record.” Massaro v. United States, 538 U.S. 500, 508, 123 S. Ct. 1690,

1696 (2003); Freeman, 125 S.W.3d at 506–07. But such situations are quite

rare. See Freeman, 125 S.W.3d at 506–07.

      Although Kharrazi states that his trial counsel lacked a trial strategy, that

there was “no plausible basis in this case” to subject the jury to the evidence

of evading arrest when trial counsel should have been defending him on the

drug charge, and that “[t]he only possible benefit to trying these cases together

was less work for trial counsel,” from the face of the record, at least one of

Kharrazi’s trial counsel’s strategies in not severing the two cases is obvious:

Kharrazi wanted probation. Before voir dire, the trial court asked if the parties

planned to proceed on both cases and trial counsel replied, “Correct.

[Kharrazi’s] going to file an application for probation. . . . We’ll do that before


      6
       … There was no hearing on Kharrazi’s motions for new trial, and Kharrazi
did not complain about ineffective assistance of counsel in those motions.

                                        6
the jury is seated.”   Trial counsel checked for potential jurors who could

consider probation during voir dire.

      During the punishment phase, Kharrazi himself testified, requesting

probation and drug counseling from the jury and promising that he could obey

the terms and conditions of probation if it were granted to him. He testified

that his current employer knew that he was seeking probation and that “from

what my manager said, they would back me up 100 percent.”             All of his

witnesses during the punishment phase: his former and current employers, a

family friend, and his father, asked the jury to consider probation for him.

      Kharazzi testified that he had never been convicted of any felonies until

this trial. His probation application, signed by Kharrazi and sworn before the

deputy district clerk, dated the same day as voir dire, states: “The Defendant

herein represents that he has never been convicted of a felony in this or any

other state, and asks the Court to submit to the Jury this application for a

probated sentence.”




                                       7
         Evading arrest, Kharrazi’s 2005 charge, is a state jail felony.7 If Kharrazi

had been tried and convicted on this charge first, then he would not have been

eligible for probation when tried for the second, more serious, charge. See Tex.

Code Crim. Proc. Ann. art. 42.12, § 4(e) (Vernon 2008) (stating that a

defendant is eligible for community supervision only if before the trial begins the

defendant files a written sworn motion with the judge that the defendant has

not previously been convicted of a felony in this or any other state, and the jury

enters in the verdict a finding that the information in the defendant’s motion is

true).

         With regard to the evading arrest charge, several officers who were

involved in pursuing and subduing Kharrazi testified; the footage from the initial

pursuing officer’s dashboard camera and from Kharrazi’s interview in the

intoxilyzer room after he was arrested were admitted into evidence and

published to the jury.       With regard to the possession charge, the officer

involved testified that he saw Kharrazi make some traffic violations, which led

him to conduct a traffic stop. The reek of marihuana from Kharrazi’s vehicle led


         7
       … See Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2008); id.
§ 38.04(b)(1) (Vernon 2003). Possession with intent to deliver is a first degree
felony. See Tex. Health & Safety Code Ann. § 481.113(d) (Vernon 2003);
Tex. Penal Code Ann. § 12.32 (Vernon 2003). Possession is a second degree
felony. See Tex. Health & Safety Code Ann. § 481.113(a), (d); Tex. Penal
Code Ann. § 12.33 (Vernon 2003).

                                           8
him to search the vehicle and to discover marihuana and the fifty ecstasy

tablets.   On these facts, we cannot say that Kharrazi received ineffective

assistance of counsel when the only route to get the probation he wanted was

to try the two cases together.8

      Additionally, Kharrazi has failed to establish that had his trial counsel

moved to sever the indictments, the outcome of the proceeding would have

been different. At the beginning of trial, Kharrazi faced both a first-degree

felony and a state jail felony, and he faced the potential stacking of a ninety-

nine year sentence for the first-degree felony with a possible two-year jail

sentence for the state jail felony. Even though Kharrazi claims that “[t]he lack

of a coherent trial strategy is obvious when considering that separate trials

would have exposed [him] to the stacking of a possible life sentence with a




      8
        … Furthermore, where a defendant is faced with multiple pending
indictments, those indictments may be consolidated into a single proceeding
with the express or implied—by failure to object—consent of the defendant.
Garza v. State, 687 S.W.2d 325, 330 (Tex. Crim. App. 1985) (citing Watson
v. State, 488 S.W.2d 816 (Tex. Crim. App. 1972)); Jones v. State, 480
S.W.2d 623, 623 (Tex. Crim. App. 1972). This is true whether the pending
indictments arise “from the same or different transaction[s], [or] are alleged in
separate indictments.” Cervantes v. State, 815 S.W.2d 569, 571 (Tex. Crim.
App. 1991), cert. denied, 502 U.S. 1110 (1992). Here, because Kharrazi failed
to object to consolidation of the indictments, he impliedly consented to the
single proceeding. Although Kharrazi makes a novel argument that the words
“or different transactions” is dicta and does not apply in his case, we need not
address it based on our discussion above. See Tex. R. App. P. 47.1.

                                       9
two-year sentence,” he directs us to no evidence that his punishment of a

concurrent eighteen-year sentence with a one-year sentence would have been

less harsh had he received separate trials for each indictment. See Mitchell v.

State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (“[A] defendant claiming

ineffective assistance of counsel must affirmatively prove prejudice.”). And

because we cannot say from this record that trial counsel was ineffective by

not moving to sever the two cases, we also cannot say that his decision not to

object to the evidence presented in each respective case as extraneous offense

evidence with regard to the other, or to object during the State’s closing

argument on punishment was error.9 We overrule Kharrazi’s four points.

                               IV. Conclusion

      Having overruled all of Kharrazi’s points, we affirm the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH


      9
      … When the record is silent as to counsel’s reason for failing to object,
an appellant fails to rebut the presumption that counsel acted reasonably.
Thompson, 9 S.W.3d at 814.

                                      10
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2009




                              11
