Opinion issued February 19, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00210-CR
                          ———————————
                   WALTER EARL TAYLOR, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 56th District Court
                         Galveston County, Texas
                      Trial Court Case No. 10CR1215


                        OPINION ON REHEARING

      On September 3, 2014, this Court granted rehearing in this case and

withdrew our judgment and opinion of November 29, 2012. We now issue this

opinion and accompanying judgment in their stead.
      A jury convicted appellant of possession of cocaine weighing between four

and 200 grams.1 Appellant pleaded true to two enhancements that alleged prior

felony convictions, and the jury assessed punishment at 25 years’ confinement.2 In

four issues on appeal, appellant contends that (1) he received ineffective assistance

of counsel at trial; (2) the trial court submitted the wrong range of punishment to

the jury; (3) the evidence was insufficient to prove one of the alleged

enhancements; and (4) the trial court erred by refusing appellant access to the juror

information cards. We affirm.

  USE OF NON-AGGRAVATED STATE JAIL FELONY PUNISHED AS
SECOND DEGREE FELONY TO ENHANCE SECOND DEGREE FELONY

      Appellant pleaded true in the present case to two felony enhancement

paragraphs. One of the enhancements—cause no. 09CR0724—a conviction for

possession of cocaine, was described in the judgment as a second degree felony,

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D) (providing that cocaine
      is penalty group one substance), 481.115(a),(d) (providing that possession of a
      penalty group one substance in an amount between four and 200 grams is a second
      degree felony) (Vernon 2010).


2
      See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 2011) (providing range of
      punishment between 25 and 99 years for felony conviction enhanced by two prior
      felony convictions).




                                         2
and assessed a punishment at two years’ confinement. Appellant argues that cause

number 09CR0724 was a non-aggravated state jail felony conviction, which cannot

be used to enhance his present second degree felony charge. Thus, in three related

issues on appeal, appellant contends that (1) his counsel was ineffective for failing

to object to the erroneous enhancement; (2) the trial court submitted the wrong

range of punishment; and (3) the evidence was insufficient to prove that appellant

was a habitual offender.

      Determining the merits of appellant’s complaint requires that we examine

the application and interaction of the enhancement statutes involved. 3             In

interpreting a statute, courts look to the literal text of the statute for its meaning

and ordinarily give effect to that plain meaning, unless application of the statute’s

plain language would lead to absurd consequences that the legislature could not

possibly have intended, or the plain language is ambiguous. Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991); State v. Webb, 12 S.W.3d 808, 811 (Tex.

Crim. App. 2000).




3
      The statutes involved in this decision were revised and reorganized in 2011, with
      an effective date of September 1, 2011. See Act of May 25, 2011, 82nd Leg.,
      R.S., ch. 834, §§ 7–8, 2011 Tex. Gen. Laws 2104, 2104. Because this offense
      occurred on April 21, 2011, we apply the prior versions of these statutes. Id.

                                          3
      Former Penal Code sections 12.42(d)4 & (e)5 are the statutes under which the

present second degree felony was enhanced and provide in relevant part as follows:

      (d) [I]f it is shown on the trial of a felony offense other than a state jail
      felony punishable under Section 12.35(a) that the defendant has
      previously been finally convicted of two felony offenses, and the
      second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on
      conviction he shall be punished by imprisonment in the Texas
      Department of Criminal justice for life, or for any term of not more
      than 99 years or less than 25 years.

      (e) A previous conviction for a state jail felony punished under
      Section 12.35(a) may not be used for enhancement purposes under
      Subsections (b), (c), or (d). (Emphasis added).

Thus, the question this Court must decide is whether cause no. 09CR0724 is a

“state jail felony punished under Section 12.35(a).” See TEX. PENAL CODE ANN. §

12.35(a) (Vernon 2011) (defining punishment range for non-aggravated state jail

felony).   If it is a “state jail felony punished under Section 12.35(a),” it was

improper to use it to enhance appellant’s present felony conviction.

      Cause no. 09CR0724 is a conviction for possession of less than 1 gram of

cocaine, which is generally a state jail felony. See TEX. HEALTH & SAFETY CODE

4
      Act of May 11, 2009, 81st Leg., R.S., ch. 87, § 25.150, 2009 Tex. Gen. Laws 208,
      373, amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 4, 2001 Tex.
      Gen Laws 2104, 2105 (current version at TEX. PENAL CODE ANN. § 12.42(d)
      (Vernon 2011)).
5
      Act of May 24, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734,
      2734–35, repealed by Act of May 25, 2011, 82nd Leg. R.S., ch. 834, §6, 2011
      Tex. Gen. Laws 2104, 2105 (current version at TEX. PENAL CODE ANN. § 12.42(d)
      (Vernon 2011)).
                                           4
ANN. §§ 481.102(3)(d), 481.115(b) (Vernon 2010). Such non-aggravated state jail

felonies are generally punished by a term of confinement in a state jail for a period

of 180 days to 2 years. See TEX. PENAL CODE ANN. § 12.35(a) (Vernon 2011). As

such, it would be improper to use a non-aggravated state jail felony to enhance a

felony conviction. See former TEX. PENAL CODE ANN. § 12.42(e) (Act of May 24,

1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2734–35 (repealed

2011)).

      However, the indictment in cause no. 09CR0724 also alleged two prior

felony enhancements, so its punishment was elevated to a second-degree felony

pursuant to former Penal Code article 12.42(a)(2), which provides:

      If it is shown on the trial of a state jail felony punishable under
      Section 12.35(a) that the defendant has previously been finally
      convicted of two felonies, and the second previous felony conviction
      is an offense that occurred subsequent to the first previous conviction
      having become final, on conviction the defendant shall be punished
      for a second-degree felony.

Act of May 24, 1995, 74th Leg. R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734,

2734–35, amended by Act of May 25, 2011, 82nd Leg., R.S. ch 834, § 2, 2011

Tex. Gen. Laws 2104, 2104         (current version at TEX. PENAL CODE ANN. §

12.425(b) (Vernon 2011)).

      Appellant argues that, even though cause no. 09CR0724 was ultimately

punished as a second degree felony, we should look to the crime charged—a non-

aggravated state jail felony punishable under section 12.35(a)—to determine
                                         5
whether the conviction can be used to enhance a subsequent felony conviction.

The State responds that, because of the felony enhancements, cause no. 09CR0724

was not punished under section 12.35(a), but was punished only under former

section 12.42(a)(2).

      The Texas Court of Criminal Appeals recently considered this issue in

Samaripas v. State, No. PD-135-13, ___S.W.3d___, 2014 WL 5247434 (Tex.

Crim. App. Oct. 15, 2014). In Samaripas, the defendant was charged with a third-

degree felony. Id. at *5. The State alleged two prior felony convictions, one a

non-aggravated state jail felony that had been enhanced to a second degree felony.

Id. On appeal, the defendant argued, like appellant does here, that although the

punishment for the underlying offense had been enhanced, that did not enhance the

level of the underlying offense, and therefore, it should have not been available to

enhance his current offense. Id. at 6. The court of appeals rejected Samaripas’s

argument, noting that “[p]unishing a defendant more severely after repeated

behavior that has escalated beyond the level of an unenhanced state jail felony

offense is neither absurd, nor is its application[,]” and that “[h]ad the Legislature

intended to exclude state jail felonies that received enhanced punishment under

section 12.42(a)(2) from being used for enhancement, it would have done so.”

Samaripas v. State, No. 13-11-00442-CR, (Tex. App—Corpus Christi 2013), aff’d

in part, rev’d in part on other grounds, Samaripas v. State, 446 S.W.3d 1, 13 (Tex.

                                         6
Crim. App. Oct. 15, 2014). The Court of Criminal Appeals agreed, stating as

follows:

      We agree with the court of appeals that the plain language of the
      statute makes it clear that, at the time of Appellant’s offense, Section
      12.42(e) focused on how the previous state-jail felony was actually
      punished and precluded from use for enhancement only those state-
      jail felonies that had not been punished under the range of a higher
      felony. Here, [Samaripas] was not punished under Section 12.35(a).
      His prior state-jail felony had been enhanced, and he was punished for
      that offense under Section 12.42(a)(2). Therefore, the prior offense
      was properly used for enhancement purposes, and the court of appeals
      did not err in overruling this issue.

Samaripas, 2014 WL 5247434, at *6.

      As Samaripas makes clear, we must look at how the underlying offense was

actually punished to determine whether it was proper to use it to enhance the

current, charged offense. Like the underlying offense in Samaripas, here the

underlying non-aggravated state jail felony had been enhanced, and appellant was

punished for that offense under section 12.42(a)(2).         Because the underlying

offense was not punished under 12.35(a), the State was not precluded by section

12.42(e) from using that underlying offense for enhancement of the charged

offense.6


6
      We note that the legislature repealed 12.42(e) and recodified it in 12.42(d) which
      now provides that “A previous conviction for a state jail felony punishable under
      Section 12.35(a) may not be used for enhancement purposes under this
      subsection.” TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2013) (emphasis
      added). The legislature has changed the word used in the exclusion from
      “punished” to “punishable.” This is a “significant” distinction because enhanced
                                          7
      Accordingly, we overrule points of error two and three and the portion of

appellant’s ineffective assistance of counsel claim that is based on the same

argument.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      In the remaining issues raised in appellant’s first point of error, he contends

the trial court erred in denying his motion for new trial, which was based on

allegations of ineffective assistance of counsel.

Standard of Review and Applicable Law

      We review the trial court’s denial of a motion for new trial for abuse of

discretion. See State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007).

Therefore, “when analyzing the trial court’s failure to grant a motion for new trial

on the basis of ineffective assistance of counsel, we view the relevant legal

standards through the prism of abuse of discretion.” Ramirez v. State, 301 S.W.3d

410, 415 (Tex. App.—Austin 2009, no pet.) (citing State v. Gill, 967 S.W.2d 540,

542 (Tex. App.—Austin 1998, pet. ref’d)). A trial court abuses its discretion only

when no reasonable view of the record would support the trial court’s ruling.

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).


      non-aggravated state jail felonies could be used for felony enhancement under
      former 12.42(e) before the amendment, but now cannot. Samaripas, 2014 WL
      5247434 at *6 n.5. “Had [appellant] committed the current offense after this
      amendment, it would not have been proper for his prior state-jail felony to be used
      for enhancement.” Id.

                                           8
      Appellant has the duty to bring forth a record that affirmatively demonstrates

the alleged ineffectiveness of his counsel by a preponderance of the evidence. See

Scheanette v. State, 144 S.W.3d 503, 509–10 (Tex. Crim. App. 2004). In order to

prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the

two-prong test set out in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986) (adopting Strickland standard for claims of ineffective assistance of

counsel). Under Strickland, a defendant must show (1) that the counsel’s

performance was deficient and (2) that the defendant was prejudiced by the

deficient performance. 466 U.S. at 687. Counsel’s performance is deficient when it

falls “below an objective standard of reasonableness” based upon “prevailing

professional norms.” Strickland, at 669, 688; see also Perez v. State, 310 S.W.3d

890, 893 (Tex. Crim. App. 2010). An accused is not entitled to errorless or perfect

counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

Therefore, counsel’s effectiveness is assessed from the perspective at trial,

“without the distorting effects of hindsight.” Goodspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005). Our review of counsel’s performance must be highly

deferential. Strickland, 466 U.S. at 689. We presume that counsel makes all

significant decisions in the exercise of reasonable judgment. Id.




                                          9
Failure to Impeach with Inconsistent Evidence

      When appellant’s house was searched pursuant to a “no knock” warrant,

Officers found a safe in the living room that contained crack cocaine and a large

amount of money.       At trial, Officer Vela testified that appellant had claimed

ownership of the safe. However, another officer, Officer Roark, had filed an

affidavit in a civil forfeiture case arising from the same offense in which he

averred, “Ofc. Vela asked Mr. Golliday about the safe at which time he again

advised the safe did not belong to him. Officer Vela then asked appellant about the

safe. Mr. Taylor stated to Officer Vela that the safe did not belong to him even

though it was found in his house in the living room.” Appellant contends that trial

counsel was ineffective for failing to impeach Officer Vela with the statements

from Officer Roark’s affidavit.7 Specifically, appellant argues that “[t]he only

testimony linking Mr. Taylor to the safe came from Officer Vela.”

      The State responds that even if trial counsel was deficient for failing to

question Vela about Roark’s affidavit, appellant cannot show that the outcome of

the trial would have been different had she done so. We agree. The State did not

7
      At the hearing on the motion for new trial, it was appellant’s position that Roark
      had committed perjury by testifying at trial that appellant admitted owning the
      safe, and testifying to the contrary in his affidavit in support of the forfeiture
      proceeding. However, on review of the transcript from the trial, which was
      apparently not yet available at the time of the motion for new trial hearing, it is
      clear that Officer Vela, not Roark, testified at trial about appellant’s admission that
      he owned the safe. Thus, there was never an issue of perjured testimony, but, at
      most, a conflict between the two officers’ testimonies.
                                            10
have the burden of proving that appellant owned the safe; it had only to prove that

appellant had care, custody, control, or management of the drugs.          See TEX.

HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon 2010) (defining

“possession”).

      Here, there was overwhelming evidence linking appellant to the drugs. The

police conducted surveillance of Taylor’s house and saw several people go in and

leave within just a few minutes. This, the officers testified, was consistent with

drug dealing. The officers then stopped one of the men that had been seen entering

appellant’s house and then leaving a short time later. The man had cocaine, and

the officers believed that he had gotten the cocaine from appellant.

      The officers then got a warrant and searched appellant’s house. A man,

Golliday, was on the couch in the living room. He was under the influence and

had a cigar dipped in narcotics in his hand. Appellant was found in his bedroom.

Appellant, too, was under the influence of drugs. The officers also found drug

paraphernalia in appellant’s bedroom.

      In the living room, the officers also found a small safe. Golliday said the

safe was not his and he did not have the key. However, he did tell the officers

where the key was located. Inside the safe, the officers found more than cocaine

and $285 in cash. The officers found mail with appellant’s name on it indicating

that he lived in the house. They found nothing to indicate that Golliday lived in the

                                         11
house. This evidence affirmatively linked appellant to the drugs. See Evans v.

State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing factors that may

be considered as affirmatively linking defendant to narcotics). Whether appellant

actually owned the safe is just one of many factors to be considered in determining

appellant’s link to the drugs.

      In light of the substantial amount of other evidence linking appellant to the

drugs, appellant cannot meet the prejudice prong of the Strickland test. See Dennis

v. State, 151 S.W.3d 745, 752 (Tex. App.—Amarillo 2004, pet. ref’d) (holding

overwhelming evidence of appellant’s guilt negated reasonable probability that

outcome would have been different but for counsel’s alleged deficient

performance).

Failure to Question Officers Regarding “No Knock” Warrant

      Appellant also argues that trial counsel was deficient for failing to question

the officers about the necessity of a “no knock” warrant. Specifically, the affidavit

in support of the warrant alleged that “there were several handguns inside the

residence,” but no weapons were found when the house was searched.

      At the motion for new trial hearing, trial counsel testified that she was

extremely cautious when questioning the officers about the warrant because she

did not want to inadvertently “open the door” to the admission of appellant’s many

prior convictions. Trial counsel also testified that it was a part of her trial strategy

                                          12
to keep appellant’s prior convictions out of evidence, and the trial court had

warned her that if she continued in her questioning regarding the necessity of a “no

knock” warrant, those priors might come in.

      To establish deficient performance under the first prong, a defendant must

show that no reasonable trial strategy could justify counsel’s conduct. See

Strickland, 466 U.S. at 689; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.

App. 2005).     In light of trial counsel’s reasonably articulated trial strategy

regarding her decision not to question the officers further about the “no knock”

warrant, appellant fails to meet the first prong of the Strickland test.

      We overrule appellant’s first point of error.

                ACCESS TO JUROR INFORMATION CARDS

      In issue four, appellant contends that the trial court abused its discretion by

failing to allow his counsel access to juror information cards.            Specifically,

appellant contends that (1) two jurors were not registered to vote, so they might not

have been qualified to serve as jurors, and (2) he wanted to explore whether he

could raise a Batson challenge.

Standard of Review and Applicable Law

      A trial court abuses its discretion when it acts without reference to any

guiding rules and principles, or it acts in an arbitrary or capricious manner.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (citations

                                           13
omitted). A trial court does not abuse its discretion if its ruling is at least within the

zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex.

Crim. App. 2001); Montgomery, 810 S.W.2d at 391 (op. on reh’g).

      By its terms, article 35.29 of the Texas Code of Criminal Procedure protects

juror personal information. See TEX.CODE CRIM. PROC. ANN. art. 35.29 (Vernon

Supp. 2014). When a defendant files a post-trial motion seeking discovery of

jurors’ personal information, “[h]e is not entitled to such information unless he

shows good cause.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)

(citing TEX. CODE CRIM. PROC. ANN. art. 35.29); see Cyr v. State, 308 S.W.3d 19,

29 (Tex. App.—San Antonio 2009, no pet.) (stating that article 35.29 “prohibits

personal information about jurors from being disclosed after trial unless good

cause is shown”). “What constitutes good cause must be based upon more than a

mere possibility that jury misconduct might have occurred; it must have a firm

foundation.” Id. at 30; Esparza v. State, 31 S.W.3d 338, 340 (Tex. App.—San

Antonio 2000, no pet.) (stating that “[w]hat constitutes good cause must

necessarily be based upon more than a mere possibility that jury misconduct might

have occurred”).

      In Hooker v. State, the appellate court stated that article 35.29’s good-cause

showing “must be based upon sworn testimony or other sufficient supportive

evidence in the record.” 932 S.W.2d 712, 716 (Tex. App.—Beaumont 1996, no

                                           14
pet.); see Valle, 109 S.W.3d at 509 (stating that appellant’s allegation “that he

needed [the jurors’] personal information to determine whether he should file a

motion for new trial . . . is not sufficient to establish good cause”), see also

Castellano v. State, No. 04–06–00524–CR, 2007 WL 2935399, at *3 (Tex. App.—

San Antonio Oct. 10, 2007, no pet.) (mem. op., not designated for publication)

(holding that defendant had “reason to believe” juror misconduct had occurred was

not sufficient to show good cause).

Analysis

      In this case, appellant argued that he needed the juror information cards (1)

to determine whether two jurors, who were not registered voters, were qualified to

serve, and (2) to explore whether he could raise a Batson challenge. Regarding the

first issue, the trial court properly noted, “There, of course, is no requirement that a

Juror be a registered voter. So, there’s only a requirement that a Juror be qualified

and, in fact, expressly does not have to be registered[.]” See TEX. CODE CRIM.

PROC. ANN. art. 33.02 (Vernon 2006) (“Failure to register to vote shall not

disqualify any person from jury service.”). There is nothing in the record to

support appellant’s assertion that the jurors “might” have been disqualified.

Regarding the second issue, again, there is nothing in the record to support

appellant’s claim that he needed the cards “to determine if there was a basis for

Batson challenge.”

                                          15
       Appellant essentially argues that he needed the information cards “to present

a motion for new trial to develop issues that were outside the record, namely, to

determine if two people who served on the jury were qualified to serve, to review

all the challenges for cause, and to determine if there was a basis for a Batson

challenge.” However, requesting juror cards to decide whether there is a basis for

filing a motion for new trial is not a showing of good cause. Valle, 109 S.W.3d at

509.

       Because appellant did not meet his burden of showing good cause to the trial

court so as to be entitled to the juror information sought, the trial court did not

abuse its discretion by denying appellant’s request.

       We overrule appellant’s fourth point of error.

                                  CONCLUSION

       We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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