                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00116-CR


BERT LEE DUNCAN                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Following his non-plea-bargained-for plea of guilty and his pleas of true to

repeat offender paragraphs contained in the indictment, a jury sentenced

Appellant Bert Lee Duncan to ninety-nine years’ incarceration for the offense of

driving while intoxicated as a repeat offender.2 In two points, Duncan contends

      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Penal Code Ann. § 49.04, 49.09(b)(2) (West Supp. 2011).
that he received ineffective assistance of counsel because (1) his counsel failed

to timely inform him of the State’s plea offer of forty-five years’ incarceration and

(2) his counsel did not object to the prosecutor’s statement to the jury that they

should consider how parole law would be applied to Duncan’s sentence. We will

affirm.

                                 II. BACKGROUND

       The facts of the underlying offense in this case are not in dispute. Thus,

we will detail those facts that pertain to the outcome of this appeal only. After

Duncan pleaded guilty to the charge and true to the enhancements in the

indictment, the jury found him guilty and sentenced him to ninety-nine years’

incarceration. Afterwards, Duncan filed a motion for new trial. In his motion,

among other arguments, he claimed that there were ―conflicting factual

assertions regarding whether or not [he] received the plea bargain offer prior to

the deadline‖ to accept the State’s offer. Duncan acknowledged that trial counsel

claims that Duncan was informed prior to the deadline.

       At the hearing on the motion for new trial, Duncan did not call trial counsel

to testify to his version of the facts on the issue of whether trial counsel informed

Duncan of the State’s offer.     Related to this appeal and consequently, trial

counsel was also not questioned regarding why he did not object to the

prosecutor’s comment to the jury that Duncan now claims informed them about

the effects of parole laws on Duncan’s punishment.          Duncan, however, did

testify.


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      During questioning, Duncan averred that he should have been told of the

State’s offer ―a lot earlier than‖ he was informed. Duncan did not testify that he

would have taken the State’s offer but only that to him it was ―not right for a man

that [he had] already paid‖ to wait so long in the process to inform him of the

State’s offer, which according to Duncan, was conveyed to him on the Friday

before the Monday trial setting. When asked directly if he would have taken the

State’s offered plea, Duncan responded, ―No. . . . I’m not saying that.‖ But later,

Duncan said that he thought that he was accepting the State’s offer when he

came to trial the following Monday.

      Duncan contradicted himself in testimony when he later said that when the

judge admonished him before he entered his plea of guilty, he understood that

―there was no plea bargain[].‖        The trial court denied Duncan’s motion.

Subsequently, the State offered, and the trial court admitted into evidence, an

affidavit by trial counsel which avers that, ―Early in the case [he] informed []

Duncan that the State’s offer was 45 years.‖ This appeal followed.

                                  III. DISCUSSION

      In two points, Duncan contends that he received ineffective assistance of

counsel. First, Duncan contends that his trial counsel failed to inform him of the

deadline to accept the State’s offer of forty-five years’ incarceration and that

under this court’s holding in Turner v. State, we should reverse his sentence and

remand his case back to the trial court with an instruction to reinstate the State’s

forty-five year plea bargain offer.   49 S.W.3d 461, 470–71 (Tex. App.—Fort


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Worth 2001, pet. dism’d) (reversing sentence and reinstating State’s offer when

counsel failed to communicate offer’s deadline to defendant and defendant

attempted to accept offer after deadline had passed). Second, Duncan contends

that his counsel failed to provide effective assistance of counsel by not objecting

when the prosecutor urged the jury to consider how ―parole laws would be

applied specifically‖ to him.

      A.     The Right to Effective Assistance of Counsel

      To establish ineffective assistance of counsel, the 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. 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).

      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 v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. 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. Salinas


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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). A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. ―In the

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

adequately reflect the motives behind trial counsel’s actions.‖         Salinas, 163

S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). 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.‖ Id. (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.

Crim. App. 2007).

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

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. 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 in which the result is being

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


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      B.    The State’s Offered Plea

      In this case, at the motion-for-new-trial hearing, Duncan’s testimony

establishes that at best he was willing to consider the offer of forty-five years.

Duncan’s testimony was that he wanted less time.         On numerous occasions

during his testimony, Duncan made it clear that he thought forty-five years was

too much time to consider in a plea. And when asked directly whether he was

saying that he would have taken the forty-five year deal, Duncan responded,

―No. . . . I’m not saying that.‖ Duncan also contradicted himself during testimony

when at one point he said he believed he was accepting the State’s offer but later

acknowledged that there was no plea bargain in place when he entered his plea.

      Duncan relies on this court’s decision in Turner for the proposition that

whenever trial counsel fails to communicate to a defendant a deadline on a

State’s plea offer, a conviction should be reversed and the State’s offer should be

reinstated. 49 S.W.3d at 470–71. But Duncan’s reliance on Turner is misplaced,

because unlike in Turner, there is no evidence here that Duncan attempted to

accept the State’s offer at any time prior to the hearing on his motion for new

trial. See id.; see also Paz v. State, 28 S.W.3d 674, 676 (Tex. App.—Corpus

Christi 2000, no pet.) (reinstating offer when counsel failed to inform defendant of

offer and defendant said he would have accepted offer).

      Given Duncan’s own testimony, we conclude and hold that there is

insufficient evidence to undermine the confidence in the outcome of the trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, there is no


                                         6
evidence that the outcome of the trial would have been different, and Duncan

fails to satisfy the second prong of Strickland. See Sheehan v. State, No. 02-02-

00401-CR, at *3, 2003 WL 22253865 (Tex. App.—Fort Worth Oct. 02, 2003, pet.

ref’d, cert. denied, 543 U.S. 935 (2004)) (not designated for publication) (holding

that trial counsel’s failure to communicate to defendant conditional plea bargain

offers made by state was not ineffective assistance of counsel where defendant’s

own testimony at hearing on his motion for new trial established only that he was

willing to consider a plea, not that he would have accepted the conditions of the

offer); see also Ex parte Lemke, 13 S.W.3d 791, 796–98 (Tex. Crim. App. 2000)

(ruling that prejudice prong of Strickland was satisfied by evidence that defendant

would have accepted the plea bargain offer had it been communicated by

counsel). We overrule Duncan’s first point.

      C.    Trial Counsel’s Lack of Objection

      During the punishment phase, the prosecutor argued in front of the jury

that Duncan is ―going to get out of prison at some point, and I’m going to talk to

you about that. He’s going to get out of prison at some point . . . .‖ Trial counsel

did not object to this remark.      Duncan claims that this statement by the

prosecutor violated Texas Code of Criminal Procedure article 37.07, which states

that a jury is ―not to consider the extent to which good conduct time may be

awarded to or forfeited by this particular defendant.‖ Tex. Code Crim. Proc. Ann.

art. 37.07 (West Supp. 2011). Thus, according to Duncan, trial counsel’s failure

to object to the prosecutor’s statement constituted ineffective assistance of


                                         7
counsel.   We will assume without deciding that the prosecutor’s comment is

prohibited by article 37.07.3

      Generally, an isolated failure to object to certain procedural mistakes or

improper evidence does not constitute ineffective assistance of counsel. See

Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); see also

Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (stating that an

ineffective assistance claim must ―be firmly founded in the record‖), cert. denied,

543 U.S. 1059 (2005). And, generally, when the record is silent as to counsel’s

reason for failing to object, the appellant fails to rebut the presumption that

counsel acted reasonably. Thompson, 9 S.W.3d at 814. That is, where, as in

this case, there is no record relative to counsel’s decisions and actions, an

allegation of ineffective assistance can often lie beyond effective appellate

review. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.]

2000, pet. ref’d). Thus, we cannot determine that Duncan was denied effective

assistance of counsel. Duncan has a more appropriate remedy in seeking a writ

of habeas corpus to allow him the opportunity to develop evidence to support his

complaint. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000)

(noting that a postconviction writ proceeding is the preferred method for



      3
       We note that under article 37.07, it is permissible for a jury to consider the
existence of parole law and good conduct time. Tex. Code Crim. Proc. Ann. art.
37.07. But article 37.07 prohibits a jury from considering how those laws affect
the particular defendant on trial. Id.


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gathering the facts necessary to substantiate an ineffective assistance of counsel

claim). We therefore overrule Duncan’s second point.

                                IV. CONCLUSION

      Having overruled both of Duncan’s points, we affirm the trial court’s

judgment.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

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

DELIVERED: December 22, 2011




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