Affirmed and Memorandum Opinion filed May 22, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00958-CR

                      ALBERT L. THOMPSON, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1297642

                  MEMORANDUM OPINION
      Appellant Albert Thompson appeals his felony conviction of aggravated
robbery, for which he was sentenced to forty years’ imprisonment and fined
$10,000. The trial court also assessed $244 in court costs. Appellant asserts he
received ineffective assistance of counsel at trial and there is insufficient evidence
to support the trial court’s assessment of court costs. We affirm.
                                   BACKGROUND

      Appellant was charged with aggravated robbery, to which he pleaded not
guilty. The record reflects that appellant entered a bank wearing a chauffeur’s hat
and sunglasses, approached a teller, placed a firearm on the counter, and threatened
to shoot the teller if she did not give him all of her money. The teller complied.
Appellant then demanded more money from a second teller. Because the second
teller did not have cash at her station, the two tellers went to a back room, retrieved
more money, and placed a red dye pack in between the stacks of bills. Appellant
exited the premises with roughly $23,000 in a brown paper bag. The tellers
observed the dye packs explode in appellant’s vehicle as he drove away.

      During an investigation, the first teller identified appellant from a
photographic lineup as the person who robbed the bank. Investigating officers
believed that appellant’s description also matched the description of a suspect
involved in several other bank robberies in the area. Three witnesses at the other
banks also identified appellant as the person who committed those robberies.

      A patrol officer saw a vehicle that appellant was driving several weeks later,
learned the vehicle was stolen, and pursued the vehicle. Appellant ultimately
crashed the vehicle and was apprehended. In the vehicle were a chauffeur’s hat, a
brown paper bag, over $9,000 in stained cash, and a firearm that had red stains on
it consistent with the dye from the dye pack. A seat in the vehicle had a stain that
matched the dye from the dye pack.

      Appellant’s trial counsel developed a defensive theory of intoxication based
on the side effects of the prescription drug Xanax. In support of this claim,
appellant’s trial counsel elicited testimony from a doctor about appellant’s Xanax
prescription. On cross examination, the doctor testified that the side effects of
Xanax include low energy, change in appetite, nausea, dry mouth, and yellowing
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of the eyes, but most commonly drowsiness.

        Appellant testified that he had used Xanax for several months up to and
including the day of the robbery. However, appellant testified that he did not
experience any of the side effects listed by the doctor and that he was not
intoxicated at the time of the offense. Rather, appellant denied committing the
offense as charged in the indictment. Because appellant’s testimony raised the
question of identity, the State offered evidence of the other bank robberies in
rebuttal.

                                      ANALYSIS

   I.       Ineffective Assistance of Counsel

        In his first issue, appellant asserts he received ineffective assistance of
counsel at trial. In support of this claim, he points to (1) counsel’s choice to
advance a defensive theory of intoxication; (2) counsel’s failure to object to the
trial court’s explanation of the crime to the jury during voir dire; (3) counsel’s
discussion of reasonable doubt during voir dire; and (4) counsel’s closing argument
which allegedly conceded appellant’s guilt.

        An accused is entitled to reasonably effective assistance of counsel. See U.S.
CONST. amend. VI; TEX. CONST. art. 1, § 10; Strickland v. Washington, 466 U.S.
668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
To prevail on a claim of ineffective assistance of counsel, appellant must prove by
a preponderance of the evidence that (1) counsel’s representation fell below an
objective standard of reasonableness under the prevailing professional norms, and
(2) there is a reasonable probability that, absent counsel’s deficient performance,
the outcome of the trial would have been different. Strickland, 466 U.S. at 689;
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).


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      When evaluating a claim of ineffective assistance, a reviewing court
considers the totality of the representation and the circumstances of each case,
without the benefit of hindsight. Lopez, 343 S.W.3d at 143. An appellate court
must make a strong presumption that trial counsel’s performance fell within the
wide range of reasonably professional assistance. Id. at 142. It is not sufficient that
an appellant show, with the benefit of hindsight, that his counsel’s actions or
omissions during trial were merely of questionable competence. Id. at 142-43.

      For an appellate court to find that counsel was ineffective, trial counsel’s
deficiency must be affirmatively demonstrated in the trial record. Id. at 142.The
record must demonstrate that trial counsel’s performance fell below an objective
standard of reasonableness as a matter of law, and that no reasonable trial strategy
could justify trial counsel’s acts or omissions, regardless of trial counsel’s
subjective reasoning. Id. at 143.

      When such direct evidence is not available, we will assume that trial counsel
had a strategy if any reasonably sound strategic motivation can be imagined. Id.
Absent direct evidence, an appellate court should not find ineffective assistance of
counsel unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005).

   A. Trial Counsel’s Decision to Advance a Defensive Theory of Intoxication

      Appellant claims that his trial counsel was ineffective for arguing and
developing a defensive theory of intoxication, arguing the theory was inapplicable
to the facts of his case. This record comes to us on direct appeal without direct
evidence of the reasons trial counsel had for arguing and developing this defensive
theory. Therefore, for there to be ineffective assistance of counsel, the record must
demonstrate that no reasonable trial strategy could justify counsel’s arguing and

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developing the defensive theory of intoxication, regardless of counsel’s subjective
reasoning. Lopez, 343 S.W.3d at 143.

      Trial counsel’s presentation of appellant’s prescription drug use could have
been part of a reasonable trial strategy trying to raise reasonable doubt as to the
mens rea element of the charged offense. See Tex. Penal Code § 6.02; see also
Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) (holding that an
insanity defense under § 8.01(a) is not available to a defendant who argues semi-
consciousness due to involuntary intoxication, but that defendant may nonetheless
argue lack of mens rea necessary to establish criminal liability under §§ 6.01 and
6.02). Appellant provides no authority to support a general proposition that this
strategy amounts to ineffective assistance of trial counsel. We conclude that a
reasonable trial strategy could justify trial counsel’s conduct in arguing and
developing the defensive theory of intoxication. Therefore, the record is
insufficient to show that this conduct constitutes ineffective assistance of counsel.
See Lopez, 343 S.W.3d at 143; Garza v. State, 213 S.W.3d 338, 347–48 (Tex.
Crim. App. 2007).

   B. Trial Counsel’s Failure to Object to Court’s Comments and Counsel’s
      Discussion of Reasonable Doubt During Voir Dire

      During voir dire, the trial court explained the elements of aggravated
robbery to the venire panel, drawing the panel’s attention to the words “threat” and
“imminent.” See Tex. Penal Code § 29.03. The court discussed the terms, telling
the panel that, “the threat does not have to be an oral threat” and, “[the State] only
has to prove one or the other, imminent bodily injury or in fear of death.”
Concluding its statements, the court specified that, “none of those words will be
defined for you. So, you should go with whatever [threat and imminent] means to
you.” Later, the court told the venire panel, “aggravated robbery is one of the

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simple areas of criminal law, not like murder with self-defense and defense of third
person. . . . This is pretty straightforward. Either the defendant did it, or he didn’t.”
Trial counsel did not make any objections to the court’s explanations.

       Appellant contends that trial counsel’s failure to object was ineffective
assistance of counsel that altered the outcome of the trial because the trial court’s
definition of commonly used, statutorily undefined terms may amount to improper
comment on the weight of the evidence. See Kirsch v. State, 357 S.W.3d 645, 651–
52 (Tex. Crim. App. 2012) (holding that a court’s inclusion of a non-statutory
definition of ‘operate’ in a written jury charge usurped the jury’s fact-finding
power). Additionally, appellant argues that the trial court’s explanation of
aggravated robbery—that he “did it, or he didn’t”—precluded the jury from
considering trial counsel’s affirmative defense of involuntary intoxication.

       Appellant also contends that the following comments of his trial counsel
during voir dire constitute ineffective assistance by reducing the State’s burden of
proof at trial:

       Now, I’m not saying—and the State will argue this. I’m not saying
       that you find beyond a reasonable doubt all the facts that you think
       you need to prove the case, except there are still controvers[ies] on
       whether the person that you are examining was wearing a green shirt
       or red shirt. That’s not the kind of thing I’m thinking, you know, I
       really should use notes more; I should do this earlier in the afternoon,
       one of the two.

       The record reflects that counsel subsequently clarified his comments to the
venire panel, stating that, “[t]he standard of beyond a reasonable doubt is a higher
standard than the standard of clear and convincing evidence,” and later, “ . . . I
don’t want to put reasonable doubt in terms of a percentage, whether it’s one
hundred or what, because nothing in the world is perfect. I’m just saying it’s a very
high standard compared to standards in other courts.”

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      This record comes to us on direct appeal without direct evidence of the
reasons trial counsel had for failing to object to the trial court’s comments during
voir dire or for trial counsel’s comments about the State’s burden of proof.
Therefore, the record must demonstrate that no reasonable trial strategy could
justify counsel’s conduct for there to be ineffective assistance of counsel. See
Lopez, 343 S.W.3d at 143. Trial counsel’s failure to object to the trial court’s
comments during voir dire could have been part of a reasonable trial strategy. See
Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d) (determining that trial counsel’s failure to object to hearsay testimony
constituted a plausible trial strategy designed to persuade the jury with his
appearance of candor and confidence that the evidence was not harmful). Likewise,
trial counsel’s statements during voir dire could have been part of a reasonable trial
strategy. Id. Therefore, we conclude the record is insufficient to show that
counsel’s conduct in either regard constitutes ineffective assistance of counsel. See
Lopez, 343 S.W.3d at 143.

      Even if direct evidence of trial counsel’s reasons appeared in the record, we
would nonetheless conclude that appellant has not met the second prong for
establishing ineffective assistance of counsel. Absent evidence to the contrary, a
jury is presumed to follow the instructions in the court’s charge. McCook v. State,
402 S.W.3d 47, 53 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Appellant
does not challenge the jury charge, which instructs the jury on the beyond-a-
reasonable-doubt burden of proof. Thus, appellant has not demonstrated a
reasonable probability that, absent his deficient performance, the outcome of the
trial would have been different. See Lopez, 343 S.W.3d at 142.

   C. Trial Counsel’s Closing Argument

      At closing argument, trial counsel told the jury that “something changed in

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[appellant’s] behavior. I don’t know exactly what that might have been, but you
heard testimony from at least one witness that he was the person who robbed the
bank on February 19, 2011, after he had somehow lost a job at Beck & Masten and
was not working at a car dealership anymore.” He further argued that “[all] of
these robberies that have been put before you occurred in a one-month period,
between November 10 and February 19, two months out of a lifetime of Albert
Thompson. Two months when something was changed in his life very dramatic.”
Appellant now argues that his trial counsel’s closing argument admitted his guilt
and rendered ineffective assistance.

      In the context of closing argument, deference to trial counsel’s decisions is
particularly important because of the broad range of legitimate defense strategy at
that stage. Yarborough v. Gentry, 540 U.S. 1, 6 (2003). For example, courts have
recognized that an admission of guilt during closing argument may be a reasonable
trial strategy. See Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992);
Belton v. State, 900 S.W.2d 886, 901 (Tex. App.—El Paso 1995, pet. ref’d);
Jordan v. State, 859 S.W.2d 418, 422 (Tex. App.—Houston [1st Dist.] 1993, no
pet.). Trial counsel’s argument in this case could have been part of a reasonable
trial strategy to appear open and honest to the jury in an attempt to gain sympathy
or to mitigate punishment. See Thompson, 915 S.W.2d at 902–04; Turner v. State,
932 S.W.2d 622, 626 (Tex. App.—Houston [14th Dist.] 1996, no pet.). We
conclude that a reasonable trial strategy could justify trial counsel’s argument;
therefore, the record is insufficient to show that counsel’s conduct in closing
argument constitutes ineffective assistance of counsel. See Lopez, 343 S.W.3d at
143; Thompson, 915 S.W.2d at 902–04; Turner, 932 S.W.2d at 626.

      Having concluded that appellant fails to establish both elements of a
successful ineffective assistance claim with respect to any of the above instances of

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trial counsel’s conduct, we overrule appellant’s first issue. Id.



   II.      Trial Court’s Assessment of Costs

         In his second issue, appellant contends the court costs stated by the judgment
are not supported by sufficient evidence. As part of its judgment, the trial court
assessed costs of $244 to be paid by appellant. The original clerk’s record
contained a computer screen printout from the Harris County Justice Information
Management System (JIMS) which reflected the assessment of $244 in court costs.
About two months after the trial court’s judgment, the JIMS printout was signed by
a deputy clerk and stamped with the seal of the Harris County District Clerk,
certifying the printout as a true and correct copy of the original. About one month
after appellant filed his brief in this case, the district clerk filed a supplemental
clerk’s record containing a “Criminal Bill of Cost,” which has the same
information about court costs as the JIMS printout. Appellant objects to the JIMS
computer screen printout and the supplemental “Criminal Bill of Cost,” asserting
there is no evidence to support that they were part of the original record before the
trial court, and, therefore, they are no evidence to support the imposition of court
costs.

         The Court of Criminal Appeals recently rejected appellant’s argument,
determining that, for the trial court to properly order a criminal defendant to pay a
specific amount of costs, there need not have been evidence in the record before
the trial court at the time of its judgment that supports the assessment of this
amount of court costs. See Johnson v. State, 423 S.W.3d 385, 390, 392–94 (Tex.
Crim. App. 2014). Because court costs are not part of the defendant’s guilt or
sentence and need not be proven at trial, courts should review the assessment of
costs to determine if there is a basis for the costs, not to determine if there is
                                            9
sufficient evidence to support the assessment of costs. See id. at 389–90. The Court
of Criminal Appeals also held that a JIMS printout substantially similar to the
printout in the original clerk’s record in this case was a proper bill of costs that
supported the trial court’s assessment of costs. See id. at 392–94. Under the
Johnson precedent, either the JIMS printout or the Criminal Bill of Cost provides a
sufficient basis for the trial court’s assessment of court costs. See id. at 392–96.
Absent a challenge to a specific cost or the basis for the assessment of that cost, a
bill of costs is sufficient. See id. at 396.

       Appellant further urges that his constitutional right to due process has been
violated if he is deprived of an opportunity to be heard in the trial court regarding
the propriety of these costs. This argument lacks merit under precedent from the
Criminal Court of Appeals. See Cardenas v. State, 423 S.W.3d 396, 398–99 (Tex.
Crim. App. 2014); Johnson, 423 S.W.3d at 391–92. Criminal defendants have
constructive notice of the mandatory-cost statutes. Cardenas, 423 S.W.3d at 398–
99. The procedures outlined in Johnson provide defendants with notice and an
opportunity to be heard because: (1) appellants do not have to preserve error in the
trial court; (2) appellants may challenge the assessment of court costs on direct
appeal; and (3) appellants may also challenge the assessment of court costs by a
motion under article 103.008. See Tex. Code Crim. Proc. art. 103.008; Cardenas,
423 S.W.3d at 399; Johnson, 423 S.W.3d at 391–92. Thus, appellant’s due process
right has been satisfied with respect to notice and an opportunity to be heard
regarding the assessment of court costs. See Cardenas, 423 S.W.3d at 399;
Johnson, 423 S.W.3d at 391–92.

       We overrule appellant’s second issue.




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                                   CONCLUSION

      Having overruled appellant’s two issues, we affirm the trial court’s
judgment.



                                      /s/    Ken Wise
                                             Justice



Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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