                                       NO. 12-14-00179-CR

                              IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

EARNEST MARK BROWNING,                                  §       APPEAL FROM THE 241ST
APPELLANT

V.                                                      §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §       SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Earnest Mark Browning appeals his conviction for possession of a controlled substance in
a drug free zone. In two issues, Appellant argues that his trial counsel rendered ineffective
assistance of counsel, and challenges the trial court‘s assessment of restitution. We modify the
judgment and affirm as modified.


                                                BACKGROUND
        Appellant was charged by indictment with the offense of possession of a controlled
substance in a drug free zone, a third degree felony. 1 Appellant pleaded ―not guilty,‖ and the
case proceeded to a jury trial. At the conclusion of the trial, the jury found Appellant guilty of
possession of a controlled substance in a drug free zone, and assessed his punishment at four
years of imprisonment, plus court costs and restitution.2 This appeal followed.




        1
            See TEX. HEALTH & SAFETY CODE ANN. §§ 481.115(b) (West 2010); 481.134(d) (West Supp. 2014).
        2
          An individual adjudged guilty of a third degree felony shall be punished by imprisonment for any term of
not more than ten years or less than two years and, in addition, a fine not to exceed $10,000. TEX. PENAL CODE
ANN. § 12.34 (West 2011).
                            INEFFECTIVE ASSISTANCE OF COUNSEL
       In his first issue, Appellant argues that his trial counsel rendered ineffective assistance of
counsel by failing to object when the State made an improper argument during sentencing. The
State disagrees.
Standard of Review
       In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court‘s two pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel‘s performance
was ―deficient.‖ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). ―This requires showing that counsel made errors so serious that
counsel was not functioning as the ‗counsel‘ guaranteed the defendant by the Sixth
Amendment.‖ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant
must ―show that counsel‘s representation fell below an objective standard of reasonableness.‖
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
       Under the second prong, an appellant must show that the ―deficient performance
prejudiced the defense.‖ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to ―show that there is a
reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding
would have been different.‖ Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712.   A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland standard applies to
ineffective assistance of counsel claims alleging a deficiency in attorney performance at
noncapital sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App.
1999) (overruling Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980)).
       Review of a trial counsel‘s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a ―strong presumption that counsel‘s conduct falls within the wide range of
reasonable professional assistance.‖ Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is the
appellant‘s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;
Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in



                                                 2
the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of
either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.
Appellant must prove both prongs of the Strickland test by a preponderance of the evidence in
order to prevail. Tong, 25 S.W.3d at 712.
Analysis
       Appellant argues that his trial counsel failed to provide effective representation because
he did not make an appropriate objection when the State made an improper argument during its
closing argument at sentencing. Appellant contends that the State urged the jury to ―consider the
manner in which parole law may be applied‖ to him, in violation of the trial court‘s instruction in
its jury charge. The trial court‘s jury charge on punishment properly instructed the jury that they
might ―consider the existence of the parole law and good conduct time. However, you are not to
consider the extent to which good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole law may be applied to this
particular defendant.‖ See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2014).
       At closing, the State urged the jury to consider that if they


               impose that maximum of a ten-year sentence, [Appellant] becomes eligible [for parole] in
       two-and-a-half years. So here‘s the question is—and then he‘s—he‘s supervised. So ultimately the
       defendant‘s going to be supervised no matter what we do today.

                The question is: Once he gets out of prison, how long do you want him to be supervised?
       How long do you think this defendant needs to be supervised? I would submit to you that he needs
       to be supervised for that full – for the full remaining term of his confinement of ten years.



       Appellant‘s trial counsel did not object to the State‘s argument.                     However, it is
Appellant‘s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;
Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 813. But Appellant did not file a motion for new trial and call his trial
counsel as a witness to explain his reasoning for failing to object. See Bone v. State, 77 S.W.3d
828, 836 (Tex. Crim. App. 2002) (stating that defense counsel should be given opportunity to
explain actions before being condemned as unprofessional and incompetent); see also Anderson



                                                      3
v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref‘d) (holding that
because appellant did not call his trial counsel during motion for new trial hearing to give
reasons for failure to investigate or present mitigating evidence, record does not support
ineffective assistance claim). When, as here, the record fails to show why counsel did not object
to the State‘s closing argument during sentencing, we cannot conclude that counsel‘s
performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App.
1994). Because the record does not show deficient performance, we conclude that Appellant has
failed to meet the first prong of the Strickland test. See id.
        Even if Appellant had met the first prong of the Strickland test, he has failed to show
that, but for counsel‘s allegedly unprofessional errors, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.
The State argued during closing that the jury should sentence Appellant to the maximum term of
ten years of imprisonment.         However, the jury sentenced Appellant to four years of
imprisonment, less than one-half of the sentence urged by the State. Appellant argues that the
goal of every defense counsel is to have the jury assess the least amount of punishment possible
and, to this end, concedes that the punishment imposed ―likely‖ weighs against any finding that,
but for his trial counsel‘s error, the result may have been different. Then, he urges us to consider
whether we ―nonetheless [have] ‗grave doubts‘‖ as to the effect, if any, that trial counsel‘s failure
to object had on the outcome of the case. We do not.
        Because Appellant failed to show that the result of the proceeding would have been
different if his trial counsel had objected to the State‘s argument on parole, he has failed to meet
the second prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Tong, 25 S.W.3d at 712. Therefore, even if he had met the first prong of Strickland, he still
could not prevail. Appellant‘s first issue is overruled.


                                           RESTITUTION
        In his second issue, Appellant argues that the trial court abused its discretion in assessing
the amount of restitution. More specifically, he contends that the amount of restitution is not
supported by the record and therefore, the evidence is legally insufficient to support the
restitution order.




                                                  4
         An appellate court reviews challenges to restitution orders under an abuse of discretion
standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980); see also
Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999) (en banc); Williams v. State, No.
12-12-00157-CR, 2012 WL 6214315, at *1 (Tex. App.—Tyler Dec. 12, 2012, no pet.) (mem.
op., not designated for publication). Due process is implicated when the trial court abuses its
discretion in setting the amount of restitution. See Williams, 2012 WL 6214315, at *1 (citing
Campbell, 5 S.W.3d at 696). There must be sufficient evidence in the record to support the trial
court‘s order, and a defendant is not required to object to preserve an evidentiary sufficiency
challenge concerning a restitution order. See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim.
App. 2010); Cartwright, 605 S.W.2d at 289.
         Here, the trial court in pronouncing sentence ordered that restitution be paid to ―DPS on
the controlled substance.‖ The judgment of conviction orders that Appellant must pay restitution
in the amount of $180.00 to the ―DPS lab.‖ However, the bill of costs does not reflect any
amount due to the DPS lab for restitution nor is there any document in the record reflecting the
basis for that amount. The State concedes there is no evidence to support the amount ordered as
―restitution‖ in the judgment. We agree.
         Based on our review of the record, we conclude that there is no evidence to support the
amount ordered paid as ―restitution.‖ Further, there is no indication from the record that the
State was precluded from presenting evidence and being heard on the issue of the amount of fees
charged by the DPS lab.3 See Mayer, 309 S.W.3d at 557. Accordingly, we hold that the trial
court‘s judgment of conviction ordering ―restitution‖ lacks evidentiary support, is improper, and
should be deleted. See id.; Williams, 2012 WL 6214315, at *2. Appellant‘s second issue is
sustained


                                                   DISPOSITION
         Having overruled Appellant‘s first issue, and having sustained Appellant‘s second issue,
we modify the trial court‘s judgment of conviction to delete the amount of $180.00 payable to


         3
           We note that a trial court may order a defendant to pay restitution to a victim. See TEX. CODE CRIM.
PROC. ANN. art. 42.037(a) (West Supp. 2014). These expenses incurred by the DPS lab were not sustained as a
result of being the victim of a crime. See Aguilar v. State, 279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no pet.).
Therefore, even if the State had presented evidence, the trial court lacked the authority to order Appellant to pay the
DPS lab fees as restitution.


                                                          5
the DPS lab as restitution. We affirm the trial court‘s judgment as modified.


                                                                GREG NEELEY
                                                                   Justice

Opinion delivered March 25, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 25, 2015


                                         NO. 12-14-00179-CR


                                 EARNEST MARK BROWNING,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0488-14)

               THIS CAUSE came on to be heard on the appellate record and the briefs filed
herein; and the same being inspected, it is the opinion of the Court that the trial court‘s judgment
below should be modified and, as modified, affirmed.
               It is therefore ORDERED, ADJUDGED and DECREED that the trial court‘s
judgment below be modified to delete the amount of $180.00 payable to the DPS lab as
restitution; and as modified, the trial court‘s judgment is affirmed; and that this decision be
certified to the trial court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
