                                                                            ACCEPTED
                                                                       12-14-00179-CR
                                                           TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                 1/12/2015 11:50:30 PM
                                                                          CATHY LUSK
                                                                                CLERK

             NUMBER 12-14-00179-CR
                                                       FILED IN
                                                12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF APPEALS             TYLER, TEXAS
              TYLER, TEXAS                      1/12/2015 11:50:30 PM
                                                     CATHY S. LUSK
                                                         Clerk

          EARNEST MARK BROWNING,
                       Appellant

                            v.

              THE STATE OF TEXAS,
                        Appellee

   From the 241st District Court of Smith County, Texas
            Trial Cause Number 241-0488-14


                   STATE’S BRIEF


     ORAL ARGUMENT NOT REQUESTED

                 D. MATT BINGHAM
                Criminal District Attorney
                 Smith County, Texas

                   AARON REDIKER
                Assistant District Attorney
          State Bar of Texas Number 24046692
           Smith County Courthouse, 4th Floor
                   Tyler, Texas 75702
                 Phone: (903) 590-1720
                  Fax: (903) 590-1719
           Email: arediker@smith-county.com
                                              TABLE OF CONTENTS


Index of Authorities ....................................................................................................2


Statement of Facts ......................................................................................................4


Summary of Argument ...............................................................................................4


I.ISSUE ONE: As the failure to raise an objection to an isolated argument regarding
parole during the punishment phase of trial does not constitute conduct so outrageous
that no competent attorney would have engaged in it, and because the sentence
assessed by the jury shows that appellant was not harmed by the prosecutor’s argument,
appellant has failed to show that his trial counsel rendered ineffective assistance. ......5
Standard of Review .....................................................................................................5
Argument ....................................................................................................................6


II. ISSUE TWO: As the record does not contain sufficient evidence to support the
award of restitution to DPS in the amount of $180, the judgment should be modified
to delete the restitution amount. ................................................................................10


Certificate of Compliance ........................................................................................12


Certificate of Service ................................................................................................12




                                                              1
                                              INDEX OF AUTHORITIES



Texas Cases

Cain v. State, No. 12-13-00178-CR, 2014 Tex. App. LEXIS 7037, (Tex. App.—
  Tyler June 30, 2014, no pet.) .......................................................................... 11
Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998) ............................. 10
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ........................ 7
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) .......................... 8, 10
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ............................ 8
Ingham v. State, 679 S.W.2d 503 (Tex. Crim. App. 1984) ................................ 8
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) .................................... 8
Porter v. State, 832 S.W.2d 383 (Tex. App.—Houston [1st Dist.] 1992, no pet.)
  ............................................................................................................................... 8
Taylor v. State, 233 S.W.3d 356 (Tex. Crim. App. 2007) .................................. 9
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ........................... 6, 9


Texas Statutes

Tex. Code Crim. Proc. Ann. art. 37.07, § 4 .................................................... 8, 10


Federal Cases

Strickland v. Washington, 466 U.S. 668 (1984) .............................................. 6, 9




                                                                2
                           NUMBER 12-14-00179-CR


            IN THE TWELFTH DISTRICT COURT OF APPEALS
                          TYLER, TEXAS


                        EARNEST MARK BROWNING,
                               Appellant

                                          v.

                            THE STATE OF TEXAS,
                                  Appellee

             From the 241st District Court of Smith County, Texas
                      Trial Cause Number 241-0488-14


                                STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant Criminal

District Attorney, respectfully requesting that this Court overrule appellant’s first

alleged issue, delete the award of restitution to the Texas Department of Public Safety

from the judgment, and affirm the judgment of the trial court in the above-captioned

cause as modified.




                                          3
                                STATEMENT OF FACTS

   Appellant has stated the essential nature of the proceedings and the evidence

presented at trial (Appellant's Br. 2-3). In the interest of judicial economy, any other

facts not mentioned therein that may be relevant to the disposition of appellant's issues

will be discussed in the State's arguments in response.


                              SUMMARY OF ARGUMENT

   Where, as here, defense counsel’s reasons for not objecting to the prosecutor’s

argument concerning parole do not appear in the record, appellant has failed to

overcome the presumption that his counsel’s actions were reasonable trial strategy.

Moreover, even if counsel’s failure to object constituted deficient performance,

appellant has failed to show prejudice:        the jury assessed his punishment at

confinement for four years after the prosecutor argued for a sentence of ten years.

Lastly, as the record does not contain sufficient evidence supporting the award of

restitution to the Texas Department of Public Safety (“DPS”) in the amount of $180,

appellant’s second issue should be sustained and the amount of restitution deleted from

the judgment.




                                           4
I. ISSUE ONE: As the failure to raise an objection to an isolated argument
regarding parole during the punishment phase of trial does not constitute
conduct so outrageous that no competent attorney would have engaged in it,
and because the sentence assessed by the jury shows that appellant was not
harmed by the prosecutor’s argument, appellant has failed to show that his
trial counsel rendered ineffective assistance.

                                STANDARD OF REVIEW

   To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 (1984).

Specifically, he must show: (1) deficient performance, in that his counsel's

representation fell below an objective standard of reasonableness under prevailing

professional norms, and (2) prejudice, or a reasonable probability that, but for counsel's

deficient performance, the result of the proceeding would have been different. Id. at

687-88, 694. "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694. "Appellant bears the burden of proving by a

preponderance of the evidence that counsel was ineffective." Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).             “[A] court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Strickland, 466 U.S. at 689. Where, as here, defense counsel's reasons for




                                            5
an alleged error of omission do not appear of record, the Court of Criminal Appeals

has explained:

         A Strickland claim must be firmly founded in the record and the record must
         affirmatively demonstrate the meritorious nature of the claim. Direct appeal is
         usually an inadequate vehicle for raising such a claim because the record is
         generally undeveloped. This is true with regard to the question of deficient
         performance - in which counsel's conduct is reviewed with great deference,
         without the distorting effects of hindsight - where counsel's reasons for failing
         to do something do not appear in the record. We have said that trial counsel
         should ordinarily be afforded an opportunity to explain his actions before being
         denounced as ineffective. Absent such an opportunity, an appellate court should
         not find deficient performance 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) (internal quotation

marks omitted).


                                         ARGUMENT

      In his first issue, appellant complains that his counsel was ineffective for failing to

object to the following argument by the prosecutor during the punishment phase of his

jury trial for possession of methamphetamine in a drug-free zone (Appellant’s Br. 4-

7):

         Anyway, the point is this: He's eligible in one-quarter time of the sentence you
         impose. You impose that maximum of a ten-year sentence, he becomes eligible
         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.




                                               6
      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. Hopefully I haven't confused
      you too much.

(II Rep.’s R. at 216-17). Article 37.07, section 4(c), of the Code of Criminal

Procedure, “specifically provides that the jury may consider the existence of parole

law and good time in making its punishment determination; the jury is simply

prohibited from considering how parole law and good time would be applied to a

particular defendant.” Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).

See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(c) (West 2014). Assuming for the

sake of argument that the prosecutor’s argument improperly encouraged the jury to

consider how parole law and good conduct time would be applied to appellant in

assessing punishment, the record is silent as to why his trial counsel did not object (II

Rep.’s R. at 216-17). “Therefore, the appellant has failed to rebut the presumption

that trial counsel's decision was in some way – be it conceivable or not – reasonable.”

Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). “The failure to object

to improper jury argument does not ordinarily reflect ineffective assistance.” Porter v.

State, 832 S.W.2d 383 (Tex. App.—Houston [1st Dist.] 1992, no pet.). See Ingham v.

State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (“An isolated failure to object to

certain procedural mistakes or improper evidence does not constitute ineffective



                                           7
assistance of counsel.”); Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App.

1986) (“The right to effective counsel is not the right to error-free counsel.”). Where,

as here, the record is silent as to defense counsel’s reasons for the omission, an isolated

failure to object to improper argument on the issue of parole does not constitute

conduct so outrageous that no competent attorney would have engaged in it. Mata,

226 S.W.3d at 433. As appellant has failed to rebut the presumption that his counsel’s

omission was the result of sound trial strategy, he has not met his burden to show

deficient performance by a preponderance of the evidence under Strickland’s first

prong. See id. at 430-33; Strickland, 466 U.S. at 687-88, 694; Thompson, 9 S.W.3d

at 814.

   Furthermore, appellant has failed to show prejudice from his trial counsel’s failure

to object under Strickland’s second prong. During his closing argument to the jury at

the punishment phase of trial, the prosecutor argued for a sentence of ten years (II

Rep.’s R. at 214-15). Even assuming defense counsel’s failure to object to the

prosecutor’s argument constituted deficient performance, appellant was not prejudiced

because the jury assessed his punishment at only four year’s confinement in the

penitentiary (Id. at 226-27). See Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim.

App. 2007) (prosecutor’s statements regarding parole harmless because jury sentenced




                                            8
appellant to only fifty years after prosecutor argued for life imprisonment). Further,

in its charge on punishment, the trial court instructed the jury as follows:

       You may 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.

(Clerk’s R. at 32). See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(c) (West 2014). A

charge properly instructing the jury on parole eligibility times and instructing the jury

not to consider how good time and parole law would be applied to a particular

defendant weighs in favor of a finding that a prosecutor’s improper argument on parole

was harmless. Hawkins, 135 S.W.3d at 84. “[T]he jury charge clearly and accurately

set forth the law, which would have disabused the jury of any notion that appellant

would automatically be released at the time he became eligible for parole.” Id. at 84-

85. Appellant has not pointed to any evidence in the record rebutting the presumption

that the jury followed the trial court’s instructions regarding parole contained in the

charge and did not consider the prosecutor’s argument in reaching its verdict on

punishment. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (“We

generally presume the jury follows the trial court's instructions in the manner

presented.”). As appellant has thus failed to show a reasonable probability from the

record that, but for his counsel’s failure to object to the prosecutor’s argument on parole,




                                             9
the result of the proceeding would have been different, his first alleged issue is without

merit and should be overruled.


II. ISSUE TWO: As the record does not contain sufficient evidence to support
the award of restitution to DPS in the amount of $180, the judgment should be
modified to delete the restitution amount.

   While formally pronouncing sentence, the trial court stated that, “[r]estitution will

be ordered to DPS on the controlled substance.”           (II Rep.’s R. at 231, 232).

Accordingly, the judgment reflects the award of restitution to DPS in the amount of

$180 (Clerk’s R. at 75). However, the record does not contain any evidence supporting

the amount of restitution ordered to DPS. See Cartwright v. State, 605 S.W.2d 287,

289 (Tex. Crim. App. 1980) (“Due process considerations thus implicated require that

there must be evidence in the record to show that the amount set by the court has a

factual basis.”). Accordingly, the judgment should be modified to delete the restitution

amount of $180 and affirmed as modified. See Cain v. State, No. 12-13-00178-CR,

2014 Tex. App. LEXIS 7037, at *2-3 (Tex. App.—Tyler June 30, 2014, no pet.) (mem.

op., not designated for publication) (deleting award of restitution to DPS from the

judgment where no supporting evidence contained in the record).




                                           10
                                       PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s first issue, delete the award of restitution contained in the

judgment, and affirm the judgment of the 241st District Court of Smith County, Texas,

in the above-captioned cause as modified.

                                               Respectfully submitted,

                                               D. MATT BINGHAM
                                               Criminal District Attorney
                                               Smith County, Texas


                                               /s/ Aaron Rediker
                                               Aaron Rediker
                                               Assistant District Attorney
                                               SBOT #: 24046692
                                               100 North Broadway, 4th Floor
                                               Tyler, Texas 75702
                                               Office: (903) 590-1720
                                               Fax: (903) 590-1719 (fax)
                                               arediker@smith-county.com




                                          11
                          CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney

certifies that the word count for this document is 1,767 words as calculated by

Microsoft Word 2013.


                                              /s/ Aaron Rediker
                                              Aaron Rediker


                             CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 12th day of January 2015, the State’s

Brief in the above-numbered cause has been electronically filed, and a legible copy of

the State's Brief has been sent by email to Austin R. Jackson, attorney for appellant,

at JLawAppeals@gmail.com.


                                              /s/ Aaron Rediker
                                              Aaron Rediker




                                         12
