Opinion filed August 31, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                       Nos. 11-10-00374-CR & 11-10-00375-CR
                                     __________

                 JOHNATHAN BEDFORD NEWMAN, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                          On Appeal from the 266th District Court

                                     Erath County, Texas

                        Trial Court Cause Nos. CR13433 & CR13434


                           MEMORANDUM OPINION

       Johnathan Bedford Newman entered an open plea of guilty to two first-degree felony
offenses for the manufacture or delivery of a controlled substance. The jury sentenced him to
confinement in the Institutional Division of the Texas Department of Criminal Justice for life on
both convictions.   The jury also imposed a fine of $10,000 for both offenses.         Appellant
challenges his punishment in a single issue. We affirm.
                                       Background Facts
       Appellant’s sole issue on appeal arises from the State’s closing argument. He contends
that his trial counsel rendered ineffective assistance by failing to object to an argument made by
the prosecutor concerning how parole and good conduct time may affect appellant’s period of
incarceration.
       The court’s charge contained the following instruction pertaining to parole and good
conduct time:
               Under the law applicable in this case, the Defendant, if sentenced to a term
       of imprisonment, may earn time off the period of incarceration imposed through
       the award of good conduct time. Prison authorities may award good conduct time
       to a prisoner who exhibits good behavior, diligence in carrying out prison work
       assignments, and attempts at rehabilitation. If a prisoner engages in misconduct,
       prison authorities may also take away all or part of any good conduct time earned
       by the prisoner.

              It is also possible that the length of time for which the defendant will be
       imprisoned might be reduced by the award of parole.

               Under the law applicable in this case, if the defendant is sentenced to a
       term of imprisonment, he will not become eligible for parole until the actual time
       served plus any good conduct time earned equals one-fourth of the sentence
       imposed or 15 years, whichever is less. Eligibility for parole does not guarantee
       that parole will be granted.

              It cannot accurately be predicted how the parole law and good conduct
       time might be applied to this defendant if he is sentenced to a term of
       imprisonment, because the application of these laws will depend on decisions
       made by prison and parole authorities.

             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 apply to this particular defendant.

Thus, the instruction in the court’s charge tracked the language required by TEX. CODE CRIM.
PROC. ANN. art. 37.07, sec. 4(b) (Vernon 2010).
       During the State’s initial closing argument, the prosecutor made a brief reference to the
parole instruction contained in the court’s charge by stating that appellant ―becomes eligible for
parole when his good conduct time, plus his actual time served equals a quarter of the sentence
or fifteen years, whichever is less.‖ The prosecutor also discussed the applicable range of

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punishment for both offenses (five to ninety-nine years, or life) and appellant’s criminal history
(fourteen convictions in the previous seven years, including five felony drug convictions) during
the State’s initial closing argument.
       Appellant’s trial counsel also made reference to parole and good conduct time during his
closing argument in his plea to the jury to give appellant a twenty-year sentence. In this regard,
counsel suggested that the jury might ―get the message to [appellant]‖ to turn his life around if he
has the possibility of being eligible for parole after serving five years of a twenty-year sentence.
       In the State’s final closing argument, the prosecutor made the following statements
regarding parole and good conduct time:
       [T]his defendant may earn – and I’ve underlined ―earn‖, and that’s an important
       word, time off of the sentence that you give him by the award of good conduct
       time. Prison authorities may award – and I want you to catch my theme here,
       good conduct time to a prisoner who exhibits good behavior, diligence in carrying
       out work – prison work assignments and attempts at rehabilitation, do you see the
       theme here? But it continues further, it is also possible that the length of time for
       which the defendant will be imprisoned might be reduced by the award of parole.
       Now we’ve got two mechanisms working in his favor. In this case he will not
       become eligible for parole until the time he has actually served, plus good conduct
       time equals one-fourth of the sentence imposed or fifteen years, whichever is less.
       Now, I want to help you understand what that means. What that means is rather
       than sit there for ten or fifteen or fourteen years, if you have good behavior and
       you exhibit that good behavior and diligence in carrying out prison work
       assignments and attempts at rehabilitation, remember when we talked about the
       things we would like to do when we punish someone, it’s all there, if he avails
       himself of it, he can earn and be awarded. That, to me, is important to you as a
       juror in making the decision, when you think about it, you – you give him the
       mechanism, if you want to be released back out here with the rest of us, I know
       your record doesn’t show us you can do that, but you convince someone else
       watching you closely for a period of time that you deserve to be among the rest of
       us, then you’ll get out. But, wait, that’s not all of it, when we talked about the
       difference life and ninety-nine years I told you about fifteen years, but there’s a
       plus in there, and I want you to be aware of that, too, you can consider these
       things, actual time served, plus good conduct time, do you know what good
       conduct time is, if you get in there and behave, you get two days credit for each
       day you serve, so that fourth becomes an eighth all of a sudden if you’re behaving
       yourself, so you just cut that fifteen in half, that’s seven and a half, if you twelve
       people give him ninety-nine years or life, in seven and a half, if he behaves
       himself, he’ll walk out that door. Now, is that an incentive to learn, to work at
       prison assignments, exhibit good behavior? Son, you’ve got the rest of your life
       in prison, but if you do the things we ask, in seven and half you can be released.
       Would that make someone want to hit the bricks, go to work? I think it would.


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         Or you can give him fifteen or twenty and let him sit there for a while and bounce
         back out and come out worse than when he went in (emphasis added).

Appellant bases his ineffective-assistance-of-counsel claim on the contention that trial counsel
should have lodged an objection to the italicized portion of the above-quoted argument.
                                              Analysis
         To determine whether appellant’s counsel rendered ineffective assistance at trial, we must
first determine whether appellant has shown that counsel’s representation fell below an objective
standard of reasonableness and, if so, then determine whether there is a reasonable probability
that the result of the proceeding would have been different but for counsel’s errors. Wiggins v.
Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State,
159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.
1999).    This standard applies to claims of ineffective assistance of counsel in both the
guilt/innocence phase and the punishment phase of noncapital trials. Hernandez v. State, 988
S.W.2d 770, 772-73 (Tex. Crim. App. 1999).
         We must indulge a strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance, and an appellant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy. Strick-
land, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). ―[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.‖ Strickland, 466 U.S. at 690. An allegation of
ineffective assistance must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.        Thompson, 9 S.W.3d at 814.          Under normal
circumstances, the record on direct appeal will not be sufficient to show that counsel’s
representation was so deficient and so lacking as to overcome the presumption that counsel’s
conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002).    Rarely will the record on direct appeal contain sufficient information to permit a
reviewing court to fairly evaluate the merits of such a serious allegation. Id. In a majority of
cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the
failings of trial counsel. Id.
         As stated earlier, the challenged argument consisted of the following statement by the
prosecutor: ―[I]f you twelve people give him ninety-nine years or life, in seven and a half, if he

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behaves himself, he’ll walk out that door.‖ When viewed in isolation, the challenged argument
was improper. This is an incorrect statement of the law because parole eligibility does not
guarantee release. See Article 37.07, § 4(b). Furthermore, the jury is explicitly prohibited from
considering the extent to which good conduct time may be awarded to a particular defendant or
the manner in which the parole law may be applied to a particular defendant. Id.
       A complaint of improper jury argument is waived absent an objection at trial.
Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). Accordingly, appellant is
limited to presenting his improper-jury-argument complaint as an ineffective-assistance-of-
counsel issue. This case is in the same procedural posture as the circumstances in Mata v. State,
226 S.W.3d 425, 430-31 (Tex. Crim. App. 2007). Mata also involved a claim on direct appeal
of ineffective assistance of counsel arising from the failure of trial counsel to object to an
allegedly improper jury argument concerning the application of parole and good conduct time.
226 S.W.3d at 427-28. Furthermore, the appellate record in Mata was also silent regarding trial
counsel’s reasoning for not objecting to the challenged argument.1
       The Court of Criminal Appeals noted in Mata that a reviewing court on direct appeal will
rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record
on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense
counsel’s actions at trial. Id. at 430. As stated by the court:
                The lack of a clear record usually will prevent the appellant from meeting
       the first part of the Strickland test, as the reasonableness of counsel’s choices and
       motivations during trial can be proven deficient only through facts that do not
       normally appear in the appellate record. It is not sufficient that the appellant
       show, with the benefit of hindsight, that his counsel’s actions or omissions during
       trial were merely of questionable competence. Rather, the record must
       affirmatively demonstrate trial counsel’s alleged ineffectiveness.

Id. (footnotes omitted). The court held in Mata that the appellant failed to rebut the presumption
that trial counsel’s actions were reasonable because the record was silent as to why he failed to
object to the challenged argument. Id. at 431.
       Mata’s reasoning is applicable to this case because the appellate record in this appeal is
also silent regarding the basis for trial counsel’s actions. Thus, appellant has failed to rebut the
presumption that trial counsel’s decision was reasonable. See id. In this regard, the facts in this

       1
           In this regard, trial counsel’s conduct at trial was not addressed in a motion for new trial.


                                                             5
case are distinguishable from those in Branch v. State, 335 S.W.3d 893, 904 (Tex. App.—Austin
2011, pet. filed), because appellant did not present his ineffective-assistance claim in a motion
for new trial that would have provided an avenue for exploring the reasons for trial counsel’s
action.
          Furthermore, the improper argument that appellant challenges was not incurable and was
in fact ―cured‖ by the written instructions contained in the court’s charge. In this regard, an
instruction to disregard improper jury argument will cure the error in most instances.
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The court’s charge contained
the correct rules pertaining to the manner in which the jury should consider the application of
parole and good conduct time to appellant’s sentence. We presume the jury followed the court’s
instructions. Colburn v. State, 966 S.W.2d 511, 519-20 (Tex. Crim. App. 1998).
          Under the second prong of Strickland, appellant must show there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Evidence was offered that the underlying offenses were based on appellant
possessing 25.84 grams of methamphetamine on one occasion2 and 6.34 grams of
methamphetamine on another occasion. Appellant’s criminal record included a state jail felony
conviction for drug possession in 2007, two state jail felony convictions for drug possession in
2005, a misdemeanor drug possession conviction in 2003, a misdemeanor conviction for
possessing a prohibited weapon in 2005, three misdemeanor drug possession convictions in
2005, a driving-while-intoxicated conviction in 2007, a driving-while-license-invalid conviction
in 2007, a misdemeanor theft conviction in 2003, and a misdemeanor burglary-of-a-vehicle
conviction in 2005. Given the presence of the correct statement of the law contained in the
court’s charge, the seriousness of the underlying offenses, and appellant’s lengthy criminal
record, the appellate record does not show a reasonable probability that the result would have
different. Appellant’s sole issue is overruled.




          2
         In addition to possessing 25.84 grams of methamphetamine on this occasion, appellant also possessed 6.24
grams of cocaine.

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                                       This Court’s Ruling
        The judgments of the trial court are affirmed.




                                                             JIM R. WRIGHT
                                                             CHIEF JUSTICE


August 31, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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