

NO. 07-10-0335-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
FEBRUARY 2, 2011
______________________________
 
 
BRANDON MICHAEL PENNINGTON, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
_________________________________
 
FROM THE 181ST DISTRICT COURT OF POTTER
COUNTY;
 
NO. 43,164-B; HONORABLE JOHN B. BOARD, JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND 
            Appellant, Brandon
Michael Pennington, entered a plea of true to the State's Amended Motion to
Proceed and was adjudicated guilty of possession of methamphetamine in an
amount of 200 grams or more but less than 400.[1]  Punishment was assessed at fifty years
confinement.  The appellate record has
been filed.  A review of the Clerk's
Record revealed that it did not contain a Trial
Court's Certification of Defendant's Right of Appeal as required by Rule
25.2(a)(2) of the Texas Rules of Appellate
Procedure.  Pursuant to Rule 37.1(a) of
the Texas Rules of Appellate Procedure, by letter dated December 1, 2010, the
trial court and the trial court clerk were notified of the defect and this
Court requested that a certification be filed in a supplemental record.  On January 19, 2011, a Supplemental Clerk's
Record was filed containing a certification; however, none of the options
provided to determine if Appellant has a right of appeal were marked.  Consequently, the certification is
defective.  See Dears v. State, 154 S.W.3d 610, 614
(Tex.Crim.App. 2005).
Therefore, we abate this appeal and remand the cause to the
trial court for further proceedings. 
Upon remand, the trial court shall utilize whatever means necessary to
secure a proper Trial Court's Certification of Defendant's Right of Appeal in
compliance with Rule 25.2(d).  Once
properly completed and executed, the certification shall be included in a
supplemental clerk's record.  See
Tex. R. App. P. 34.5(a)(12).  The trial court shall cause the supplemental clerk's
record to be filed with the Clerk of this Court within 30 days of the date of
this order.  If a supplemental clerk's
record containing a proper certification is not filed in accordance with this
order, this cause will be referred to this Court for further action.  See Tex. R. App. P. 25.2(d). 
                                                                        Per
Curiam
Do not publish.
 
 




[1]Tex. Health & Safety Code Ann. § 481.115(e) (West 2010).



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NO. 07-10-0098-CR 
NO. 07-10-0322-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 
 MAY 12, 2011

 
 

 
 
JAMES TERRY SHELNUTT, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 320TH DISTRICT COURT
OF POTTER COUNTY;
 
NOS. 59,233-D & 59,234-D; HONORABLE DON EMERSON, JUDGE

 
 

 
Before QUINN, C.J., and HANCOCK and
PIRTLE, JJ.
 
 
MEMORANDUM OPINION
            Appellant, James
Terry Shelnutt, was convicted following a jury trial of the murders of Robert
Phillips and Phyllis Fassauer in Cause Nos. 59,233-D and 59,234-D,
respectively, and sentenced to confinement for life and fined $10,000 in each
case.[1]   In two issues, Appellant asserts:  (1) the trial court erroneously joined the
two causes in a single trial and (2) his counsel was ineffective for not
presenting mitigation evidence during his punishment trial.  We modify the judgment in Cause No. 59,233-D
to reflect the correct amount of court costs and, as modified, is affirmed.  The judgment in Cause No. 59,234-D is
affirmed.    
Background
            On February
4, 2009, a Potter County Grand Jury returned separate indictments charging
Appellant with two murders allegedly committed more than twenty-seven years
prior to the indictments.  In Cause No. 59,233-D,
Appellant was charged with intentionally or knowingly causing the death of Robert
Phillips on November 16, 1981, by shooting him with a firearm.  In Cause No. 59,234-D, Appellant was charged
with intentionally or knowingly causing the death of Phyllis Fassauer on
November 16, 1981, by shooting her with a firearm.  The State's theory was that Appellant was
guilty under the law of parties because he solicited, aided, assisted, and
encouraged William Randall Bennett to kill Phillips, and that Bennett then also
killed Fassauer in the course of killing Phillips.
            On February 22, 2010, Appellant
filed a motion to quash and exception to the substance of the indictment
underlying Cause No. 59,234-D, the Fassauer murder.  In his motion, Appellant alleged that the
State could not prove that Appellant "intentionally or knowingly caus[ed]" the death of Fassauer under the law of transferred
intent.  On February 24, 2010, the trial
court held a pretrial hearing where the motion to quash was addressed.  During the hearing, Appellant's counsel
asserted that the indictment alleging Appellant murdered Fassauer was invalid because
it was not supported by the law existing at the time of the offense and there
was no legal or factual basis to support the State's allegations in that cause.[2]    
            The trial court ultimately denied
Appellant's motion to quash; however, during the course of that hearing, the
discussion turned to whether or not the two indictments should be tried
together.  In response to the trial court's
query as to whether they were going to be tried together, Appellant's counsel
responded: "No."  Appellant's
counsel contended that evidence of Fassauer's murder would be prejudicial and unduly
aggravate any punishment Appellant might receive for Phillips's murder because Fassauer
was merely an innocent bystander.  The
State asserted that the cases should be tried together because Fassauer's death
and Phillips's death were inextricably intertwined as a double homicide that
occurred during the same criminal episode and evidence of both murders would
necessarily be introduced during the prosecution of either indictment.  Thereafter, the trial court made a
determination that the two indictments would be tried together even though the
State had never filed written notice of consolidation or joinder.
            A four day jury trial commenced on March 1, 2010.  The day trial commenced, Appellant filed a
motion entitled "Motion For Continuance" wherein he requested the
trial court to reconsider its ruling on Appellant's motion to quash the
indictment and further requested a continuance of Cause No. 59,234-D, the
Fassauer murder, because the State had not filed a motion for joinder or served
notice as contemplated by section 3.02(b) of the Texas Penal Code.[3]  
            Prior
to denying Appellant's motion for continuance, the trial court asked Appellant's
counsel to explain the reason for the request and received the following
responses:
Your
Honor, as previously that we argued (sic) in a pretrial motion to quash the
indictment in 59,234, there are two different and separate indictments.  We believe that because there was no motion
for joinder filed, or a notice as required of 30 days, there should be no
joinder.  
*    *     *
Yes, sir, and I'm only requesting a continuance
in 59,234.  I'm sorry if I wasn't clear.
 
            At
the trial, the State presented testimonial evidence from a number of witnesses,
including Bennett, that Appellant solicited Bennett to kill Phillips in return
for an ounce of methamphetamine.  Appellant
gave Bennett a gun and drove him to a location near Phillips's house where he
let Bennett out of his car.  After
entering Phillips's house, Bennett spoke to Phillips and his girlfriend, Fassauer, in the living room.  He then went into the kitchen to get a drink
of water.  When he returned to the living
room, he first shot Phillips from behind in the back of the head and then shot
Fassauer because she witnessed Bennett shooting Phillips.  He then left the house.  Shortly thereafter, Appellant picked Bennett
up while he was walking down the street as planned.[4]  Based
on this evidence, the jury returned a verdict of guilty on both indictments.
            At the punishment trial, the State re-offered
the evidence presented in its case-in-chief and introduced a penitentiary
package containing information on Appellant's four previous felony
convictions.  Appellant's counsel
presented no mitigation evidence.  During
closing argument by Appellant's counsel, however, she argued that Appellant was
not present at the time the two persons were killed and Bennett was the shooter.  She indicated favorable character witnesses
were unavailable because Appellant had built his own prison using and selling
drugs in a culture where survival was always an issue.  The jury assessed punishment for each
indictment at confinement for life and a $10,000 fine.  The trial court's subsequent judgments sentenced
Appellant to two concurrent sentences of confinement for life and a $10,000
fine.[5]  This appeal followed.
Joinder / Severance
            Appellant
asserts the trial court erroneously
joined the two causes in a single trial because the State did not move to
consolidate or give thirty days written notice that it intended to consolidate
pursuant to section 3.02(b).  Appellant
further asserts that severance was mandated pursuant to section 3.04(a) because
Appellant objected to a joint trial. 
Appellant asserts he was harmed because the State's evidence underlying
Fassauer's murder was weak and the trial court did not give its legal analysis
when it denied Appellant's motion to quash. 

            The State contends Appellant waived
his right to a severance or acquiesced to a consolidated trial because
Appellant never requested that the causes be tried separately either orally or
in a written motion.  The State also
asserts that, if error was committed, it was harmless error because, if
separate trials were had, Phillips's and Fassauer's murders would be admissible
in either action because the murders occurred in the same criminal episode and,
as such, constituted same transaction contextual evidence. 
            Although we consider it doubtful
whether Appellant affirmatively asserted his right to severance prior to trial,[6] we need not consider this
issue because assuming severance was raised and erroneously denied by the trial
court, any error was harmless.  To judge
the likelihood that harm occurred, we must consider everything in the record,
including all the evidence admitted at trial, the closing arguments, and the
juror's comments during voir dire.  Llamas v. State, 12
S.W.3d 469, 471 (Tex.Crim.App. 2000). 
In order to properly conduct a harm analysis under Rule 44.2(b), an
appellate court need only determine whether or not the error affected a
substantial right of the defendant.  See
Tex. R. App. P. 44.2(b).  To make this
determination, appellate courts must decide whether the error had a substantial
or injurious affect on the jury verdict. 
White v. State,
190 S.W.3d 226, 231 (Tex.App.--Houston [1st Dist.] 2006, no pet.). 
            Here, the evidence of Appellant's
two offenses was admissible in a single trial as contextual evidence.[7]  See
Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct.
1339, 127 L.Ed.2d 687 (1994) (where two persons were kidnapped in Texas and
later murdered in Oklahoma, kidnapping and double murder were part of the same
transaction contextual evidence); Nelson
v. State, 864 S.W.2d 442, 498-99 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994)
(where two women were simultaneously sexually assaulted and one woman murdered,
evidence of one victim's sexual assault and murder was admissible in other
victim's trial alleging sexual assault and attempted murder as same transaction
contextual evidence).  Thus, the jury
would have heard the same evidence regardless of whether the offenses were
tried separately in a different trial or together in one.  See
Dominguez v. State, 62 S.W.3d 203, 208 (Tex.App.--El Paso 2000, pet.
ref'd).  Accordingly, because the same
evidence would be admissible regardless of whether the offenses were tried
separately or jointly, we hold that any joinder / severance error did not
affect a substantial right.  See White, 190 S.W.3d at 231-32; Tovar v. State, 165 S.W.3d 785, 795
(Tex.App.--San Antonio 2005, no pet.); Dominguez,
62 S.W.3d at 208.  Appellant's first issue
is overruled.  
Ineffective Assistance of Counsel
            Appellant next asserts that his trial
counsel was ineffective because he failed to present any mitigating evidence
during the punishment trial.  The State
counters that the record is insufficient to conclude that Appellant's trial
counsel was ineffective.
            We
examine ineffective assistance of counsel claims by the standard enunciated in Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57
(Tex.Crim.App. 1986).  Appellant has the
burden to show by a preponderance of evidence (1) trial counsel's performance
was deficient in that it fell below the prevailing professional norms, and (2)
the deficiency prejudiced the defendant; that is, but for the deficiency, there
is a reasonable probability that the result of the proceeding would have been
different.  See Thompson v. State, 9 S.W.3d 808, 812
(Tex.Crim.App. 1999).  Counsel's conduct
is viewed with great deference; Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), and 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 812. 

            In
the usual case in which an ineffective assistance claim is made, "the
record on direct appeal will not be sufficient to show that counsel's
representation was so deficient and so lacking in
tactical or strategic decision-making 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).  This is generally the case because a silent
record provides no explanation for counsel's actions and therefore will not overcome
the strong presumption of reasonable assistance.  Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003).  The proper procedure for raising a claim of
ineffective assistance is almost always habeas corpus.  Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003).
            This
case demonstrates the inadequacies inherent in evaluating such claims on direct
appeal.  See Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.--Fort Worth
2001, pet. ref'd).  Like Patterson, Appellant's motion for new
trial did not claim ineffective assistance of counsel, the trial court did not
hold a hearing to determine whether Appellant's complaint involved actions that
may or may not have been grounded in sound trial strategy.  The only indication in the record why
Appellant's trial counsel did not present any mitigation evidence is her
closing argument in the punishment proceeding where she indicated such evidence
was unavailable.  On appeal, Appellant
does not point to any evidence that was available or describe how such evidence
would have created a reasonable probability that the result of the proceeding
would have been different.
            On
this record, to find Appellant's counsel ineffective, we would have to engage
in prohibited speculation.  See Stafford v. State, 101 S.W.3d 611,
613-14 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd).  Absent evidence of counsel's strategy, we
cannot denounce counsel's actions as ineffective nor can we determine there is
a reasonable probability that the outcome would have been different.  For this reason, Appellant has not met either
prong of the Strickland test.  Accordingly, Appellant's second issue is
overruled.  
Attorney's Fees
            We also
note an issue not raised by Appellant regarding the assessment of attorney's
fees.[8]  The written judgment in Cause No. 59,233-D
reflects the assessment of court costs in accordance with the attached list of
costs, fees and fines.  The attached Bill
of Costs then reflects total costs of $28,757.91, which sum includes
court-appointed attorney's fees of $10,433.06. 
Also contained in the clerk's record is an order directing the
Institutional Division of the Texas Department of Criminal Justice to withhold
from Appellant's inmate account sums sufficient to pay the $28,757.91.  In order to assess attorney's fees as court
costs, a trial court must determine that the defendant has financial resources
that enable him to offset in part or in whole the costs of legal services
provided.  Tex. Code
Crim. Proc. Ann. art. 26.05(g) (West 2009).  Here, the clerk's record reflects the trial
court found Appellant indigent and unable to afford the cost of legal
representation both before trial in February of 2010, and again after trial in March
2010.  Unless a material change in his
financial resources occurs, once a criminal defendant has been found to be
indigent, he is presumed to remain indigent for the remainder of the
proceedings.  Tex. Code
Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010).  Therefore, because there is evidence of
record demonstrating that immediately following rendition of judgment Appellant
was indigent and qualified for court-appointed counsel, we presume that his
financial status has not changed.   
            Furthermore, the record must reflect
some factual basis to support the determination that the defendant is capable
of paying attorney's fees.  Barrera v. State, 291
S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no
pet.).
            We note that the record in this case
does not contain a pronouncement, determination, or finding that Appellant had
financial resources that enable him to pay all or any part of the fees paid his
court-appointed counsel, and we are unable to find any evidence to support such
a determination.  Therefore, we conclude
that the order to pay attorney's fees was improper.   See Mayer v. State, 309
S.W.3d 552, 555-56 (Tex.Crim.App. 2010). 
No trial objection is required to challenge the sufficiency of the
evidence regarding the defendant's ability to pay.  Id.  When the evidence does not support an
order to pay attorney's fees, the proper remedy is to delete the order.  Id. at
557; see also Anderson v. State, No.
03-09-00630-CR, 2010 Tex.App. LEXIS 5033, at *9
(Tex.App.--Austin July 1, 2010, no pet.) (mem. op., not designated for
publication) (also modifying judgment to delete
attorney's fees).  Accordingly, in Cause
No. 59,233-D, we modify both the judgment and the order to withdraw funds so as
to delete any obligation to pay court-appointed attorney's fees.  We further note that the judgment in Cause
No. 59,234-D does not contain the same error. 



Conclusion
            Having modified the trial court's judgment in Cause No. 59,233-D to
delete the order obligating Appellant to pay $10,433.06 in attorney's fees, that
judgment is affirmed as modified. 
 The trial court's judgment in
Cause No. 59,234-D is affirmed. 
 
                                                                                    Patrick
A. Pirtle
                                                                                          Justice  
 
Do not publish.
 
            
 




[1]See Tex. Penal Code Ann. § 19.02 (b)(1) (West 2003).


[2]Ultimately,
Appellant does not contest the applicability of the law of parties as a legal
basis for the conviction, nor does he contest the legal and factual sufficiency
of the evidence to support that conviction.


[3]Throughout
the remainder of this opinion, references to "section ____" or
"§ ___" are references to the Texas Penal Code.


[4]Bennett's
account of his agreement with Appellant, the murder and subsequent events taken
by Appellant to hide his participation in the murders was corroborated by four
other witnesses who overheard statements made by Appellant shortly after the
murders occurred.


[5]See Tex. Penal Code § 3.03(a) (West
2003) (absent an exception, when an accused is found guilty of more than one
offense arising out of the same criminal episode prosecuted in a single action,
the sentences shall run concurrently).  


[6]Appellant's
motions asked only that the trial court quash the indictment or grant a
continuance of Cause No. 59,234-D.  No
written or oral motion for a separate trial was ever made.  See
Coleman v. State, 788 S.W.2d 369, 373 (Tex.Crim.App. 1990) (where
appellant's motion did not apprise the trial court that it was a motion to
sever offenses for separate trials, appellant's right to severance was
waived).  Furthermore, Appellant does not
argue or explain why the right to a severance under § 3.04(a) should apply to
the facts of this case.  See § 3.04(c) (providing that § 3.04(a)
does not apply to a prosecution of multiple offenses arising out of the same
criminal episode). 


[7]Same transaction contextual evidence results
when an extraneous matter is so intertwined with the State's proof of the
charged crime that avoiding reference to it would make the State's case
incomplete or difficult to understand.  Rogers v. State, 853
S.W.2d 29, 33 (Tex.Crim.App. 1993). 
"It is well settled that where one offense or transaction is one
continuous episode, or another offense or transaction is part of the case on
trial or blended or closely interwoven therewith, proof of all facts is
proper."  Moreno v. State, 721 S.W.2d 295, 301
(Tex.Crim.App. 1986).  The purpose
of admitting extraneous evidence as same transaction contextual evidence is to
put the instant offense in context.  Camacho v. State, 864
S.W.2d 524, 532 (Tex.Crim.App. 1993).    



[8]Courts
of appeals may review unassigned error in criminal cases, particularly where
the record discloses error that should be addressed in the interest of
justice.  Hammock v. State, 211 S.W.3d 874, 878
(Tex.App.--Texarkana 2006, no pet.). 
Where, as here, the error appears on the face of the judgment and does
not involve the merits of the criminal trial, but instead solely addresses the
clerical correctness of the judgment, we find that the interest of justice
dictated that we address the issue.   


