                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-14-00865-CR

                                         Julian Cedrick BELL,
                                                Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR8623
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 19, 2015

AFFIRMED

           On June 7, 2012, the jury found Appellant Julian Cedrick Bell guilty of murder. Bell

elected to have the trial court assess punishment, and the trial court assessed punishment at life

imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Bell raises

two issues on appeal: (1) the State failed to produce evidence to support the enhancement

allegation, and (2) his counsel’s actions amounted to ineffective assistance of counsel. We affirm

the trial court’s judgment.
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                                   PROCEDURAL BACKGROUND

       On June 7, 2012, the jury found Bell guilty for the June 16, 2011 murder of Jason Keith

Ross; the case was reset for a punishment hearing before the trial court. The State’s indictment

included an enhancement allegation relating to a September 22, 2006 conviction for felony

possession of a controlled substance. The trial court’s judgment indicated Bell entered a plea of

true to the enhancement allegation and that the trial court found the enhancement allegation to be

true. The court assessed punishment at life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice.

       On August 7, 2013, this court issued an opinion in this matter. See Bell v. State, No. 04-

12-00431-CR, 2013 WL 4009669 (Tex. App.—San Antonio Aug. 7, 2013, pet. ref’d). We

concluded the record contained no evidence to support the enhancement allegation, and we

remanded the underlying cause for a new punishment hearing. Id. at *3.

       On August 8, 2013, the trial court signed an amended judgment reciting “N/A” with regard

to the plea to the enhancement allegation and “N/A” with regard to the trial court’s finding on the

enhancement allegation. Bell filed a second appeal, and on September 18, 2013, this court issued

a subsequent opinion concluding that, because this court’s mandate had not yet issued, the trial

court was without the authority to enter the amended judgment. See Bell v. State, No. 04-12-

00431-CR, 2013 WL 5297159, at *1 (Tex. App.—San Antonio Sept. 18, 2013, no pet.). The case

was remanded to the trial court.

       Six weeks later, during a second sentencing hearing, trial counsel presented arguments and

Bell made a plea to the trial court. The State did not produce any new evidence to support a finding

of true on the enhancement allegation. On December 8, 2014, the trial court again assessed a life

sentence against Bell. The December 8, 2014 judgment contained neither a plea nor a finding on

the enhancement allegation in question.
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                                 ENHANCEMENT ALLEGATIONS

       In this appeal, Bell contends the State did not prove the essential elements of the

enhancement allegation beyond a reasonable doubt.

A.     Standard of Review

       Because Bell challenges the legal sufficiency of the evidence to support a finding of true

to the enhancement allegation, we examine all the evidence in the light most favorable to the

verdict and determine whether any rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Brooks v. State, 323 S.W.3d

893, 894–95 (Tex. Crim. App. 2010). “We ‘determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).

       “To establish that a defendant has been convicted of a prior offense, the State must prove

beyond a reasonable doubt that (1) a conviction exists, and (2) the defendant is linked to that

conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

B.     Arguments of the Parties

       Bell argues the record and supplemental record in this matter contain no evidence to

support an enhancement allegation, and the trial court’s judgment must be reversed for a new

sentencing hearing.

       The State counters that Bell’s sentence was (1) based on the jury’s murder conviction, (2)

within the first-degree felony punishment range, and (3) not enhanced by any prior convictions.




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C.     Analysis

       Bell was convicted of murder, a first-degree felony.          See TEX. PENAL CODE ANN.

§ 19.02(c). A first-degree felony, without enhancement, is punishable “by imprisonment in the

Texas Department of Criminal Justice for life or for any term of not more than 99 years or less

than 5 years.” TEX. PENAL CODE ANN. § 12.32. As long as the punishment is within the penalty

range set out in the Texas Penal Code, the trial court is vested with great discretion in imposing an

appropriate sentence. See Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015) (citing

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)).

       Here, although the State’s indictment included an enhancement allegation, the State’s

failure to address the prior conviction, present evidence of the conviction, or argue concerning the

same, constitutes a waiver of the enhancement during the second punishment hearing. See Prater

v. State, 903 S.W.2d 57, 59 (Tex. App.—Fort Worth 1995, no pet.) (“When the enhancement

element is waived, there is no issue in controversy regarding enhancement of punishment and no

evidence is required. There is no need to offer evidence of mitigating factors when no greater

punishment than the minimum punishment permitted for the offense may be imposed.”).

       Bell asserts the trial court improperly used the prior conviction in determining sentencing.

The record, however, actually supports Bell was sentenced for first-degree murder, the felony for

which he was convicted. There was no mention of the prior possession conviction or a request the

trial court consider the prior conviction in its assessment of punishment. Bell did not enter a plea

and the trial court neither entered a plea nor made a finding as to the enhancement paragraph. No

one objected to proceeding to sentencing based solely on the murder charge or suggested any other

convictions be considered by the trial court. Prior to announcing Bell’s sentence, the trial court

explained the assessment of punishment was “based on the facts and circumstances of the crime

as before.”
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        Here, the trial court’s punishment fell within the range of punishment established by Texas

Penal Code section 19.02, and we will not disturb a penalty imposed within the range prescribed

by the legislature. See Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978); accord

Jackson, 680 S.W.2d at 814. Accordingly, we overrule Bell’s first issue on appeal.

                              INEFFECTIVE ASSISTANCE OF COUNSEL

A.      Waiver

        In his original appeal, Bell contended the trial court erred in denying his motion for new

trial because the jury “shifted the burden of proof”—requiring Bell to present evidence proving

his innocence. More specifically, Bell argued the jury violated his Constitutional rights by waiting

for Bell to “plead his case before determining an outcome.”

        During the hearing on his motion for new trial, Bell’s trial counsel prepared an affidavit in

which she averred that, based on interviews with the jury members after the verdict was reached,

the jury was waiting for the defense to put on evidence. The State countered that any question

regarding the defense’s case was raised by defense counsel’s opening argument in which she

promised evidence that was never presented. In this court’s opinion dated August 7, 2013, we

concluded that because Bell’s defense counsel did not introduce the affidavit at the hearing on the

motion for new trial, we could not consider the affidavit on appeal. See Bell, 2013 WL 40009669,

at *2. We thus concluded the trial court did not abuse its discretion in denying the motion for new

trial. Id.

        Because Bell raised the question of jury burden shifting in his original appeal, and because

only the issue of punishment by the trial court was tried on remand, we conclude we have no

jurisdiction over Bell’s complaints relating to the jury’s shifting of the burden. See Easton v. State,

920 S.W.2d 747, 749 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (an appellant may not assert

any error that occurred during guilt innocence when appealing from the retrial of punishment only).
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       To the extent that Bell’s claims of ineffective assistance of counsel were not addressed in

the original appeal, we address these claims under the standards set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984).

B.     Standard of Review

       In order to establish his trial counsel rendered ineffective assistance, Bell must “establish

two components by a preponderance of the evidence: deficient performance of trial counsel and

harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome

of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland,

466 U.S. at 687); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). To

prove the first prong, deficient performance, Bell must prove that his attorney’s performance “‘fell

below an objective standard of reasonableness’ under prevailing professional norms and according

to the necessity of the case.” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at

687–88). To prove harm, Bell “must demonstrate that he was prejudiced by his attorney’s

performance or that ‘there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Id. at 158 (citations omitted) (quoting

Strickland, 466 U.S. at 694).

       “An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct

fell within the wide range of reasonable professional assistance.” Id. Bell “‘must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial

strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 689).

       “A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of

counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record
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on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”

Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003). In the absence of a developed record, we will not “speculate as to the reasons why trial

counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic

plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San

Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance

unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged

in it.’” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005)).

C.     Analysis

       Bell contends that his counsel, during the motion for new trial, rendered ineffective

assistance of counsel by failing to introduce trial counsel’s affidavit. The record is silent as to why

the affidavit was not presented during the motion for new trial, and we will not speculate as to trial

counsel’s reasons. See Rodriguez, 336 S.W.3d at 302.

       Based on the state of the record before us, silent as it is on trial counsel’s actions and

reasons therefore, Bell has failed to rebut the strong presumption that counsel’s representation was

within a wide range of reasonable, professional assistance and was motivated by sound strategy.

See Thompson, 9 S.W.3d at 813–14. Accordingly, Bell failed to prove the first prong of the

Strickland test, and thus, cannot prove his claim of ineffective assistance of counsel. Ex parte

Moore, 395 S.W.3d at 157.




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                                       CONCLUSION

     Having overruled both of Bell’s issues on appeal, we affirm the trial court’s judgment.

                                              Patricia O. Alvarez, Justice


PUBLISH




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