Case Information

*1

385-15

NO. PD-0385-15

ORIGINAL

IN THE COURT OF CRIMINAL

APPEALS OF TEXAS

Joe Don M. Donald, Appellant COURT OF CRIMINAL APPEALS

JUL 022015

VS

The State of Texas, Appellee

Petition for Discretionary Review

of Opinion No. 02-14-00113-CR

FILLED IN

From Second Court Appeals, $\&\text{COURT OF CRIMINAL APPEALS}\&\text{JUN}182015$ From the 355 District Court Abel Acosta, Clerk

Hood County, Texas

Trial Court No. CR12489

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IDENTITIES OF PARTIES And COUNSE

How. Ralph H. Walton, Jr

Judge, 335 District Court Hood County Justice Center District Judge 1200 W. Pearl St. Gransbury, TX 76048

Robert T. Christian District Attorney Hood County Justice Center District Attorney 1200 W. Pearl St Gransbury TX 76048

Matthew A. Mills 2613, E Hwy 377, Suite 103 Trial Attorney Gransbury TX 76049

E. Mark Pilgrd 115 W. Pearl Suite 106 Attorney for Appellant Gransbury TX 76048 SBN 16008870

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*3 Joe Don $m^2$ Donald TOC # 1909695 Barteft State Jail 1019 Arnold Dr Barleft, TX 76511

Chief Justice Terrie Livingston Tim Curry Criminal Justice Center Curt Appetls 401 W. Belknap, Suite 9000 Fort Worth Tex 76196

Lee Ann Dauphinot Tim Curry Criminal Justice Center - Second District 401 W. Belknap Suite 9000 Curt Appeals Fort Worth Tx 76196

Lee Cabriel Tim Curry Criminal Justice Center - Second District 401 W. Belknap Suite 9000 Curt Appeals Fort, Worth Tx 76196

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*4 Table of Contents A. Identity of Judges, Parties, and Counsel - Pg. 2-3 B. Table of Contents Pg. 4 C. Index of Authorities Pg. 5 d. Statement Regarding Oral Argument Pg. 6 E. Statement of the Case. Pg. 7-8 F. Statement of Procedural History Pg. 9 G. Grounds for Review Pg. 10-11 H. Argument Pg. 12-16 I. Prayer for Relief Pg. 17 J. Appendix Pg. 18

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Index of Authorities

U.S. Contitutional Amendments U.S. Const. Amend. V $P_g\mathrm{.11},13,14,15$ U.S. Const. Amend. XIV $P_g\mathrm{.11},13,14,15$

CASES

Rogers Vs. Lynagh, 848 F. 2d 606 Pg. 2, 13,14,15

References

Wests Texas Digest 2d. -Criminal Law $\infty 723(1)$ Appeals to sympathy or prejudice; In general. Page 13 Wests Texas Digest 2d-Criminal Law $\infty$ (171.1(6) Argument and Conduct of Counsel-Appeal to Sympathy or prejudicet argument as to Rnishment Page 14

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*6 Statement Regarding Oral Argument I don't believe that oral argument will be benifical for my petition at this time.

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Statement of The Case. Appellant Joe Donm:Dwald was indicated For Delivery of Controlled Substance, methamphetamine one to four grams that occurred on or about February 16, 2013 in Moed County, Texas. There was one enhancement paragraph for a previous conviction on October 1, 1991 for delivery of a controlled substance, so the range of punishment for this offense was 5 years to 99 years, or life. ON January 13, 2014 a twelve-person jury was selected and suown, the Indictment was read, and the Appellant entered a plea of "Not guilty", ON January 16, 2014 the indictment. Page 7

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• was re-read and Mr. McDonald changed his plea to "guilty" pied, and the evidence began. ON January 16, 2013 the jury assessed punishment at 40 years confinement in TDEJ. ON February 3, 2014 Appellant timely filed a motion for New Trial and Motion in
• Arrest of judgment, which was heard a NQ denied on March 21, 2014. A notice of Appeal was timely filed on March 26, 2014. ON March 26, 2015 Second District Court of Appeals Fort Worth. Justice Lee Ann Duphinot gave judgment affirmed trial court's judgment.

*9 Statement of Procedural History

1. March 26,2015 Second District Court

of Appeals for Worth gaste judgment on NO.02-14-00113-CR. 2. Appellant posse motion for an extension

of time in which to file the petition for Discretionary Review, File on 4-13-2015 and extended to June 26,2015.

*10 Brownds For Review In the closing arguments of prosecution of cause No. CR-12488 it states "But you know what he served before he gets the ten-year sentence, right? He hasn't even served two year of 20 so far, right? He has done the very something in the very same community, our community. It's - - it's an offense that needs to be answered for. And he needs to serve the time that he was sentenced to, at least 10, 20 years ago". (RRV3 Pg 117to118) The grounds are the District Attorney urged the jory in the final 2 minutes of his Pagie 10

*11 Closing arguments to assess an additional punishment to the earlier punishment assessed and served, and thus multiple punishments for the prior offenses. Under the U.S. Const. Amend II guaranteeing against Double Jeopardy enforced thru U.S. Const Amend XIV protects Citizens of Texas against multiple punishments for the same offense.

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Argument

I Joe DunmDAnald, believe the court of Appeals of Texas needs to review my Appeal based upon the ruling of Rogers is Lynaugh in the U.S. Court of Appeals for $5^{\text{th}}$ curcuit, 1988, The argument is, The District Attorney in his closing argument to the jury cannot or should not urge the jury to asses an additional punishment to a crime that has already been assesed and served. After reading Rogers's Lynaugh, 848 F.2d 60b, and comparing to what was stated in the last am in of my case by the District AtHoney, the, cases are striking

*13 Similar. IN west's Texas Digest 2d Criminal Law 723(1) Appeals to sympathy or prejudice; In general, Rogers Is Lynough, 848 F2d. 606, "State committed constitutional error in its closing argument to jury during sentencing phase of trial by asserting that prior offenses and current robbery offense were each "worth at least 10 years"; State was necessarily urging jury to assess the punishment in addition to earlier punishment, and thus multiple punishments for each of the three prior offenses, in violation of double jeopardy. U.S.C.A. Const. Amend. 5" (Rogers Us Lynough, 848 F.2d 606.)

*14 Also in West's Texas Digest 2d Criminal Law 1171.1 (6) Argument and conduct of Counsel - Appeals to sympathy or prejudice; argument as to punishment. "Constitutional error in closing argument to jury during sentencing phase of trial, which occurred when prosecutor told jury that each of three prior offenses and current robbery offense was "worth at least 10 years" thereby urging jury to assess multiple punishment for each of three prior offenses was not harmless; there was affirmative evidence of harmful effect in fact that, from among its many sentencing options Page 14

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• jury selected very to years prison term advocated by the state at the very time it made its argument in Controvention of guarantee against double jeopardy U.S.C.A. Const. Amend.S. (Rogers & Lynaugh, 849 F.2d 606.) From what I understand, when you read the excerpt from the record (RRV3 P117 to 118) in the grounds, looking specifically at how the District Attorney phrases his arguments to the jury. It is apparent that he was urging the jury to assess an additional punishment. In my case for a conviction in 1991, I had already received, served, and completed.

*16 In closing, the last sentence of the grounds, when the District Attorney states "And he needs to serue the time that he was sentenced to at least 10,20 years ago". It is obvious he wants the jury to assess a new punishment for the 1991 conviction, which is a mutipote punishment for same offense.

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- Prayer for Relief

The Appellant ask the court of Criminal Appeals of Texas to conduct Discretionary Review of Opinion of 2nd Caut of Appeals. Appellant prays the court will find the Constitutional Error in the closing arguments and send case back to 355 "District Cart for a new punishment hearing. Appellant also ask for favor since petition was written and researched at the LawLibrary of Bartlett State Jail, Bartlett, Texas. Thank you all for your time and service.

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Appendix

Second Cust Appeals opinion $B_1,1-12$

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00113-CR

JOE DON MCDONALD APPELLANT V.

THE STATE OF TEXAS STATE

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR12488

MEMORANDUM OPINION ^[1]

Appellant Joe Don McDonald pled guilty to the delivery of a controlled substance, methamphetamine, in the amount of one gram or more but less than four grams, ^[2] after the jury was selected. He entered a plea of true to the ^[1] See Tex. R. App. P. 47.4. ^[2] See Tex. Health &; Safety Code Ann. § 481.112(a)(c) (West 2010).

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enhancement paragraph of the indictment, increasing the punishment range to that of a first-degree felony. ^[3] The jury assessed his punishment at forty years' confinement and no fine. The trial court sentenced him accordingly.

Appellant brings two points. In his first point, Appellant argues in various ways that trial counsel provided ineffective assistance at guilt, rendering his guilty plea involuntary. In his second point, Appellant argues that trial counsel provided ineffective assistance at punishment by failing to object to questions and argument concerning the effect of parole and good-time laws on Appellant. Because Appellant has failed to sustain his burden of showing ineffective assistance of counsel, we affirm the trial court's judgment.

Brief Facts

Hood County Sheriff's Department investigators received a tip that Appellant was selling methamphetamine and would sell to anyone. They called and texted Appellant and arranged to buy methamphetamine from him for $\$175$ . As soon as the investigators had purchased the drugs, they arrested Appellant. The delivery was captured on video.

Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his counsel's representation was deficient

*21 and that the deficiency prejudiced the defense. ^[4] An ineffective-assistance claim must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. ^[5]

In evaluating the effectiveness of counsel under the deficient-performance prong, we look to the totality of the representation and the particular circumstances of each case. ^[6] The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. ^[7] Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct was not deficient. ^[8]

The prejudice prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, that is, a trial with a reliable result. ^[9] In other words, an appellant must show there is a reasonable

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probability that, without the deficient performance, the result of the proceeding would have been different. ^[10] A reasonable probability is a probability sufficient to undermine confidence in the outcome. ^[11] The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. ^[12]

Guilt Phase Allegations

In his first point, Appellant argues that his guilty plea was involuntary because his trial counsel committed ineffective assistance by (1) arguing with Appellant in front of prospective jurors, (2) failing to advise Appellant of a possible entrapment defense, and (3) refusing to request a continuance. Appellant concedes that because the claims raised in his first point were raised by a motion for new trial, the Strickland prongs are viewed through the prism of an abuse of discretion standard and that, looking at the evidence in the light most favorable to the trial court's ruling, this court should reverse the case only if no reasonable view of the record could support the trial court's finding. ^[13] Appellant ^[10] Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. ^[11] Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308 . ^[12] Strickland, 466 U.S. at 697, 104 S. Ct. at 2070. ^[13] See Arroyos v. State, Nos. 02-11-00135-CR, 02-11-00136-CR, 2012 WL 1555900, at *1 (Tex. App.—Fort Worth May 3, 2012, no pet.) (mem. op., not designated for publication). See also Colyer v. State, 428 S.W.3d 117, 122 (Tex.

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argues, however, that no reasonable view of the record could support the trial court's refusal to grant the motion for new trial and that given the evidence presented at the hearing, the refusal to grant the motion for new trial was arbitrary or unreasonable, citing a case from the Texas Court of Criminal Appeals as well as a case from this court. ^[14] He further argues that his ineffective assistance claims rise to the level of a violation of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments.

We address each allegation below.

Argument in the Hallway

Appellant and his sister testified at the hearing on his motion for new trial that Appellant and his trial attorney had a ten-minute argument in the hallway before jury selection. Trial counsel doubled up his fists and hit himself in the face in frustration with Appellant in the presence of venire members, lawyers, and other people who were in the hallway outside the courtroom before jury selection began. Appellant wanted counsel to request a continuance or to "do something other than what was getting done." Both Appellant and his sister testified that prospective jurors were present during the argument. No other evidence of the argument was presented to the trial court.

Crim. App. 2014) (providing that we review the denial of a motion for new trial for an abuse of discretion). ^[14] See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Thomas v. State, 31 S.W.3d 422, 428 (Tex. App.—Fort Worth 2000, pet. ref'd).

*24 Appellant presents his issue as an instance of ineffective assistance of counsel that caused him to plead guilty. It is unclear whether Appellant is arguing that the future members of the jury were negatively influenced by the argument. We conclude from the record and brief that Appellant contends that the argument contributed to his decision to plead guilty.

The trial judge alone determines the credibility of the witnesses at a hearing on a motion for new trial. ^[15] Although Appellant and his sister both testified to the argument, the trial judge was free to believe or to disbelieve them. ^[16] Nothing in the record shows that the jurors who actually sat on the case were in any way affected by the argument. Appellant entered his guilty plea three days after the argument. In accepting Appellant's plea, the conscientious trial judge made detailed inquiry into the voluntariness of the plea, whether Appellant understood what he was doing, and whether Appellant had any complaints about his counsel. Appellant stated on the record at that time that he was satisfied with trial counsel's representation. He also said that his plea was voluntary and that he understood what he was doing when he entered his plea. Neither the record nor argument of counsel shows that Appellant would not have entered his guilty plea except for the

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argument in the hallway. ^[17] Accordingly, he has not met his burden to prove ineffective assistance in this instance. ^[18]

Entrapment Defense and Conspiracy Evidence

Entrapment is a statutory defense:

It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. ^[19]

Appellant argues that because one sheriff's department investigator called him repeatedly to get him to make the drug delivery, he had a viable entrapment defense. The record does not support that conclusion. The Texas Court of Criminal Appeals has explained,

The question becomes whether the persuasion used by the law enforcement agent was such as to cause a hypothetical person-an ordinarily lawabiding person of average resistance-to commit the offense, not whether it was such as to cause the accused himself, given his proclivities, to commit it. ^[20]

The record does reflect that Appellant told the officer who interviewed him that he always got his drugs from the same person in Fort Worth but that if ^[17] See Tex. Code Crim. Proc. Ann. art. 26.13(b) (West Supp. 2014); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). ^[18] See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. ^[19] Tex. Penal Code Ann. § 8.06(a) (West 2011). ^[20] England v. State, 887 S.W.2d 902, 908 (Tex. Crim. App. 1994).

*26 people wanted drugs he had, he usually just gave the drugs to them. Appellant's statement therefore seems to suggest that he usually did not demand payment. But a delivery offense does not require payment for the drugs. ^[21] The gravamen of the offense here is the transfer from Appellant to another person. ^[22] Thus, the record as it stands after the hearing on the motion for new trial does not reflect a viable entrapment defense. Consequently, the failure to advise Appellant of the possibility of an entrapment defense, under the facts of this case, is not failure to provide effective assistance of counsel. ^[23]

Appellant also argues that his plea was involuntary and unknowing because trial counsel did not present evidence that there was a conspiracy in the Hood County Sheriff's Department to arrest Appellant. Appellant testified at the hearing on his motion for new trial that he had been contacted by the Texas Rangers to be an informant against the Aryan Brotherhood gang. Afterward, Appellant came to know another informant for law enforcement. Appellant later was assaulted and robbed, and he believed that the informant he had met was partly responsible for his assault. Appellant testified that he reported the assault to Investigator Watt and then complained to the Attorney General's Office and ^[21] See Tex. Health &; Safety Code Ann. § 481.002(8)-(9) (West Supp. 2014); Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. App. 2003). ^[22] See Lopez, 108 S.W.3d at 297. ^[23] See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

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the Governor's Office when the Hood County Sheriff's Department did not arrest his assailants. Appellant testified that he believed that the Hood County Sheriff's Department wanted him "put away" because of the complaints he had made to the Attorney General's Office and the Governor's Office.

The State argues that even assuming that such a conspiracy existed, Appellant has not shown how trial counsel was ineffective for not presenting evidence of a conspiracy. We agree. ^[24] Further, the State points out that unless Appellant had evidence that he did not discuss at the hearing on his motion for new trial, he was the only witness who could testify in support of the conspiracy allegation. That means that he would been required to waive his Fifth Amendment right to remain silent, take the stand, and admit his criminal record and that he was associated with drug users, drug dealers, and the Aryan Brotherhood gang. As the State argues, "In all, this evidence would have reflected poorly on Appellant's character, and done little to prove whether or not Appellant delivered methamphetamine to Investigator Ray Miller on February 17, 2013."

No Request for Continuance

Finally, Appellant argues within his first point that trial counsel rendered ineffective assistance by refusing to request a continuance. Appellant contends that he would have benefitted from trying to find a new lawyer and by exploring

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facts raised in the motion for new trial. But Appellant does not cite a legal ground for the continuance, nor does he show us how the outcome of the trial would have been different. ^[25]

In sum, none of the subissues Appellant raises in his first point satisfies his burden to prove that trial counsel rendered ineffective assistance resulting in an unknowing or involuntary plea. ^[26] Because Appellant did not meet his burden of showing ineffective assistance of counsel in any one instance, he cannot show it cumulatively. ^[27] The trial court therefore did not abuse its discretion by denying Appellant's motion for new trial. We overrule Appellant's first point.

Punishment Phase Allegations

In his second point, Appellant contends that trial counsel also committed ineffective assistance by failing to object to the prosecutor's questions of Appellant's sister regarding his prior sentences and actual time served and by failing to object to the State's argument to the jury about how the parole law would apply to Appellant. The prosecutor argued, in part,

All we know is when that time, the good conduct time plus the actual time served, meaning what he's already served plus what he will

*29 serve, when that equals one-quarter of his sentence, he will become eligible for parole. And if it's over 60-60 or over, he'll—he'll become eligible at 15, even if it's 99. Okay? Everybody understand that? Okay. So where do you set that punishment? Now, there's no guarantee that he's going to get out on parole, but we already heard that he got sentenced to two 10-year sentences and served 19 months. Okay? So those are just the facts, right?

It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record or when counsel's reasons for failing to do something do not appear in the record. Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. If trial counsel is not given that opportunity, we should not conclude that counsel's performance was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it."

We therefore do not address whether the prosecutor's argument went beyond that permitted by law because nothing in the record explains trial counsel's reasoning for failing to object either to the argument or to the questions of Appellant's sister. Because the reasons for trial counsel's omissions do not appear in the record, Appellant has failed to rebut the presumption that trial

28 Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). ^[29] Menefield, 363 S.W.3d at 593. ^[30] Nava, 415 S.W.3d at 308.

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counsel's decisions were reasonable. ^[31] We consequently overrule Appellant's second point.

Conclusion

Having overruled Appellant's two points, we affirm the trial court's judgment. /s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: March 26, 2015 ^[31] See Thompson, 9 S.W.3d at 814.

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NOTES

${}^3$ See Tex. Penal Code Ann. § 12.42(b) (West Supp. 2014).

${}^4$ Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

${}^5$ Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

${}^6$ Id.

${}^7$ See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307.

${}^8$ Nava, 415 S.W.3d at 307-08.

${}^9$ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

${}^{15}$ Colyer, 428 S.W.3d at 122.

${}^{16}$ See id.

${}^{24}$ See id.

${}^{25}$ See id.

${}^{26}$ See id.

${}^{27}$ See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000); Deer v. State, No. 02-10-00443-CR, 2012 WL 42954, at *4 (Tex. App.—Fort Worth Jan. 5, 2012, no pet.) (mem. op., not designated for publication).