NO. 07-05-0006-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B JANUARY

11, 2007

______________________________ GARY DECKER, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 286 TH DISTRIC T COURT O F HOCKLEY CO UNTY; NO. 04-04-5708; HONORABLE H AROLD PHELAN , JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION Appellant

Gary Decker was convicted of sexual assault and, on direct appeal, challenges the resulting jury- assessed punis hment of 15 years in the Texas Department of Cri minal Justi ce Ins titut ional Div ision . We will affirm. Appellant

raises a s ingle p oint of error contending he received inef fective assistance of counsel duri ng the punishment phase of his tri al. In Strickland v. Washington , 466 U.S. 668 (1984), the Supr

eme Court arti culated a tw o-pronged tes t to be used when analy zing
a claim of ineffective assistance of counsel. In or der to obtain a rev

ersal on the grounds2

of ine ffect iv e ass ist anceof co unsel, an appellant mu st show that (1) counsel’s representation fell below an objective stand ard of r easonableness and ( 2) the deficient performance prejudiced app ellant. Id . at 687, 691. The Texas Court of Criminal Appeals adopted this test for criminal cases in Hernandez v. State , 726 S.W.2d 53 (Tex.Crim.App. 1986).
To satisfy the first prong of the Strickland test , app ella nt mu st sh ow t hat couns el made errors s o serious that he was not functioning as the “counsel”guaran te ed by the Si xth Amendment. Strickland, 468 U.S. at 687. He must demonstr ate that counsel’ s performance was unreas o nable under prev ailing pr ofessional norms a nd that the challenged action was not s ound trial st rategy. Id . at 689, 690. Appellant bears the burden of proving ineffective assistance, and ou r review of counsel’s performance must be highly deferential. Andrews v. State , 159 S.W.3d 98, 101 (Tex.Cri m.App. 2005); Bone v. State , 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Jacks on v. State , 877 S.W.2d 768, 771 (Tex.Cri m.App. 1994). There is a strong pr esumption that

counsel’s conduct falls within
a wide range of reasonable profess ional assis tance, and the defendant must overcome the presumption. Andrews , 159 S.W.3d at 101; Bone , 77 S.W.3d at 833.
The adequacy of defense counsel’s as sistance isbased upon the total ity of the representation rather than by isolated acts or omissions o f tr ial counsel. Thompson v. State , 9 S.W .3d 808 , 814 (T ex.Crim.A pp. 199 9). Altho ugh the con stitutional right to counsel ensures the r ight to rea sonably effective counsel, it does not guarantee errorless counsel whose competenc y or accu racy of repr esentation is to be judged by hindsight.3

Rylander v. State , 101 S.W.3d 107, 110 (Tex.Cri m.App. 2003); Bone , 77 S.W.3d at 833; Ex parte Kunkle , 852 S.W.2d 499, 505 (Tex.Crim.App. 199 3); Ingham v. St ate , 679 S.W.2d 503, 509 (Tex.C rim.App. 1984).
To defeat a presump tio n of reasonable profess ional assis tance, any al legation of ineffect iv eness must be firmly rooted in the r

ecord. Thompson , 9 S.W.3d at 813-14; Tabora v. State , 14 S.W.3d 332, 336 (Tex.App.–Houst on [14 th Dist.] 2000, no pet.). The record on direct appeal is, in almost all cases, inadequa te to show that counsel’s conduct fell below an objectively reasonable standard of performance and the better course is to pursue the claim in habeas proceeding s. Bone , 77 S.W.3d at 833 ; Moor e v. State , 140 S.W.3 d 720, 728 (Tex.App.–Austin 2004, pet. ref’d). Absent evidence of counsel’s
reaso ns for the challenged conduct, we will not conclude the challenged cond uct constituted deficient performance unless the con duct was s o outrageous t hat no competen t attorney w

ould have eng aged in it. Garcia v. State , 57 S.W.3d 436, 440 (Tex.Cri m.App. 2001).
In his brief, appel lantdirects our attention to sev

en instancesof a llege d ine ff ecti ve assistance of counsel durin g the punishment phase of his tri al. For pur poses of our discussion, we div ide the seven i nstances into t hree categories: (1) trial counsel’s failure to object; (2) trial counsel’s failure to engage in further jury argument; and (3) trial counsel’s comments during closing argument.4 Failure to Object
Three of appellant’s comp laints revolve around trial counsel’ s purported failur e to object. He first co mplains of his co unsel’s fai lure to object to two statements wit hin the following section of the pr osecutor’s ar

gument on punishment :
Firstof all, the fine, don’ t spend a lot of time on it. Just don’t spend a l ot of time on it. If the Defendant is sentenced to the penitentiary, he never pa ys a penny of the fine. If he is placed on probation, he may, over a period of time, pay

part or all

of that probation– of

that fine; but, it just goes in the gene ral coffers. It doesn’ t go to recompense the victim or anything like that. So, a fine looksgood. A fine so unds good. It’s w indow dres sing, but i t’s reall y not that important. So, don’t waste a l ot of time on it.
No. 2, quite often I hear from juror s that they think that w hat they w ould like to do is to f igure out s ome way to send someone to the penitentiary for some shorter period of time and then place them on a long probati on with the idea that weknow thatwe have got their attenti on and maybe they can make a produc

tive cit izen ov er a period of time.
The law doesn’t allow that. Okay? That just isn’t one of your options. The options– your decis ion must be on that list between probation and 20 years in th e pen iten tiary. (emphasis added by appellan t).1 Counsel rei terated the point , telling the jury tha t appel lant would “have to go to the

penitentiary

if he does not compl y wi th every single te rm of probation . . . .” 5 In particular , appellant

complains “[

t]rial couns el failed to object to the prosecutor’s misstatements of the law and ar gument outside the record when he discussed the subject of fine, whether Appellant would ever pay a fine asse ssed by the jury and to where or whom the fine money may be alloca te d.” Appellant argues that the prosecu tor’s statements left th e jury wit h the i mpress ion app ellan t coul d ign ore th e paym e nt of a fi ne if granted pro bation and misg uided the jury with r egard to thei r sentencing options.
We cannot agree counsel’s fail ure to object to the prosecutor’s statements concerning pay ment

of fin es i s ev iden ce of deficient pe rformance. To begi n with, th e statements were not necessarily detrimental to appellant. As his brief an d the record makes clear, appel lant’s goal was to secure from the jury a recommendation of pr obation. The prosecutor’ s statement that a defendant sen tenced to the peniten tiary “never pays a pen ny” of a fine was foll owed by his statement that “If he is pla ced o n pro bati on, h e ma y, over a per iod of ti me, p ay p art or a ll o f that

. . . fine .” C ouns el, as a part of a sound tria l stra tegy, could well hav e decided to ignore the statement, in a nticipation of maki ng clear to the jury

during his own arg ument that appellant would be r equired to comply w ith all the conditions of his probation or face the ri sk o f r evocation. Counsel did so during his argument, stating tha t, under pr oba tion, appellant would have a sentence in t he penitentiary “looming ov er him, ready

to drop with hi m violati ng any one of the provi sions ordered by the Cour

t.” 1 Under the r

ecord before us, w

e cannot conc lude tria l counsel’s6

alleged failure to objec t to the prosec utor ’s com men ts was n ot so und trial strat egy. Strickland, 468 U.S. at 690; Bone , 77 S.W.3d at 833. Appellant

secondly points to trial counsel’s failure to “object to the prosecutor’s misstatement

of the law w hen he promoted the pr oposition concerning the un availabil ity of any prov ision in the law in w hich an offender may b e sentenced to a term of imprisonment, follow

ed by a leng thy term o f probation.” He conten ds the prosecutor’s stateme n tthat the “law doesn’t allow

that” was

misleading because it ig nored the tria l court’s authority

to impose up to 180 days confinement in the county

jail asa condition of community

supervis ion. See T EX . C ODE C RI M . P ROC
. A NN . art . 42. 12, § 12 ( stat ing “[i ]f a judge having jurisdiction of a felony case requires as a conditio n of community supervis ion thatthe defendan t subm it to a perio d of confinement in a count y jail, the period of confinementmay

not exceed 180 days”). Appellant argues that counsel’s failure to o bject to the statement

and request an instructi on clarifyi ng the possi bility of jail time asa part of probation is the equi valent of the f ailure to obj ect that req uired reversal in Andrews , 159 S.W.3d at103. We disagree. Althoug h the statement may have presented an inaccurate picture of the sentencing options open to t he trial courtif the jury recommended probati on, in its contex

t, which focused on the sentenci ng options g iven the j ury under th e court’ s charge, it

was not s o clearly

a misstatement of the l aw as to r equire obje ction. Appellant

also complains

trial couns el fai led to object “to the note provid ed to the jury by the trial court whic h was a comment on the weig ht of the evidence.” Shortly after the jury beg an its deliber ations on punishment, it s ent a note to the trial judge asking, “ [i]f
we sign form 1 us ing a time [l ess than] ten years, is i t up to the judge to c hoose servi ng7

time or probation?”The trial judge sug gested to theprosecutor an d defense counsel that he would se nd a note to i nform the jury that he could not

advise them further on the question. At t he su gg esti on of t he prosecu tor, however, the court provided a response stating to the jury , “[p]robati on may be gr anted only upon completing [Verdict] F orm # 2.” Defense counsel stated he had no object ion to the pros ecutor’s sug gestion.
For at least two reas ons, we find t rial counsel ’s agreement to the court’s response to the jury ’s questi on did not consti tute deficient performance. First, the court’s response to the j ury’s qu esti on was corre ct, in that , ofthe t wo verdict forms provided the jury, Verdict Form No. 2 was the onl y one that pr ovided a space for the jury to recommend a prob ated sentence. Second, giv en the goal of obtai ning a probat ion recommendation, trial couns el reasonably could have determined that direct ing the jury’s attention from Verdict Form No. 1, which pr

ovided no pr

obation option, toForm No. 2 w as favorable to appellant. Andrews , 159 S.W.3d at 101; Bone , 77 S.W.3d at 833.

Failure to E ngage in F urther Jury Argument Next, appellant contend s trial counsel prov ided ineffective ass istance of counsel to appellant

“when he fail ed to take adv antage of the opportu nity to eng age in f urther ju ry argument

on the issue of pr

obation for Appell ant after the tri al court’s receipt of a jur y note which clearly

indicated that the jury was leani ng towar d rejection of Appellant’s appl ication for probation and as sessing a term of confinement in the penitentiary .” During deliberations, the trial court received a note fro m th e jury w hich asked, “ If we choose a sentence of 15 years, what is the minimum time of incarceration[?] ” On their e xamination8

of the note, the trial cour

t and both counsel real ized that th e mandatory i nstruction unde r section 4(a) of artic le 37.07 of the Code of Criminal Procedure had been omitted from the court’s charge on puni shment. The court de cided to prov ide the instr uction to the jury and offered the prosecutor

and defense counsel a few additional minutes of jury argument to add ress t he newly-added charg e information. The pr osecutor deferred to the court and defense couns el regarding the decision whether they should retur n the jury to the courtroom for further arg ument. Defense counsel stated that, after talking toappellant, he “will waive that argument.” Again, this decision falls within the realm of sou nd trial strategy and absent evidence of counsel’s reasons for the chall enged condu ct, we w ill not conc lude it consti tuted deficient performance. Thompson , 9 S.W.3d at 813-14. While ap pellant mig ht ha ve benefitted from his counsel ’s further ar gument, the State als o would have had the opportunity

for argument and appe llant’s counsel reaso nab ly could have conclud ed the potential benefit w

as outweig hed by

the risks. See Bone , 77 S.W.3d at 834-35 (counsel reasonably could have decided risk of unf avorable counter-evidence outweighed benef it of additional miti gating ev idence on punishment ).

Improper Comments D uring Cl osing Arg ument Appe ll antcontends three s tatements made during defense counsel’sclosing
ar gumentduring the punishment phase ex hibited counsel ’s ineffectiveassistance. The first two statements were made in re spon se to comments by the prosecut or during his punishment

argument. F irst, appell an t cont ends trial counsel wasineffective w hen he9

“discounted the value of any show of re morse on Appellan t’s behalf at the pu nishment stage by posing the rhetorical question to the jury: ‘W hat good is that going to do?’” Appellant directs us to the f ollowing statement made by trial counsel:
One of th e things t hat surpris es me about [the pro secutor’s] argument is the apol ogy. There is no w ay I’m go ing to have [appellant] g et up there o n the stan d and pret end to ap ologi ze about something like that. What good is t hat going to do?
If I had put– if I had put

[appellant] on t he stand and told him he should addr ess [the victim], that can’t come anywher e close to any– anyt hing that w ould. I think, even be appropriate. I just– I just can’t imagine that that would have– would have m ade any difference i

n anyone’s

mind, r egardless of ho w sincere h e m ight be about something l

ike that . . .

. (emphasis added by

appellant). Next, appellant argues his counsel was ineff ect ive by providing “his pers onal opinion during final summation to t he jury on punishment that Appel lant’s lay witness es, who had testified to Appellant’s good character and suita bility for probation, were not ‘overly helpful, to be honest with you.’” Appellant focu ses on the following statement by trial counsel:

. . . But I thin k fro m the peop le you saw, I think you probably got an accur ate view of [appellant].10

Do I wish he h adn’t gone to t he bar once sin ce– since I g ot this case? Sure, I really wish that he hadn’t. But, you know, that’s a lifest yle choice he made, and it’s a choice thathe won’t be ab le to make if he is on probation. I t will not be an option. He won’t be able to go to those places.
There– there is– ther

e is just not hing else t hat I can do toget that information in front of you, other tha n calling friends and fam ily and asking them what it was.
And take– take them f or what they’re worth, but I don’t– I don’t think they were overly helpf

ul to [appellant

], to be honest wit

h you

. . . . (emphasis added by

appellant). During his a rgument, the pr osecutor cri ticized appellant’s fail ure to take the opportunity

to ap ologi ze to his vi ctim during his punishment testimony, and pointed out that the witness es testifying on appellant’sbehalf on punishment w ere his friends

and his sister. On appeal, appellant makes much of the two s tatements he sing les out from his counsel’s effort to rebut th e prosecu tor’s remarks. He contends his counsel, by the state ments, effectively agreed with the prosecutor and presented a State-oriented view of his punishment

evidence. Considered i n their contex ts, neither of the statements carr ies the significance, nor the mean ing , appellant’s argument ascr ibes to them. We find the statements fall with in the wi de range of reason able professional assistance. Andrews , 159 S.W.3d at 101; Bone , 77 S.W.3d at 833; Thompson , 9 S.W.3d at 814.11

Fina lly, appellant contend s trial counsel failed to provide effecti ve assis tance “when he told the jur

y during his final summati on on punishment that Appellant would be subject to t en years of r

egisteri ng under the appl icable law when, in fact , convict ion of sexua l assault committed Appellant to a lifetime of repo rt ing a nd registering under theSex Offender Registr ation Act.” At counsel’s req uest, the trial cour t included in the charge on punishment

an instruction that his compli ance with the Sex Offender’sRegistr ation Law would be among the condi tions imposed i f the jury r ecommended community supervis ion. During his punishment a rgument, couns el mistakenly told the jur

y that appell ant would be required to regis ter as a sex offender for ten year s after he completed community supervis ion. Article 62.101 of the Code of Crim in al Procedure provides, “the duty to register for a person ends when the person dies if the person has a reportable conviction
or adjudication. . . .” (emphasis added). Appellant’s conviction in this case is a “reportable convi ction ” and he, therefore, i s subject to l ifetime regis tration. T EX . C ODE C RIM . P ROC
. A NN . §§ 62.001(5), 62.101.
The State c oncedes on appeal th at counsel miss tated the requi red regis tration period, and it attributes no reasonab le tria l strategy to counsel’smisstatement. See Andrews , 159 S.W.3d at 102 (holding “[t]here can be no reasonab le trial str ategy in failing to corre ct a m issta tem ent o f law t hat i s det rime ntal to th e clie nt”). Howeve r, th e misstatement

was not directly

detrimental to appellant, becaus e he was r equired to regis ter for life whether

or not the jur

y recommended pr

obation. T EX . C ODE C RIM . P ROC . A NN . § 62.101.12

Still, appellant contend s the misstatement made a recommendat ion of p robation less likely by minimizing the burdensome requir ements of the sex offender s tatute. Because the jury

was led to bel ieve the re qu irements would end ten years after his completion of

probation, appel lantargues, the jury w as unaware of “the onerous cond itions of any probated sentence and instead, [the misstatement] rendered con sideration o f probation more difficult than it should have been had the juror s been properl y apprise d of applicable l aw.”
We cannot agreethat coun sel’s miss tatement of the lengt h of the sex offender registr ation period was an error so serious as to render his

performance deficient

under the first prong of the Strickland test. As appel lant’s arg ument notes, the statement was a part of counsel’s emphas is of the “ oner ous conditions ” that woul d accompany communi ty sup ervisi on, and the sex offender registr ation was only one of several condi tions h e mentioned to the jur

y. The misstatement did not neg ate counsel’s point. We overrule appellant’sissue and affirm the judgment of the tr ial court.

James T. Campbell Justice Do not publish

.