See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a)-(b) (Vernon 2003 & Supp. 2007). 1

NUMBER 13-07-00043-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

FRANK LEONARD HASLEY, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 260th District Court 

of Orange County, Texas

 

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela

Memorandum Opinion by Justice Vela

A jury found appellant, Frank Leonard Hasley, Jr., guilty of possessing less than one

gram of cocaine and, after finding that he had two prior felony convictions, assessed 1

punishment at fifteen years’ imprisonment. Hasley appeals through an attorney-written
On May 3, 2007, this Court granted Hasley’s motion to file the pro-se supplemental brief. 2

Hasley had a total of eight prior felony convictions. 3

2

brief and a pro-se supplemental brief, with a total of four issues, arguing ineffective 2

assistance of trial counsel and improper sentencing. We affirm.

I. Background

On August 11, 2004, Hasley was approached by two City of Orange police officers.

As they neared, he reached behind himself and threw onto the ground several small items,

some of which were later identified as .13 grams of cocaine. The officers arrested Hasley

and at first tried to use him as an informant. When police found him ill-suited for this task,

they decided to end the informant relationship and file charges with the district attorney’s

office.

At trial on October 30, 2006, he pleaded not guilty. That same day, a jury found him

guilty. The court immediately advanced to the punishment phase, where the State

submitted two enhancement allegations: a 1978 conviction for burglary and a 1989

conviction for delivery of a controlled substance. Hasley pleaded true to both. These 3

enhancements elevated Hasley’s conviction from a state-jail felony to a second-degree

felony. See TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon Supp. 2007). Defense counsel

then moved for, and was granted, a continuance until the next day, as she had only issued

subpoenas for defense witnesses that morning. When the trial resumed on October 31,

defense counsel again moved for a continuance because three of the five defense

witnesses could not be served. One, Ronald Hackney, a parole officer, was on medical

leave and could not be reached. A second, Dr. Fermo, was out of town until the next day.

A third, Sally Burman, a drug counselor, was not in her office. The trial judge recessed to

telephone Burman. When court reopened, Burman was in the courtroom but did not have
3

Hasley’s records and said that only Dr. Fermo could retrieve them. Defense counsel said

that these records were evidence of Hasley’s drug treatment. The trial judge said that

Hasley’s history of treatment was irrelevant and denied the defense’s motion for a

continuance. The trial judge asked Burman whether she could testify to Hasley’s

character, and Burman said that she could not. The defense declined to call any of the

three witnesses then present and rested without presenting evidence.

The jury sentenced Hasley to fifteen years in prison. The trial judge then ordered

that this sentence be served consecutively with the remainder of a fifty-year sentence

Hasley had received in 1989, for which he was then on parole. Hasley now appeals to this

Court.

II. Ineffective Assistance of Counsel

The sole issue asserted in Hasley’s attorney-written brief and the third issue

asserted in Hasley’s pro-se supplemental brief contend that Hasley received ineffective

assistance of trial counsel. The primary brief claims that defense counsel’s subpoenaing

of witnesses only on the day of the trial and subsequent decision to present no evidence

during the punishment phase constituted ineffective assistance of counsel.

A. Standard of Review

To prove ineffective assistance of trial counsel, an appellant must satisfy the twopronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Goodspeed

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). First, he must show counsel's

representation fell below an objective standard of reasonableness. Second, he must show

there is a reasonable probability that, but for counsel's errors, the result of the trial

proceedings would have been different. See Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. To
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determine whether this test has been satisfied on appeal is to judge by the totality of the

representation, not by isolated acts or omissions. Jayne v. State, 216 S.W.3d 839, 851

(Tex. App.–Corpus Christi 2006, no pet.). Generally, isolated failures by counsel do not

constitute error in light of the sufficiency of the overall representation. Id. In order for an

appellant to overcome this Court's presumption of reasonable professional assistance,

“‘any allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.’” Salinas v. State, 163 S.W.3d

734, 740 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999)). The burden of proof is on the appellant, who must establish his or her

claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.

Crim. App. 1998). 

B. Analysis

Hasley asserts his trial attorney did not reasonably investigate mitigating factors for

sentencing. There is nothing in the record to support this assertion, however. When the

record is silent regarding the adequacy of an attorney’s investigation, we cannot assume

that it was inadequate. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.

1986).

Hasley also asserts that it was unreasonable for his attorney to only issue

subpoenas on the day of the trial. The court, though, recessed until the next day, when

three of Hasley’s five subpoenaed witnesses were present. Of the other two, Hasley does

not provide this Court any evidence of how issuing subpoenas earlier would have changed

the outcome of the punishment phase. Nor do we know what Dr. Fermo may have said.

In Hernandez, the court of criminal appeals held that a failure to issue subpoenas before
This claim is brought into question by the trial transcript, where Hasley makes a special point of 4

noting that until the day of the trial he believed he was facing a sentence range of fifteen to ninety-nine years.

The actual range, with enhancements, was two to twenty years.

5

the day of the trial, even if it resulted in witnesses not appearing, does not constitute

ineffective assistance of counsel when there is nothing in the appellate record detailing the

potential testimony. Hernandez, 726 S.W.2d at 58. Similarly, here we have no basis in

evidence for believing that defense counsel’s complained-of behavior altered the result to

Hasley’s detriment.

The fact that the defense put on no evidence during the punishment phase likewise

does not, by itself, show that Hasley was ineffectively represented. Defense counsel’s

decision to not submit evidence can be a strategic choice rather than a sign of

ineffectiveness. See Ex parte Kunkle, 852 S.W.2d 499, 506 (Tex. Crim. App. 1993). In

this case, Hasley does not show us what evidence should have been presented, thus we

have no basis for overcoming the presumption that defense counsel behaved reasonably.

The issue is overruled.

In his pro-se supplemental brief, Hasley claims he would have pleaded guilty had

his attorney advised him his previous felony convictions would enhance his sentence. We

4

find no authority, however, for the proposition that the right to effective assistance of

counsel protects a defendant who pleaded not guilty while ignorant of the consequences.

The authorities Hasley cites all deal with defendants who pleaded guilty. We overrule this

issue.

III. Consecutive Sentences

In his pro-se supplemental brief, Hasley asserts two issues regarding his

sentencing. In the first, he argues he was entitled to notice that the sentences would run
6

consecutively. As part of this same issue, he argues the trial court’s cumulation order was

improper.

A. Standard of Review

Texas law generally gives trial courts discretion over whether sentences for

subsequent convictions will run consecutively or concurrently with sentences from previous

convictions. See TEX. CODE. CRIM. PROC. ANN. art. 42.08(a) (Vernon 2006). An appellant

has no right to a concurrent sentence. Carney v. State, 573 S.W.2d 24, 27 (Tex. Crim.

App. 1978); Garza Garza v. State, 788 S.W.2d 651, 657 (Tex. App.–Corpus Christi 1990,

no writ). The defendant is not entitled to prior notice before a trial judge orders that

sentences be served consecutively. Tyson v. State, 172 S.W.3d 172, 176 (Tex. App.–Fort

Worth 2005, pet. ref’d.); see also Millslagle v. State, 150 S.W.3d 781, 784-85 (Tex.

App.–Austin 2004, pet. ref’d, untimely filed).

A judge’s order that sentences run consecutively should generally specify (1) the

cause number of the prior conviction, (2) the correct name of the court in which the prior

conviction occurred, (3) the date of the prior conviction and (4) the term of years assessed

in the prior case. Phillips v. State, 488 S.W.2d 97, 99-100 (Tex. Crim. App. 1972). For an

appellate court to find a cumulation order void, an appellant must show that the Texas

Department of Criminal Justice Institutional Division (TDCJ) is improperly calculating his

sentence. Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998).

B. Application of Law to Facts

In this case, Hasley has shown no evidence that the trial judge abused his discretion

by ordering that Hasley’s sentences run consecutively. Hasley was not entitled to notice

beforehand that the trial judge would do so. When the trial judge delivered Hasley’s
7

sentence orally in court, he failed to mention the term of years assessed in the prior case.

The written judgement, however, includes all of the details recommended in Phillips. This

was sufficiently specific. See Phillips, 488 S.W.2d at 100. Hasley makes no allegation that

TDCJ has improperly calculated his sentence. Thus, there is no evidence supporting

Hasley’s argument. We overrule the issue.

IV. Sentence Enhancement

In the second issue regarding his sentence, Hasley argues there was insufficient

proof of the enhancement paragraphs. At trial, however, he pleaded true to both of them,

and had an opportunity to present evidence that they were false. He did not, and he cites

no evidence or authority now for why we should order a new trial on the matter. Hasley

asserts, as a matter of contract law, that his 1978 conviction could not be used to enhance

this sentence because it was a plea agreement and in 1978 he did not agree to have it

used to enhance future sentences. We find no authority to support this argument, and

Hasley cites none. We overrule the issue.

V. Conclusion

We affirm the trial court’s judgment.

ROSE VELA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and

filed this 3rd day of July, 2008.