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 320 TH 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 conv icted following a jury trial of the murders of Robert Phillips and Phyllis Fa ssauer 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

1 See Tex. Penal Code Ann. § 19.02 (b)(1) (West 2003).2 single trial and (2) his counsel was ineffective for not pr esenting mitigation evidence during his punishment trial. We modify t he judgment in Cause No. 59,233-D to reflect the correct amount of court co sts and, as modified, is affi rmed. 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 c ausing the death of Robert Phill ips on November 16, 1981, by shooting him with a firearm. In Caus e No. 59,234-D, Appellant was charged with intentionally or knowingly c ausing the death of Phyllis Fass auer on November 16, 1981, by shooting her with a firearm. The State's theor y 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 Benne tt then also killed Fassauer in the course of killing Phillips. On February 22, 2010, A ppellant 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 t hat 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 pretri al hearing where the motion to quash was addressed. During the hearing, Appellant's counsel asse rted that the indictment alleging Appellant mu rdered Fassauer was invalid because it was not supported by the3 law existing at the time of the offense and there was no legal or factual basis to support the State's allegati ons in that cause. 2
The trial court ultimately denied Appell ant's motion to quash; however, during the course of that hearing, the discussion turn ed 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 couns el responded: "No." Appellant's counsel contended that evidence of Fassauer's murder would be prejudicial and unduly aggravate any punishm ent Appellant might receive fo r Phillips's murder because Fassauer was merely an innocent bystander. T he State asserted that the cases should be tried together because Fassauer's death and Phillips's death were inextricably intertwined as a double homic ide that occurred during the same criminal episode and evidence of both murders would necessarily be introduced during the prosecution of either indictment. Thereafter, the tria l court made a determination that the two indictments would be tried together even tho ugh the State had never filed written notice of consolidation or joinder. A four day jury trial commenced on Ma rch 1, 2010. The day trial commenced, Appellant filed a motion entit led "Motion For Continuance" wherein he requested the trial court to reconsider it s ruling on Appellant's motion to quash the indictment and further requested a continuance of Cause No. 59,234-D, the Fassauer murder, because

2 Ultimately, Appellant does not cont est the applicability of the law of parties as a legal basis for the conviction, nor does he contest the legal and factual suffici ency of the evidence to support that conviction.4 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 Appell ant's motion for continuanc e, 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, ther e are two different and separate indictments. We believe that bec ause 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 Phillip s in return for an ounce of methamphetamine. Appellant gave Bennett a gun and drove him to a location near Phillips's house wher e 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 Phil lips. He then left the house. Shortly thereafter,

3 Throughout the remainder of this opinion, references to "section ____" or "§ ___" are references to the Texas Penal Code.5 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-offe red the evidence presented in its case-inchief and introduced a penitentiary package cont aining information on Appellant's four previous felony convictions. Appellant's counsel presented no mitigation evidence. During closing argument by Appellant's couns el, 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 subsequen t judgments sentenced Appellant to two concurrent sentences of conf inement for life and a $10,000 fine. 5 This appeal followed.

Joinder / Severance
Appellant asserts t he 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 mandat ed pursuant to section 3.04(a) because Appellant objected to a joint trial. Appellant asserts he was ha rmed because the State's evidence underlying

4 Bennett's account of his agreement with Appella nt, the murder and subsequent events taken by Appellant to hide his participation in the murder s was corroborated by f our 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 Fassauer's murder was weak and the trial cour t did not give its l egal 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 becaus e 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 ei ther action because the murders occurred in the same criminal episode and, as su ch, constituted same transaction contextual evidence. Although we consider it doub tful whether Appellant affirma tively 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 admitt ed 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

6 Appellant's motions asked only that the trial court q uash 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 wh y 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 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.--Houst on [1st Dist.] 2006, no pet.). Here, the evidence of Appellant's two off enses 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 late r 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 (T ex.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 mur dered, evidence of one victim's sexual assault and murder was admissible in other victim's tr ial alleging sexual assault and attempted murder as same transaction contextual evid ence). Thus, the jury would have heard the same evidence regardless of w hether the offenses were tri ed 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, becau se the same evidence would be admissible regardless of whether the offenses were tri ed separately or jointly, we hold that any joinder / severance error did not affect a substantial right. See White , 190 S.W.3d at

7 Same transaction contextual eviden ce results when an extraneous matter is so intertwined with the State's proof of the charged crime that avoiding referenc e 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 epi sode, or another offense or transaction is part of the case on trial or blended or closely interwov en therewith, proof of all facts is proper." Moreno v. State , 721 S.W.2d 295, 301 (Tex.Crim.App. 1986). The purpo se 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).8 231-32; 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 c ounsel was ineffective because he failed to present any mitigating evidence during the puni shment 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 defici ent in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the def endant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding wo uld have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.C rim.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 ineffectivene ss must be firmly founded in the record, and the record must affirmative ly demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at 812.

In the usual case in which an ineffectiv e assistance claim is made, "the record on direct appeal will not be suffi cient to show that counsel's representation was so deficient and so lacking in tactical or strategic decis ion-making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State , 77 S.W.3d9 828, 833 (Tex.Crim.App. 2002). This is gener ally the case because a silent record provides no explanation for co unsel's actions and therefore will not overco me the strong presumption of reas onable assistance. Freeman v. State , 125 S.W.3d 505, 506 (Tex.Crim.App. 2003). The proper procedur e 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 evaluatin g such claims on direct appeal. See Patterson v. State , 46 S.W.3d 294, 306 (Tex.A pp.--Fort Worth 2001, pet. ref'd). Like Patterson , Appellant's motion for new trial did not claim ineffective assistance of counsel, the trial court di d 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 t he record why Appellant's trial counsel did not present any mitigation evidence is her closing argument in the punishment proceeding where she indicated su ch evidence was unavailabl e. On appeal, Appellant does not point to any evidence that was ava ilable or describe how such evidence would have created a reasonable probabili ty that the result of the proceeding would have been different. On this record, to find Appellant's c ounsel 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 w ould have been different. For this reason, Appellant has10 not met either prong of the Strickland test. Accordingly, A ppellant'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 in cludes court-appointed attorney's fees of $10,433.06. Also contained in the clerk's record is an order directing the Institutional Divisi on of the Texas Department of Crim inal 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 indige nt and unable to afford the cost of legal representation bot h before trial in F ebruary of 2010, and again after trial in March 2010. Unless a material change in his financial resources occurs, once a criminal defendant has been fou nd to be indigent, he is presumed to remain indigent for the remainder of the proceedi ngs. Tex. Code Crim. Proc . Ann. art. 26.04(p) (West Supp. 2010). Therefore, bec ause there is evidence of record demonstrating that

8 Courts of appeals may review unassigned error in crim inal 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 crim inal trial, but instead solely addres ses the clerical correctness of the judgment, we find that the interest of justic e dictated that we address the issue.11 immediately following rendi tion of judgment Appellant was indigent and qualified for court-appointed counsel, we presume that his financial status has not changed.
Furthermore, the record must reflec t some factual basis to support the determination that the def endant is capable of payi ng 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 cour t-appointed counsel, and we are unable to find any evidence to support such a determination. Therefore, we concl ude 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 tr ial objection is required to c hallenge 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 c ontain the same error.12 Conclusion Having modified the trial court's judgm ent 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.