IN THE

TENTH COURT OF APPEALS

No. 10-09-00227-CR

JOE SIDNEY WILLIAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2009-110-C2

MEMORANDUM OPINION

Joe Sidney Williams appeals his conviction for possession of a controlled 

substance less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 

2003). After finding two enhancement allegations true, the trial court sentenced 

Williams to confinement for ten (10) years in the Texas Department of Criminal Justice –

Institutional Division pursuant to the jury’s verdict. Williams complains that (1) the 

trial court erred by allowing the State to withdraw its earlier abandonment of an 

enhancement allegation; (2) the sentence imposed was illegal because of improper 

enhancement; (3) the judgment was illegal as to the place of confinement in the 
Williams v. State Page 2

Institutional Division rather than in a state jail; (4) his trial counsel rendered ineffective 

assistance of counsel; (5) the trial court erred by denying his motion for new trial based 

on newly discovered evidence; (6) the trial court erred in the admission of evidence; (7) 

the trial court erred in allowing perjured testimony; (8) the trial court erred by not 

admitting a police report and allowing the prosecutor and police to mislead the jury; 

and (9) the trial court erred by not striking a comment made by Williams’s trial counsel 

regarding his guilt.1 Because we find no reversible error, we affirm the judgment of the 

trial court.

Improper Enhancements

Williams complains that the trial court erred by allowing the State to abandon 

and then, in essence, to resurrect an enhancement allegation contained in the 

indictment. Williams concedes that the enhancement allegation was not part of the

substance of the indictment. See Stautzenberger v. State, 232 S.W.3d 323, 328 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). However, he contends that once the State 

abandoned that enhancement prior to the empanelling of the jury, jeopardy attached to 

that allegation and that it was error for the trial court to allow the State to rescind its 

abandonment during the guilt-innocence stage of the trial.

When the State requested the trial court to allow them to rescind their 

abandonment of the enhancement allegation, Williams objected on the basis of surprise. 

 

1 The first three issues were contained in a brief filed by Williams’s appointed counsel on appeal prior to 

this Court abating this appeal to the trial court for a determination of whether or not Williams desired to 

represent himself on appeal. Williams was allowed by the trial court to represent himself in this appeal. 

This Court allowed Williams to file his own brief supplementing the brief previously filed by his 

appellate counsel prior to that abatement. The final six issues are from Williams’s pro se supplemental 

brief.
Williams v. State Page 3

Williams asked for additional time to respond, which the trial court apparently granted. 

Prior to the start of the punishment phase of the trial, the State provided Williams with 

an amended notice of enhancements that included the abandoned allegation but deleted 

a third enhancement.2 At this point, Williams objected on the basis of the trial court 

erroneously allowing a trial amendment to the indictment and asked for a continuance 

to the next morning in order to do research on the issue, which the trial court granted. 

The next morning, Williams did not raise the issue again. Williams then pled true to 

each of the enhancement paragraphs pursuant to the amended notice, including the 

first abandoned enhancement.

Under the United States Supreme Court’s decision in Monge v. California, 

enhancement allegations do not place a defendant in jeopardy of being tried twice for 

an “offense” or constitute an additional punishment for the previous offense. See Monge 

v. California, 524 U.S. 721, 728, 118 S. Ct. 2246, 2250, 2251, 141 L. Ed. 2d 615 (1998). 

Although the Court’s holding in Monge has been severely restricted by subsequent 

holdings beginning with Apprendi v. New Jersey, Apprendi specifically excluded prior 

convictions in its opinion. 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (“Other 

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond 

the prescribed statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.” (emphasis added)); see also Ex parte Watkins, 73 S.W.3d 264, 271 n.27 

 

2 The first enhancement paragraph, which the State initially abandoned, was for a state jail felony 

conviction. The third enhancement paragraph was for a third degree felony conviction. The State 

originally sought to have Williams punished for a second degree felony, but after the filing of the 

amended notice only sought to have him punished for a third degree felony, because Williams’s prior 

convictions did not give rise to the second degree punishment enhancement. See TEX. PEN. CODE ANN. § 

12.42(a)(1) (Vernon 2005).
Williams v. State Page 4

(Tex. Crim. App. 2002); see also Wilson v. State, 267 S.W.3d 215, 221 (Tex. App.—Waco 

2008, pet. ref’d). The Texas Constitution provides no greater protection than the United 

States Constitution regarding double jeopardy except in cases where the State causes a 

mistrial. Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990).

The enhancements sought against Williams pursuant to section 12.42 of the Penal 

Code were not elements of the offense for which Williams was being tried. Therefore, 

Williams was not placed in jeopardy for those offenses. As such, there was no error by 

the trial court’s reinstating the first enhancement prior to the sentencing phase of the 

trial. Because this was not error, Williams was not subjected to an illegal sentence due 

to the length of incarceration or as to the place of incarceration. We overrule issues one, 

two, and three.

Ineffective Assistance of Counsel

Williams complains that he received ineffective assistance of counsel for a litany 

of perceived errors by his trial counsel relating to the admission of evidence, by making 

a misstatement defeating Williams’s presumption of innocence, by failing to file pretrial motions, failing to produce a witness’s statement, and by failing to request a 

mistrial.

To prevail on an ineffective-assistance claim, Williams must prove (1) counsel’s 

representation fell below the objective standard of reasonableness; and (2) there is a 

reasonable probability that, but for counsel’s deficiency, the result of the proceeding 

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 
Williams v. State Page 5

1999). Failure to make the required showing of either deficient performance or 

sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813.

In considering an ineffective-assistance claim, we indulge a strong presumption 

that counsel’s actions fell within the wide range of reasonable professional behavior. 

Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective assistance 

must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. It is critical that 

the necessary record be obtained in the trial court to rebut the Strickland presumption 

that counsel’s conduct was strategic for purposes of appeal. Thompson, 9 S.W.3d at 814; 

McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. 

ref'd.). When the record is silent as to counsel’s reason for failing to act in some 

manner, the presumption that counsel acted reasonably is not rebutted. See Thompson, 9 

S.W.3d at 814.

Williams did file a pro se motion for new trial but did not allege ineffective 

assistance of counsel in the motion. The motion was overruled without a hearing by a 

written order. 

Trial Counsel’s Misstatement

In his closing argument, trial counsel for Williams stated: “At this point in time 

that man right there is guilty. It’s been their job – I mean, is innocent. My apology.” 

Williams contends that this statement constituted ineffective assistance of counsel 

because it violated his presumption of innocence. However, while clearly Williams’s 

trial counsel made an erroneous statement, he corrected himself almost immediately. 
Williams v. State Page 6

Trial counsel had argued vigorously throughout the trial that Williams was innocent, 

and the remark that appears to have been wholly inadvertent was made in the midst of 

a closing argument where trial counsel sought to demonstrate reasonable doubt in the 

State’s case. Williams has not demonstrated in his brief that there is a reasonable 

probability that, but for this alleged deficiency, the result of the proceeding would have 

been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 

2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Other Alleged Errors

The record is silent as to any strategy of Williams’s trial counsel regarding 

Williams’s other complaints. Therefore, Williams has not rebutted the presumption that 

his trial counsel acted reasonably. See Thompson, 9 S.W.3d at 814. We overrule 

supplemental issue one.

Denial of Motion for New Trial and Failure to Declare Mistrial

Williams contends that the trial court erred by denying his motion for new trial 

and by not declaring a mistrial because of newly discovered evidence. The defense 

presented a witness, Crestine Morales, who testified that she possessed the cocaine that 

was found in the vehicle, which was powder cocaine, and that Williams did not know 

that there were drugs in the vehicle. In his brief, Williams includes a typed copy of an 

affidavit purported to be signed by Morales, but it was never presented to the trial court 

and we will not consider it for purposes of this appeal. Additionally, he includes 

statements regarding Morales’s subsequent plea of guilty for possession of cocaine. An 

appellate court may not consider factual assertions that are outside the record, and a 
Williams v. State Page 7

party cannot circumvent this prohibition by submitting an affidavit for the first time on 

appeal. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); see also

Rodriguez v. State, 996 S.W.2d 402, 403 (Tex. App.—Waco 1999, no pet.). Therefore, we 

will not consider those allegations as they are outside of the record.

It is unclear on what basis Williams contends that the trial court should have 

declared a mistrial. Williams’s trial counsel did not ask the trial court to grant a 

mistrial, therefore, any potential error was waived. See TEX. R. APP. P. 33.1(a). We 

overrule supplemental issue two.

Admission of Evidence

Williams complains that the trial court erred in the admission of photographic 

evidence because he contends that upon Morales’s testimony that she was the owner of 

the drugs, those photographs should have been stricken from the record. He also 

contends that a videotape admitted into evidence and played for the jury should have 

been excluded because he believes that it was altered. However, no objection was made 

to either the photographs or the videotape at the time of their admission. Williams did 

attempt to raise the issue of the alleged alteration of the videotape with the trial court 

later; however, upon further questioning by the trial court, Williams finally stated that 

he was only seeking an internal investigation of the police department. Any possible 

error to these exhibits was waived when they were admitted without a timely objection. 

See TEX. R. APP. P. 33.1(a). We overrule supplemental issue three.
Williams v. State Page 8

Perjured Testimony

Williams complains that the trial court erred by allowing one of the arresting 

officers to testify falsely without admitting either the offense report or a report on ethnic 

racial profiling into evidence. See TEX. CODE CRIM. PROC. ANN. art 2.132 (Vernon 2005). 

The offense report from Williams’s arrest was neither offered nor admitted into 

evidence. Further, Williams does not explain how the admission of these reports 

affected his trial or would have been admissible in the first place. See TEX. R. EVID. 

803(8); TEX. R. APP. P. 38.1(h). Any error regarding this issue is waived. See TEX. R. APP.

P. 33.1(a). We overrule supplemental issue four.

Williams complains that the trial court erred by allowing the State: (1) to bring 

conflicting testimony by an officer; (2) by not admitting the offense report and a racial 

profiling report into evidence; and (3) by misleading the jury by not bringing in the 

laser to prove the allegation that Williams was speeding prior to being pursued by law 

enforcement. Williams contends that the officer was lying when he stated that he got a 

speed reading of 50 miles per hour in a 30 mile per hour zone by laser because a 

speeding ticket he received was allegedly dismissed for insufficient evidence. 

However, after a review of the record, this allegation regarding his speeding ticket is 

not mentioned in the record, and Williams has not cited to any testimony or other 

evidence regarding the ticket or subsequent dismissal. We will not consider facts 

outside the record. See Whitehead, 130 S.W.3d at 872. 

Further, the issue of whether a witness was being truthful or not was within the 

province of the jury as the exclusive judge of the credibility of the witnesses and of the 
Williams v. State Page 9

weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. 

App. 1996). Williams has not cited to, nor have we found, anything in the record to 

show that Williams was not speeding when the police began pursuit. We overrule 

supplemental issue five.

Presumption of Innocence

Williams complains that the trial court erred by not admonishing the jury and 

striking a misstatement by his trial counsel that he contends violates his presumption of 

innocence without a request to do so by either his trial counsel or the State. Williams 

contends that his trial counsel’s misstatement basically rose to the level of a concession 

of guilt. We disagree with that characterization. Williams has already contended that 

this one comment constituted ineffective assistance of counsel, which we have 

overruled. No objection was lodged at the trial court to this comment nor was a request 

made to strike the comment. Williams’s argument as he has presented it in this issue 

was waived by the failure to seek any remedy from the trial court. See TEX. R. APP. P. 

33.1(a). We overrule supplemental issue six.

Conclusion

We find that jeopardy does not attach to enhancement paragraphs pled in an 

indictment, and therefore, the trial court did not err by allowing the State to rescind its 

prior abandonment of an enhancement paragraph. Thus, Williams’s sentence was not 

illegal either due to the length or location of incarceration. Williams failed to meet his 

burden to establish that he received ineffective assistance of counsel. Williams’s other 
Williams v. State Page 10

objections were waived because they were not preserved at trial. We affirm the 

judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed May 12, 2010

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