## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 15

- 00067

- CR 07

- 15

- 00068

- CR

JEREMY EDWARD SUSTAITA, APPELLANT

V. THE STATE OF TEXAS, APPELLEE On Appeal from the 181st District Court Potter County, Texas Trial Court No. 67,370

- B , 68,439

- B , Honorable John B. Board, Presiding



### December 9 , 2015 MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Jeremy Edward Sustaita entered open pleas of guilty to two charges of possession of a controlled substance. The trial court sentenced him to concurrent prison terms of ten years in the first case 1 and five years in the second. 2 Through two

1 Trial court cause number 67,370

- B and ap pellate case number 07

- 15

- 00067

- CR.

2 Trial court cause number 68,439

- B and appellate case number 07

- 15

- 00068

- CR.2

issues, appellant contends the State’s argument to the court on punishment was improper and his counsel rendered ineffective assistance. Finding appellant’s issues have no merit, we will overrule both issues and affirm the judgments of the trial court.
Background
In the first case, a ppellant was indicted f or possession of four grams or more bu t less than 200 grams of methamphetamine, enhanced by a prior felony conviction for unlawful possession of a firearm by a felon. 3 In the second case an indictment, returned some six months later, charged appellant wit h possession of one gram o r more but less than four grams of methamphetamine, also enhanced by the firearm possession conviction. 4 In a unitary proceeding , appellant entered an open plea of guilty in both cases and each proceeded to disposition

. Appellant was the only witness to testify. His testimony and the State’s exhibits

on cross - examination focused chiefly on appellant’s criminal background. The record shows appellant received a fourteen

- month sentence in a state jail in 2001 after his

com munity supervision for burglary of a building was revoked. He received a seven

-

3 T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115(a),(d ) (West 2010). The offense is a second

- degree felony, id., but was enhanced to a first de g ree felony by proof of a prior felony conviction. T EX

. P ENAL C ODE A NN

. § 12.42(b) (West Supp. 2015 ). A first degree felony is punishable by imprisonment for life or for any term of not more than 99 year s or less than 5 years and by a fine not to exceed $10,000. T EX

. P ENAL C ODE A NN

. §12.32(a), (b) (West 2011).

4 T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115 (a), (c) (West 2010). The offense is a third

- degree felony, id., but was enhanced to a second de g ree fe lony by proof of a prior felony conviction. T EX

. P ENAL C ODE A NN

. § 12.42(a) (West Supp. 2015 ). A second degree felony is punishable by any term of imprisonment of not more than twenty years or less than two years and a fine not to exceed $10,000. T EX

. P EN

. C ODE A NN

. § 12.33(a), (b) (West 2011 ).3

year prison sentence for the unlawful possession of a firearm by a felon after his community supervision was revoked in 2004. He received jail sentences for other misdemeanors and a state

- jail felony 5 during the years from 1999 through 2012. On

cross - examination appellant agreed the term “habitual offender” might describe him.
Appellant asked the court to place him on community supervision and order him placed in SAFPF. The State argued appellant s ho u l d n o t b e considered f o r p r o b a t i o n because of his two prior felony probation revocations. It suggested a punishment
range of twenty to twenty

- five years’ confinement in the first case and ten to twenty
years in the second case

. The court did not follow either sentencing recommendation.
Analysis
In his first issue, appellant contends during argument the prosecutor wrongly argued that appellant’s punishment range should parallel that of habitual offenders coming under Penal Code section 12.42(d). 6 Despite the number of appellant’s prior convictions, it is undisputed that enhancement under section 12.42(d) was not available.
On appeal, appellant points to the following portions from the State’s argument for his complaint:

W hil e [ a pp e l l a n t ] d o e s n ’ t f i t w h a t t h e C o d e s a y s is a h a b i t u a l f e l o n y o ff e n d er b ec a us e o f t h e k i n d s o f fe l o ni e s w e ’ v e got

. . . I t h in k t h e i d ea,

5 See T EX

. P ENAL C ODE A NN

. § 12.44(a) (West 2011 ) ( authorizing a trial court to punish a defendant convicted of a state jail felony with a term of confinement allowed for a Class A misdemeanor if it finds such p unishment would best serve the ends of justice ).

6 See T EX

. P ENAL C ODE A NN

. § 12.42(d) (West Supp. 2015 ) (specifying , under stated circumstances not existing here, an enhanced imprisonment range of life or twenty
- five to ninety

- nine years).4

t ho u g h , b e h i n d t h a t s t a t u t e o n t h e h a b i t u a l f e l o n y off e n d er is , a t s o m e p o i n t th e C o d e p re s u m es that i f y ou ’ re g o in g t o c o m m i t a fe lon y , g et c o nv i c t e d , d o y ou r t i m e, g et o u t a n d t h e n co m m i t ano t h e r fe l on y , th a t at t h at p o i n t t h e law p r e su m es y ou ’ re a h a b i t u al f e l on y off e n d er under th a t on e s t a t u t e. * * * * W e ll , w h at w e ’ v e g o t i n t hi s ca s e i s w h il e it d o e s n ’ t f i t t h a t s t a t u t e, w h a t i t d o es i s i t f i t s a p a t t e r n of t h e D efe n d a n t

. A t 2 2 a n d a t 2 5 a n d a t 30 , a t 3 3 a n d at 3 5 , h e ’ s b e e n b ef o r e a J ud g e o n c r i m in al off e ns e s

. N o w if t h a t ’ s n o t a h a b i t , i f th a t ’ s n o t a h a b it u a l of f e n d er, l e a v e the o th e r pa r t o u t , b u t i f t h a t ’ s n o t a h a b i t u a l c r i m in al o f f e n d er, I d o n ’ t k n o w w h at is

. . . . Appellant made no objection to the State’s argument and, therefore, nothing is preserved for our review. T EX

. R. A PP

. A PP

. P. 33.1(a); Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) (“ Appellant d id not object to the prosecutor’ s argument and therefore failed to preserve error ”). Moreover, even if the error appellant claims occurred and had been preserved, it was harmless. There is no indication in the record that the State’s argume nt affected a substantial right of appellant. See T EX

. R. A PP

. P. 44.2(b) (for non

- constitutional error, “[a]ny other error, defect irregularity, or variance that does not affect substantial rights must be disregarded”). The argument was to the bench. As trier of fact and judge of the law, the trial court was fully ca pable of disregarding any improper argument. See Lopez v. State, 725 S.W.2d 487, 490 (Tex. App.

— C orpus Christi 1987, no pet.) (“ [T]he trial court was sitting as trier of fact and was quite capable of disregarding any improper argument, and wi ll be presume d to have done so” ) ; Trevino v. State, Nos. 13

- 09

- 00511

- CR & 13

- 09

- 00512

- CR , 2010 Tex. App. LEXIS 6751, at *25

- 26 (Tex. App.

— Corpus Christi Aug. 19, 2010, pet. refused) (mem. op., not designated for publication) (addressing ineffective assistance complaint arising from counsel’s failure to object to the State’s argument to the court)

. As noted,5

appellant has an extensive criminal history and the sentences imposed were on the low end of the available range. Appellant’s first issue is overruled.
Appellant complains in his second issue that his trial counsel rendered ineffective assistance by failing to object to the State’s argument that the sentencing range should parallel that of section 12.42(d).

In Strickland v. Washington the Court announced a two
- pronged test for analyzing claims of ineffective assistance of counsel under the United States Constitution. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong requires a defendant to prove counsel made such serious errors that h e did not function as the “counsel” guaranteed by the Sixth Amendment. Id. at 687. The defendant must show that counsel’s performance was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. Id. a t 689

- 90. Under the second prong, a defendant must show that the deficient performance prejudiced the defense. Id. at 687. The standard for judging prejudice requires that the defendant “show that there is a reasonable probability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id . at 694.
“[T]here is no reason for a court deciding an ineffective assista nce claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. Appellant had at least seven prior convictions and two felony commu nity supervision revocations. The trial court gave no indication that it believed appellant6

should be sentenced in the range required by section 12.42(d) for a habitual offender. As noted, the periods of confinement assessed fell toward the lower end of the available range for the two offenses and no fines were imposed. Appellant has not demonstrated the degree of prejudice required of the second Strickland prong. His second issue is overruled.

Conclusion
Having overruled appellant’s two issues, we af firm the judgments of the trial
court.

James T. Campbell Justice
Do not publish.