Darrell Jones v. State

Opinion issued December 30, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00267-CR

———————————

Darrell Jones , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case No. 1167879

MEMORANDUM OPINION

A jury convicted appellant Darrell Jones of

burglary of a habitation. See Tex.

Penal Code Ann. § 30.02 (Vernon 2003).

The indictment included two enhancement allegations, reciting Jones’s

prior felony convictions for burglary in 1988 and burglary of a habitation in

2003. Jones initially elected jury

sentencing and pleaded not true to the enhancements, but after the State

introduced evidence of multiple prior convictions, he changed his election to sentencing

by the trial court. He pleaded true to

the enhancement allegations in exchange for an agreed recommendation as to

punishment. The court accepted the

State’s punishment recommendation and sentenced him to imprisonment for 25

years.

Jones brings five issues on appeal:

(1) the sufficiency of the evidence; (2) ineffective assistance of

counsel; (3) failure to instruct the jury on two requested lesser-included

offenses; (4) the voluntariness of his plea of true to the enhancement

paragraphs during punishment; and (5) the adequacy of admonishments during the

punishment phase. These issues lack merit,

thus we affirm the judgment of the trial court.

I.

Background

Paschal Haywood was a project

manager for the Kalu Group, an investment company that renovated and sold real

estate properties. In the spring of

2008, Haywood managed the renovation of a single-family home in southeast

Houston. He testified that the house had

electricity and running water, and the air conditioning worked. He also said the house was habitable, though there

were no tenants actually living there while renovations were in progress, which

included installation of sinks, ceiling fans, and light fixtures, painting,

roofing, and repairing or replacing the air conditioner.

In late April or early May, Jones

approached Haywood seeking the opportunity to earn some money, and Haywood

hired him to mow the lawn one time.

Haywood testified that he never gave Jones permission to enter the house

or take anything from it.

Approximately two weeks later,

Ronnie Clark, who lived in the house next door, saw Jones on the street. Clark had previously seen Jones walking or

riding his bike around the neighborhood.

He saw Jones walk beside the house under renovation, toward the back of

it. Approximately 15 or 20 minutes

later, he saw Jones walk back toward the street carrying two stainless steel or

aluminum kitchen sinks. Clark called the

police and Haywood, and he later identified Jones from a photographic lineup as

the person he saw carrying the sinks. He

also identified Jones in open court.

Haywood came to the house and

discovered that ceiling fans and two kitchen sinks were missing and the bathtub

had been vandalized. Houston Police

Department Officer A. Leal, who responded to the burglary call, testified that

a window and a sliding-glass door were opened, but there were no signs of forced

entry. He said that he found no discernible

fingerprints, only smudges.

Another neighbor, Drexell Carroll,

also testified. He said that he had

known Jones for approximately four or five years and that Jones had helped him

by doing some odd jobs at his house.

Carroll testified that Jones confessed breaking into the house and told

him that he intended to return the sinks but had not done so. He identified Jones from a photographic

lineup as the person who confessed breaking into the house. On cross-examination, Carroll admitted that

he had previously been convicted of burglary of a building, delivery of a

controlled substance, and failure to identify himself to a law-enforcement

officer.

At the charge conference, Jones’s

attorney requested that the trial court instruct the jury on the lesser-included

offenses of burglary of a building and theft.

The trial court refused those requests, and the jury found Jones guilty

of burglary of a habitation.

Before the punishment phase of

trial, Jones pleaded not true to two enhancement paragraphs in the indictment,

which alleged that he was convicted of burglary in 1988 and of burglary of a

habitation in 2003. The prosecutor

stated that the State intended “to enhance in the punishment phase to 25 to

life with a different . . . felony conviction.”

The trial court indicated that the State could arraign Jones only on the

enhancements alleged in the indictment, however the trial court permitted the

State to introduce evidence of Jones’s other prior convictions. The State introduced evidence of the following

prior convictions: (1) burglary with intent to commit theft, a felony,

December 12, 2003; (2) burglary of a habitation with intent to commit

theft, a second degree felony, December 22, 2003; (3) burglary of a

building with intent to commit theft, September 7, 1990; (4) burglary of a

building with intent to commit theft, April 7, 1995; (5) evading arrest,

April 28, 1995; (6) criminal trespass, August 28, 2003; (7) evading

arrest, December 8, 2003; and (8) evading arrest, August 22, 1994. The State did not introduce any evidence of

the 1988 conviction for burglary recited in the indictment, and the State and

defense both rested.

The State sought permission to

substitute a different conviction for the 1988 burglary listed in the

enhancement paragraph but not proven at trial.

The trial court sustained Jones’s objection and refused the State’s

request. Outside the presence of the

jury, the trial court heard the parties’ legal arguments about whether prior

convictions that were not listed in the enhancement paragraphs of the

indictment could be used to enhance the range of punishment under the habitual

offender statute. The trial court

indicated they could but gave the parties a brief recess to ascertain any

relevant or contrary authority.

After a recess, Jones informed the

court that he wished to withdraw his case from the jury and have the court

assess his punishment pursuant to an agreement reached with the State. In exchange for the State’s recommendation

that his punishment be set at 25 years in prison, Jones pleaded true to both

enhancement paragraphs. The trial court

admonished him that if the court found the enhancement paragraphs true, the

range of punishment would be imprisonment “for life, any term of not more than

99 years or less than 25 years.” Jones

acknowledged that he was waiving “any right of appeal in this case both in the

guilt/innocence phase of the trial, as well as the punishment phase of the

trial.”

Based on his pleas, the trial court

found both enhancement paragraphs true and assessed punishment at 25 years in

prison. The court initially certified

that there was no right to appeal, but after a pro se motion to withdraw the “guilty

plea,” the court amended the certification of right to appeal to state that this

is not a plea-bargain case and Jones does have the right to appeal.

II.

Jurisdiction

The State challenges our jurisdiction

to entertain this appeal, so we address that issue first. See,

e.g. , Galliford v. State , 101

S.W.3d 600, 603 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Relying on Blanco v. State , 18 S.W.3d 218 (Tex. Crim. App. 2000), the State

contends that Jones waived his right to appeal when he pleaded true to the

enhancements and elected for the trial court to assess punishment in accordance

with his agreement, and there is no reason why Jones should not be held to his

bargain. However, what distinguishes

Jones’s appeal from Blanco is that in

this case the trial court gave Jones permission to appeal. Although a valid waiver of the right to

appeal will prevent a defendant from appealing without the consent of the trial

court, see Tex. Code Crim. Proc. Ann . art. 1.14(a) (Vernon Supp. 2009), the

trial court nevertheless has the authority to allow a defendant to appeal

despite a valid waiver. See Willis

v. State , 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (recognizing “trial

court’s authority to allow a defendant to appeal despite a valid waiver of

appeal,” citing Monreal v. State , 99

S.W.3d 615, 622 (Tex. Crim. App. 2003)).

In its initial certification, the

trial court noted that this was a plea-bargain case and that Jones had no right

to appeal. After the initial

certification, Jones filed a pro se “Motion to Withdraw Plea of Guilty,” in

which he argued that his “plea of guilty” was not intelligent and voluntary

because he received ineffective assistance of counsel. After this document was filed—and without

explicitly ruling on it—the trial court issued an new certification of Jones’s

right to appeal in which the trial court noted that his was “not a plea-bargain

case, and the defendant has the right to appeal.” By entering this second certification, the

trial court granted Jones permission to appeal.

The State also argues that the

second certification is not supported by the record because this was a plea-bargain

case. See Dears v. State , 154 S.W.3d 610 , 614–15 (Tex. Crim. App. 2005)

(holding that certifications of defendant’s right to appeal must be supported

by record). We disagree. A plea-bargain case is one in which a

defendant’s plea was guilty or nolo contendere.

Tex. R. App. P. 25.2(a)(2). Jones pleaded “not guilty” as to guilt or

innocence and “true” as to the enhancements alleged in the indictment. Therefore the trial court’s second

certification is both supported by the record and indicates the trial court’s

permission to appeal. We conclude that

this court has jurisdiction to consider the appeal.

III.

Sufficiency of the evidence

In his first issue, Jones contends

that the evidence is insufficient to sustain his conviction for burglary of a habitation. Specifically, Jones argues that the evidence

is insufficient to show he committed burglary and to show that the building was

a habitation.

A.

Standard of review

Although Jones’s brief recites

now-defunct caselaw suggesting separate standards of review for legal and

factual sufficiency, see Brooks v. State ,

323 S.W.3d 893 (Tex. Crim. App. 2010), his

brief did not make separate factual-sufficiency arguments or separate factual

sufficiency into a separate point of error.

We therefore treat his challenges to the sufficiency of the

evidence, as he does in his brief, in a unified analysis. We review the sufficiency of evidence to

support a criminal conviction to determine “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789

(1979). Viewed in the light most favorable to the verdict, evidence is insufficient

under this standard in two circumstances: (1) the record contains no evidence,

or merely a “modicum” of evidence, probative of an element of the offense; or

(2) the evidence conclusively establishes a reasonable doubt. See id.

at 314 , 318 n.11, 320, 99 S. Ct. at 2786 , 2789 & n.11.

If an appellate court finds the

evidence insufficient under this standard, it must reverse the judgment and

enter an order of acquittal. See Tibbs v. Florida , 457 U.S. 31, 41

(1982). An appellate court determines

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that

the fact finder resolved any conflicting inferences in favor of the verdict and

defers to that resolution. See Jackson , 443 U.S. at 326 , 99 S. Ct.

at 2793 ; Clayton , 235 S.W.3d at 778 . An appellate court may not re-evaluate the

weight and credibility of the record evidence and thereby substitute its own

judgment for that of the fact finder. Williams v. State , 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).

B.

Burglary of a habitation

A person commits the offense of

burglary if, “without the effective consent of the owner, the person . . .

enters a habitation . . . with intent to commit a felony, theft, or an assault;

or . . . enters a building or habitation and commits or attempts to commit a felony,

theft, or an assault.” Tex. Penal Code Ann. § 30.02(a) (Vernon

2003). A person commits a theft if “he

unlawfully appropriates property with intent to deprive the owner of

property.” Id. § 31.03(a) (Vernon Supp. 2009).

Appropriation of property is unlawful if it is without the owner’s

effective consent. Id. § 31.03(b)(1).

A

“habitation” is “a structure . . . that is adapted for the overnight

accommodation of persons.” Tex. Penal Code Ann. § 30.01(1) (Vernon

2003). In this context, “adapted” means

“suitable.” Blankenship v. State , 780 S.W.2d 198, 209 (Tex. Crim. App. 1989).

The most significant element of the definition

is the adaptation “for the overnight accommodation of persons.” “What makes a structure ‘suitable’ or ‘not

suitable’ for overnight accommodation is a complex, subjective factual question

fit for a jury’s determination.” The

jury may look to a host of considerations such as the contents of the

structure, including bedding, electricity, plumbing, or furniture; the jury may

also look to and consider the type of structure and its typical use as a means

for overnight accommodation.

Salazar v.

State , 284 S.W.3d 874, 877 (Tex. Crim. App. 2009) (footnotes omitted, quoting Tex. Penal Code Ann. § 30.01(1) and Blankenship , 780 S.W.2d at 209-10 ). Each factor is relevant; none is essential or

necessarily dispositive. Blankenship , 780 S.W.2d at 209 . A jury’s determination that a burglarized

place was a habitation will not be overturned on appeal unless the appellant

can demonstrate that no reasonable trier of fact could have found that the

structure was a habitation. See id.

C.

Analysis

1.

Evidence

of burglary

Haywood testified that he never

gave Jones permission to enter the house or to remove anything from it. He also testified that he hired Jones to mow

the lawn only once, approximately two weeks before the burglary. Clark testified that he saw Jones walk beside

the house, toward the backyard and that he saw Jones emerge from that area

approximately 15 to 20 minutes later carrying two kitchen sinks. Haywood testified that one kitchen sink

matching the description given by Clark was taken from the house and another

kitchen sink was taken from the garage.

Carroll testified that Jones confessed the burglary to him.

Jones argues that one of the

State’s witnesses was not credible, however, we must defer to the jury’s

determination of credibility. See Williams , 235 S.W.3d at 750 . Jones argues that there was no evidence that

he was not permitted access to the house by a work crew and that Carroll did

not testify as to when Jones broke into the house. These arguments focus on what was not in

evidence rather than the evidence that was actually admitted at trial, which is

what we must rely upon in performing a sufficiency review. See Jackson , 443 U.S.

at 319 , 99 S. Ct. at 2789 (holding that, in evaluating sufficiency of evidence,

appellate court must view evidence in light most favorable to verdict). Finally, Jones speculates that he may have

entered the home another time, he may have received the sinks from another

party and intended to return them, or that he may have taken them from outside

the home if left there by another person.

None of these speculations are supported by evidence in the record, and

none is a basis to reverse a conviction on the grounds of legal or factual

insufficiency.

Viewing all of the evidence in the

light most favorable to the verdict, we conclude that a reasonable fact finder

could have found the essential elements of the charged offense beyond a

reasonable doubt, namely, without the effective consent of the owner, Jones

entered the house and took two kitchen sinks.

See Jackson , 443

U.S. at 319 , 99 S. Ct. at 2789 . We hold that the evidence is sufficient to

show that Jones committed burglary.

2.

Evidence

that the building was a habitation.

Jones argues that the evidence was

insufficient to show that the home was a habitation rather than a building

under construction. For example, Jones

asserts that the State neglected to ask if the house had a roof, if it was

enclosed, or if the garage was attached or detached. Jones also argues that the there was no

evidence that the garage containing one of the sinks was connected to the

building to be used as a habitation.

Jones’s argument centers on a

response Haywood gave during cross-examination.

Haywood testified that the electricity and water were turned on and that

the air conditioning worked, but no one was living in the house, “because

during construction we don’t put a tenant in until everything is fixed.”

Q: So,

there were things in the house that you would not want a person living there in

because—let me back up. There were

things going on in the house that would render the house such that you wouldn’t

want a family or a person living there; is that correct?

A: Well,

the only thing was the AC.

Q: Okay. So, the answer to my question is yes?

A: Yeah.

But Haywood also testified that the house was

habitable at the time of the burglary, “We just didn’t have tenants. We could have lived in it.” In addition, several photographs of the house

were admitted into evidence during trial.

These photographs show that the house was a fully-enclosed, brick,

one-story, single-family dwelling with a roof, a paved driveway, and an

attached garage.

The house had utilities and, as a

single-family residence, it was intended to be used to accommodate persons

overnight. See Blankenship , 780

S.W.2d at 209 . Despite his response on

cross-examination, Haywood testified that persons could have lived in the house

at the time it was burglarized. Under

our standard of review, we must presume that the jury resolved any conflicting

evidence in favor of its verdict, and we defer to that resolution. See

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 . Viewing the evidence in the light most

favorable to the verdict, we conclude that a reasonable fact finder could have

found beyond a reasonable doubt that the house that was burglarized was a

habitation. See id.

Because we conclude that the

evidence is sufficient to show that Jones committed burglary of a habitation,

we overrule his first issue.

IV.

Lesser-included offense

In his third issue, Jones contends

that the trial court erred by denying his requested jury instructions on lesser-included

offenses of burglary of a building and theft.

A.

Standard of review

To determine whether a defendant is

entitled to an instruction on a lesser-included offense, the court conducts a

two-pronged test. See Ex parte Watson , 306 S.W.3d 259 (Tex. Crim. App. 2009); Hall v. State , 225 S.W.3d 524 , 535–36

(Tex. Crim. App. 2007). The first prong

of the test requires the court to use the “cognate pleadings” approach to

determine whether an offense is a lesser-included offense of another

offense. The first prong is satisfied if

the indictment for the greater-inclusive offense either:

1) alleges all of the elements of the

lesser-included offense, or 2) alleges elements plus facts (including

descriptive averments, such as non-statutory manner and means, that are alleged

for purposes of providing notice) from which all of the elements of the

lesser-included offense may be deduced.

Both statutory elements and any descriptive averments alleged in the

indictment for the greater-inclusive offense should be compared to the

statutory elements of the lesser offense.

If a descriptive averment in the indictment for the greater offense is

identical to an element of the lesser offense, or if an element of the lesser

offense may be deduced from a descriptive averment in the indictment for the

greater-inclusive offense, this should be factored into the

lesser-included-offense analysis in asking whether all of the elements of the

lesser offense are contained within the allegations of the greater offense.

Watson , 306

S.W.3d at 273 (footnote omitted). This

inquiry is a question of law. Hall ,

225 S.W.3d at 535 .

The second prong asks whether there

is evidence that supports giving the lesser-included-offense instruction to the

jury. Id. at 536 . A defendant is

entitled to a requested instruction on a lesser-included offense when the proof

for the charged offense subsumes the proof required to establish the

lesser-included offense and some evidence in the record would permit a rational

jury to find that if the defendant is guilty, he is guilty only of the

lesser-included offense. Id. Anything

more than a scintilla of evidence may be sufficient to entitle a defendant to a

lesser charge. Id. A lesser-included-offense

instruction is required when the evidence establishes the lesser-included

offense as a valid, rational alternative to the charged offense. Id.

B.

Burglary of a building

The same predicate offense of

burglary underlies both burglary of a building and burglary of a

habitation. Tex. Penal Code Ann. § 30.02(a), (c) (Vernon 2003). The offense of burglary is a state jail

felony if committed in a building other than a habitation, but it is a felony

of the second degree if committed in a habitation. Id .

§ 30.02(c). The definition of “building”

includes but is not limited to habitations.

Id . § 30.01(2). Accordingly, under the first prong of the

analysis, the State does not dispute that burglary of a building can be a

lesser-included offense of burglary of a habitation. See,

e.g. , Allison v. State , 618

S.W.2d 763, 764-65 (Tex. Crim. App. 1981).

However, for Jones to have been

entitled to a jury charge on burglary of a building, under the second prong of

the analysis there must be evidence that if Jones was guilty of anything, he

was guilty only of burglary of a building — and not of a habitation. See Hall , 225 S.W.3d at 535 ; Rousseau v. State , 855 S.W.2d 666, 672

(Tex. Crim. App. 1993). As noted

previously, a “habitation” is “a structure . . . that is adapted

for the overnight accommodation of persons,” and in determining whether a

building also qualifies as a habitation, a jury may consider the type of

structure, its typical use, and its contents.

Salazar , 284 S.W.3d at 877 . On appeal, Jones argues that there are four

reasons why a rational jury could have found that the structure was a building

and not a habitation: (1) the house was unoccupied; (2) the

electricity had been turned on so that the workers could use their tools during

the day; (3) Haywood testified that he would not want a person or family

living in the house during renovations; and (4) there was no air

conditioning.

First, Jones’s argument about the

availability of electricity for use by the workers militates against giving the

lesser-included offense instruction, because the availability of utilities is

one factor to be considered in determining that a building is a

habitation. See Blankenship , 780 S.W.2d at 209 .

There was no evidence at trial to suggest that the same electricity

available to renovation workers during the day would not also be available for

use by a person staying in the structure overnight.

Second, Jones’s contentions about

the air conditioning and Haywood’s testimony are not supported by the

record. Jones argues that there was no

air conditioning in the house, but the evidence at trial shows that Haywood

unequivocally testified that it worked.

Similarly, Haywood affirmatively testified that people could have lived

in the house, though he agreed on cross-examination that “there were things

going on in the house that would render the house such that [he] wouldn’t want

a family or person living there.” The

cross-examination did not develop what the unidentified “things going on” were,

so there is no evidentiary basis to suggest that this testimony was

inconsistent with Haywood’s other testimony that people could have lived

there. For example, the reason why

Haywood agreed that he “wouldn’t want a family or person living there” could

have referred to paint fumes or dust or other incidents of the ongoing home

renovation that would have been an inconvenience to a person living in the

home, but nevertheless would not have prevented a person from staying there

overnight. Neither of these arguments

suggest that the jury heard evidence that would support a conclusion that the

house was not “adapted for the overnight accommodation of persons.”

Finally, Jones argues that the

house was unoccupied. Although this

argument is supported by the record, we hold that this mere fact, standing

alone, does not constitute more than a scintilla of evidence to show that the

house was not suitable for the overnight accommodation of persons. See

Tex. Penal Code Ann. § 30.01(1); Blankenship , 780 S.W.2d at 209 ; see, e.g. ,

Hunt v. State , No. 13-01-243-CR, 2002

WL 34249726 , at *1–5 (Tex. App.—Corpus Christi Apr. 18, 2002, no pet.) (mem.

op., not designated for publication) (holding that trial court did not err in

refusing to instruct jury on lesser-included offense of burglary of a building

when burglarized house was unoccupied but was wired for electricity, had water

available, and was undergoing renovations after a fire); Mathes v. State , No. 14-93-00311-CR, 1995 WL 529144 , at *1–2

(Tex. App.—Houston [14th Dist.] Sept. 7, 1995, no pet.) (mem.op., not

designated for publication) (holding that trial court properly denied jury

instruction on lesser-included offense of burglary of a building when

burglarized house was unoccupied but was wired for electricity and had water

available). A house being renovated — like a vacation home, the primary home of a

family on vacation, or a home for sale — may be unoccupied for extended periods of time, but the structure does

not thereby cease to be a habitation.

We conclude that there is no

evidence in the record from which the jury could have concluded that if Jones

was guilty, he was guilty only of burglary of a building and not of burglary of

a habitation. Accordingly the trial

court did not err by refusing to give a jury instruction on burglary of a

building.

C.

Theft

As to Jones’s complaint that the

trial court should have instructed the jury on the lesser-included offense of

theft, we conclude that he has inadequately briefed this issue. To assert an issue on appeal, an appellant’s

“brief must contain a clear and concise argument for the contention made, with

appropriate citations to authorities . . . .”

Tex. R. App. P. 38.1(i). An appellant waives an issue on appeal if he

fails to adequately brief that issue by presenting supporting arguments and

authorities. See id. ; Cardenas v. State ,

30 S.W.3d 384, 393 (Tex. Crim. App. 2000).

In his third issue, Jones asserts that the trial court erred by denying

his requested jury charge on the lesser-included offense of theft of the sinks,

but he provides no meaningful argument or analysis of why theft is a

lesser-included offense of burglary of a habitation under the first prong of

our analysis or what evidence shows that if he is guilty, he is guilty only of

theft and not burglary of a habitation.

Therefore, we hold that Jones has waived this issue on appeal. See Tex. R. App. P. 38.1(i); Cardenas , 30 S.W.3d at 393 .

We overrule Jones’s third issue.

V.

Involuntary plea

In his fourth issue, Jones contends

that his plea of true at punishment was involuntary.

A.

Standard of review

In assessing the voluntariness of a

plea, we review the record as a whole and consider the totality of the

circumstances. Griffin v. State , 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Lee v. State , 39 S.W.3d 373, 375 (Tex.

App.—Houston [1st Dist.] 2001, no pet.).

A record indicating that the trial court properly admonished the

defendant presents a prima facie showing that the guilty plea was made

voluntarily and knowingly. Starz v. State , 309 S.W.3d 110, 117

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App.

1998)). If the record presents such a

showing, then the burden shifts to the defendant to show that he entered the

plea without understanding the consequences.

Id. An accused who attests that he understands

the nature of his guilty plea and that it is voluntary has a heavy burden on

appeal to show that his plea was involuntary.

Id. ; Dusenberry v. State , 915 S.W.2d 947, 949 (Tex. App.—Houston [1st

Dist.] 1996, pet. ref’d).

B.

Analysis

The State introduced evidence that

Jones had previously been convicted of eight crimes, including four prior

burglary convictions. In exchange for

the State’s punishment recommendation of imprisonment for 25 years, Jones then changed

his election from jury sentencing to trial court sentencing and changed his

plea to the enhancement paragraphs from “not true” to “true.” He testified that he understood the two

enhancements alleged in the indictment, that he was pleading true because the

enhancements were true, and that no one had promised him anything or threatened

him to persuade him to enter his pleas of true.

In addition, the trial court admonished Jones that it would find the

enhancement paragraphs true if he pleaded true and that the punishment range in

that situation would be imprisonment for 25 to 99 years, or for life. Thus, there is a prima facie showing that

Jones’s plea was knowing and voluntary. See Starz ,

309 S.W.3d at 117 .

On appeal, Jones does not identify

any evidence that shows that his plea was involuntary. Rather, he argues that he “personally could

gain nothing by pleading true as a habitual offender to the judge for a

conviction for which the State had no evidence.” The indictment included two enhancement

paragraphs, each alleging the prior commission of a felony. The State presented evidence to support one

of the two enhancement paragraphs, but it conceded that it did not have

evidence to support the other.

Jones was charged with burglary of

a habitation, a second-degree felony. See Tex.

Penal Code Ann. § 30.02(c)(2) (Vernon 2003). The punishment range for a second-degree

felony is imprisonment for two to 20 years.

Id . § 12.33(a) (Vernon Supp.

2010). Under the repeat-offender

statute, however, the punishment would be enhanced to that of a first-degree

felony upon a showing that the defendant had previously been convicted of a

first-degree felony, i.e., imprisonment for life or five to 99 years. See

id . § 12.32(a) (first-degree

felony punishment); id . § 12.42(b)

(repeat and habitual offender statute).

The

State introduced evidence to support the second enhancement paragraph,

including evidence showing that Jones previously committed four burglaries,

committed theft, and evaded arrest. Had

the jury found that Jones committed one of the two felonies used for

enhancement, it would have been within its discretion to assess his punishment

at confinement in prison for 99 years or for life. Thus, Jones may have pleaded guilty in order

to obtain what he believed would have been a more lenient sentence than what

the jury may have imposed.

Jones

has not directed us to any evidence showing that his plea was involuntary, and

we hold that it was not. We overrule

Jones’s fourth issue.

VI.

Sentencing admonishments

In his fifth issue, Jones contends that

the trial court erred by failing to admonish him on the entire range of

punishment before he entered his plea of true to the enhancement paragraphs at

punishment. Specifically, he complains

he was not admonished as to the range of punishment if only one or neither of

the enhancements was found to be true.

Article 26.13 of the Code of

Criminal Procedure requires the trial court to give the defendant certain

admonishments prior to accepting a plea of “guilty” or “nolo contendre.” Tex.

Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2010). However, “as a matter of law, it is

unnecessary to admonish an accused who pleads ‘true’ or ‘guilty’ to enhancement

convictions alleged in the indictment.

This is absolutely discretionary with the trial court.” Harvey

v. State , 611 S.W.2d 108 , 111–12 (Tex. Crim. App. 1981); Griffin v. State , 764 S.W.2d 306, 307

(Tex. App.—Houston [1st Dist.] 1988, no pet.) (holding that article 26.13 did

not apply to plea of true to enhancement allegation).

Here, the trial court admonished

Jones that if he pleaded true to the enhancement allegations, it would find

them true. See Thomas v. State , 312 S.W.3d 732, 741 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d) (“If, however, a defendant pleads ‘true’ to the

enhancement paragraph, the State’s burden of proof is satisfied.”); accord Harrison v. State , 950 S.W.2d

419, 421 (Tex. App.—Houston [1st Dist.] 1997, writ ref’d) (citing Harvey , 611 S.W.2d at 111 ). The trial court also admonished Jones what

the range of punishment would be if it found both enhancement allegations

true. The trial court had no obligation

to admonish Jones as to the range of punishment if only one or neither of the enhancements

was found to be true. See Harvey , 611 S.W.2d at 111–12. We hold that the trial court did not err by

not so admonishing Jones, and we overrule his fifth issue.

VII.

Ineffective assistance of counsel

Finally, we will address Jones’s

second issue, in which he contends that he received ineffective assistance of

counsel because: (1) his trial counsel failed to move for instructed verdict

based on insufficient evidence; (2) his trial counsel failed to object to a

police officer’s non-responsive statement during cross-examination that he

obtained Jones’s “mugshot photo” from a prior arrest for the photographic

lineup in this case; and (3) his trial counsel participated in a plea of true

to an enhancement paragraph that was unsupported by any evidence admitted at

trial.

A.

Standard of review

The standard of review for claims

of ineffective assistance of counsel is set forth in Strickland v. Washington , 466 U.S. 668 , 104 S. Ct. 2052 (1984), and

Bone v. State , 77 S.W.3d 828 (Tex.

Crim. App. 2002). To prevail on his

claims, an appellant must first show that his counsel’s performance was

deficient. Strickland , 466 U.S. at 687 , 104 S. Ct. at 2064 ; Bone , 77 S.W.3d at 833 . “Specifically, appellant must prove, by a

preponderance of the evidence, that his counsel’s representation fell below the

objective standard of professional norms.”

Bone , 77 S.W.3d at 833 . “Second, appellant must show that this

deficient performance prejudiced his defense.”

Id. This means that appellant “must show a

reasonable probability that, but for his counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id.

(quoting Mitchell v. State , 68 S.W.3d

640, 642 (Tex. Crim. App. 2002)). A

“reasonable probability” is one “sufficient to undermine confidence in the

outcome.” Bone , 77 S.W.3d at 833 . Thus, the “benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland , 466 U.S. at 686 , 104 S. Ct.

at 2064 .

There is a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional

assistance, and the appellant must overcome the presumption that the challenged

action might be considered sound trial strategy. Id. at 689 , 104 S. Ct. at 2065 .

To overcome the 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.” Thompson

v. State , 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When determining the validity of an

ineffective assistance of counsel claim, judicial review must be highly

deferential to trial counsel and avoid the deleterious effects of

hindsight. Ingham v. State , 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). The record on direct appeal will rarely

contain sufficient information to evaluate an ineffective assistance of counsel

claim. See Bone , 77 S.W.3d at 833 .

Based on such a record, a finding that counsel was ineffective would

normally require impermissible speculation by the appellate court. Stults

v. State , 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d). When the record is silent as to

trial counsel’s strategy, we will not conclude that trial counsel’s assistance

was ineffective unless the challenged conduct was “‘so outrageous that no

competent attorney would have engaged in it.’”

Goodspeed v. State , 187 S.W.3d

390, 392 (Tex. Crim. App. 2005) (quoting Garcia

v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

B.

Failure to move for instructed verdict

Jones argues that his trial counsel

was ineffective because he did not move for an instructed verdict based on

insufficient evidence. On appeal, Jones

does not present any supporting arguments or authorities for this

contention. Moreover, as we have already

held the evidence was sufficient to support the conviction, Jones could not

have been harmed by his counsel’s failure to request an instructed

verdict. See Bone , 77 S.W.3d at 833 .

C.

Failure to object to testimony

Jones further argues that his trial

counsel was ineffective because he failed to object to a statement from a Houston

Police Department investigator, Officer M. Wright, who compiled the

photographic lineups from which the witnesses identified Jones. During cross-examination, Jones’s lawyer

questioned him about how he compiled the photographic lineup:

Q: [P]hotos

for a photo spread can come from various sources, right?

A: They

can.

Q: Can

come from, say, a mug shot of people that have been arrested?

A: In

this case that’s what it was, yes.

Jones’s attorney did not object, but he responded,

“I didn’t ask you that.”

Jones

did not file a motion for new trial, and the record is silent as to his

counsel’s trial strategy. Based solely

on this silent record, we cannot conclude that no reasonable trial strategy

could justify his trial counsel’s conduct.

See, e.g. , Ingham , 679 S.W.2d at 509 (Tex. Crim.

App. 1984) (“An isolated failure to object to certain procedural mistakes or improper

evidence does not constitute ineffective assistance of counsel.”); Bollinger v. State , 224 S.W.3d 768, 781

(Tex. App.—Eastland 2007, pet. ref’d) (“Counsel can be concerned that too many

objections will alienate a jury or that an objection might draw unwanted

attention to a particular issue.”).

D.

Participation in plea to enhancement paragraph

Finally, Jones contends that his

trial counsel was ineffective because he participated in the plea proceedings

when the State had presented no evidence of one of the two enhancement

allegations. As we have noted, the

record is silent as to trial counsel’s strategy. In addition, we have already explained a

possible strategic reason for Jones to have pleaded true in exchange for the

agreed punishment recommendation. See supra Part V.B. Accordingly Jones has not shown that his

trial counsel’s conduct was “‘so outrageous that no competent attorney would

have engaged in it.’” Goodspeed , 187 S.W.3d 390 at 392

(quoting Garcia, 57 S.W.3d at 440 ).

We hold that Jones has not met his

burden to show that he received ineffective assistance of counsel, and we

overrule his second issue.

CONCLUSION

We affirm the judgment of the trial court.

Michael

Massengale

Justice

Panel

consists of Chief Justice Radack and Justices Massengale and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).