Leroy Garcia Lombrano v. State

Lombrano

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-93-00503-CR

NO. 03-93-00504-CR

Leroy Garcia Lombrano, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF MCCULLOUGH COUNTY, 198TH JUDICIAL DISTRICT

NOS. 4084, 4084-A, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING

This is an appeal from appellant Leroy Garcia Lombrano's conviction for delivery

of methamphetamine in Cause No. 4084 and delivery of marijuana in Cause No. 4084-A.

Lombrano pleaded guilty to both offenses. Pursuant to his guilty plea, the jury returned guilty

verdicts and assessed punishment at forty-five years' imprisonment and a $10,000 fine in Cause

No. 4084 and forty-five years' imprisonment in Cause No. 4084-A. Lombrano appeals by four

points of error. We will affirm the trial court's judgment of conviction.

BACKGROUND

Lombrano was convicted of delivery of methamphetamine under an indictment

enhanced by one prior felony in Cause No. 4084. At trial, the indictment in Cause No. 4084 was

consolidated with Cause No. 4084-A, in which Lombrano was charged with delivery of marijuana

in an amount in excess of one-fourth ounce but less than five pounds by an indictment enhanced

by two prior felonies. The cases were tried in a bifurcated trial. See Tex. Code Crim. Proc.

Ann. art. 37.07 (West 1981 & Supp. 1995). During the guilt-innocence stage, Lombrano entered

a plea of guilty in both causes. The trial court admonished him on the consequences of the guilty

plea and advised him of the unenhanced range of punishment in both cases--five to ninety-nine

years, or life, and a $10,000 fine in Cause No. 4084 and two to ten years and a $10,000 fine in

Cause No. 4084-A. Upon accepting Lombrano's guilty plea, the trial court instructed the

prosecutor to read the enhancement paragraphs in both cases to Lombrano, and Lombrano entered

a plea of true to both enhancement paragraphs.

After the parties presented their cases on guilt-innocence, the court charged the

jury, instructing them to return guilty verdicts in both cases. The jury returned a guilty verdict

in both cases, and the trial proceeded to the punishment phase. In its charge on punishment, the

trial court instructed the jury on the enhanced range of punishment for both cases--fifteen to ninety-nine years and a $10,000 fine in Cause No. 4084 and twenty-five to ninety-nine years in Cause

No. 4084-A. The jury returned verdicts on punishment of forty-five years' imprisonment in both

cases and a $10,000 fine in Cause No. 4084.

DISCUSSION

A. Instructions on Range of Punishment

In his first point of error, Lombrano complains that the trial court committed

reversible error during the punishment phase of the trial by improperly instructing the jury on the

range of punishment in its charge. The charge in both causes instructed the jury that Lombrano

had pleaded true to the enhancement paragraphs in the indictments and accordingly instructed the

jury of the enhanced range of punishment for both offenses. The trial court did not err in

submitting this charge to the jury because a plea of true to an enhancement paragraph removes the

enhancement issue from the jury, and the enhanced punishment is mandatory. Washington v.

State , 677 S.W.2d 524, 527 (Tex. Crim. App. 1984); Harvey v. State , 611 S.W.2d 108, 111

(Tex. Crim. App.), cert. denied , 454 U.S. 840 (1981); Zaragosa v. State , 516 S.W.2d 685, 686

(Tex. Crim. App. 1974); Thomas v. State , 849 S.W.2d 405, 406 (Tex. App.--Fort Worth 1993,

no pet.). The trial court may thus charge the jury as if the primary offense carried the increased

punishment.

Lombrano argues that Article 36.01 of the Texas Code of Criminal Procedure

requires the indictment to be read at the penalty stage of a bifurcated trial, not at the guilt-innocence phase. Tex. Code Crim. Proc. Ann. art. 36.01 (West Supp. 1995); see also Warren

v. State , 693 S.W.2d 414, 415 (Tex. Crim. App. 1985). During the trial of the instant causes,

the trial court instructed the prosecutor to read the enhancement paragraphs during the guilt-innocence stage of the trial. Lombrano cites Frausto v. State , 642 S.W.2d 506, 507 (Tex. Crim.

App. 1982), for the proposition that permitting the prosecutor to read the enhancement paragraphs

to the jury prior to the commencement of the punishment phase of the trial constitutes reversible

error. According to Lombrano, because the reading of the enhancement paragraphs prior to the

commencement of the State's case-in-chief on guilt-innocence was squarely in violation of Article

36.01's mandate, the State is barred from arguing that his plea of true (1) waives the requirement

that the State prove its enhancement allegations.

Lombrano made no objection to the court's charge on the range of punishment in

the trial court. Article 36.19 of the Code of Criminal Procedure contains the standards for both

fundamental error and ordinary reversible error. Tex. Code Crim. Proc. Ann. art. 36.19 (West

1981). An error that has been properly preserved by objection requires reversal unless the error

is harmless. On the other hand, if no proper objection was made at trial and the defendant must

claim that the error was "fundamental," the judgment will be reversed only if the error is so

egregious and created such harm that the defendant "has not had a fair and impartial trial," i.e.,

"egregious harm." In both situations the actual degree of harm must be assayed in light of the

entire jury charge, the state of the evidence, including the contested issues and weight of the

probative evidence, the argument of counsel, and any other relevant information revealed by the

record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

In Cartwright v. State , 833 S.W.2d 134 (Tex. Crim. App. 1992), the Court of Criminal Appeals

adopted the Almanza standard of review in cases where the jury was charged on a penalty range

more severe than that authorized by law. Id. at 136-37.

In the instant causes, the jury was not instructed on a penalty range more severe

than that authorized by law. We reject Lombrano's invitation to hold that a plea of true obtained

in violation of Article 36.01 should be regarded as a "nullity." Lombrano confuses two distinct

rules: (1) because a plea of true to an enhancement paragraph resolves the enhancement issue,

the enhanced punishment is mandatory; and (2) reading the enhancement paragraph to the jury

before the punishment phase violates Article 36.01. Applying the first rule, we hold that the

enhanced sentences contained in the charge were mandatory because Lombrano entered a plea of

true to the enhancement paragraphs.

Applying the second rule, we conclude that the trial court's violation of Article

36.01 did not cause egregious harm. The purpose behind Article 36.01 and the Court of Criminal

Appeal's holding in Frausto is prevention of "the extreme prejudice which would almost

inevitably result" if the jurors heard the enhancement paragraphs before the punishment phase of

the trial, thereby jeopardizing the presumption of the defendant's innocence. Frausto , 642

S.W.2d at 508-09 (emphasis added). In the instant appeal, Lombrano does not contend that the

State's violation of Article 36.01 jeopardized the presumption of innocence. In fact, this would

be an untenable argument given the fact that Lombrano pleaded guilty to both offenses prior to

the commencement of the guilt-innocence stage and the reading of the indictment. Therefore, the

rationale underlying Article 36.01 and Frausto is inapplicable in the instant appeal, and the

violation of Article 36.01 did not constitute harm so egregious as to deprive Lombrano of a fair

and impartial trial. We accordingly overrule Lombrano's first point of error.

B. Prosecutor's Closing Argument

In his second point of error, Lombrano contends that the State committed

fundamental error in closing argument during the punishment phase by: (1) misstating the range

of punishment; (2) misstating the trial court's instructions on parole law and good conduct time;

(3) arguing details of his prior convictions to obtain longer sentences; and (4) injecting new and

harmful facts and inviting speculation. With regard to the first issue, our disposition of

Lombrano's first point of error disposes of his argument that the prosecutor misstated the range

of punishment. The enhanced range of punishment was mandatory; therefore, the prosecutor did

not misstate the range of punishment.

The scope of proper jury argument includes: (1) summation of the evidence; (2)

any reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4)

pleas for law enforcement. Whiting v. State , 797 S.W.2d 45, 48 (Tex. Crim. App. 1990).

Lombrano failed to object to the prosecutor's closing argument; therefore, he must establish

fundamental error resulting in egregious harm that deprived him of a fair and impartial trial in

order for this Court to sustain the remaining portions of his second point of error. Lombrano

complains that the prosecution misstated the trial court's instructions on parole and good conduct

time. However, our review of the statement of facts reveals that the prosecutor merely

paraphrased the court's charge. The court charged the jury that it could "consider the existence

of the parole law and good conduct time." The prosecutor instructed the jury that they could keep

parole and good conduct time "in the back of your mind" but that they could not "put a pencil to

it and try to figure anything out." Such argument does not constitute error. See id . (noting that

it is not error for State to paraphrase jury charge).

Lombrano asserts that he was harmed because the prosecutor discussed the actual

time he had served on his previous sentences. According to Lombrano, the prosecutor's argument

invited the jury to compare the time served under the prior convictions and figure out the effect

of the parole law in the instant causes. He cites Clark v. State , 643 S.W.2d 723 (Tex. Crim.

App. 1982), in support of his argument. In Clark , the court held that the prosecutor committed

reversible error when he invited the jurors to look at records of prior offenses to determine how

long it would take for the defendant to be released on parole. Id. at 724-25 . However, in Clark ,

the appellant preserved error by objecting to the prosecutor's argument. (2) In contrast, Lombrano's

trial counsel failed to object to the prosecutor's argument; thus, we must determine whether the

argument resulted in egregious harm. Viewing the record as a whole, we have determined that

the error was not so egregious as to deprive Lombrano of a fair and impartial trial. Almanza , 686

S.W.2d at 171 .

Lombrano also claims that the prosecutor committed reversible error by arguing

details of his prior convictions in order to obtain longer sentences in the instant causes. He cites

Ramey v. State , 575 S.W.2d 535 (Tex. Crim. App. 1978), in asserting that it is improper for the

State to introduce details of a prior offense though the State may prove the historical fact of a

prior conviction. Id. at 537 . Lombrano specifically complains that the prosecutor referred to him

as a "three time dope dealer" and discussed his prior convictions for assault and theft. According

to Lombrano, the reference to him as a "three time dope dealer" asked the jury to consider its

finding of guilt in one of the consolidated cases as a basis for increasing the punishment in the

other consolidated case in violation of Article 37.07(3)(a). Tex. Code Crim. Proc. Ann. art.

37.07(3)(a) (West Supp. 1995). Lombrano also contends that the reference improperly invoked

his 1988 conviction for delivery of a controlled substance. However, Lombrano pleaded guilty

to both of the consolidated offenses and entered a plea of true to the enhancement paragraphs of

the indictment. Moreover, the State admitted evidence of the earlier delivery conviction without

objection, and Lombrano testified at trial concerning his 1988 conviction for delivery of a

controlled substance as well as his convictions for assault on a peace officer and the two car thefts.

The prosecutor acted within the scope of closing argument in summarizing the evidence, and

Lombrano suffered no egregious harm.

Finally, Lombrano contends that the prosecutor committed fundamental error in

injecting new and harmful facts during closing argument. Injection of new and harmful facts that

cannot be cured by objection constitutes fundamental error. Jackson v. State , 529 S.W.2d 544,

546 (Tex. Crim. App. 1975) ("The prosecutor cannot use closing argument to get evidence before

the jury which is outside the record and prejudicial to the accused."). However, the prosecutor

can argue any reasonable inference from the record, respond to the argument of opposing counsel,

and request law enforcement. Whiting , 797 S.W.2d at 48 . Lombrano complains about the

prosecutor's argument relating to his drug suppliers and his refusal to reveal their names.

Lombrano testified that it would jeopardize his life to answer the questions. A reasonable

inference can be drawn from this testimony: Lombrano's drug suppliers would kill him if he

testified, so he is protecting them. The prosecutor requested law enforcement when he asked the

jury to punish Lombrano for protecting his suppliers. As the prosecutor stated, "[I]t's people like

Leroy Lombrano that insulate those people . . . . If it wasn't for the middleman, and the men on

the bottom, we might catch the big guys."

Lombrano also complains of the prosecutor's argument that Lombrano's prior

convictions were never enhanced and that he would commit over twenty felonies by the time he

retired if he continued at his present pace. Lombrano's prior convictions were properly admitted

into evidence, and the prosecutor's argument drew the reasonable inference from this evidence

that Lombrano had not mended his ways despite favorable treatment in the past and responded to

opposing counsel's argument that Lombrano had reformed. The prosecutor's argument also drew

a reasonable inference regarding Lombrano's future criminal record. Lombrano was thirty-five

at the time of sentencing and had committed three felonies in a five-year period. At a rate of three

to five, he could commit eighteen additional felonies by the time he was sixty-five (in thirty

years). Combined with the six felonies for which he had been convicted at the time of sentencing,

this amounts to twenty-four felonies. Furthermore, Lombrano complains that the prosecutor

characterized his answers on cross-examination as nonresponsive. However, the State's argument

that Lombrano was nonresponsive responded to opposing counsel's argument that Lombrano was

ready to take responsibility for his actions and reform.

Finally, Lombrano asserts that the prosecution committed fundamental error in

drawing an analogy between drugs and cancer during oral argument. The State's argument falls

within an area of common knowledge--both cancer and drugs are brutal killers. Such an analogy

is an appropriate jury argument and falls within the prosecutor's right to appeal to the jury for law

enforcement. Carter v. State , 614 S.W.2d 821, 823 (Tex. Crim. App. 1981). Because Lombrano

failed to establish egregious harm resulting from the State's closing argument, we overrule his

second point of error.

C. Defective Indictments

Lombrano complains in his third point of error that the indictments in both causes

were defective. However, there was no objection to the indictments. Article 1.14 of the Texas

Code of Criminal Procedure provides:

If the defendant does not object to a defect, error, or irregularity of form or

substance in an indictment or information before the date on which the trial on the

merits commences, he waives and forfeits the right to object to the defect, error,

or irregularity and he may not raise the objection on appeal or in any other post

conviction proceeding.

Tex. Code Crim. Proc. Ann. art. 1.14 (West Supp. 1995). Because there was no objection, any

error is waived, and nothing is preserved for review. Studer v. State , 799 S.W.2d 263, 271 (Tex.

Crim. App. 1990). Additionally, Lombrano's guilty plea waived his right to complain about

pretrial matters on appeal. Polson v. State , 709 S.W.2d 751, 753 (Tex. App.--Austin 1986, pet.

ref'd). Lombrano's third point of error is overruled.

D. Ineffective Assistance of Counsel

In his fourth point of error, Lombrano argues that he was denied effective

assistance of counsel. Lombrano complains that he received ineffective assistance of counsel

because his trial counsel failed to object to the trial court's instruction on enhanced punishment,

the prosecutor's closing argument, and the indictment.

Claims of ineffective assistance of counsel are reviewed under the standard

established in Strickland v. Washington , 466 U.S. 668 (1984). In Strickland , the Supreme Court

adopted a two-pronged analysis for determining whether counsel's assistance was so defective as

to require reversal of the conviction: (1) the defendant must show that trial counsel's performance

was so deficient that counsel failed to function as the "counsel" guaranteed by the Sixth

Amendment; and (2) the defendant must show that trial counsel's deficient performance prejudiced

his defense so as to deprive him of a fair trial. Id. at 687 . Unless the defendant makes both

showings, it cannot be said that the conviction resulted from a breakdown in the adversary process

that renders the result unreliable. Id. The Strickland test was adopted by this State in Hernandez

v. State , 726 S.W.2d 53 (Tex. Crim. App. 1986). See also O'Hara v. State , 837 S.W.2d 139,

143 (Tex. App.--Austin 1992, pet. ref'd).

Whether trial counsel was ineffective is to be judged in light of all the

circumstances. Strickland , 466 U.S. at 690 . "[W]hether the appellant received error-free

representation is not the test; that appellant's counsel made some mistakes at trial does not show

ineffective assistance." Davis v. State , 830 S.W.2d 762, 765 (Tex. App.--Houston [1st Dist.]

1992, pet. ref'd). This Court must evaluate the challenged conduct from counsel's perspective

at the time of trial and not through hindsight. Strickland , 466 U.S. at 689 ; Stafford v. State , 813

S.W.2d 503, 506 (Tex. Crim. App. 1991). Counsel's actions are usually based on informed

strategic choices made by the defendant and on information supplied by the defendant. Strickland ,

466 U.S. at 691 . We thus must indulge a strong presumption that trial counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy. Id. at 689-90 . The convicted defendant must prove ineffective assistance of counsel

by a preponderance of the evidence. Moore v. State , 694 S.W.2d 528, 531 (Tex. Crim. App.

1985).

Lombrano contends that he was denied effective assistance of counsel because his

trial counsel failed to file a motion to quash the indictments. However, he has failed to overcome

the presumption that trial counsel's failure to file a motion to quash was based on a strategic

decision or Lombrano's own decision to plead guilty to the charges and enter a plea of true to the

enhancement paragraphs contained in the indictments. Thus, he has not met the first prong of the

Strickland test.

We must apply a different standard to our analysis of the effectiveness of

Lombrano's trial counsel in failing to object to the trial court's charge on the range of punishment

and the prosecution's closing argument during the punishment phase of trial because the Strickland

test only applies to allegations of ineffective assistance of counsel during the guilt-innocence stage

of trial. Ex Parte Cruz , 739 S.W.2d 53, 57-58 (Tex. Crim. App. 1987). At the punishment

stage, we judge the effectiveness of counsel by the standard of "reasonably effective assistance."

Under this standard, the sufficiency of counsel's assistance is gauged by the totality of his or her

representation. Id. "This constitutional right to counsel does not mean errorless counsel or

counsel whose competency is to be judged by hindsight." Id. Lombrano complains that his trial

counsel's failure to object to erroneous and harmful instructions in the trial court's charge

amounted to ineffective assistance of counsel. See Ex Parte Drinkert , 821 S.W.2d 953, 955 (Tex.

Crim. App. 1991). We have already held that the trial court's instructions on enhanced

punishment were not erroneous; therefore, Lombrano has failed to prove that he did not receive

reasonably effective assistance. See Kinnamon v. State , 791 S.W.2d 84, 97 (Tex. Crim. App.

1990) (holding that trial counsel not ineffective for failure to raise untenable point). (3) In addition,

we have already held that the prosecutor's closing arguments did not create egregious harm to

Lombrano, and from the record before us, we are unable to say that trial counsel's assistance was

not reasonably effective when gauged by a totality of the representation. We overrule Lombrano's

fourth point of error.

CONCLUSION

Having overruled all of Lombrano's points of error, we affirm the trial court's

judgment of conviction.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: August 30, 1995

Do Not Publish

1. Lombrano contends that his plea of true was "erroneously obtained in violation of

said Art. 36.01."

2. The court acknowledged that not every reference to parole law necessitates reversal,

especially when the prosecutor's statement is of such a nature that the impropriety can be

cured by prompt instructions by the trial court. In Clark , the trial court overruled the

appellant's objection, and the jury did not receive the benefit of an instruction to disregard the

comment. 643 S.W.2d at 725 .

3. Kinnamon was overruled on other grounds by Cook v. State , 884 S.W.2d 485 (Tex.

Crim. App. 1994).