Hubert Theodore Branch v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00477-CR

Hubert Theodore Branch, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 62025, HONORABLE JOE CARROLL, JUDGE PRESIDING

O P I N I O N

A jury convicted Hubert Theodore Branch of possession of between four and two-hundred grams of cocaine with intent to deliver, a first-degree felony. See Tex. Health & Safety

Code Ann. § 481.112 (West 2010). Branch pled true to an enhancement paragraph alleging a

previous conviction for the felony offense of delivery of cocaine, and the jury assessed punishment

at life in prison and a $5,000 fine. Branch raises three issues on appeal, contending that the trial

court erred in: (1) denying Branch's motion to suppress the evidence found during a traffic stop;

(2) denying Branch's motion to suppress the evidence discovered in a search of his home after the

traffic stop; and (3) denying Branch's motion for new trial based on ineffective assistance of counsel.

Because we conclude that the trial court did not err in denying Branch's motion to

suppress, we affirm the portion of the trial court's judgment finding guilt. Because we conclude that

the trial court erred in denying Branch's motion for new trial, we reverse the portion of the trial

court's judgment assessing punishment, and we remand this cause to the trial court for a new

punishment hearing.

BACKGROUND

Evidence presented at a hearing on Branch's motion to suppress shows that on

September 14, 2007, Detective Joel Wadley of the Killeen Police Department Organized Crime

Section was conducting an investigation of Branch. Wadley testified that Branch sold narcotics in

Killeen and that Wadley had been investigating Branch for some time. Wadley further testified that

on September 14, 2007, he believed that Branch was in possession of cocaine based on information

he had learned from a confidential informant. On that day, Wadley was parked down the street from

Branch's home on Crockett Drive. While parked, he observed Branch load something into his car,

leave the car door open, and walk back inside his house. Wadley then observed Branch walk back

outside, get into his car, and drive away. Wadley followed Branch from a distance in an unmarked

car. Wadley testified that he followed Branch because he believed Branch was "going to a specific

location to drop off some narcotics."

Wadley testified that while he was following Branch, he observed Branch fail to

signal his intent to turn on several occasions. Wadley contacted another officer, Officer

Willie Wingfield, and asked him to make a traffic stop of Branch's car. A video from Wingfield's

patrol car was admitted into evidence during the hearing on the motion to suppress. The video

shows Branch failing to signal his intent to turn on at least one occasion. Wingfield responded to

Wadley's request and ultimately stopped Branch as Branch pulled into his sister's driveway on

Petunia Street. Before Wingfield made the traffic stop, he observed that Branch did not signal his

intent to turn onto Petunia Street and provided a "short signal" (his turn signal blinked only once)

before he turned into his sister's driveway.

Wadley contacted Detective Carl Pergande, a detective with a trained narcotics-detection dog, and requested that Pergande bring the dog to the site of the traffic stop to conduct an

open-air sniff of Branch's car. Pergande was already on his way to the site because Wadley had

previously contacted him to inform him that Wadley was surveilling Branch's residence and may

need a narcotics-detection dog at some point. Wadley testified that Pergande arrived within

approximately seven or eight minutes of the initial stop. The video from Wingfield's patrol car

shows that the dog arrived within eight minutes of the traffic stop. Wingfield testified that during

the time after the initial stop and before Pergande arrived with the dog, Wingfield was checking

Branch's driver's license and insurance information and waiting for a police dispatcher to respond

regarding whether Branch had any warrants. Wingfield testified that waiting for Pergande to arrive

with the dog did not delay the stop. Wadley testified that during the time after the initial stop and

before Pergande and the dog arrived, Wadley informed Branch that he was being stopped for a traffic

violation. He testified that Branch told him that he may have failed to signal a turn because he was

talking to his son, who was in the car with him. Wadley spoke with Branch's son, who was ten years

old, and then allowed the boy to go inside the house.

When Pergande arrived, his police dog, "Justice," conducted an open-air sniff of

Branch's car. Justice alerted to the presence of a controlled substance in the vicinity of the driver's

door. Pergande asked Branch to step out of the car. Branch initially refused, but after speaking

further with Pergande, he stepped out and stood at the back of the car. Officers then began

conducting a search of Branch's car. Wadley testified that Branch remained standing at the back of

the car and that he put his hands in his pockets several times. Wadley told Branch to stop putting

his hands in his pockets and then patted Branch down. Wadley testified that Branch had something

in his front, left pocket. Wadley removed the item from Branch's pocket. The item was later

determined to be 3.4 grams of crack cocaine. Wadley testified that the cocaine was still wet,

indicating that it had recently been cooked and leading him to believe that Branch likely had more

cocaine at his house. After the cocaine was discovered in Branch's pocket, officers arrested Branch

and took him to jail.

Meanwhile, Wadley began the process of obtaining a search warrant for Branch's

home, and Detective Pergande and other officers went to Branch's home to attempt to secure the

scene until the search warrant was obtained. When Pergande arrived at Branch's home, he knocked

on the door but no one answered. At some point later, Branch's sister arrived at the home to pick

up Branch's younger son, who was there with a babysitter. When Branch's sister arrived, Pergande

was still waiting outside the house. Branch's sister knocked on the door and identified herself. The

woman babysitting Branch's baby answered the door, and Branch's sister walked into the home

followed by Pergande and other officers. Pergande told the babysitter that he and the other officers

would be preserving the home as a crime scene and that she was no longer free to move around the

house. Pergande testified that he and the other officers then walked through the house to ensure that

no one else was present. They did not find anyone else. After inspecting the items the babysitter

planned to take with her out of the home, the officers told her she was free to leave. They also

allowed Branch's sister to leave with Branch's baby. The officers then waited for a search warrant.

Wadley eventually obtained a search warrant. During the subsequent search, officers

discovered two separate quantities of cocaine--one later determined to weigh 1.8 grams and the

other later determined to weigh 12.6 grams. (1)

The State indicted Branch for intentionally or knowingly possessing, with intent to

deliver, between four and two-hundred grams of cocaine. The indictment also included an

enhancement paragraph alleging that Branch had previously been convicted of the felony offense of

delivery of cocaine. Before trial, Branch filed a motion to suppress the evidence obtained in the

search of him and his home. At the conclusion of a hearing on the motion, the trial court denied

the motion.

The case proceeded to a jury trial, and the jury convicted Branch of possession of

between four and two-hundred grams of cocaine with intent to deliver. At the subsequent

punishment hearing, Branch pled "true" to the enhancement paragraph. The applicable punishment

range was fifteen to ninety-nine years or life in prison. During the State's closing argument, the

prosecutor addressed the issue of parole, stating, in part:

[Branch is] going to get out. You can see. You give him life, fifteen years he's

eligible for parole. He is not going to stay in prison until he dies, and that fifteen

years, as you can see in here, is tempered by how he's good. Okay? He's a good

boy, he stays in prison seven years, eight years. He's going to be done on life. Give

him thirty, give him forty, he's going to get out quicker.

It's almost obscene that we have to come to you and tell you that these number games

[are] played. It would be much simpler if I could walk in here and tell you he's going

to go to prison for what you give him, and that's it.

Later in the argument, the prosecutor referred to the issue again, stating, "You're never--even with

life--going to send him to prison for fifteen or twenty years. It's not going to happen." The jury assessed punishment at life in prison and a $5,000 fine. Branch filed a

motion for new trial, alleging that his trial attorneys provided ineffective assistance by failing to

object to the prosecutor's closing argument regarding parole. The trial court denied Branch's motion

by operation of law. Branch appeals his conviction.

DISCUSSION

Branch raises three issues on appeal, contending that the trial court erred in:

(1) denying his motion to suppress the cocaine discovered in his pocket during the traffic stop;

(2) denying his motion to suppress the cocaine found in the search of his home; and (3) denying his

motion for new trial based on ineffective assistance of counsel. Because Branch's first two issues

both relate to his motion to suppress, we address them within the same section below. We then

address Branch's third issue separately.

Denial of Motion to Suppress

We review a trial court's ruling on a motion to suppress evidence for abuse of

discretion, using a bifurcated standard. See Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010); Guzman v. State , 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give almost total

deference to a trial court's determination of historical facts, and we review de novo the trial court's

application of the law. Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman ,

955 S.W.2d at 88-89 . Where the trial court did not make explicit findings of historical facts, we

review the evidence in a light most favorable to the trial court's ruling and assume that the trial court

made implicit findings of fact supported in the record. Carmouche v. State , 10 S.W.3d 323, 327-28

(Tex. Crim. App. 2000). The trial court is the sole judge of the credibility of the witnesses and their

testimony. Maxwell , 73 S.W.3d at 281 . Where the record does not reflect the trial court's legal

theory for denying the motion to suppress evidence, the ruling must be affirmed if it is reasonably

supported by the record and can be upheld on any valid theory of law applicable to the case.

State v. Steelman , 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

A. Evidence Discovered During Traffic Stop

Branch does not argue that the traffic stop itself was unreasonable. Rather, he

contends that the police officers illegally prolonged his detention in order to allow time for a

narcotics-detection dog to arrive to sniff his car. Branch argues that the alleged illegal extension of

his detention renders inadmissible any evidence discovered after the initial detention.

We first note that a sniff of the exterior of a car by a trained canine during a lawful

traffic stop is not a search within the meaning of the Fourth Amendment. See Illinois v. Caballes ,

543 U.S. 405, 409 (2005); United States v. Place , 462 U.S. 696, 707 (1983). Once the detention is

extended beyond the initial traffic-stop, however, officers must have reasonable suspicion that the

car contains narcotics in order to continue the detention. See Caballes , 543 U.S. at 407 (initial traffic

stop justifying issuance of warning "can become unlawful if it is prolonged beyond the time

reasonably required to complete that mission."); Crockett v. State , 803 S.W.2d 308 , 311 n.7

(Tex. Crim. App. 1991). An officer may inquire into matters unrelated to the purpose of the traffic

stop as long as the stop is not unreasonably extended. See Parker v. State , 297 S.W.3d 803, 809

(Tex. App.--Eastland 2009, pet. ref'd). A traffic stop may last as long as reasonably necessary

to check the driver's license and car registration and to check for outstanding warrants. See

Kothe v. State , 152 S.W.3d 54, 63 (Tex. Crim. App. 2004); Walter v. State , 28 S.W.3d 538, 542

(Tex. Crim. App. 2000).

Here, Officer Wingfield conducted a traffic stop after Branch failed to signal his

intent to turn. Detective Wadley, who was also present at the stop, had previously contacted

Detective Pergande, a detective with a trained narcotics-detection dog, to request that the dog do an

open-air sniff of Branch's car. As a result, Pergande had already begun driving toward the area of

the traffic stop when he received the call to come to the stop. Wingfield testified that during the time

after the initial stop and before Pergande arrived with the dog, Wingfield was checking Branch's

driver's license and insurance information and waiting for a police dispatcher to respond to him

regarding whether Branch had any warrants. Wingfield testified that his actions were the "normal

procedure" for a traffic stop and that he proceeded in a "normal fashion." He testified that waiting

for Pergande to arrive with the dog did not delay the stop. Wadley testified that Pergande arrived

within approximately seven or eight minutes of the traffic stop. The video from Wingfield's patrol

car shows that the dog arrived within eight minutes of the traffic stop. Wadley confirmed that

Pergande arrived while Wingfield was checking Branch's driver's license and insurance information.

Wadley further specifically stated that the dog arrived "[d]uring the time we were doing our

regular stop."

Given the evidence regarding the initial traffic stop and the arrival of the drug-detection dog, all of which shows that the dog arrived within eight minutes of the traffic stop and

before Wingfield finished conducting normal procedures for a traffic stop, we conclude that the

record supports an implied finding by the trial court that the time it took for the dog to arrive did not

prolong the initial stop beyond the time reasonably required to complete the mission of the stop. See

Caballes , 543 U.S. at 407-09 ; Kothe , 152 S.W.3d at 63 ; Walter , 28 S.W.3d at 542 ; Crosby v. State ,

No. 14-05-00668-CR, 2006 Tex. App. LEXIS 8574 , *7-8 (Tex. App.--Houston [14th Dist.]

October 5, 2006, pet. ref'd) (initial traffic stop was not unnecessarily prolonged where dog arrived

and alerted on car while officer was conducting driver's license and warrant check). Thus, the

officers are not considered to have extended the duration of the initial detention in order to wait for

the dog and therefore did not need reasonable suspicion to detain Branch until the dog arrived. See

Caballes , 543 U.S. at 407-09 ; Kothe , 152 S.W.3d at 63 ; Walter , 28 S.W.3d at 542 .

The law is well established that as soon as a drug-detection dog alerts on a car,

officers have probable cause to search the car without a warrant. See Parker v. State , 182 S.W.3d

923, 924 (Tex. Crim. App. 2006); Haas v. State , 172 S.W.3d 42, 54 (Tex. App.--Waco 2005, pet.

ref'd); Harrison v. State , 7 S.W.3d 309, 311 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd).

Thus, when the dog alerted on Branch's car in this case, the officers at the scene had probable cause

to conduct a warrantless search of the car. They also had probable cause to arrest Branch without

a warrant. See $217,590.00 in U.S. Currency v. State , 54 S.W.3d 918, 923 (Tex. App.--Corpus

Christi 2001, no pet.) ("It is well-settled that a trained narcotics dog's positive alert for drugs is

sufficient to establish probable cause for an arrest."); De Jesus v. State , 917 S.W.2d 458, 461

(Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Bunts v. State , 881 S.W.2d 447, 450 (Tex.

App.--El Paso 1994, pet. ref'd). Given that the officers had probable cause to arrest Branch, they

also were permitted to conduct a search of Branch incident to that arrest. See Baldwin v. State ,

278 S.W.3d 367, 371 (Tex. Crim. App. 2009); State v. Ballard , 987 S.W.2d 889, 892 (Tex. Crim.

App. 1999); Hart v. State , 235 S.W.3d 858, 862 (Tex. App.--Eastland 2007, pet. dism'd). It is

irrelevant whether the arrest occurred immediately before or after the search, as long as probable

cause to arrest was established before the search was conducted. Ballard , 987 S.W.2d at 892 ;

Williams v. State , 726 S.W.2d 99, 100-01 (Tex. Crim. App. 1986). Thus, Wadley's search of

Branch's person--which occurred after the dog alerted on Branch's car and before Branch was

arrested--was a lawful search incident to arrest. See Baldwin , 278 S.W.3d at 371 ; Ballard ,

987 S.W.2d at 892 ; Hart , 235 S.W.3d at 862 .

Because the canine sniff of Branch's car did not extend his detention, and because

the dog's alert on Branch's car furnished probable cause for the officers to arrest Branch and conduct

a search of his person incident to arrest, we conclude that the trial court did not err in denying

Branch's motion to suppress the cocaine discovered in his pocket.

B. Evidence Discovered During Search of Branch's Home

In his second issue, Branch contends that the trial court erred in denying his motion

to suppress the cocaine found in the search of his home. Specifically, Branch argues that the cocaine

found in his home in the search conducted pursuant to a search warrant should have been suppressed

because police officers conducted an earlier, warrantless entry into his home. He alleges that the

warrantless entry violated the Fourth Amendment's prohibition against unreasonable searches and

seizures because there was neither probable cause nor exigent circumstances to justify the entry. See

U.S. Const. amend. IV.; Parker v. State , 206 S.W.3d 593, 597 (Tex. Crim. App. 2006) (requiring

existence of probable cause and exigent circumstances in order to conduct warrantless search of

private residence). Branch does not assert, and nothing in the record suggests, that any of the cocaine

found in Branch's home was found during the warrantless entry. Rather, the record shows that the

cocaine was discovered during the later search of the home conducted pursuant to a search warrant.

However, Branch asserts that the evidence recovered in the later search should have been suppressed

as the "fruit" of the unlawful warrantless entry. We disagree.

The pre-warrant sweep of Branch's home, during which no cocaine was discovered,

has no relevance to the admissibility of cocaine obtained in a later search. Even if officers had

discovered evidence during their pre-warrant sweep of Branch's home, evidence initially discovered

during a pre-warrant search but later recovered pursuant to a valid warrant is admissible if the State

can demonstrate that, absent any information learned from the pre-warrant search, law enforcement

would have sought, and the judge would have issued, the warrant. See Murray v. United States ,

487 U.S. 533, 538-41 (1988). Because the record does not give any indication that officers

discovered cocaine in their pre-warrant sweep, the constitutionality of the sweep is not relevant to

the admission of the evidence that was discovered in the later search. We therefore overrule

this issue.

We turn now to the later search of Branch's home that was conducted pursuant to a

search warrant. Although it is unclear from Branch's brief whether he means to challenge the

validity of the later-obtained search warrant, we will address the issue in the interest of thoroughness

and because the validity of the search warrant was discussed at oral argument in this case.

A magistrate may not issue a search warrant without first finding "probable cause"

that a particular item will be found at a particular location. Rodriguez v. State , 232 S.W.3d 55, 60

(Tex. Crim. App. 2007). Probable cause for a search warrant exists if, under the totality of the

circumstances presented to the magistrate within the four corners of an affidavit, there is at least a

"fair probability" or "substantial chance" that contraband or evidence of a crime will be found at the

specified location. Illinois v. Gates , 462 U.S. 213, 238 (1983); Flores v. State , 319 S.W.3d 697, 702

(Tex. Crim. App. 2010). The magistrate may interpret the affidavit in a non-technical, common-sense manner and may draw reasonable inferences from it. Flores , 319 S.W.3d at 702 .

As a reviewing court, our duty is to ensure that the magistrate had a substantial basis

for concluding that probable cause existed. Id . We apply a highly deferential standard in keeping

with the constitutional preference for a warrant. See Rodriguez , 232 S.W.3d at 59-60 ("[E]ven in

close cases we give great deference to a magistrate's determination of probable cause to encourage

police officers to use the warrant process rather than making a warrantless search and later

attempting to justify their actions by invoking some exception to the warrant requirement."). A

reviewing court should not invalidate a warrant by interpreting the affidavit in a hypertechnical

manner. Id . at 59. When in doubt, we should defer to all reasonable inferences that the magistrate

could have made. Id . at 61.

The affidavit filed by Detective Wadley in support of his request for a search

warrant for Branch's home included the following facts as establishing probable cause for a warrant:

(1) a confidential informant ("First CI") stated that Branch sold large quantities of cocaine;

(2) First CI observed a second cocaine dealer purchasing cocaine from Branch's home on many

occasions, sometimes multiple times a day; (3) First CI correctly identified Branch in a photo and

correctly described Branch's car and house; (4) First CI conducted a controlled buy of 0.6 grams of

cocaine from Branch on behalf of Detective Wadley, after which Wadley observed Branch return

directly to his home; (5) a second confidential informant ("Second CI") said that Branch was buying

approximately four ounces of cocaine a day from another cocaine dealer; (6) a third confidential

informant ("Third CI") observed a cocaine dealer purchase up to $1,000 worth of cocaine from

Branch; (7) First CI and Third CI said Branch had recently started to deliver cocaine to his buyers

rather than have the buyers pick it up at his home; (8) Wadley's observations of Branch were

consistent with First CI and Third CI's statement about Branch recently delivering cocaine because

Wadley recently noticed fewer people going to Branch's home and Branch leaving the home more

often; (9) on Sept. 14, 2007, Wadley saw Branch's car with its driver door open in Branch's

driveway and then observed the car back out of the driveway and drive away; and (10) after

observing Branch commit traffic violations, Wadley called a marked police car to conduct a traffic

stop of Branch's car, and after a drug-detection dog alerted on Branch's car, Wadley discovered

crack cocaine in Branch's pocket.

Also in the affidavit, Wadley attested to his twelve years of experience as a police

officer and stated that the information provided in the affidavit was based on evidence and

information collected during his investigations into narcotics trafficking in Killeen. He also attested

to the reliability of First CI and Third CI. (2)

Based on the information in the affidavit, the magistrate could have inferred that: (1)

Branch carried the cocaine that was found in his pocket out of his home; (2) the confidential

informants, especially First CI and Third CI, had some familiarity with Branch and his affairs; (3)

Branch had recently begun delivering cocaine to buyers rather than allowing buyers to come to his

home; and (4) Branch was attempting to deliver cocaine to a buyer when the traffic stop occurred.

Given the facts in the affidavit and the reasonable inferences that could be made from

the facts, we conclude that the magistrate had a substantial basis for determining that probable cause

existed to search Branch's home. Although it is possible that Branch took all the cocaine stored at

his home with him when he left the home, it is at least as likely that the cocaine in his pocket was

just one portion of a larger amount that he was storing in the home. See id . at 64. Accordingly, we

conclude that the trial court did not err in declining to suppress the evidence discovered in Branch's

home pursuant to the search warrant. (3)

C. Conclusion Regarding Motion to Suppress

Because we find no error in the trial court's decision to deny Branch's motion to

suppress, we overrule Branch's first two issues.

Denial of Motion for New Trial

In his motion for new trial, Branch alleged that his trial attorneys had provided

ineffective assistance of counsel. After a hearing, the trial court denied the motion by operation of

law. On appeal, Branch contends that the trial court erred in denying his motion because his trial

attorneys provided ineffective assistance when they failed to object to the prosecutor's statements

during closing argument about the way in which parole law would affect Branch's sentence.

We review a trial court's denial of a motion for new trial for an abuse of discretion.

Charles v. State , 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Accordingly, when analyzing the

trial court's decision to deny a new trial based on ineffective assistance of counsel, we view the

relevant legal standards through the prism of an abuse-of-discretion standard. See Ramirez v. State ,

301 S.W.3d 410, 415 (Tex. App.--Austin 2009, no pet.). We do not substitute our judgment for that

of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable.

Charles , 146 S.W.3d at 208 . We must view the evidence in the light most favorable to the trial

court's ruling and presume that all reasonable factual findings that could have been made against the

losing party were so made. Id . Thus, a trial court abuses its discretion in denying a motion for new

trial only when no reasonable view of the record could support the trial court's ruling. Id .

It is the defendant's burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To

prevail on the issue, the defendant must show that: (1) counsel's performance was deficient in that

it fell below an objective standard of reasonableness, and (2) counsel's deficient performance

prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding.

See Strickland v. Washington , 466 U.S. 668, 687-88 (1984); Hernandez v. State , 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (adopting Strickland two-prong test). To establish deficient performance

as a matter of law under the first prong, a defendant must show that no reasonable trial strategy could

justify counsel's conduct. See Strickland , 466 U.S. at 689 ; Andrews v. State , 159 S.W.3d 98, 102

(Tex. Crim. App. 2005). A defendant establishes prejudice under the second prong if he shows that

a reasonable probability exists that, but for the deficient performance, the outcome of the proceeding

would have been different. See Strickland , 466 U.S. at 694 ; Ex parte Cash , 178 S.W.3d 816, 818

(Tex. Crim. App. 2005). A reasonable probability is a probability sufficient to undermine confidence

in the outcome. Strickland , 466 U.S. at 694 .

In determining whether an attorney's performance was deficient, we apply a strong

presumption that the attorney's conduct was within the wide range of reasonable professional

assistance. Id . at 694-95. We review the effectiveness of counsel in light of the totality of the

representation and the circumstances of each case. See Thompson , 9 S.W.3d at 813 .

A. Deficient Performance

Branch's complaint regarding his trial attorneys' performance pertains to his

attorneys' failure to object to statements the prosecutor made regarding parole law during the State's

closing argument. Before we discuss the propriety of the prosecutor's statements, we will first

provide background from the punishment phase of trial regarding the way in which parole law was

addressed in the jury charge and both parties' closing arguments. We begin with the jury charge,

which stated in part:

Under the law applicable in this cause, the defendant, if sentenced to a term of

imprisonment, may earn time off the period of incarceration imposed through the

award of good conduct time. Prison authorities may award good conduct time to a

prisoner who exhibits good behavior, diligence in carrying out prison work

assignments, and attempts at rehabilitation. If a prisoner engages in misconduct,

prison authorities may also take away all or part of any good conduct time earned by

the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned

might be reduced by the award of parole.

Under the law applicable to this case, if the defendant is sentenced to a term of

imprisonment, he will not become eligible for parole until the actual time served plus

any good conduct time earned equals one-fourth of the sentence imposed or thirty

(30) years, whichever is less. (4) Eligibility for parole does not guarantee that parole

will be granted.

It cannot accurately be predicted how the parole law and good conduct time might

be applied to this defendant if he is sentenced to a term of imprisonment, because the

application of these laws will depend on decisions made by prison and parole

authorities.

You may consider the existence of the parole law and good conduct time. However,

you are not to consider the extent to which good conduct time may be awarded to or

forfeited by this particular defendant. You are not to consider the manner in which

the parole law may be applied to this particular defendant.

Both the State and the defense addressed parole law to varying degrees in their

closing arguments. In the State's initial closing argument, the prosecutor explained the parole-law

portion of the jury charge to the jury and displayed a chart to assist in the explanation. The

prosecutor stated:

[P]arole eligibility begins when a defendant has served one-quarter of his sentence,

taking in consideration good time and back time. All right. Realistically the

minimum in this case is fifteen years because of the defendant's prior conviction for

distribution. Parole eligibility would be in three-and-a-quarter years. If you give him

a sentence of the minimum, that's what he's looking at before he's eligible. A

twenty-year sentence is five years; a thirty-year sentence, seven-and-a-half; forty

years, ten. You can see down the chart. A life sentence is thirty years before he is

eligible because thirty years is tops what you're going to do. Okay? That's what

"parole eligibility" means realistically. If you assess a sentence on the top line, he

will be eligible somewhere along the bottom line.

During the defense's closing argument, one of Branch's two trial attorneys addressed

parole law as follows:

This is not a life without parole case. It may well be a life case, and you can

determine that. And as [the prosecutor's] wonderful chart shows, life is a term of

sixty years. Now Mr. Branch is old enough. Sixty years from now he'll been dead

twenty years [sic]. So that's not good. That's fine. You want to give him a life

sentence and make sure he dies in prison, then you need to do that.

But, really, when you start looking at it, Texas says life is really sixty years. Then

you start to cut that in half, and then you cut that into a quarter--you understand what

I'm saying--and so you get a number. Well, okay, fine. And maybe everybody is

sitting here saying, "Well, in real time I want him to serve this much time." Doesn't

work that way. The parole board changes their standards quicker than I change my

socks. But, the end result is [Branch] is going to be affected by that parole law, and

it's going to start today in this courtroom in about twenty minutes. Because in about

twenty minutes I'm going to be through talking and [the prosecutor] will be through

talking. You'll have your twelve individual copies, and you will adjourn to the jury

room. And you will be in there, and you'll make a rational decision [as to] what you

think this case is worth.

. . . .

Ladies and gentlemen, the defendant will come home some day. The only issue is:

When is that "some day" going to be against a whole lot of fancy figuring by the

State Board of Pardons and Parole based on what verdict you render and whether or

not my client can be an above-board citizen while he's in prison? And I can't give

you that guarantee. All I can tell you is, I have every hope that [Branch] has learned

something from this so that if and when he gets to [prison], he's not allowed--Now

that he's got a record--He's not a fight starter. He doesn't join some prison gang.

He just does his time and gets it done and gets it behind him and get[s] back.

Then, in the final portion of the State's closing argument, the prosecutor again

addressed the issue of parole. It is this portion of the closing argument that Branch asserts

was improper:

[Branch is] going to get out. You can see. You give him life, fifteen years he's

eligible for parole. He is not going to stay in prison until he dies, and that fifteen

years, as you can see in here, is tempered by how he's good. Okay? He's a good

boy, he stays in prison seven years, eight years. He's going to be done on life. Give

him thirty, give him forty, he's going to get out quicker.

It's almost obscene that we have to come to you and tell you that these number games

[are] played. It would be much simpler if I could walk in here and tell you he's going

to go to prison for what you give him, and that's it.

. . . .

You're never--even with life--going to send him to prison for fifteen or twenty

years. It's not going to happen."

Branch contends that the prosecutor's statements were improper. We agree.

Although the State may attempt to clarify the meaning of the jury instructions pertaining to parole

law and good-conduct time, see Taylor v. State , 233 S.W.3d 356, 359 (Tex. Crim. App. 2007), the

State is not permitted to comment on the specific extent to which parole law and good-conduct time

may be applied to the particular defendant on trial. See Tex. Code Crim. Proc. Ann. art. 37.07,

§ 4(b) (West Supp. 2010). Here, the prosecutor did not state that Branch would be eligible for parole

in a certain number of years, but rather stated that Branch would be out of prison in that amount of

time. The prosecutor did so by using language of certainty, stating that Branch would "be done on

life" in seven or eight years if he exhibited good conduct; that Branch would "never" serve as many

as fifteen or twenty years if given a life sentence; and that Branch "would be out even quicker" if the

jury gave him a thirty- or forty-year sentence.

The prosecutor's statements were improper because they went beyond merely

explaining the parole-law portion of the jury charge and because they were also an inaccurate

statement of the law. As previously quoted, the law in the jury charge explicitly stated that "[i]t

cannot accurately be predicted how the parole law and good conduct time might be applied to this

defendant if he is sentenced to a term of imprisonment, because the application of these laws will

depend on decisions made by prison and parole authorities." Thus, according to the law, no one in

the courtroom could accurately predict how parole law and good conduct time would be applied to

Branch. Yet the prosecutor made just such a prediction by stating with certainty that Branch would

be out of prison in seven or eight years if he exhibited good conduct in jail, that he would be out of

prison even sooner with a lesser sentence, and that he would never serve longer than fifteen or

twenty years of a life sentence. Branch's trial attorneys should have objected to the prosecutor's

improper statements. (5) See Andrews , 159 S.W.3d at 102 ("Defense counsel has a duty to correct

misstatements of law that are detrimental to his client.").

At the hearing on the motion for new trial, Branch's trial attorneys testified regarding

their reasons for not objecting to the prosecutor's statements. The first attorney to testify, Jeffrey

Parker, explained that he and the other defense attorney, Robert Harris, worked together in

representing Branch but that Harris was the attorney responsible for conducting argument during the

punishment phase of trial. Parker addressed the prosecutor's statements in the following exchange:

Defense: [D]o you recall the prosecutor's argument? Do you recall him

making the argument something along the lines if the jury were to

give Mr. Branch a life sentence, that, in fact, it would be somewhat

equivalent to a seven years [sic]--that he would be out in seven

years?

Parker: I don't recall that. I recall the prosecutor . . . making the statement

that because he would serve a quarter of his sentence, that a thirty-year sentence equated to seven-and-a-half years and he would be back

on the streets.

Defense: Okay. So in other words, the prosecutor indicated to the jury that

with a life sentence, Mr. Branch would be back on the streets in

seven-and-a-half years? That was the import of the argument as you

recall?

Parker: As I recall.

. . . .

Defense: Okay. And are you--with your understanding of the law, is the

prosecutor permitted to make an argument about how the parole laws

will apply to a particular defendant?

Parker: It is my understanding they are not.

Defense: Okay. And during trial, did you object when the prosecutor made this

argument?

Parker: No. It would not have been proper for me to object.

Defense: Okay. And that's because Mr. Harris was conducting the argument

at that stage of the trial?

Parker: That's correct.

Defense: Were you aware of any strategy for not objecting at that point in the

trial?

Parker: I know that Mr. Harris had made some arguments, but at this time, I

cannot recall what they were. I was not personally aware of his

strategy, but I have not discussed this with Mr. Harris, so I don't--I

cannot answer that question.

Defense: So you didn't discuss trial strategy between the two of you prior to

trial?

Parker: Yes, we did. But not as to--with respect to parole issues.

Defense: Okay. Not with respect to that particular issue?

Parker: Correct.

Harris testified that he did not recall the prosecutor making an argument about the

application of parole to Branch's sentence. Harris further testified regarding the prosecutor's

statements in the following exchange with Branch's appellate counsel:

Defense: And if the prosecutor had argued how the parole laws would apply to

Mr. Branch specifically, himself personally in this case, would that

jump out in your mind as an argument that's improper or illegal under

the law?

Harris: It would stand out in my mind as an argument that is reactionary.

And the point being there, since paragraph two [of the jury charge]

is--very obviously says we can't determine what the parole board is

going to do, how they're going to rule, I would have been surprised

if [the prosecutor] would have tried to influence a jury, to place

themselves in the place of the parole board.

. . . .

Defense: How would you describe your strategy in not objecting to an

argument about parole?

Harris: Well, my strategy wasn't--there wasn't any specific strategy to

ignore things that I think are incorrect.

Harris then went on to explain his overall strategy, which was to humanize Branch and point out that

Branch would get out of jail someday on parole, at which time he would have responsibilities just

like every other human being and should therefore not be "warehoused" in prison until his release.

The testimony of both of Branch's attorneys shows that their decisions not to object

to the prosecutor's improper statements were not the result of a particular trial strategy. Parker

indicated that he felt it would be inappropriate for him to object when Harris was the attorney

conducting argument, and Harris admitted that he did not have a trial strategy in declining to object.

Even if they had provided some sort of explanation or apparent strategy, it would likely still be

insufficient. See id . ("There can be no reasonable trial strategy in failing to correct a misstatement

of law that is detrimental to the client.").

The dissent suggests that the defense attorneys' failure to object to the improper

statements could be overlooked because by and large, the defense attorneys rendered effective

assistance to Branch throughout trial. However, the court of criminal appeals has stated otherwise.

See id . at 103 (defense attorney's failure to object to prosecutor's misstatement of law was alone

sufficient to establish deficient performance). As previously mentioned, the Andrews court stated

that "[t]here can be no reasonable trial strategy in failing to correct a misstatement of law that is

detrimental to the client." Id . at 102. Here, the prosecutor misstated the law to Branch's detriment

and did so through three separate statements to the jury. Not only did Branch's attorneys not object

to the improper statements, but they also testified that they did not have a trial strategy in doing so.

Thus, regardless of Branch's attorneys' conduct elsewhere during the trial, Branch has shown based

on Andrews and his attorneys' testimony that there was no reasonable trial strategy justifying his trial

attorneys' failure to object to the prosecutor's improper statements, which is all that is required to

establish deficient performance as a matter of law. See id .; Strickland , 466 U.S. at 689 .

Accordingly, we conclude that Branch's trial attorneys provided deficient performance in failing to

object to the prosecutor's improper statements.

B. Prejudice

As previously stated, to prove the second prong of ineffective assistance, Branch must

establish that there is a reasonable probability that the outcome of his punishment hearing would

have been different if not for his counsels' deficient performance. See Strickland , 466 U.S. at 694 ;

Cash , 178 S.W.3d at 818 . A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Strickland , 466 U.S. at 694 . We conclude that the record establishes

such a probability in this case.

Here, the prosecutor's improper statements gave the jury the inaccurate impression

that a life sentence would result in Branch's release from prison in only seven or eight years, and that

in any case, Branch would never serve more than fifteen or twenty years of a life sentence. If

Branch's attorneys had objected to the prosecutor's improper statements, the trial court could have

corrected the misstatements and instructed the jury to disregard them. The gravamen of the

uncorrected statements was that the effective maximum period of imprisonment that the jury could

impose was only seven or eight years and that the only way the jury could guarantee that Branch

served that long was to impose a life sentence. As a result, the abundant evidence of Branch's bad

acts, which is emphasized by the dissent as a basis for confidence in the jury's punishment verdict,

actually undermines confidence that the verdict would have been the same without the improper

comments. The jury was presented with evidence of bad acts committed by Branch while also being

presented with inaccurate statements from the prosecutor indicating that a life sentence was the only

way the jury could ensure that Branch would remain in prison for at least seven years. Given that

information, the jury assessed a life sentence.

We also note that a prosecutor acts under the authority of the State and brings a great

deal of expertise to a criminal trial. The prosecutor here, speaking from such a place of authority,

purported to explain the sentencing provisions in the jury charge when he made the inaccurate

statements. As previously explained, the law is well-established that neither the prosecutor nor

anyone else in the courtroom could predict how the parole law would apply to Branch. Thus, a

person with extensive expertise and authority in criminal matters gave the jury incorrect information

with which to assess an appropriate sentence for Branch. It is also significant that the jury heard the

inaccurate statements immediately before retiring to deliberate. See Hall v. State , 283 S.W.3d 137,

177-78 (Tex. App.--Austin 2009, pet. ref'd).

We conclude that the record establishes that there is a "reasonable probability" that

Branch's sentence would have been different if his attorneys had lodged an objection to the

prosecutor's misstatements. See Andrews , 159 S.W.3d at 103 . Thus, Branch has shown that his

attorneys' deficient performance prejudiced his defense.

C. Conclusion Regarding Ineffective Assistance

Given the impropriety of the prosecutor's comments, the lack of a trial strategy in

support of declining to object to the comments, and the likelihood that Branch would have received

a different sentence if his attorneys would have objected to the comments, we conclude that Branch's

trial attorneys provided ineffective assistance in failing to object to the comments and that the trial

court abused its discretion in denying Branch's motion for new trial based on ineffective assistance

of counsel.

CONCLUSION

Because we conclude that the trial court did not err in denying Branch's motion to

suppress, we affirm the portion of the trial court's judgment finding guilt. Because of the unique

combination of circumstances in this case--namely, the improper statements made by the

prosecution, the defense attorneys' testimony that they did not have a trial strategy for declining to

object to the improper statements, and the fact that Branch was assessed the most severe sentence

possible--we conclude that the trial court erred in denying Branch's motion for new trial.

Accordingly, we reverse the portion of the trial court's judgment assessing punishment, and we

remand this cause to the trial court for a new punishment hearing.

___________________________________________

Diane M. Henson, Justice

Before Justices Puryear, Pemberton and Henson;

Dissenting opinion by Justice Puryear

Affirmed in part; Reversed and Remanded in part

Filed: March 18, 2011

Publish

1. The transcript from the hearing on the motion to suppress does not indicate where in the

home the two quantities of cocaine were discovered.

2. In reference to Second CI, Wadley's affidavit states only that Wadley received the

information about Second CI from a detective at the Central Texas Narcotics Task Force.

3. At the hearing on the motion to suppress, Detective Wadley testified that one of the reasons

he believed that more cocaine might be found in Branch's home after discovering the cocaine in

Branch's pocket was that the cocaine in Branch's pocket, which was crack cocaine, was "not even

dried yet" and had "just been cooked." Wadley believed that Branch was processing the crack

cocaine in his home. The affidavit Wadley filed in support of the search warrant did not include the

detail about the crack cocaine being wet. However, we need not focus on the missing detail because

we have already concluded that the facts included in the affidavit, coupled with the inferences from

those facts, are sufficient to establish probable cause for the search. "The issue is not whether there

are other facts that could have, or even should have, been included in the affidavit; we focus on the

combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit."

Rodriguez v. State , 232 S.W.3d 55, 62 (Tex. Crim. App. 2007).

4. Although the parties did not raise the issue of error in the jury charge, we noticed that the

charge is incorrect in tracking the applicable statutory language regarding the time frame in which

Branch would be eligible for parole. The charge states that Branch would "not become eligible for

parole until the actual time served plus any good conduct time earned equals one-fourth of the

sentence imposed or thirty (30) years, whichever is less." The statute applicable to this case, which

is section 4(b) of article 37.07 of the code of criminal procedure, states that a defendant will "not

become eligible for parole until the actual time served plus any good conduct time earned equals

one-fourth of the sentence imposed or 15 years, whichever is less." See Tex. Code Crim. Proc. Ann.

art. 37.07, § 4(b) (West Supp. 2010).

5. The State contends that the prosecutor's statements were proper because they were merely

an answer to defense counsel's argument regarding parole. See Brown v. State , 270 S.W.3d 564, 570

(Tex. Crim. App. 2008) (proper jury argument includes answering argument of opposing counsel).

The State further asserts that the prosecutor's statements were merely "a paraphrase" of defense

counsel's argument. We disagree. Defense counsel stated that Branch would "come home some

day" and that Branch would "be affected" by the parole law, but he also emphasized that the parole

board would decide the way in which parole would affect Branch and that the parole board

frequently changed its standards. Defense counsel made no mention of the specific time frame in

which Branch was likely to be released from prison. The prosecutor went far beyond defense

counsel's comments and stated that Branch would "be done on life" in seven or eight years if he

behaved himself in prison, that he would be released even sooner if given less than a life sentence,

and that he would "never" serve more than fifteen or twenty years of a life sentence. Accordingly,

we reject the State's characterization of the prosecutor's statements.