Nos. 05-09-01133-CR, 05-09-01134-CR
Opinion issued May 17, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F08-26002-I and F09-00531-I.
Before Justices O'NEILL, FITZGERALD, and LANG.
DOUGLAS S. LANG, Justice.
Jerson Antonio Gasper appeals the trial court's judgments convicting him of two offenses of aggravated robbery with a deadly weapon. Gasper pleaded guilty to the jury. The jury found him guilty and assessed his punishment at twenty-five years of imprisonment for each offense. Gasper raises three issues on appeal arguing: (1) he received ineffective assistance of counsel during voir dire; (2) the trial court erred when it admitted evidence of an extraneous offense during the punishment hearing because the State had failed to provide timely, written notice of its intent to offer such evidence; and (3) the trial court erred when it made affirmative findings that he used or exhibited a deadly weapon during the offenses because those findings were not supported by express jury findings. We decide against Gasper on all of his issues. The trial court's judgments are affirmed.
I. PROCEDURAL BACKGROUND
Gasper was indicted for two offenses of aggravated robbery. He pleaded guilty to the offenses before the jury and his judicial confessions were admitted into evidence. The trial court instructed the jury to find Gasper guilty "as charged in the indictment[s]" and the jury found him "guilty." After a hearing on punishment, the jury assessed Gasper's punishment at twenty-five years of imprisonment for each offense. The trial court's judgments of conviction included affirmative deadly weapon findings. II. EFFECTIVE ASSISTANCE OF COUNSEL
In issue one, Gasper argues that he received ineffective assistance of counsel during voir dire. He claims that trial counsel's failure to question the prospective jurors regarding whether they could assess the minimum punishment constituted deficient performance. He argues this affected the jury selection process because he did not have an opportunity to determine whether prospective jurors should be disqualified for an inability to consider the full range of punishment. The State responds that Gasper's argument is speculative. A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews, 159 S.W.3d at 101; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. Ineffective assistance of counsel claims must be firmly founded in the record and not based on retrospective speculation. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Ordinarily, this type of record is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. See Perez v. State, 56 S.W.3d 727, 731 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). B. Application of the Law to the Facts
Even if trial counsel's performance fell below an objective standard of reasonableness, Gasper must show a reasonable probability exists that, but for trial counsel's errors, the result would have been different. In his brief, Gasper states that "there is a reasonable probability that, but for trial counsel's unprofessional error, the result of the proceeding would have been different," and "there is a probability that some of the prospective jurors would have revealed that they could not consider the minimum [punishment], and they should and would properly have been challenged for cause." Gasper does not provide references to the record to support this assertion or cite to any case law. Accordingly, we conclude Gasper has not shown he received ineffective assistance of counsel because he has not shown that but for trial counsel's errors, the result would have been different. Gasper's first issue is decided against him. III. EXTRANEOUS OFFENSE EVIDENCE
In issue two, Gasper argues that the trial court erred when it admitted evidence of an extraneous offense during the punishment hearing because the State had failed to provide timely, written notice of its intent to offer such evidence. He claims the State failed to give him timely notice of its intent to use his prior felony conviction for possession of cocaine. The State responds that, although Gasper's cocaine conviction was not included in the State's written notice, there was a pretrial hearing regarding his possession of cocaine case, so there was no surprise. Even if the trial court erred when it admitted evidence of an extraneous offense during the punishment hearing, an appellate court must review whether the error was harmful. Gasper contends that this error was harmful because it was his only prior conviction that was not a misdemeanor and it undermined his efforts to show that he desired to make amends for his behavior. The State responds that any error was harmless because Gasper does not claim the extraneous offense evidence was inadmissible, only that he did not receive timely notice. A. Harmless Error
Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). The erroneous admission of an extraneous offense is nonconstitutional error. Johnson v. State, 84 S.W.3d 729, 729 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); see Avila v. State, 18 S.W.3d 736, 741-42 (Tex. App.-San Antonio 2000, no pet.). B. Application of the Law to the Facts
The record shows that Gasper admitted he knew the State was aware of his prior possession of cocaine conviction and that there had been a pretrial hearing on the State's motion to revoke his community supervision in that case. Further, Gasper does not argue that the evidence of his prior possession of cocaine conviction was inadmissible, only that, when the State notified him of the prior offenses it intended to use, it did not notify him of its intent to use this particular prior conviction. Accordingly, we conclude that even if the trial court erred when it admitted the evidence of Gasper's prior possession of cocaine conviction during the punishment hearing, he has not shown that he was harmed by that error. Issue two is decided against Gasper. IV. DEADLY WEAPON FINDINGS
In issue three, Gasper argues that the trial court erred when it made a finding that he used or exhibited a deadly weapon because it was not supported by an express jury finding. He claims the jury did not have the deadly weapon issue before it because there was no deadly weapon special issue in the jury charge, the jury charge did not specify the deadly weapon and did not state guilty "as charged in the indictment," and one indictment alleged that he used a sledgehammer and a pipe. The State responds that Gasper pleaded guilty before the jury, his judicial confession was admitted into evidence and stated that he committed the offenses charged, and the trial court instructed the jury to find Gasper guilty as charged in the indictments. A. Applicable Law
An "affirmative finding" concerning a deadly weapon is the trier of fact's express determination that a deadly weapon was actually used or exhibited during the commission of the offense. LaFleur v. State, 106 S.W.3d 91, 94 (Tex. Crim. App. 2003). Generally, an affirmative finding of a deadly weapon may be made when the (1) indictment includes an allegation of a "deadly weapon," and the verdict states the defendant is guilty as charged in the indictment, (2) the indictment does not allege "deadly weapon," but does allege a weapon that is per se a deadly weapon, and the verdict states the defendant is guilty as charged in the indictment, or (3) the jury has affirmatively answered a special charge issue on "deadly weapon" use or exhibition. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985). Alternatively, if the application paragraph of the charge adequately describes the use or exhibition of a deadly weapon, then the verdict of "guilty" combined with the application paragraph constitute the "affirmative finding." LaFleur, 106 S.W.3d at 98. The process of looking to the application paragraph, the indictment, and the verdict for the purpose of ensuring an "express finding" should not exalt form over substance to no discernible jurisprudential purpose. Id. However, a trial court cannot make an implied deadly weapon finding based solely upon its own assessment of the evidence and a general guilty verdict. Id. at 95. B. Application of the Law to the Facts
The aggravated robbery indictments against Gasper alleged that he "used and exhibited a deadly weapon, to wit: a sledgehammer and pipe," and he "used and exhibited a deadly weapon, to wit: a sledgehammer." Gasper pleaded guilty to the offenses before the jury. His judicial confessions were admitted into evidence and specifically stated that he "used and exhibited a deadly weapon, to wit: a sledgehammer and pipe," and he "used and exhibited a deadly weapon, to wit: a sledgehammer." The trial court instructed the jury to find Gasper guilty "as charged in the indictment[s]." There were no objections to the trial court's jury instructions. The jury returned general verdicts of "guilty." The indictments were read to the jury. Those indictments specifically alleged that Gasper used or exhibited a deadly weapon. Gasper's judicial confessions were admitted into evidence and specifically stated that he admitted to using or exhibiting a deadly weapon. The trial court's jury charges instructed the jury to find Gasper guilty as charged in the indictments. As a result, because the jury found Gasper guilty of the aggravated robberies, in which it expressly found that Gasper used or exhibited a deadly weapon, the jury necessarily found that the commission of the aggravated robberies also involved the use or exhibition of a deadly weapon. See LaFleur, 106 S.W.3d at 96. Accordingly, we conclude the trial court did not err when it made affirmative findings that Gasper used or exhibited a deadly weapon during the offenses. Issue three is decided against Gasper. V. CONCLUSION
Gasper has not shown that he received ineffective assistance of counsel. Also, even if the trial court erred when it admitted the extraneous offense evidence, Gasper has not shown that he was harmed by that error. Finally, the trial court did not err when it made affirmative findings that Gasper used or exhibited a deadly weapon during the offenses. The trial court's judgments are affirmed.