Stone v. State

Full title: CONNIE LYNN STONE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 19, 2003

No. 05-02-00840-CR (Tex. App. May. 19, 2003)

Opinion

No. 05-02-00840-CR

Opinion Filed May 19, 2003 Do Not Publish

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-43357-JP AFFIRMED

Before Chief Justice THOMAS AND Justices BRIDGES and BUTTS¹.

1 The Honorable Shirley W. Butts, Justice, Fourth Court of Appeals, San Antonio, Texas, Retired, sitting by assignment.

OPINION

Opinion By Justice Butts.

This is an appeal from a conviction for solicitation of capital murder. Connie Lynn Stone entered a plea of guilty to the first-degree felony offense and elected to have the jury assess punishment. The trial court instructed the jury to find appellant guilty. After hearing the punishment evidence, the jury assessed punishment at forty years' confinement. In a single point of error, appellant argues she was denied effective assistance of counsel during voir dire because counsel failed to object when the trial court misinformed the venire regarding the circumstances in which the jury could place appellant on community supervision. We affirm the judgment.

BACKGROUND

The evidence shows that appellant, a former parole officer, once was the parole officer of Stephen Armistead, whom she solicited to murder a woman. The planned victim was the girlfriend of Brett Williams and the mother of Williams's child. Williams was also appellant's lover. Appellant asked Armistead to kill her rival, but Armistead and his father contacted the Richardson Police Department. A video tape and sound device, installed by the police in Armistead's house, recorded the transaction in which appellant gave written information of the victim's location and automobile description to Armistead and paid him $1,500 to kill the victim. The court related a lengthy voir dire statement to the venire, which included the following:

What the law contemplates is that jurors not pre-judge a case, that they keep an open mind as to the entire range of punishment and then, only after hearing all of the evidence, decide what is the proper punishment in the case based on all of the evidence that [they] have heard. There's another aspect of the law with regard to the punishment range that I need to discuss with you. And that is, that the law says, that if an individual charged with a criminal offense has never been convicted of a felony in this state or any other state or any Federal Jurisdiction. . . . and, the jury had evidence that the Defendant had never been convicted of a felony before. . . . and if the jury decided, based on the evidence that they heard, that the sentence in the case should not be more than ten years in the penitentiary, and if the jury decided that based on all of the evidence that they heard, that probation or what we call. . . . community supervision, is appropriate under our law then, the jury if within their discretion they believe that under those circumstances where they have had evidence before them, the Defendant has never been convicted of a felony, and they have decided that the sentence should not be greater than ten years in the penitentiary and they, as a jury, decide that community supervision or probation is appropriate under all the evidence that they have heard, then a jury may recommend what is called community supervision or probation, to the Court. And if a jury recommends community supervision in a case,. . . . the law requires the Court to follow the jury's verdict, and if that is the jury's verdict,. . . . then the Court is required to follow the jury's verdict and probate whatever sentence the jury has imposed and then set whatever conditions of probation the Court believes is appropriate. And, the Court determines the length of probation. And, the length of probation in a first degree felony is anywhere from five to ten years. Now, if the jury decided, after hearing all of the evidence, that the sentence is anything over ten years, you decide, for example, that the sentence should be, you know, eleven all the way up to 99 years or life in the penitentiary, anything eleven on up then, probation or community supervision is not even an option. That's not even anything that you could even consider under our law. And, if you decide that the sentence should be somewhere between five and ten years in the penitentiary but you, as a jury, decide that probation or community supervision is not appropriate under the circumstances that you have heard, but you think that the sentence should be somewhere in the range of five to ten years, then you, as a jury, do not have to recommend community supervision or probation. Basically, the issue of community supervision or probation is entirely within the discretion of the jurors. And, it is based upon what you, the jury, after hearing all of the evidence, decide is appropriate or not. And, it's your call after hearing all of the evidence. But, the point is, and the point I am trying to make, and I can't stress upon you enough, is not to pre-judge the case. . . . And then, and only after hearing the evidence decide, you, the jury, what you believe is the appropriate punishment in the case within the range provided by law. (emphasis supplied).

Appellant isolates one part of the detailed explanation: "Basically, the issue of community supervision or probation is entirely within the discretion of the jurors. And it is based upon what you, the jury, after hearing all of the evidence, decide is appropriate or not. And, it's your call after hearing all the evidence." She maintains this statement created the incorrect inference that the jury had absolute discretion to impose community supervision, regardless of the sentence imposed, and therefore confused the jury. It is argued that trial counsel's failure to object or at least seek a clarification of this crucial issue deprived appellant of the effective assistance of counsel.

STANDARD OF REVIEW

Strickland v. Washington, 466 U.S. 668, 687 (1984), decreed the standard to determine whether counsel rendered ineffective assistance. Appellant has the burden to prove that counsel's representation was deficient and the deficient performance was so serious that it prejudiced the defense. Id.; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). She must prove by a preponderance of the evidence that counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that but for counsel's deficiency, the result of the trial would have been different. Bone, 77 S.W.3d at 833; Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). The Strickland standard applies to both the guilt and punishment phases of trial. See Cardenas, 30 S.W.3d at 391; Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). Appellant must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable representation. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119 (1997). She must affirmatively prove that specific acts or omissions fell below the professional norm for reasonableness. Id. The reviewing court looks at all the evidence; any allegation of ineffectiveness must be firmly founded in the record. Id.; Bone, 77 S.W.3d at 835. Failure to show either deficient performance or sufficient prejudice defeats the ineffectiveness claim. McFarland, 928 S.W.2d at 500. Appellant claims ineffective assistance because his counsel failed to object to one portion of the court's statement, lifting this portion out of context of the voir dire statement. Viewing the entire statement regarding when a jury may recommend community supervision, we find it sets out correct sentencing guidelines. Defense counsel properly did not object to the accurate statement. There is no ineffectiveness where such an objection would not be valid. See Madden v. State, 911 S.W.2d 236, 243 (Tex.App.-Waco 1995, no pet.). The court plainly conveyed to the venire under what specific circumstances community supervision could be recommended. See Turner v. State, 87 S.W.3d 111, 116 (Tex.Crim.App. 2002) (failure to object to prosecutor's statements during voir dire not ineffective because, when viewed in context of entire voir dire, they were not objectionable), cert. denied, 123 S.Ct. 1760 (2003). Appellant has failed to show her counsel rendered ineffective representation. The point of error is overruled.² The judgment is affirmed.