Appeal from the 178th District Court Harris County, Texas
Trial Court Cause No. 1441990
consists of Justices Jamison, Busby, and Donovan.
Hill Jamison Justice.
appeal concerns allegations of ineffective assistance of
counsel at both the trial and appellate levels. Appellant
Deshawn Jackson pleaded guilty to, and the trial court found
him guilty of, aggravated robbery. After a presentence
investigation hearing, the trial court sentenced appellant to
20 years in prison. Appellant's first appellate counsel
filed a motion for new trial alleging appellant received
ineffective assistance from his trial counsel but failed to
obtain a timely hearing or ruling on the motion, and it was
overruled by operation of law. Appellant's second,
appointed appellate counsel filed an Anders brief
asserting that there was no arguable basis for
reversal. We disagreed and ordered the appeal abated
for the trial court to appoint new counsel on appeal. Current
counsel now argues appellant received ineffective assistance
of counsel from both his appointed trial and first appellate
counsel. Because the record before us does not support
reversal for ineffective assistance of counsel, we affirm.
was charged with the aggravated robbery of Luisa Alvarado
occurring on or about January 15, 2014. See Tex.
Penal Code § 29.03(a)(2). The indictment further alleged
the use and exhibition of a firearm during the course of the
robbery. Appellant pleaded guilty and a
presentence-investigation (PSI) report was prepared.
subsequent PSI hearing, the State presented evidence that
appellant was part of a group of three men who robbed a
Family Dollar store where Alvarado worked. One of the men
pointed a gun at Alvarado while appellant removed cash from
two registers. As they were leaving, the men also robbed a
customer who had just entered the building. There was also
evidence that the group had robbed someone on a street near
the store shortly before entering the building. Appellant
acknowledged at the hearing that he associated with a group
who called themselves the Money Grabbing Mafia, but he denied
that the group was a gang.
State introduced evidence at the PSI hearing that appellant
also was arrested in July 2014 for misdemeanor evading
arrest. Appellant reportedly fled after the vehicle he was
riding in, which was suspected of being used in an armed
robbery, was pulled over by police. Also, in September 2015,
appellant was arrested for possession of a controlled
substance after police pulled over the vehicle he was riding
in; this vehicle was also suspected of being used in a
robbery, and three handguns were found in the vehicle.
State additionally presented evidence regarding the two
robberies that were connected to the cars mentioned above in
which appellant was a passenger. However, there was no
evidence directly connecting appellant to those crimes; the
State did not allege appellant participated in the offenses;
and appellant denied any involvement other than driving a man
shot during one of the robberies to the hospital.
Appellant's trial counsel did not object to the admission
of evidence regarding any of the extraneous offenses. During
his testimony at the hearing, appellant requested that the
court place him on deferred adjudication. Trial counsel also
requested the court place appellant on deferred adjudication
during his closing argument.
January 15, 2016, the trial court sentenced appellant to 20
years' imprisonment. Appellant's first appointed
appellate counsel then timely filed a motion for new trial,
alleging, among other things, ineffective assistance of
counsel because trial counsel had (1) failed to object to the
evidence of extraneous offenses at the PSI hearing, (2)
failed to properly prepare for the PSI hearing, and (3)
induced appellant to plead guilty by indicating he would
receive probation from the trial court. Appellant and his
mother signed affidavits that were attached to the motion in
which they averred that trial counsel had promised them
appellant would receive probation if he pleaded guilty.
trial court's plenary power expired before the court held
a hearing or ruled on the motion for new trial; thus, the
motion was overruled by operation of law. See Tex.
R. App. P. 21.8(a), (c); State v. Holloway, 360
S.W.3d 480, 485 (Tex. Crim. App. 2012). The trial court
nonetheless held a hearing on the motion on April 13, after
its plenary power had expired. The judge asked the parties to
return for argument on April 25, 2016; however, instead of
allowing argument on that date, the judge explained that he
lacked plenary power over the motion for new trial as it had
been overruled by operation of law. He then granted first
appellate counsel's motion to withdraw. In the motion to
withdraw, first appellate counsel explained that she had made
a mistake when rescheduling the hearing on the motion for new
trial and that this mistake cost appellant the opportunity to
have the motion timely heard. As mentioned above,
appellant's second appointed appellate counsel filed an
Anders brief, which we rejected. When we abated the
appeal, the trial court appointed appellant's current
counsel. Current counsel then filed a new motion for new
trial, which the trial court declined to hear because our
abatement order only authorized the appointment of current
appeal, appellant now complains that he received ineffective
assistance of counsel (1) from his first appellate counsel
because she failed to secure a hearing and a ruling on the
first motion for new trial before expiration of the trial
court's plenary power and (2) from his trial counsel
because he failed to object to the evidence of extraneous
offenses and improperly promised appellant that he would
receive probation if he pleaded guilty and submitted to a PSI
report. In his first issue, appellant specifically
requests that we reverse his conviction and remand for a new
trial. In his second issue, he requests, in the alternative,
that we abate the appeal and remand for a hearing on his
motion for new trial.
the United States and Texas Constitutions guarantee an
accused the right to assistance of counsel. U.S. Const.
amend. VI; Tex. Const. Art. I, § 10. The right to
counsel necessarily includes the right to reasonably
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). The United States
Supreme Court has established a two-prong test to determine
whether counsel is ineffective. Id. First, appellant
must demonstrate counsel's performance was deficient and
not reasonably effective. Id. at 688-92. Second,
appellant must demonstrate the deficient performance
prejudiced the defense. Id. at 693. Essentially,
appellant must show his counsel's representation fell
below an objective standard of reasonableness, based on
prevailing professional norms, and there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. Id.; Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011).
scrutiny of counsel's performance must be highly
deferential, and we are to indulge a strong presumption
counsel was effective. Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1994). We presume counsel's
actions and decisions were reasonably professional and that
they were motivated by sound trial strategy. Id.
Moreover, it is appellant's burden to rebut this
presumption by a preponderance of the evidence, via evidence
illustrating why trial counsel did what he did. Id.
Any allegation of ineffectiveness must be firmly founded ...