IN THE

TENTH COURT OF APPEALS

No. 10-05-00150-CR

No. 10-06-00081-CR

Joshia Humphries,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 361st District Court

Brazos County, Texas

Trial Court Nos. 04-03272-CRF-361 and 04-03271-CRF-361

      Joshia Humphries was indicted in separate cases with possession of a controlled substance in an amount of more than one but less than four grams (trial court cause number 04-03272-CRF-361) and escape while arrested/confined (trial court cause number 04-03271-CRF-361).[1]  Humphries entered a guilty plea, without a plea agreement, to both offenses.  He was sentenced to seven years in the Texas Department of Criminal Justice Institutional Division for the felony possession charge and eight years in TDCJID for the escape charge.  The trial court granted the State’s request to cumulate these sentences.

On appeal, Humphries complains that the cumulation order is void for lack of specificity and that he received ineffective assistance because his trial counsel failed to present mitigation evidence at the punishment hearing. 

Cumulation Order

      The trial court orally ordered that the sentences run consecutively.  The trial judge stated: 

In Cause No. 04-03271 the Court grants the motions to cumulate sentences, and the Court sentences you in that case on the escape charge to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of eight years.  The sentence in that case will begin to run when the sentence in Cause No. 04-03272 has been served.

Although Humphries entered his plea without a plea agreement, the written judgment and sentence states the “terms of plea agreement” as “seven (7) years IDTDCJ, consecutively with 04-03271-CRF-361.”  The judgment also states:  “[t]his sentence shall run consecutive to the case specified below.”  However, the judgment does not specify any other case. 

“A sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid thereof. It should further convey to the authorities at the Texas Department of Corrections or any County jail clear and unequivocal orders of the trial court so that they may know definitely how long to detain the convict or prisoner.”  Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967).  The Court of Criminal Appeals has set forth five recommended elements of a cumulation order:  (1) the trial court number of the prior conviction; (2) the correct name of the court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction.  Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). 

Orders containing less than the recommended elements of a cumulation order have been upheld.  Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986).  However, the trial court's description of prior convictions must be “substantially and sufficiently specific.”  Lewis, 414 S.W.2d at 683.  We find that the judgment did not contain the Ward elements and was not sufficiently specific to notify the defendant and the Department of the nature of the cumulation. 

However, in pronouncing the sentence, the trial court clearly expressed its intention that Humphries’ sentence would commence after he completed serving his sentence on the possession charge, and the judgment contains a partial order.  Because the record contains the information necessary for cumulation orders, we will honor the State’s request that we reform the judgment to reflect the sentence imposed by the trial court.  See Banks, 708 S.W.2d at 462.  Accordingly, we find that the cumulation order is not void and overrule Humphries’ first issue.

We reform the judgment so that the eight year sentence for escape in Cause Number 04-03271-CRF-361, from the 361st District Court in Brazos County, shall begin when the seven year sentence for felony possession in Cause Number 04-03272-CRF-361, imposed by the 361st District Court in Brazos County on February 7, 2005, has ceased to operate.

Ineffective Assistance of Counsel

      During the punishment phase of the trial, the State relied on testimony of Brazos County Sheriff’s officers concerning Humphries’ conduct in jail.  His counsel cross-examined the officers about Humphries’ prescription medication and emotional stability.  Humphries also testified that he received medication in August 2004 and Sergeant Reginald Walker testified that he did not have any problems with him after August 9, 2004.  In his second issue, Humphries argues that he received ineffective assistance in each case because trial counsel failed to present evidence of his need for prescription medicine as mitigation evidence. 

To prevail on an ineffective assistance claim, the familiar Strickland v. Washington test must be met.  Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)).  Under Strickland, an ineffective assistance claim will be sustained if it is determined that:  (1) counsel’s performance was deficient, and (2) the defense was prejudiced by counsel’s deficient performance.  Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.  This means that the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  A “reasonable probability” is one sufficient to undermine confidence in the outcome.  Id.

      We begin with a “strong presumption” that counsel provided reasonably professional assistance, and an appellant bears the burden of overcoming this presumption.  Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).  Generally, the appellate record is insufficient to satisfy this burden.  Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004).  “[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”  Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)).

      In the absence of evidence of trial counsel’s reason for the challenged conduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined.  McNeil v. State, 174 S.W.3d 758, 760 (Tex. App.—Waco 2005, no pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  But, if nothing in the record reveals trial counsel’s reason, it is improper for us to speculate on it.  See Thompson, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  Without a record that reveals the reasons for the challenged conduct of Humphries’ trial counsel, we cannot speculate whether his counsel was effective.  We overrule the second issue.

Conclusion

      The judgment of the trial court in cause number 04-03271-CRF-361 is reformed as herein noted.  We affirm that judgment as reformed and also affirm the judgment in cause number 04-03272-CRF-361.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reformed and affirmed

Opinion delivered and filed August 30, 2006

Do not publish

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