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Click here for the full text of this decision FACTS:An indictment alleged that Alejandro Rodriguez Mata murdered Omar Munoz and that Mata had been convicted previously of a felony. The jury received evidence that Mata committed the murder on the night of Dec. 31, 2000, outside the apartment where he lived with his brother Leo. That evening Leo, Munoz and Dean Sanchez had gone out to buy some cocaine. On the way back to the apartment, Leo and Munoz had an argument. When they got out of the car at the apartment complex, they started fighting. Sanchez went to the apartment to ask Mata to stop the fight. Instead, Mata intervened to assist Leo. At some point Munoz fell to the ground, and witnesses saw Mata stab Munoz repeatedly with a screwdriver. Mata then directed Leo to go back to the apartment and find a knife. Mata stabbed Munoz several more times and fled from the scene with Leo. Munoz died from the multiple stab wounds. The jury found Mata guilty of first-degree murder. Mata elected to have the jury assess his punishment. In such a case, Texas Code of Criminal Procedure Art. 37.07, �4(a), required the court to charge the jury: “Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. . . . 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.” The district court gave the jury a charge that read: “Under the law applicable in 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-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.” Neither party objected to the charge. After the court read its charge to the jury, the state made its closing argument, which stated that the jury could take parole into consideration in deciding Mata’s sentence. Mata’s trial attorney made no objection to any part of the state’s argument. Nor did his attorney make any reference to good conduct time or the Texas parole laws during her own closing argument to the jury at the punishment phase. A jury found the allegation of a prior felony conviction to be true, and it assessed punishment at 99 years in prison and a $10,000 fine. Mata appealed, alleging ineffective assistance of counsel. HOLDING:Reversed and remanded. A claim of ineffective assistance of counsel is reviewed under standards articulated by the U.S. Supreme Court in the 1984 case Strickland v. Washington. The Strickland standards first require that a convicted defendant show that his counsel’s representation fell below an objective standard of reasonableness. Second, the convicted defendant must show prejudice. The 13th Court of Appeals held that Mata satisfied the first Strickland requirement, because there was no conceivably legitimate basis for defense counsel’s failure to object to the state’s jury argument, which “was improper in several respects.” First, the 13th Court noted that the prosecutor stated a person convicted of murder “can get good time credit.” This argument is a misstatement of the law, the 13th Court stated. A person convicted of murder is required to serve one-half of his actual sentence (or 30 years) without regard for any good conduct time. Even if the trial judge had accurately instructed the jury, the 13th Court found that this argument would have been improper, because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case. Second, the 13th Court noted that the state specifically asked the jury to apply the law of parole to appellant. This argument, the 13th Court stated, violated the express language of a statutory instruction that the jury is not “to consider the manner in which the parole law may be applied to this particular defendant.” Third, the 13th Court stated that the state circumvented Art. 37.07, �4, by specifically referring the jury to the pen packet and arguing, “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument, the 13th Court stated, was clearly improper. In addition, the 13th Court found that Mata demonstrated prejudice meeting the level of Strickland by the maximum sentence that the jury assessed. But the CCA reached a different conclusion. Although the 13th Court, the CCA stated, found there to be no conceivable reason for trial counsel to have failed to object to the state’s improper argument, “the fact remains that the appellate record is still silent as to why trial counsel failed to so object.” Therefore, the CCA found that Mata failed to rebut the presumption his defense attorney’s decision was in some way � be it conceivable or not � reasonable. The CCA stated: “[I]t was not a misstatement of law for the State to tell the jury that the appellant could”get good time credit,’ even if the State omitted the statutory condition under which his good time credit could be considered by a parole board.” The CCA also found that the state’s closing argument could be interpreted as imploring the jury to follow the law: that it could consider the existence of parole but could not consider how the parole laws would affect Mata specifically. The CCA also found the state’s reference to Mata’s pen packet to be ambiguous. Thus, after reviewing the record, the CCA held that Mata did not show that his trial attorney’s actions at the punishment phase to be so outrageous that no “reasonable competent trial attorney” would have done likewise. Nor did the CCA find that Mata rebutted the presumption that his trial attorney’s actions were part of some sound trial strategy. OPINION:Womack, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Keasler, Hervey and Cochran, J.J., joined. CONCURRENCE:Johnson and Holcomb, J.J., concurred in the judgment.

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