Jagaroo v. State, No. 14-04-00640-CR.

• Court: Supreme Court of Texas
• Writing for the Court: Kem Thompson Frost
• Citation: 180 S.W.3d 793
• Decision Date: 23 November 2005
• Docket Number: No. 14-04-00641-CR.,No. 14-04-00640-CR.
• Parties: Ramchand JAGAROO, Appellant, v. The STATE of Texas, Appellee.

180 S.W.3d 793 Ramchand JAGAROO, Appellant,
v.
The STATE of Texas, Appellee. No. 14-04-00640-CR. No. 14-04-00641-CR. Court of Appeals of Texas, Houston (14th Dist.). November 23, 2005.

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Sharon E. Slopis, Houston, for appellant.

Carmen Castillo Mitchell, Houston, for appellee.

Panel consists of Justices HEDGES, FROST, and MURPHY.^*

OPINION

KEM THOMPSON FROST, Justice.

Appellant Ramchand Jagaroo was indicted in trial cause numbers 961,564 and

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961,565 for intoxication manslaughter and intoxication assault, respectively. Each indictment contained an enhancement for appellant's prior felony conviction for driving while intoxicated ("DWI"). Appellant pled guilty to both offenses and pled true to the enhancements. The trial court assessed punishment at confinement for life for intoxication manslaughter, and twenty years' confinement for intoxication assault. Challenging his punishment in both cases, appellant asserts four issues on appeal. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 2004, without an agreed recommendation, appellant pleaded guilty to both intoxication manslaughter and intoxication assault, and pleaded true to the enhancement paragraph, which contained his prior felony DWI conviction. Appellant testified that no one had forced him to plead guilty or true. He also stated that he entered his pleas freely and voluntarily. He acknowledged his understanding that he could be deported, but still wished to plead guilty. He further testified he understood the range of punishment for both offenses and acknowledged there were no plea bargains.

On June 25, 2004, the trial court conducted a Pre-Sentence Investigation (hereinafter referred to as "PSI") hearing in both cases. At that time, the court noted appellant had filed a motion to withdraw his pleas on the basis that they allegedly were not entered freely and voluntarily. Appellant testified he was not guilty of driving while intoxicated and he felt threatened by his prior attorney. The State responded that appellant entered his pleas freely and voluntarily and pointed out that appellant's blood alcohol was at .13 about an hour after the accident. In addition, several eyewitnesses stated the accident was appellant's fault. The evidence showed appellant drove at a high rate of speed and wove his vehicle recklessly in and out of traffic. At the conclusion of the PSI hearing, the trial court found that appellant had used a deadly weapon in the commission of his offenses and assessed punishment at confinement for life for intoxication manslaughter, and twenty years' confinement for intoxication assault. The trial court also stated orally that the sentences were to run "consecutively," but the written judgment stated that the sentences were to run "concurrently."

Challenging his punishment, appellant asserts the following points for appellate review:

(1) He received ineffective assistance of counsel at his PSI hearing.

(2) The judgment should be reformed to delete the cumulation order where he received two sentences in a consolidated punishment hearing for the "same criminal action."

(3) His punishment is cruel and unusual.

(4) The trial court abused its discretion in denying his motion to withdraw his pleas.

For the reasons explained below, we reject appellant's arguments and affirm the trial court's judgment.

II. ANALYSIS

A. Was appellant denied effective assistance of counsel at his PSI hearing?

Both 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; TEX.CODE CRIM. PROC. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

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Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App.1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S.Ct. 2052. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998).

In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd).

Though the Court of Criminal Appeals has stated it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy, that court has been inconsistent in describing the legal standard by which we should determine whether a particular case constitutes such a rarity. See Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App.2005) (stating facts at hand presented a "rare case" in which ineffective assistance can be found on direct appeal based on a record silent as to counsel's trial strategy); Andrews, 159 S.W.3d at 104 (Keller, P.J., dissenting) (stating the Court of Criminal Appeals has been inconsistent in its approaches to ineffective assistance claims on direct appeal based on a silent record and indicating the court's approach in Andrews is inconsistent with its approach in Freeman v. State, 125 S.W.3d 505 (Tex.Crim.App.2003)); see also Storr v. State, 126 S.W.3d 647, 655-58 (Tex.App.-Houston [14th Dist.] 2004, pet ref'd) (Frost, J., dissenting) (stating that court should follow latest guidance from the Court of Criminal Appeals in Freeman). The Court of Criminal Appeals recently indicated that appellate courts should find ineffective assistance as a matter of law if no reasonable trial strategy could justify trial counsel's conduct, regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as she did. See Andrews, 159 S.W.3d at 102. Shortly thereafter, the Court of Criminal Appeals returned to an earlier formulation and stated that, absent an opportunity for trial counsel to explain her actions, appellate courts should not find ineffective assistance unless the challenged conduct was "`so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, ___ S.W.3d ___, ___, 2005 WL 766996, at *2 (Tex.Crim.App. Apr.6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)). We follow the most recent pronouncement — the legal standard from Goodspeed.

In his first issue, appellant contends he was denied effective assistance of counsel at the PSI hearing because his counsel allegedly: (1) failed to object to victim impact testimony; (2) failed to present mitigating evidence; (3) made a prejudicial

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closing argument; and (4) failed to object that his punishment was cruel and unusual. We find no merit in appellant's contentions, each of which is addressed individually.

1. Failure to Object to Victim Impact Testimony.

Appellant asserts his counsel should have objected to testimony by the victim and the victim's family members that was presented before the trial court assessed punishment. Appellant contends that failure to object to a victim impact statement made before sentencing under section 42.03 of the Texas Code of Criminal Procedure constitutes ineffective assistance of counsel and reversible error.¹ We disagree with appellant because article 42.03 does not restrict the information contained in a PSI report before the pronouncement of sentencing. See Fryer v. State, 68 S.W.3d 628 (Tex.Crim.App.2002) (holding victim impact statement statutes did not prohibit court from considering victim's recommendations in pre-sentence report).

At the PSI hearing, the State called the victim of the intoxication assault, the victim's sister, the victim's mother, and wife of the victim's father (who had died in the collision). These witnesses testified under oath and were cross-examined. This evidence was admissible and directly related to the offenses for which appellant had pleaded guilty. The procedures to be followed at the punishment stage of trial and the evidence that may be considered in determining punishment are the subject of article 37.07 of the Texas Code of Criminal Procedure. See TEX.CODE CRIM. PROC. ANN. Art. 37.07 (Vernon Supp.2004). This statute authorizes the admission of evidence in the punishment phase of trial as to any matter the court deems relevant to sentencing. Id. The circumstances of the offense are relevant to sentencing and may be considered by the trier of fact in determining the punishment to be assessed. Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App.1989). One circumstance of the offense that may be considered is the degree of injury to the victim so long as the fact finder may rationally attribute moral culpability to the accused for that injury. Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Crim.App.1991) (holding in aggravated sexual assault case that testimony regarding psychological trauma suffered by child victim and its physical manifestations properly admitted); Miller-El v. State, 782...