Mosley v. State
| Decision Date | 31 October 2019 |
| Docket Number | NO. 01-18-00812-CR,01-18-00812-CR |
| Parties | CHESTER MOSLEY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 179th District Court Harris County, Texas
Appellant, Chester Mosley, pleaded guilty to the first-degree felony offense of injury to a child without an agreed recommendation. At the conclusion of a presentence investigation ("PSI") hearing, the trial court found appellant guilty of the charged offense and sentenced him to twenty-six years' confinement in the Texas Department of Criminal Justice. In two points of error, appellant contends that (1) he received ineffective assistance of counsel during the hearing and (2) he was subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because he received a twenty-six year sentence when he was eligible for probation. We affirm.
On January 6, 2017, appellant stayed home with the twenty-three month old son ("the complainant") of his girlfriend, Erica Hill. At 6:40 p.m., appellant called Hill and told her that he had given the complainant a bath, and that the complainant had fallen and scraped his arm while playing. At 9:00 p.m., appellant called Hill again and told her that the complainant had been scratching his "behind really bad under his diaper." Appellant stated that he had observed some "black stuff" under the complainant's nails, and that when he removed the complainant's diaper he saw what looked like a burn. Appellant sent Hill a picture of the burn. Hill left work and called 911.
On April 26, 2018, appellant pleaded guilty to the first-degree felony offense of injury to a child,1 without an agreed recommendation from the State. At the PSIhearing, the State called four witnesses and introduced as exhibits the PSI report, the complainant's medical records, appellant's recorded statements, and photographs of the complainant's injuries.
Dr. Todd Huzar, the director of pediatric burn surgery at Children's Memorial Hermann Hospital, testified that the complainant was transferred from Texas Children's Hospital to Memorial Hermann due to the severity of his burns, where he remained hospitalized for approximately nineteen days. Dr. Huzar stated that the complainant suffered second-degree burns to nine percent of his body, including his buttocks, genitals, thighs, right elbow, and the back of his right leg, and that his burns were consistent with being submerged in 121 degree Fahrenheit water for thirty to sixty seconds. According to Dr. Huzar, the complainant would have cried, screamed, and tried to get out of the scalding water, and that the complainant would have sustained burns to his feet if he had been sitting or standing in the bathtub.
Kathleen Sagmiller, a social worker, spoke with Hill and appellant at the hospital. Appellant told Sagmiller that the water temperature was "okay" when he put the complainant in the bathtub. Appellant stated that he was in the adjoining part of the bathroom while the complainant was in the bathtub, and that there was no indication that the complainant was in pain. Sagmiller testified that she foundappellant's version of events inconsistent with an accident. After her conversation with appellant, Sagmiller recommended that the care team consult with child abuse physicians.
Dr. Michelle Ruda, a member of the University of Texas McGovern Medical School's child protection division, evaluated the complainant. She testified that he was in pain, vomiting, and not eating. Dr. Ruda also observed bruising on the complainant's abdomen and noted that his liver and pancreatic enzymes were quite elevated. An abdominal CT scan revealed that the complainant had a lacerated liver and inflamed pancreas. Dr. Ruda testified that a liver laceration such as complainant's typically occurs from a significant blunt force trauma.
In the course of her evaluation, Dr. Ruda interviewed appellant. Appellant told Dr. Ruda that he had filled the bathtub about one-third full and tested the water, which he described as warm but not hot, with his foot. Appellant stated that the complainant did not appear to be in any discomfort or pain, and that he did not observe any issues with the complainant's skin until about forty minutes later when he noticed that the complainant's skin on his right elbow was falling off. Dr. Ruda testified that she found appellant's explanation to be inconsistent with the complainant's injuries.
The complainant's foster mother testified that the complainant was placed with her family after he was released from the hospital. She stated that thecomplainant sustained permanent discoloration to the skin on his buttocks, lower back, right leg, and elbow as a result of his burns. The foster mother testified that when the complainant was first placed with her, he was very stoic and emotionless, and that he would stand next to her rather than play with other children. She also testified that bath time was initially very difficult for the complainant and that he is still sometimes uncomfortable around men.
Appellant testified that he stayed home with the complainant while Hill was at work. When he noticed that the complainant had soiled his diaper, appellant went to the closet to look for baby wipes. Appellant testified that, as he turned to leave the closet, he tripped over the complainant and accidentally stepped on him. He then put the complainant in the bathtub and left the room. Appellant testified that he let the water run in the bathtub while he brushed his hair and texted a girl on his phone whom he planned to meet later with his friend. As he looked for clothes, appellant heard the complainant moaning and "knew he was troubled." Appellant returned to the bathroom and noticed that the complainant, who was sitting in the bathtub, was "red all over" and took him out of the bathtub. Appellant testified that he realized that he had "messed up" but did not want Hill to find out. When appellant began dressing the complainant, he noticed that the skin on the complainant's arm had come off and called Hill. Later that evening, appellant noticed the complainantscratching his bottom. When appellant took off the complainant's diaper, he saw that his skin had come off. Appellant called Hill again and Hill called 911.
Appellant testified that, when he was sixteen years old, he was charged with capital murder but that the charge was later dropped to aggravated robbery and he was sentenced to ten years' juvenile supervision. During his juvenile detention, appellant was written up twenty-two times for infractions, including verbal and physical altercations. Between 2013 and 2016, appellant served jail time for six misdemeanor offenses, including evading arrest, failure to identify as a fugitive, possession of marijuana, burglary of a motor vehicle, and failure to stop and give information after hitting someone with his car.
At the conclusion of the PSI hearing, the trial court sentenced appellant to twenty-six years' confinement. This timely appeal followed.
In his first point of error, appellant contends that he received ineffective assistance of counsel during the PSI hearing because his trial counsel failed to (1) adequately prepare him to testify at trial, (2) prove his eligibility for probation, and (3) object to his twenty-six year sentence as cruel and unusual punishment.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). Underthe Strickland two-step analysis, a defendant must demonstrate that (1) his counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694; Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
An "[a]ppellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. However, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the trial record is usually undeveloped and inadequate to reflect the motives behind trial counsel's actions. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). In fact, trial counsel should have the opportunity to explain his or her actions before being found ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim. App. 2003). When the record is silent, we may not speculate to find trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance is within a wide range of reasonable professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will find a counsel's performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. "When handed the task of determining the validity of a defendant's claim of ineffective assistance of ...
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