PENA v. The State of Tex., 07-08-0501-CR
| Decision Date | 16 June 2010 |
| Docket Number | NO. 07-08-0501-CR,NO. 2007-417,493,07-08-0501-CR,2007-417,493 |
| Parties | ROGELIO PENA, JR., APPELLANTv.THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Rogelio Pena, Jr., pled guilty in open court to two felony offenses, aggravated sexual assault and indecency with a child.1 He was sentenced by a jury to two concurrent sentences of sixty and twenty years confinement, respectively, and fined $10,000 for each offense. Appellant asserts (1) the trial court erred by imposingsentences disproportionate to the offenses underlying his convictions resulting in a violation of federal and state constitutional prohibitions against cruel and unusual punishment and (2) his counsel rendered ineffective assistance during the punishment phase of his case. We affirm.
Appellant contends the trial court's imposition of concurrent sentences of sixty years confinement for aggravated sexual assault and twenty years confinement for indecency with a child2 violates the state and federal constitutional prohibition against cruel and unusual punishment.3
In order to preserve for appellate review a complaint that a sentence is grossly disproportionate constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling requested.4 Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995) ( failure to make specific objection at trial waives Eighth Amendment claim of cruel and unusual punishment). Accord Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.--Houston [14th Dist.] 2001, pet. ref'd); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd). Because Appellant failed to object on grounds of cruel and unusual punishment at the sentencing hearing or in his motion for new trial, he failed to preserve error for review. See Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App. 1999); Rodriquez v. State, 917 S.W.2d 90, 92 (Tex.App.-Amarillo 1996, pet. ref'd). Appellant's first point of error is overruled.
Appellant asserts his counsel was ineffective because he failed to object to: (1) his disproportionate sentences, (2) the admissibility of his confession, and (3) irrelevant and prejudicial testimony by Adam Puckett, a Lubbock County Probation Officer.
The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in state criminal prosecutions. McMann v. Richardson, 397 U.S. 359, 771 n.14, 90 S.Ct. 1441, 24 L.Ed.2d 763 (1970). We examine ineffective assistance of counsel claims by the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). This standardapplies to both the punishment stage and the guilt/innocence and punishment stage of criminal proceedings. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999).
Under this standard, Appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient, i.e., fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability5 that the result of the proceeding would have been different. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and presumption that the challenged action might be considered valid trial strategy; Strickland, 466 U.S. at 689, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 814. Judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Thompson, 9 S.W.3d at 812-13.
In the usual case in which an ineffective assistance claim is made, "the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). This is generally the case because a silent record provides no explanation for counsel's actions and therefore will not overcome the strong presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).6
This case demonstrates "the inadequacies inherent in evaluating ineffective assistance claims on direct appeal." Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.--Fort Worth 2001, pet. ref'd). Like Patterson, Appellant's motion for new trial did not claim ineffective assistance, the trial court did not hold a hearing to determine whether Appellant's complaints of ineffective assistance involved actions that may or may not be grounded in trial strategy and the record does not reflect counsel's reasons for doing or failing to do the things of which Appellant complains.
Appellant challenges his trial counsel's failure to object to his two concurrent sentences as cruel and unusual punishment. However, other than to refer this Court to arguments asserting his punishment was cruel and unusual, Appellant's brief contains no citations to the record or case law establishing counsel was ineffective in not making the objection. Appellant's brief merely states "[s]uffice it to say that, assuming this Courtholds appellant's point of error waived despite its fundamental nature, counsel erred by not objecting on those grounds and thus not preserving error." Appellant does not cite any case law or other authority in support of this contention. Thus, the contention was insufficiently briefed, and therefore, waived. Tex. R. App. P. 38.1(h). See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).
Even if this contention had not been waived, Appellant has not established that the trial court would have committed error in overruling such an objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). Where, as here, an appellant's sentences were within the range authorized by statute, the punishment is generally not considered cruel and unusual punishment. Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); McNew v. State, 608 S.W.2d 166, 174 (Tex.Crim.App. 1978); Samuel v. State, 477 S.W.2d 611, 615 (Tex.Crim.App. 1972); Rodriquez v. State, 917 S.W.2d 90, 92 (Tex.App.-Amarillo 1996, pet. ref'd). See Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex.App.--Houston [1st Dist.] 2007, pet. ref'd); Jacoby v. State, 227 S.W.3d 128, 131 (Tex.App.--Houston [1st Dist.] 2006, pet. ref'd).
Moreover, we will not engage in prohibited speculation. See Stafford v. State, 101 S.W.3d 611, 613-14 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd); Stultz v. State, 23 S.W.3d 198, 208 (Tex.App.--Houston [14th Dist.] 2000, pet. ref'd). A silent record provides no explanation for counsel's actions and therefore will not overcome the strong presumption of reasonable assistance. Freeman, 125 S.W.3d at 506. Based on this record, we cannot say that Appellant's counsel's failure to object was "so outrageousthat no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)).
Appellant next contends his counsel was ineffective because he did not object to the admissibility of his confession when two "promises," made by the State during interrogation prior to Appellant's confession, rendered Appellant's confession involuntary, i.e., Detective Davidson testified he told Appellant that "the only way appellant's situation would get any better is for appellant to tell the truth" and "he would speak highly of appellant to the district attorney's office."
Before a promise will render a confession inadmissible, the promise must be shown to have induced the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993). In order to induce a confession, the promise must be (1) of some benefit to the defendant, (2) positive, (3) made or sanctioned by someone in authority, and (4) of such an influential nature that it would likely influence a defendant to speak untruthfully. Fisher v. State, 379 S.W.2d 900, 902 (Tex.Crim.App. 1964). An improper inducement must be of exceptional character before it will invalidate an otherwise valid confession. Espinosa v. State, 899 S.W.2d 359, 364 (Tex.App.--Houston [14th Dist.] 1995, pet. ref'd). Thus, general, non-specific offers to help a defendant are unlikely to elicit a false statement by the suspect, and will not render a confession invalid. Id. (citing Dykes v. State, 657 S.W.2d 796, 797 (Tex.Crim.App. 1983). Neither will general statements about how a confession might result in more lenient treatment invalidate a confession. Id.
Statements similar to, if not more specific than, those made to Appellant by Detective Davidson have been held insufficient to render a suspect's statement involuntary. See Chambers v. State, 866 S.W.2d 9, 21 (Tex.Crim.App. 1993) (), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994); Coursey v. State, 457 S.W.2d 565, 568-69 (Tex.Crim.App. 1970...
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