Tufele v. State

• Decision Date: 05 February 2004
• Docket Number: No. 14-02-01271-CR.,14-02-01271-CR.
• Citation: 130 S.W.3d 267
• Parties: Mathew TUFELE, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

130 S.W.3d 267

Mathew TUFELE, Appellant v. The STATE of Texas, Appellee.

No. 14-02-01271-CR.

Court of Appeals of Texas, Houston (14th Dist.).

February 5, 2004.

Douglas Howell, III, Bryan, for State.

John T. Quinn, Bryan, for Appellant.

Panel consists of Justices YATES, HUDSON and FOWLER.

OPINION

LESLIE BROCK YATES, Justice.

Appellant Mathew Tufele pleaded guilty before a jury to the second degree felony of reckless injury to a child by omission. The jury found appellant guilty and sentenced him to 18 years' confinement in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant complains that (1) he received ineffective assistance of counsel; and (2) the trial court's imposition as a condition of his sentence that appellant display two photographs of the victim in his prison cell exceeds the punishment authorized by law and constitutes cruel and unusual punishment. Because we agree that the trial court was without authority to order appellant to display photographs of his victim in his prison cell, we strike that portion of the trial court's oral pronouncement of sentence. In all other respects, the judgement of the trial court is affirmed.

I. Procedural and Factual Background

On August 17, 2001, while appellant was babysitting his girlfriend's 33-month old daughter, Chelsea Lune, she died. An autopsy revealed that Lune died from blood accumulating in her brain and the resulting swelling. The blood accumulation was caused by a recent skull fracture and a violent shaking of her by appellant on the night she died. Appellant was initially charged by indictment with the first degree felony offense of knowingly and recklessly causing serious bodily injury to Lune by omission. The State abandoned the "knowingly" allegation in the indictment and proceeded on the second degree felony of reckless injury to a child by omission, to which appellant pleaded guilty. After a trial to the jury, appellant was found guilty, and the jury assessed punishment at 18 years' confinement. The trial court's oral pronouncement of sentence ordered appellant to display, for at least the first two years of incarceration, two photographs of the victim in his cell at a height 3 feet to 5 feet from the ground and in a location visible from his prison cell door. Appellant was ordered to display a photograph of Lune while she was living and a photograph of her in the emergency room after she died. The trial court's written judgment, however, did not contain this additional sentencing requirement. Appellant did not file a motion for new trial.

II. Analysis

A. Waiver of Right to Appeal

As a threshold issue, we must address the State's contention that appellant's appeal should be dismissed because the record shows that he waived his right to appeal. In arguing that appellant waived his right to appeal, the State relies on an excerpt in "Defendant's Plea of Guilty, Waiver, Stipulation and Judicial Confession" which reads, in relevant part, as follows: "However, it is my desire to waive my right of appeal, and I hereby waive this right in the event that the Judge accepts the plea bargain agreement." Relying solely on the Court of Criminal Appeals' opinion in Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App.2003), the State argues appellant waived his right to appeal errors alleged to have occurred during the punishment phase and any complaint about his sentence. We disagree.

Appellant entered into a plea of guilty without a sentencing recommendation and proceeded with a trial before the jury on the issue of punishment. He is complaining of errors alleged to have occurred during the punishment phase. Appellant could not have waived his right to appeal those errors when he entered into his plea of guilty without a sentencing recommendation and before proceeding to trial before the jury to determine his sentence. Monreal, in which the court held that non-negotiated waivers of appeal are equally as valid as negotiated waivers of appeal, does not persuade us to hold otherwise. See Monreal, 99 S.W.3d at 616 (noting that defendant had waived his right to appeal after he pleaded guilty, without a plea bargain, and after the jury sentenced him). As the Court of Criminal Appeals explained in Monreal, the relevant issue is not whether the plea was negotiated or non-negotiated, but whether at the time of the waiver the defendant was in a position to be able to knowingly, voluntarily, and intelligently waive appeal because he would know what his punishment was and what errors may have occurred during trial at the time of his waiver. Monreal, 99 S.W.3d at 618.

In Ex parte Thomas, 545 S.W.2d 469 (Tex.Crim.App.1977), the Court of Criminal Appeals held that presentencing waivers of the right to appeal were not valid because they could not, as a matter of law, be made knowingly, voluntarily, and intelligently. Id. The court recently distinguished Ex parte Thomas in Blanco v. State, 18 S.W.3d 218 (Tex.Crim.App.2000). Unlike in Thomas, in which the defendant did not bargain for a sentencing recommendation from the prosecution in exchange for his waiver of the right to appeal, the trial court in Blanco followed the prosecution's sentencing recommendation. Cf. Blanco, 18 S.W.3d at 220, with Thomas, 545 S.W.2d at 470. Thus, in Blanco, the defendant was fully aware of the likely consequences of the waiver. Here, as in Thomas, appellant neither bargained for a sentencing recommendation in exchange for his waiver of the right to appeal, nor waived his right to appeal after sentencing, making this case distinguishable from Monreal and Blanco. See, e.g., Andrews v. State, Nos. 2-02-353-CR, 2-02-354-CR, 2003 WL 21770816, at *1 (Tex.App.-Fort Worth, July 31, 2003, pet. filed) ("If a defendant enters a waiver of her right to appeal before she is aware of the consequences of her plea, the waiver is invalid. Because Appellant could not have known what her sentence would be at the time she entered her plea, Monreal does not apply.") (citing Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977); Ex parte Townsend, 538 S.W.2d 419, 420 (Tex. Crim.App.1976)). Thus, we hold that appellant did not waive his right to appeal errors alleged to have occurred during the punishment phase of his trial and during sentencing. We therefore address the merits of appellant's complaints.

B. Ineffective Assistance of Counsel

Appellant contends that his trial counsel rendered ineffective assistance of counsel during the punishment phase of his trial. Appellant asks this court to remand this case to the trial court so that he can file a motion for new trial and obtain a hearing on the motion. Appellant outlines in his brief objections his trial counsel should have made during the punishment phase, but did not make, and objections which his counsel made, but with respect to which he did not secure a ruling.

Appellant has waived this complaint by failing to properly brief it. Aside from citing the pertinent evidentiary rules, he has failed to cite authority for why the objections listed in his brief should have been made or why he was prejudiced by his trial counsel's failure to make the objections or secure a ruling on objections made. Appellant has a duty to cite specific legal authority and to provide legal argument based upon that authority. See Tex.R.App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App.1996). Appellant cited no legal authority—other than passing references to a few Texas Rules of Evidence—to support his contention that the objections listed on pages nine through fourteen of his brief should have been made in this case. Thus, appellant has not preserved review on this point of error. See Tex.R.App. P. 38.1(h); Smith v. State, 683 S.W.2d 393, 410 (Tex.Crim. App.1984) (holding that nothing was preserved for appellate review when defendant cited no authority and presented no argument on issue). For this reason alone, we overrule appellant's first point of error.

Even if we did not find briefing waiver, appellant's claim fails. 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. Ann. art. 1.05 (Vernon 1977). This right 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); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim. App.1997). To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) 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; see also, e.g., Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). An appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant usually cannot meet this burden if the record does not specifically focus on the reasons for trial counsel's conduct. Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd).

In this case, appellant did not file a motion for new trial, and as a consequence, there was no hearing conducted to develop counsel's trial strategy.¹ In the absence of a proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's...