Young v. State

• Decision Date: 16 May 2012
• Docket Number: No. 01–09–00790–CR.,01–09–00790–CR.
• Citation: 425 S.W.3d 469
• Parties: Harrington Christopher YOUNG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

425 S.W.3d 469

Harrington Christopher YOUNG, Appellant,

v.The STATE of Texas, Appellee.

No. 01–09–00790–CR.

Court of Appeals of Texas, Houston (1st Dist.).

March 1, 2012.

Discretionary Review Refused May 16, 2012.

Sharon E. Slopis, Houston, TX, for Appellant.

Jessica Akins, Assistant District Attorney, Houston, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

MICHAEL MASSENGALE, Justice.

Appellant Harrington Christopher Young pleaded guilty, without an agreed recommendation as to punishment, to aggravated sexual assault of a child under the age of 14, a first-degree felony. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B), (e) (West Supp. 2011). The trial court sentenced him to imprisonment for 15 years. Young appeals from the judgment on two grounds: (1) ineffective assistance of counsel, and (2) cruel and unusual punishment. We affirm the judgment of the trial court.

Background

At the time of Young's guilty plea, there was no agreed recommendation as to his sentence. The trial court ordered the preparation of a presentence investigation (PSI) report before making a finding of guilt.

Some statements in the PSI report appear to be inconsistent. For example, the report states that Young previously was arrested by Baytown police for a separate incident of aggravated sexual assault of a child. But the report states that Young had no prior arrests. In addition, the PSI report categorized the Baytown incident as part of Young's adult criminal record, but Young was 16 years old at that time. The report also states that Young had no prior juvenile criminal record. Finally, although Young was 17 years old at the time of the underlying offense, the PSI report repeatedly recites Young's age as 18, which was his age at the time the report was prepared.

The trial court sentenced Young to imprisonment for 15 years. There is no reporter's record for any proceeding in the trial court, including the sentencing hearing.

In briefing to this court, Young's initial court-appointed appellate counsel stated her professional opinion that there were no arguable grounds for reversal and that therefore any appeal would be wholly frivolous. Young, however, listed three specific grounds in his pro se notice of appeal, which his appellate counsel did not completely address. This court reviewed the entire record, including Young's pro se notice of appeal, and based upon the brief filed by counsel a supplemental record containing the PSI report was ordered to determine whether arguable grounds for appeal existed. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.Crim.App.2005). Based upon that review, this court concluded that there was at least one arguable ground for appeal: that Young's trial counsel may have been ineffective for not objecting to the PSI report based on the inconsistent indications about his age at the times of the Baytown incident and the underlying offense. See Young v. State, No. 01–09–00790–CR, at 5 (Tex.App.-Houston [1st Dist.] June 29, 2011, order). This court remanded the case to the trial court to allow Young's appellate counsel to withdraw and to appoint new counsel to represent Young on appeal. See id. We now address the arguments made by Young's new counsel on appeal.

Analysis

Young raises two issues. First, Young argues that he received ineffective assistance of counsel at the PSI hearing because his trial attorney (1) failed to file a motion requesting deferred adjudication, when the record otherwise reflects his eligibility, (2) failed to object to or move to correct the PSI report based on the inconsistencies regarding the Baytown incident and the implication that Young was 18 at the time of the underlying offense, and (3) failed to request a court reporter to preserve the record for appeal. Second, Young argues that his 15–year sentence constitutes cruel and unusual punishment under the Eighth Amendment, considering his contention that he was eligible for deferred adjudication. The State argues that Young has not met his burden to establish ineffective assistance of counsel and that the record does not show that he preserved his cruel-and-unusual-punishment objection to the sentence.

I. Ineffective assistance

The standard of review for ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687–96, 104 S.Ct. 2052, 2064–69, 80 L.Ed.2d 674 (1984), and Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). To prevail, Young must first show that his counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064;Bone, 77 S.W.3d at 833. “Specifically, appellant must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms.” Bone, 77 S.W.3d at 833. “Second, appellant must show that this deficient performance prejudiced his defense,” meaning that Young “must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002)). A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id. Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

A. Failure to request deferred adjudication

Young argues that he was deprived of a fair sentencing hearing because his counsel did not file a motion requesting deferred adjudication, and that his sentence might have been different if such a motion had been filed. In support of this argument, Young relies on May v. State, 722 S.W.2d 699 (Tex.Crim.App.1984). In May, the trial court refused to submit a jury charge on probation because the defendant's trial counsel had submitted an unsworn motion requesting probation, rather than a sworn motion as required by the Code of Criminal Procedure. May v. State, 660 S.W.2d 888, 889 (Tex.App.-Austin 1983), aff'd,722 S.W.2d 699 (Tex.Crim.App.1984); seeTex.Code Crim. Proc. Ann. art. 42.12, § 4(d)(3), (e) (West Supp. 2011) (prohibiting jury-sentenced community supervision if defendant fails to file sworn motion). Reversing the conviction, the court of appeals found that the defendant's trial counsel's failure to verify the motion “can in no way be considered trial strategy” because it “totally precluded the jury from considering probation.” May, 660 S.W.2d at 890. The Court of Criminal Appeals affirmed. May, 722 S.W.2d at 700.

May is distinguishable from this case. A sworn motion is required for a jury's sentence of community supervision. See State v. Posey, 330 S.W.3d 311, 316 (Tex.Crim.App.2011); Tex.Code Crim. Proc. Ann. art. 42.12, § 4(d)(3), (e). However, the Code of Criminal Procedure does not require such a motion, whether sworn or unsworn, in order for the judge to assess deferred adjudication after receiving a guilty plea. SeeTex.Code Crim. Proc. Ann. art. 42.12, § 5(a). Because the defendant's motion is unnecessary to permit the trial judge to assess deferred adjudication, Young cannot show that the alleged failure to file the motion infringed an objective standard of professional norms. See Bone, 77 S.W.3d at 833.

Moreover, the trial court is prohibited from assessing deferred adjudication for a defendant who has pleaded guilty to aggravated sexual assault unless “the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim.” Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a). Because the record does not show that the trial court made this finding, or that the trial court would have made such a finding if requested, any request for deferred adjudication would have been futile. Young therefore cannot show that his counsel's performance was deficient. See Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App.1991) (“Counsel is not required to engage in the filing of futile motions.”).

B. Failure to object to PSI

Young next argues that he received ineffective assistance because his trial counsel failed to object to or correct inconsistent information in the PSI report, specifically, (1) the Baytown incident being listed under adult criminal history when Young was, in fact, 16 on the indicated date, and (2) the implication that Young was 18 at the time of the offense, when he was, in fact, 17 at the time. Young does not rely on any authorities to support this ground, except for this court's previous order identifying this as an arguable issue.

Even assuming that the trial court was under a misimpression regarding Young's age at the time of the offense and the Baytown incident, Young has not established that there is a reasonable probability that he would have received a lesser sentence if his trial counsel had objected to or corrected the PSI. See Bone, 77 S.W.3d at 833. As previously mentioned, the trial court could not order deferred adjudication absent a finding that deferred adjudication is in the best interest of the victim. SeeTex.Code Crim. Proc. Ann. art. 42.12, § 5(a). Since Young was convicted of a first-degree felony, the trial court was bound to enter a sentence of imprisonment for life or for a term between 5 and 99 years. See Klock v. State, 177 S.W.3d 53, 66 (Tex.App.-Houston [1st Dist.] 2005, pet. ref d); Tex. Penal Code Ann. § 12.32(a) (West 2011). But within that range, the trial court assesses punishment according to a normative, not intrinsically factbound process, and it enjoys essentially...