Opinion issued June 16, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00499-CR
MARK LOUIS FLETCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 951929
MEMORANDUM OPINION
Appellant, Mark Louis Fletcher, pleaded guilty to aggravated sexual assault of a child without an agreed recommendation as to punishment. See Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2004-2005). The trial court found appellant guilty and assessed his punishment at 20 years in prison. In two points of error, appellant argues that he received ineffective assistance of counsel and that his punishment violated the Eighth Amendment to the United States Constitution. We affirm.
Procedural Background
Appellant pleaded guilty to aggravated sexual assault of a child and waived his right to a jury trial. The trial court found appellant guilty of aggravated sexual assault of a child and held a pre-sentence investigation hearing. Appellant or defense counsel waived the court reporter for purposes of recording the pre-sentence investigation hearing. The trial court assessed appellant’s punishment at confinement for 20 years. Appellant did not file a motion for new trial.
Ineffective Assistance of Counsel
In his first point of error, appellant argues that defense counsel’s waiver of the court reporter at the pre-sentence investigation hearing constituted ineffective assistance of counsel because it denied him the appellate record necessary to appeal defense counsel’s purported errors. Appellant argues that the record, had it been made, would have shown either that defense counsel erred by failing to object to the victim impact statement contained in the pre-sentence investigation report and, therefore, was not acting as the counsel guaranteed by the Sixth Amendment, or that defense counsel did object to the victim impact statement contained in the pre-sentence investigation report, thereby preserving this issue on appeal. Appellant also argues that, had the record been made, it would have shown either that defense counsel failed to object to the trial court’s imposition of a 20-year sentence on the grounds that it violated appellant’s Eighth Amendment protections against cruel and unusual punishment and that this constituted ineffective assistance of counsel, or that defense counsel did, in fact, object to the sentence on Eighth Amendment grounds, thereby preserving that objection on appeal.
Standard of Review
We evaluate ineffective assistance of counsel claims under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). First, appellant must show that his counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. 2064. Second, appellant must show prejudice: that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Failure to satisfy one prong of the test negates the court’s need to consider the other. Id., 466 U.S. at 697, 104 S. Ct. at 2069. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
We cannot speculate beyond the record provided. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). A reviewing court must presume that trial counsel’s actions were taken as part of a strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837–38 (Tex. Crim. App. 1999). Appellant must overcome the presumption that trial counsel’s strategy was sound and affirmatively demonstrate his alleged ineffectiveness. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
No Record of Hearing
Appellant, in essence, asks this Court to rule that waiver of a court reporter at a pre-sentence investigation hearing is per se ineffective assistance of counsel. Because appellant has no record upon which to base his contentions that defense counsel preserved error or erred in failing to do so, he asks this Court to assume that defense counsel either preserved error or failed to do so with no reasonable strategic reason for making that decision. Appellant’s assertion that errors could have taken place and might have been shown had a record been requested does not overcome the presumption that defense counsel acted reasonably. Appellant has neither provided a record of error by counsel, nor has he provided any record of defense counsel’s trial strategy. With no record of a failure to object and no evidence of defense counsel’s strategy, this court is in no position to presume that defense counsel failed to make a proper objection or had no sound trial strategy for doing so. Accordingly, appellant has not satisfied the first prong of Strickland, 466 U.S. at 688, 104 S. Ct. 2064. We overrule appellant’s first point of error.
Cruel and Unusual Punishment
In his second point of error, appellant contends that his 20-year sentence violated the Eighth Amendment prohibition against cruel and unusual punishment. Appellant contends that his punishment constitutes fundamental error requiring reversal and that the failure to preserve this error at trial is, therefore, irrelevant. Appellant also argues that the sentence is grossly disproportionate to the offense because he had no prior adult convictions, no deadly weapon was used in the commission of the offense, and the complainant’s physical injuries were minor.
A defendant must make a timely, specific objection at trial to preserve error for review. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). Generally, a party’s failure to make a timely objection waives the error. Blue, 41 S.W.3d at 131. Even constitutional errors may be waived by a failure to object at trial. Id.; Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App. 2002). However, appellate courts may take notice of fundamental errors affecting substantial rights in criminal cases even though they were not brought to the attention of the trial court. Tex. R. Evid. 103(d). Fundamental errors are those affecting rights so fundamental to the judicial system that they are granted special protection and cannot be waived by inaction alone. See Blue, 41 S.W.3d at 131.
Because the court reporter was waived, appellant has no record of any objection that would have preserved a claim of error on Eighth Amendment grounds. Appellant argues that his Eighth Amendment claim falls into that class of substantial rights accorded special protection referred to in Blue and that this Court should, therefore, consider it despite his conceded failure to preserve it at trial.
Texas courts have established that failure to raise Eighth Amendment cruel and unusual punishment claims at the trial level waives them on appeal. See Saldano, 70 S.W.3d at 891; Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1995). Such claims have been held not to be so fundamental as to relieve the appellant of the necessity of a timely, specific objection at trial. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995). Because appellant cannot show that he objected to his punishment on Eighth Amendment grounds, we conclude that he has not preserved his complaint for appeal. See Tex. R. App. P. 33.1.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).