Opinion issued March 2, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01–04–01175–CR
NO. 01–04–01176–CR
SHERRY EVELYN ROBERTSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1230676 & 1243898
MEMORANDUM OPINION
Appellant, Sherry Evelyn Robertson, appeals from two convictions. In appellate cause number 01–04–01176–CR (trial court cause no. 1243898), appellant pleaded guilty to a driving while intoxicated (DWI) charge. See Tex. Pen. Code Ann. § 49.04(b) (Vernon 2003). The trial court assessed punishment at confinement for 150 days and a fine of $1,500. As a result of the guilty plea, the State moved to adjudicate appellant’s guilt in an earlier misdemeanor offense of possession of marihuana in appellate cause number 01–04–01175–CR (trial court cause no. 1230676). After appellant pleaded true to the State’s allegations, the trial court found appellant guilty and sentenced her to 180 days confinement, probated for a term of two years.
In cause number 1230676, appellant argues in two points of error that the trial court erred by denying her motion for new trial based on ineffective assistance of counsel. In cause number 1243898, appellant challenges the same points of error plus two additional points of error: (1) that the sentence imposed for her DWI charge constituted cruel and unusual punishment and (2) that her guilty plea for the DWI charge was invalid.
We affirm.
Factual and Procedural Background
On June 1, 2004, in cause number 1230676, appellant pleaded guilty to possession of marihuana and waived her right to a jury trial. The trial court deferred the proceedings without entering an adjudication of guilt and placed appellant on community supervision for 180 days with a $150 fine.
In cause number 1243898, appellant was charged with a misdemeanor offense of DWI stemming from an accident that occurred on June 24, 2004. As a result of this new offense, the State alleged that appellant had violated the terms and conditions of her community supervision agreement and filed a motion to adjudicate appellant’s guilt for the possession of marihuana offense. In October of 2004, appellant pleaded “true” to the motion to adjudicate guilt and pleaded “guilty” to the DWI charge. For the marihuana offense, the trial court found appellant guilty and sentenced her to 180 days confinement, probated for a term of two years. For the DWI offense, the trial court assessed punishment at 150 days in the Harris County Jail with credit given for time served, subject to a $1,500 fine.
In November 2004, appellant filed both a written notice of appeal and a motion for new trial. The motion for new trial was denied on the same day.
Ineffective Assistance of Counsel
In her first and second points of error in both appellate cause numbers, appellant argues that the trial court erred in denying her motion for new trial based on ineffective assistance of counsel at her plea hearing as a matter of federal constitutional law as well as Texas constitutional law. Appellant argues that defense counsel’s lack of preparation for trial affected the advice he rendered. Specifically, appellant notes that defense counsel’s ankle was fractured at the time of the trial, which prevented him from pursuing pretrial discovery violations by the State and hindered his ability to prepare properly for trial. Appellant further argues that it is a “fair inference” from the record that counsel’s lack of preparation for a jury trial affected his judgment when he advised appellant to plead guilty in both her marihuana and DWI charges instead of proceeding with a jury trial.
The standard of review for a trial court’s order denying a motion for new trial is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). An appellate court does not substitute its judgment for that of the trial court, but decides only whether the trial court’s decision overruling a motion for new trial was arbitrary and unreasonable. Id. The defendant ordinarily has the burden of proof on a motion for new trial. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). As a general rule, appellate courts should afford almost total deference to the trial court’s determination of facts supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App. 1999). First, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel’s performance deviated from prevailing professional norms. Id. 466 U.S. at 688, 104 S. Ct. at 2065. Second, the defendant must show prejudice. Id. 466 U.S. at 687, 104 S. Ct. at 2064. This requires the defendant to show that there is a reasonable probability that, but for his 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. 466 U.S. at 694, 104 S. Ct. at 2068. The failure to satisfy one prong of the test negates a court’s need to consider the other. See id. 466 U.S. at 697, 104 S. Ct. at 2069.
An appellant 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). We cannot speculate beyond the record provided; rather, a reviewing court must presume that the 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). The appellant must overcome the presumption that his trial counsel’s strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Appellant states that she received ineffective assistance because her counsel was not prepared for jury trial as evidenced by his fractured ankle and his failure to pursue discovery violations. Other than appellant’s general statement of her defense counsel’s deficient conduct, appellant does not demonstrate how her counsel’s advice to plead guilty in both charges was affected by his injury or his failure to pursue discovery violations. When the record contains no evidence to rebut the presumption that trial counsel made all significant decisions in the exercise of reasonable professional judgment, we may not make a finding of ineffective assistance based on speculation. Stafford v. State, 101 S.W.3d 611, 613 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We cannot second-guess, through hindsight, the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffective assistance of counsel. Storr v. State, 126 S.W.3d 647, 651 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Stewart v. State, 652 S.W.2d 496, 501 (Tex. App.—Houston [1st Dist.] 1983, no pet.). On the basis of the record before us, appellant has failed to meet her burden of showing that defense counsel’s performance was deficient.
We overrule appellant’s first and second points of error.
Cruel and Unusual Punishment
In her third and fourth points of error in cause number 1243898, appellant argues that the sentence for her DWI charge constituted cruel and unusual punishment in violation of her federal and state constitutional rights. Specifically, appellant contends that the trial court’s assessment of punishment of 150 days confinement for the DWI charge is disproportional to the alleged offense. Appellant claims that the unique facts of this case warrant a lesser sentence because the accident caused only $1,700 in damages, no injuries were sustained, and appellant had no prior DWI convictions.
A sentence is constitutionally defective when it is not proportionate to the offense committed. U.S. Const. amends. VIII & XIV; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 1977). Although a sentence may be within the range permitted by statute, it may nonetheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment. Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983); Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The Eighth Amendment is applicable to the states by virtue of the Fourteenth Amendment. Diaz-Galvan, 942 S.W.2d at 186.
The general rule is that a contemporaneous objection is usually required to preserve error. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc); Jaenicke v. State, 109 S.W.3d 793, 795 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Failure to preserve error generally waives the error. Hull v. State, 67 S.W.3d 215, 217–18 (Tex. Crim. App. 2002); Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993). This is true even if the complaint is based upon constitutional grounds. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); see also Espinosa v. State, 29 S.W.3d 257, 260 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The failure to specifically object at trial waives an Eighth Amendment claim of cruel and unusual punishment. See 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).
The State contends that appellant waived any error by raising her argument for the first time on appeal. We agree. The burden of proof is on the party attacking a prior judgment to demonstrate its invalidity and to make an adequate record for appeal. Melendez v. State, 4 S.W.3d 437, 443 (Tex. App.—Houston [1st Dist.] 1999, no pet.). There is no indication in the record that appellant objected in the trial court to the 150-day punishment. Failing to object in the trial court to the alleged disproportionate sentences waives any error. Solis, 945 S.W.2d at 301; Chapman v. State, 859 S.W.2d 509, 515 (Tex. App.—Houston [1st Dist.] 1993), rev’d on other grounds, 921 S.W.2d 694 (Tex. Crim. App. 1996). We hold that, in the absence of an objection at trial, appellant has not preserved her errors for review. See Tex. R. App. P. 33.1(a).
We overrule appellant’s third and fourth points of error.
Constitutional Validity of a Guilty Plea
In her fifth and sixth points of error in cause number 1243898, appellant argues that the trial court erred in accepting her guilty plea for her DWI charge because she never waived her constitutional right against self-incrimination and right to confrontation and to cross-examination of the witnesses against her. Appellant contends that because the trial court did not obtain an express waiver, either orally or in writing, appellant’s plea was not knowingly and intelligently entered into. As such, appellant claims that the guilty plea the trial court entered for her DWI charge was invalid without an express waiver of all three constitutional rights.
A guilty plea will be accepted as constitutionally valid only with an affirmative showing that such a plea was entered voluntarily, knowingly, and intelligently. Boykin v. Alabama, 395 U.S. 238, 241, 89 S. Ct. 1709, 1711 (1969); Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). A defendant is presumed to have entered a voluntary and knowing plea after he has been properly admonished of his constitutional rights, and has knowingly and voluntarily waived those rights. Mitschke, 129 S.W.3d at 136.
When a guilty plea is entered, several federal constitutional rights are waived: (1) the privilege against self-incrimination; (2) the right to trial by jury; and (3) the right to confrontation. Boykin, 395 U.S. at 243, 89 S. Ct at 1712; Gardner v. State, 164 S.W.3d 393, 399 (Tex. Crim. App. 2005). An appellate court cannot, however, infer the waiver of these constitutional rights from a silent record. Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App. 2003). If a court fails to admonish a defendant, the defendant must affirmatively show that he was not aware of the consequences of his plea and that he was misled or harmed by the court. Cano v. State, 4 S.W.3d 356, 357 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
The record shows that appellant’s guilty plea was constitutionally valid. At the October 19, 2004 proceeding, appellant answered affirmatively when questioned by the judge as to whether counsel had advised appellant of the consequences of signing the waiver. The record reflects that appellant was presented with a written waiver, signed by both her counsel and the State, which indicated that she was aware of the nature of the charge against her and thus approved of such waiver.
Moreover, although each constitutional right was not specifically stated on the record, failure to admonish a defendant concerning his right to confront witnesses, privilege against self-incrimination and right of compulsory process does not invalidate a plea of guilty which was otherwise made freely and voluntarily. Vasquez v. State, 522 S.W.2d 910, 912 (Tex. Crim. App. 1975). A defendant need not be presented with a laundry list of constitutional rights that are waived by a plea of guilty or that he make a separate waiver of each for the purpose of the record. Breaux v State, 16 S.W.3d 854, 856 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Accordingly, we conclude that appellant’s guilty plea was constitutionally valid. We overrule appellant’s fifth and sixth points of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.4.