Opinion issued March 1, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00597-CR
NO. 01-06-00598-CR
ROY JAY CHEVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause Nos. 1044143 and 1044141
MEMORANDUM OPINION
Without an agreed recommendation, appellant pleaded guilty to two indictments for aggravated sexual assault of a child. (1) See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006). After a presentence investigation (PSI) hearing, the trial court assessed punishment at confinement for 50 years for each offense, to run concurrently. Challenging each conviction, appellant raises two identical issues in each appeal. Appellant contends that (1) he received ineffective assistance of counsel and (2) his 50-year sentences violate his federal constitutional right against cruel and unusual punishment.
We affirm.
Ineffective Assistance of Counsel
In his first issue, appellant asserts that he received ineffective assistance of counsel "during his pleas of guilty and at his pre-sentence investigation hearing where it was appellant's understanding that he would receive community supervision."
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668-89, 694, 104 S. Ct. 2052, 2065 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. To satisfy the second prong of the test enunciated in Strickland, appellant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).
Here, appellant points out that the PSI report reflects that he has only a seventh grade education and cannot read or write. Appellant asserts that, because of this lack of formal education, it was "very understandable that [he] could have been confused by the proceedings." Appellant further asserts that, because trial counsel filed a motion for community supervision, "he could have reasonably assumed he would be receiving probation once he was sentenced." Appellant also points out that his pro se notice of appeal indicates that he believed that he would be receiving probation. In support of his claim that his trial counsel's representation was deficient, appellant asserts that "[t]he record does not reflect that trial counsel fully explained the consequences of Appellant's pleas," which appellant believes particularly important in this case "due to [appellant's] lack of formal education." Appellant further contends that "[b]y not putting on the record the efforts made by trial counsel to assure that Appellant understood the waiver of his rights to a trial by jury this amounted to ineffective assistance and these circumstances fell below an objective standard of reasonableness."
We have previously held that "a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary." Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). Rather, to overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Salinas, 163 S.W.3d at 740. Under normal circumstances, 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). As the court of criminal appeals explained, "rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: '[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.'" Id.
In this case, appellant waived his right to have the court reporter record his guilty plea. The clerk's record reflects that, during the plea process, appellant signed admonishments recognizing that he was charged with "the felony offense of Aggravated Sexual Assault of a Child" and faced the first-degree felony punishment range of life imprisonment or any term of imprisonment of not more than ninety-nine years or less than five years. In sum, the admonishments and plea forms signed by appellant indicate that he understood the charges against him and the consequences of his plea.
Nothing in the record otherwise affirmatively demonstrates that trial counsel failed to appropriately advise appellant regarding the consequences of his plea or the possible sentencing range. Rather, the record is silent on this point. Though he filed a motion for new trial, appellant did not allege ineffective assistance of counsel. Moreover, the transcript from the PSI hearing contains nothing supporting appellant's argument. Other than his bare assertions, appellant has not shown by a preponderance of the evidence that trial counsel was ineffective by failing to advise him properly regarding the consequences of his plea. Nor has appellant shown that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would have insisted on going to trial.
We overrule appellant's first point of error in both appellate cause numbers.
Cruel and Unusual Punishment
In his second point of error, appellant contends that his 50-year sentences constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. See U.S. Const. amend. VIII. More specifically, appellant asserts that his sentences violate the Eighth Amendment because they are disproportionate to the convicted offenses. Appellant acknowledges that he made no Eighth Amendment objection in the trial court. Nonetheless, appellant contends that we should consider his point because his complaint constitutes fundamental error for which he was not required to object in the trial court.
An appellate court may, in rare cases, "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court." Tex. R. Evid. 103(d); see Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001). Here, appellant offers no authority and no argument why his claimed error constitutes fundamental error. Nor does our own research reveal any authority holding the claimed error to be fundamental error. To the contrary, we have previously held that a defendant must raise the issue of cruel and unusual punishment in trial court to preserve the issue for appeal. See Solis v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Even more specifically, we have recently held that, "[t]he failure to specifically object to an alleged disproportionate sentence in the trial court or in a post-trial motion waives any error." Jacoby v. State, Nos. 01-05-00805-CR and 01-05-00806-CR, 2006 WL 3438806, at *2 (Tex. App.--Houston [1st Dist.] Nov. 30, 2006, pet. filed). Here, appellant never objected to the alleged disproportionality of his sentences either in the trial court or in a post-trial motion. Accordingly, appellant's argument is not preserved for our review. See Tex. R. App. P. 33.1(a); Jacoby, 2006 WL 3438806, at *2.
We overrule appellant's second point of error in each appellate cause.
Conclusion
We affirm the judgments of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Keyes, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1. As described in the PSI report, the complainants in these appeals are two sisters.
Appellant moved in with the sisters and their mother in 1998. For the next seven
years, appellant continuously sexually assaulted the girls. When the older sister was
13, she give birth to a baby boy. Two years later, the younger sister gave birth to a
baby girl at age 14. DNA testing showed that appellant was the father of both babies.
Appellant was charged with aggravated sexual assault in two separate indictments.