Opinion issued June 4, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00715-CR
JOHNNY RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1060814
MEMORANDUM OPINION
Appellant, Johnny Rivera, pleaded guilty to aggravated kidnapping, (1) without an agreed recommendation as to punishment. After a presentence investigation, the trial court assessed punishment at 35 years' confinement. We abated the case for a hearing on appellant's motion for new trial. See Rivera v. State, No. 01-06-00715-CV (Tex. App.--Houston [1st Dist.]Jan. 10, 2003, no pet.) (mem. order). In accordance with our order, the trial court held a hearing on appellant's motion for new trial, then denied appellant's motion for new trial. We affirm.
INEFFECTIVE ASSISTANCE OF COUNSEL
After pleading guilty and being sentenced to 35 years' confinement, appellant filed a motion for new trial alleging ineffective assistance of counsel. Specifically, appellant claimed his trial counsel was ineffective for "failing to sufficiently investigate and present evidence in mitigation of punishment, including, but not limited to, the defendant's low IQ and possible mental retardation[.]"
We abated for a hearing on appellant's motion for new trial. At the motion for new trial hearing, which was conducted by affidavit, appellant presented the testimony of Dr. Susana Rosin, who concluded that:
In my opinion, Mr. Rivera meets diagnostic criteria for a diagnosis of Mild Mental Retardation (DMS IV 317). That is, Mr. Rivera's IQ scores (Verbal, Performance and Full Scale) fall within the required range, he shows adaptive behavior deficits in several key areas, and the records indicate that his disability emerged during the developmental period and prior to the age of eighteen years.
In addition to appellate counsel's affidavit, appellant attached an affidavit from his trial counsel, in which trial counsel stated as follows:
At no time did I investigate the possibility that Johnny Rivera suffered from a low I.Q., learning disability, mental retardation or any other mental condition or impairment. I did not review his school records. I did not discuss the possibility with his parents or anyone else that he might suffer from any mental impairment, nor did I suggest that he be evaluated by a mental health professional.
My failure to investigate, evaluate or present such mitigating evidence was not trial strategy.
In his sole issue on appeal, appellant contends that his trial counsel was ineffective for failing to investigate and present such evidence of mental retardation at the punishment phase of the trial.
Standard of Review
Criminal defendants are entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). "Reasonable probability" means a "probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 833 & n. 13 (Tex. Crim. App. 2002).
Analysis
Even if we were to conclude that trial counsel was ineffective for failing to investigate and present mitigating evidence of appellant's mental retardation, we would nonetheless conclude that appellant has failed to meet prong two of the Strickland test by showing that, but for counsel's ineffectiveness, the punishment appellant received would have been different. See Duvall v. State, 59 S.W.3d 773, 780 (Tex. App.--Austin 2001, pet. ref'd) (holding prong two of Strickland test not met because no reasonable probability shown that, but for alleged ineffectiveness of counsel at punishment phase of trial, different punishment would have been assessed).
Here, punishment was tried before the trial court. The trial court heard evidence that appellant participated in a violent crime. Appellant and his codefendant stole the victim's car, forced her into the backseat, threatened her with a knife, and attempted to sexually assault her. In mitigation of this evidence, the trial court was also presented with evidence in the presentence investigation report that appellant was not a good student, had failed several years in school, and had the maturity level of a child. It is unlikely that additional mitigating evidence showing that appellant was also mildly retarded would have changed the trial court's assessment of punishment.
Furthermore, in this case, because of our remand for a hearing on appellant's motion for new trial, the trial court actually heard the evidence regarding appellant's mental retardation and nevertheless denied the motion. Because the trial court denied the motion for new trial even after hearing the retardation evidence, we know that, had the evidence been admitted at the punishment phase of the trial, the punishment assessed by the trial court would not have been different.
Appellant argues, however, that had counsel investigated and discovered appellant's mental retardation, he might have chosen to try punishment before a jury instead of the judge. However, there is nothing in the record to support this assertion and we will not speculate as to what counsel might have done had he known about appellant's mental retardation.
Appellant has failed to meet prong two of the Strickland test by showing a reasonable probability that, had trial counsel investigated and presented evidence of appellant's mental retardation at the punishment hearing, the result would have been different. Accordingly, we overrule appellant's sole point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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