Opinion issued November 18, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00687-CR
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MICHAEL RAY RIVERA, Appellant
V.
The State of Texas, Appellee
On Appeal from 262nd District Court
Harris County, Texas
Trial Court Cause No. 1099353
MEMORANDUM OPINION
Appellant, Michael Ray Rivera, pleaded guilty to robbery and the trial court assessed punishment at four years’ deferred adjudication community supervision and a $300 fine. See Tex. Penal Code Ann. § 29.02 (Vernon 2003). After violating the terms of his community supervision, the trial court adjudicated appellant’s guilt and assessed punishment at 15 years’ confinement in the Texas Department of Criminal Justice Institutional Division. Appellant raises two issues on appeal: (1) he received ineffective assistance of counsel; and (2) his punishment violated his constitutional rights against cruel and unusual punishment. We affirm.
Background
Appellant pleaded guilty to robbery with bodily injury. On the State’s recommendation, the trial court ordered deferred adjudication community supervision for appellant and a $300 fine. Two years later, the State filed a motion to adjudicate guilt because appellant violated his community supervision by testing positive for marijuana and failing to pay several fines. The trial court ruled to continue appellant’s deferred adjudication. Four months after his reinstatement, appellant set a truck on fire after an accomplice covered it in gasoline. Appellant confessed to arson and the State filed a second motion to adjudicate guilt.
The trial court conducted a hearing on the motion. During the guilt phase, appellant testified that he regretted his actions and fully cooperated with police. Neither the State nor appellant gave closing argument at the guilt phase and the trial court found the allegation of arson to be true. Both parties agreed that the evidence presented at the guilt phase should be considered at punishment and no additional punishment evidence was presented. At closing, the State asked for a minimum of eight years and appellant emphasized his remorse and cooperation with law enforcement. The trial court assessed punishment at 15 years’ confinement.
Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance of counsel for three reasons: (1) counsel waived closing arguments at the guilt stage of his hearing; (2) counsel failed to present mitigating punishment evidence; and (3) counsel failed to object to the 15 year sentence as cruel and unusual punishment.
Standard of Review
To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats an ineffectiveness claim. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101.
We cannot speculate beyond the record provided, so 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); see Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Because the record is usually underdeveloped, direct appeal is often an inappropriate forum in which to bring this type of claim because the reasonableness of counsel’s decisions often involves facts not appearing in the appellate record. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. Therefore, it is critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel’s conduct was strategic. Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). This kind of record is best developed in a hearing on a motion for new trial or by application for a writ of habeas corpus. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.
Analysis
Appellant first argues his counsel was deficient for waiving closing argument at the guilt stage of his trial. An appellant on deferred adjudication cannot appeal the trial court’s decision to adjudicate guilt, but can appeal aspects of the punishment phase of the hearing. Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001) (citing Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992)). Appellant’s claim of ineffective assistance of counsel is therefore limited to the punishment phase after the adjudication of guilt. Kirtley, 56 S.W.3d at 51-52. We therefore cannot address counsel’s failure to present closing argument at the guilt stage.
Appellant next argues his counsel was deficient for failing to present mitigating witnesses at the punishment phase. Appellant relies on Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d), which held counsel provided ineffective assistance by failing to bring mitigating evidence at the punishment stage of trial. Counsel in Milburn testified at a motion for new trial hearing that he neither investigated nor evaluated any punishment evidence. Milburn, 15 S.W.3d at 270. The parties also stipulated that 20 witnesses would have testified positively for the defendant. Id. at 269. The facts in Milburn are distinguishable here. The record is silent as to mitigating evidence and appellant points to no available witnesses or evidence that should have been presented. Milburn therefore does not apply and this Court cannot speculate where the record is silent. See Anderson, 193 S.W.3d at 39.
Finally, appellant argues counsel was deficient for failing to object to his 15-year sentence as cruel and unusual punishment. He contends his sentence was disproportionate to his crime because the State asked for eight years. To show ineffective assistance for failing to object, appellant must show that if his counsel had objected the trial court would have erred in overruling the objection. Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Punishment assessed within the statutory limits is generally not cruel and unusual punishment. Id. The appellate court should defer to the legislature’s determination of statutory ranges. Id. at 132. However, a punishment must be in proportion to the crime even if assessed within the statutory range. Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Jacoby, 227 S.W.3d at 132. In determining proportionality, the appellate court should consider, “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292, 103 S. Ct. at 3011; Ajisebutu, 236 S.W.3d at 314; Jacoby, 227 S.W.3d at 132.
Robbery is a second degree felony with a statutory punishment range of two to 20 years. See Tex. Penal Code Ann. §§ 12.33(a) (Vernon Supp. 2010), § 29.02 (Vernon 2003). The trial court assessed punishment within the statutory range, so appellant’s sentence is presumptively not cruel and unusual. Appellant also fails to present any evidence why 15 years is disproportional to his crime under the first prong of Solem. He points to the fact that the State asked for eight years and appellant received 15 years, but he does not discuss the gravity of the offense or the harshness of the penalty. See Jacoby, 227 S.W.3d at 132. For the second and third prongs of Solem, he makes the blanket assertion that the record reflects evidence as to sentences imposed for similar offenses in Texas and other jurisdictions. The record, however, contains no reference to any sentence in any jurisdiction. The trial court assessed punishment within the statutory range and appellant failed to adequately brief the proportionality issue under the Solem test. See Tex. R. App. P. 38.1(h). Appellant has failed to show his counsel was ineffective and we overrule his first issue.
Cruel and Unusual Punishment
Appellant argues his 15 year sentence constitutes cruel and unusual punishment because the State only asked for a minimum of eight years’ confinement. A defendant must make a timely request, objection, or motion and receive an adverse ruling to preserve cruel and unusual punishment on appeal. See Curry v. State, 910 S.W.2d 490, 497-98 (Tex. Crim. App. 1995). Appellant neither objected at sentencing nor raised the issue in a motion for new trial. Nothing was preserved for appellate review and we overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack, Justice Massengale, and Justice Nuchia.[1]
Do not publish. Tex. R. App. P. 47.2(b).
[1] The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District
of Texas, participating by assignment.