In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00116-CR ______________________________
ANGEL ALBERTO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 29102-A
Before Morriss, C.J., Ross and Cornelius,* JJ. Opinion by Justice Cornelius *William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N
Angel Alberto and Armando Aguilliar flagged down a car that had just left a nightclub. Alberto used a shotgun to force the driver and passenger out of the car. Alberto and Aguilliar then took the car. Alberto pleaded guilty, without a plea agreement, to aggravated robbery. The trial court sentenced him to twenty years' imprisonment. Alberto contends that the trial court erred in sentencing him without the benefit of a substance abuse evaluation and that his sentence is disproportionate to the offense.
Article 42.12, Section 9(h)(2) of the Texas Code of Criminal Procedure provides,
(h) On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense, . . . the judge shall direct a supervision officer . . . to conduct an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge. The evaluation shall be made:
. . . .
(2) after conviction and before sentencing, if the judge assesses punishment in the case.
Tex. Code Crim. Proc. Ann. art. 42.12, § 9(h)(2) (Vernon Supp. 2003). The statute is mandatory. Smith v. State, No. 06-02-00054-CR, 2002 WL 31398471, at *2 (Tex. App.-Texarkana Oct. 25, 2002, no pet.); Caster v. State, 87 S.W.3d 751, 752 (Tex. App.-Texarkana 2002, no pet.). Nevertheless, a party must assert his or her right to a substance abuse evaluation or it is waived. See Smith v. State, 2002 WL 31398471, at *2; Caster v. State, 87 S.W.3d at 752; see also Tex. R. App. P. 33.1(a). Because Alberto did not raise this issue in the trial court, it is waived.
Alberto also contends his punishment is disproportionate to the offense. He was convicted of a first degree felony, the punishment range for which is not less than five nor more than ninety-nine years' or life imprisonment. See Tex. Pen. Code Ann. §§ 12.32(a), 29.03(b) (Vernon 1994). The trial court sentenced Alberto to twenty years' imprisonment.
Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.), this Court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.-Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd).
Our proportionality analysis under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292 (1983); Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.-Tyler 1996, pet. ref'd) (evaluating appellant's Texas constitutional claim of cruel and unusual punishment under test outlined in Solem). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.-Texarkana 1995, pet. ref'd).
Alberto did not present this issue to the trial court; therefore, he did not preserve it for our review. See Tex. R. App. P. 33.1(a); Jackson v. State, 989 S.W.2d at 844. Even if Alberto's contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Fluellen v. State, 71 S.W.3d at 873; Latham v. State, 20 S.W.3d at 69; Davis v. State, 905 S.W.2d at 664-65.
We affirm the judgment.
William J. Cornelius*
Justice
*Chief Justice, Retired, Sitting by Assignment
Date Submitted: October 28, 2002
Date Decided: February 13, 2003
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ntoxicated.
Trial began June 23, 2002. The State offered into evidence the medical records of Roberts and one of the victims, Stephanie Cope. Without objection from defense counsel, the trial court admitted all records under the business records exception to the rule against hearsay. See Tex. R. Evid. 803(6). Roberts' medical records showed his blood-alcohol content to be 0.298.
On appeal, Roberts contends his trial counsel was ineffective for a number of reasons. He argues that, during defense counsel's cross-examination of State's witnesses, particularly Officers James Blount and Matt Birch, counsel elicited testimony, not elicited by the State, that was designed to prejudice and inflame the jury against him. Additionally, Roberts contends, defense counsel failed to object to any testimony from Lieutenant Bob Hundley despite the State's failure to qualify Hundley as an accident reconstruction expert. During Hundley's testimony regarding a bottle of vodka found in or near the ditch at the site of the collision, Roberts contends, defense counsel's questions led to Hundley's conclusion that the bottle was found under Roberts' truck. Finally, defense counsel failed to object to the State's pathologist's testimony that the test results revealed Roberts had a 0.298 blood-alcohol content. This testimony, according to Roberts, demonstrated that the State failed to establish a chain of custody necessary for admission of the results of the laboratory tests. Roberts points to trial counsel's failure to object to the reports and to the pathologist's testimony as two of the many aspects of trial counsel's performance that render his assistance ineffective.
Ineffective Assistance of Counsel
Federal and state constitutions guarantee the right to reasonably effective assistance of counsel in a state criminal proceeding. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). When evaluating a claim of ineffective assistance of counsel, we employ the two-pronged test as set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986).
Under the Strickland-Hernandez standard, first, we must determine whether counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687. On a finding of deficient performance of trial counsel, we must assess whether there is a reasonable probability that, but for the deficient performance, the outcome of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. An appellant must prove both deficiency and harm by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
Further, in order to prevail on a claim of ineffective assistance of counsel, 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); Josey v. State, 97 S.W.3d 687, 696 (Tex. App.—Texarkana 2003, no pet.). Judicial review of a defendant's claim of ineffective assistance must be highly deferential to trial counsel. Thompson, 9 S.W.3d at 813. We employ a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
We will not speculate about trial counsel's strategy. Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.—Austin 2000, no pet.). That another attorney might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). The challenged conduct will not constitute deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 441; see Thompson, 9 S.W.3d at 814. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002); see Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). Simply put, when the record before us contains no evidence of the rationale supporting trial counsel's actions, we cannot conclude that his performance was deficient. See Mallett v. State, 65 S.W.3d 59, 64–65 (Tex. Crim. App. 2001).
Claims of ineffective assistance of trial counsel can be properly addressed on direct appeal if the appellate record is sufficiently developed. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Generally, however, the record on direct appeal will not be sufficiently developed 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. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813–14. The Texas Court of Criminal Appeals has explained that appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons trial counsel may have considered. The proper procedure for raising this claim is, therefore, almost always an application for writ of habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003). Nevertheless, some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." Massaro v. United States, 538 U.S. 500, 508 (2003); Freeman v. State, 125 S.W.3d 505, 507 (Tex. Crim. App. 2003); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. filed).
Analysis
Here, the record does not affirmatively demonstrate trial counsel's strategy for his actions and inactions. It only shows us the acts or omissions made during the course of the trial and leaves only room for speculation as to the reasons counsel may have had for making the choices he made.
For instance, while we recognize that, in order for the results of the laboratory test to be admissible, the State must establish a chain of custody, we also note Roberts fails to demonstrate that the State could not have established the proper chain of custody. See Penley v. State, 2 S.W.3d 534, 537 (Tex. App.—Texarkana 1999, pet. ref'd). He only points out that the State did not establish it. Defense counsel may have had a purpose in not objecting. Perhaps he knew the State would be able to establish the chain of custody on his objection. Rather than waste time and appear disruptive before the jury, counsel may have decided to forego an objection he thought would be fruitless. At any rate, our speculation would be immaterial since the record does not affirmatively show counsel's reason for not objecting. See Mallett, 65 S.W.3d at 64–65.
We deem the record inadequate to make a fair evaluation of Roberts' claim under Strickland. We cannot conclude from this record that Roberts satisfied the first prong of the Strickland test. That is, the record does not demonstrate that counsel's actions fell below an objective standard of reasonableness. Further, we cannot conclude that counsel's performance was so outrageous that no competent attorney would have engaged in it. Roberts has failed to overcome the strong presumption that his attorney's performance fell within the wide range of professional representation. Therefore, we overrule Roberts' point of error.
Accordingly, we affirm the trial court's judgment.
Donald R. Ross
Justice
Date Submitted: June 1, 2004
Date Decided: June 10, 2004
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