11th Court of Appeals
Eastland, Texas
Opinion
Michael Eugene McCoy
Appellant
Vs. No. 11-01-00182-CR B Appeal from Nolan County
State of Texas
Appellee
Memorandum Opinion
Michael Eugene McCoy entered a plea of Aguilty@ to the offense of knowingly delivering more than one gram of cocaine (within 1,000 feet of a playground) on November 2, 1999. The jury assessed his punishment at confinement for 75 years and a fine of $10,000. We affirm the conviction.
Points of Error
There is no challenge to the sufficiency of the evidence. Appellant presents three points of error. First, he argues in Point of Error No. 1 that the sentence was Agrossly disproportionate to the facts@ and that this violated his rights under the Eighth Amendment[1] and his rights under the Texas Constitution.[2] Then, appellant=s court-appointed appellate lawyer argues in Points of Error Nos. 2 and 3 that his court-appointed trial lawyer rendered Aineffective assistance@ of counsel during both phases of trial.
The Sentence
Cocaine is listed in APenalty Group 1@ in the Texas Controlled Substances Act.[3] Section 481.112 of the Act provides that a person convicted of delivering Aone gram or more but less than four grams@ of a controlled substance listed in Penalty Group 1 shall be punished for a felony of the second degree; however, Section 481.134 of the Act provides that, if the delivery is in a Adrug-free zone,@ the person convicted shall be punished for a felony of the first degree.
TEX. PENAL CODE ANN. ' 12.32 (Vernon 1994) provides that a person convicted of a first degree felony shall be punished by imprisonment Afor life or for any term of not more than 99 years or less than 5 years@ and an optional fine Anot to exceed $10,000.@ The jury assessed the punishment in this case, and the verdict was within the range authorized by the statutes which had been adopted by the legislature.
This court discussed a similar claim, that the punishment was Aunconstitutionally disproportionate@ to the offense in Bradfield v. State, 42 S.W.3d 350, 353 (Tex.App. - Eastland 2001, pet=n ref=d):
The Eighth Amendment prohibits punishments that are Agrossly disproportionate@ to the offense for which the defendant has been convicted. Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991); McGruder v. Puckett, 954 F.2d 313 (5th Cir.), cert. den=d, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); Hicks v. State, 15 S.W.3d 626 (Tex.App. - Houston [14th Dist.] 2000, pet=n ref=d); Hernandez v. State, 10 S.W.3d 812 (Tex.App. - Beaumont 2000, pet=n filed); Dunn v. State, 997 S.W.2d 885 (Tex.App. - Waco 1999, pet=n ref=d); Jackson v. State, 989 S.W.2d 842 (Tex.App. - Texarkana 1999, no pet=n). The reviewing court must first compare the gravity of the offense with the severity of the sentence. Harmelin v. Michigan, supra; McGruder v. Puckett, supra; Hicks v. State, supra; Hernandez v. State, supra; Dunn v. State, supra; Jackson v. State, supra.
The record does not reflect that appellant=s...sentence is grossly disproportionate to the offense....Therefore, under the applicable case law, we do not compare the sentences received in similar crimes or the sentences received in other jurisdictions.
The record in this case shows that appellant sold cocaine to a cooperating individual while the transaction was recorded on videotape. The purchaser and the undercover narcotics officer both testified, and there was testimony about other sales of cocaine by appellant before and after the transaction shown on the videotape. The sentence was not grossly disproportionate to the offense. Point of Error No. 1 is overruled.
Assistance of Counsel
This court takes Ajudicial notice@ under TEX.R.EVID. 201(c) and 201(f) that appellant=s court-appointed trial counsel was licensed to practice law in 1973, is a ABoard-Certified Civil Trial Lawyer,@ is a AFellow@ of the Texas Bar Foundation, and is a former President of the Nolan County Bar Association. The record also shows that appellant=s lawyer was faced with a difficult situation. The offense for which appellant had been indicted was shown on videotape, and the purchaser of the drugs was a Acooperating individual@ who was prepared to testify for the State. Moreover, the State had proof of cocaine sales by appellant, both before and after the one for which he was tried. The record shows that the court-appointed trial lawyer put on proof that appellant was eligible for probation and testimony by several witnesses that he was a good candidate for probation.
The standard for reviewing claims of Aineffective assistance@ of counsel is clearly set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999), makes it clear that the Anow familiar two-prong Strickland test@ applies to all criminal proceedings in Texas. The Supreme Court also said in Strickland v. Washington, 466 U.S. at 689:
Judicial scrutiny of counsel=s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel=s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel=s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable....Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action Amight be considered sound trial strategy.@...Even the best criminal defense attorneys would not defend a particular client in the same way. (Emphasis added)
Appellant has not shown that his trial counsel=s conduct was ineffective. Appellant has not Aidentified acts or omissions [by his trial counsel which] were outside the wide range of professionally competent assistance.@ See Strickland v. Washington, supra at 690. Moreover, appellant has not shown that, Abut for@ his counsel=s performance, Athe result@ of the trial would have been different. Hernandez v. State, supra at 770 n.3. Points of Error Nos. 2 and 3 are overruled.
This Court=s Judgment
The judgment of the trial court is affirmed.
BOB DICKENSON
SENIOR JUSTICE
May 9, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and Dickenson, S.J.[4]
[1]U.S. CONST. amend. VIII provides: AExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.@
[2]TEX. CONST. art. I, ' 13 provides in part: AExcessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.@
[3]See TEX. HEALTH & SAFETY CODE ANN. ' 481.102 (Vernon Pamph. Supp. 2002). All references to Asections@ in this opinion refer to that code unless otherwise noted.
[4]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.