NO. 12-06-00268-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CASEY LYNN JEFFUS, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Casey Lynn Jeffus appeals his conviction for intoxication manslaughter. Appellant pleaded guilty and a jury assessed punishment at thirteen years of imprisonment and a fine of $2,500. In four issues, Appellant contends that his guilty plea was involuntary, the prosecutor committed misconduct, trial counsel should have objected to the prosecutor’s opening statement, and the sentence imposed is cruel and unusual punishment in violation of the Texas and United States constitutions. We affirm.
Background
Appellant was charged with intoxication manslaughter after being involved in a car wreck that killed his young son. During jury selection, the trial court explained the charge against Appellant and the range of punishment that would be considered by the jury. After the jury was selected, the State read the indictment, and Appellant pleaded guilty to the charge. Before the trial court accepted Appellant’s plea, the following exchange took place:
THE COURT: Are you pleading guilty by your own free choice?
[APPELLANT]: Yes, ma’am.
THE COURT: Has anyone threatened you or forced you in any way to plead guilty?
[APPELLANT]: No, ma’am.
THE COURT: And are you pleading guilty because this is what you want to do and for no other reason?
[APPELLANT]: Yes, ma’am.
The trial court then accepted Appellant’s plea of guilty. The trial court further accepted Appellant’s plea of true to a deadly weapon enhancement alleged in the indictment.
The punishment phase of the trial then began. During the State’s opening statement, the prosecutor said that Appellant had been arrested on felony driving while intoxicated (DWI) charges on April 21, 2005 and again on May 28, 2005. This was not accurate. Appellant had been arrested on those dates for DWI, and had been arrested for several DWI offenses in the past. But he had only one prior DWI conviction, and therefore the 2005 cases were not felonies. See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon 2006). Appellant’s trial counsel did not object to the prosecutor’s statement.
Later in the trial, however, trial counsel pointed out the State’s mistake when the State offered documents related to Appellant’s prior convictions.
[APPELLANT’S
TRIAL COUNSEL]: And also to clarify the record, [Appellant] would not be subject to two felony DWI’s as previously put in the state’s opening.
[STATE]: That’s correct, your Honor. It will just be one.
THE COURT: Any objection to State’s Exhibit 5 being admitted, [Appellant’s trial counsel]?
[APPELLANT’S
TRIAL COUNSEL]: No objection to that. Again, for clarification, there would not be any DWI felony.
[STATE]: There was not a second conviction, your Honor, just to clarify the record. I apologize for confusing the jury.
After the conclusion of the evidence, the jury assessed Appellant’s punishment at thirteen years of imprisonment and a $2,500.00 fine. This appeal followed.
Voluntariness of Guilty Plea
In his first issue, Appellant argues that his guilty plea was not freely and voluntarily made because the trial court failed to admonish him as to the range of punishment, failed to question Appellant or his counsel about his competency, and failed to explain the effect of his plea of “true” to the deadly weapon enhancement allegation.
Applicable Law
To be constitutionally valid, a guilty plea must be knowing and voluntary. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1468–69, 25 L. Ed. 2d 747 (1970); Stephens v. State, 15 S.W.3d 278, 279 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d). Before accepting a plea of guilty, the court must admonish a defendant of the range of punishment for the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon 2006). The court must not accept a plea of guilty unless it appears that the defendant is competent. Tex. Code Crim. Proc. Ann. art. 26.13(b). The statute does not require admonishment about the effect of a plea of “true” to an enhancement paragraph.
The question of whether the defendant’s plea was voluntary is determined by the totality of the circumstances. Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.–Houston [1st Dist.] 1996, pet. ref’d). A plea of guilty is not rendered involuntary merely because the defendant received a greater punishment than anticipated or because he did not consider every relevant factor when making his decision to plead guilty. Lemmons v. State, 133 S.W.3d 751, 757 (Tex. App.–Fort Worth 2004, pet. ref’d).
Failure to admonish a defendant about the range of punishment before accepting a guilty plea is subject to harmless error analysis under Texas Rule of Appellate Procedure 44.2(b). Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App. 2003). Under Rule 44.2(b), “[a]ny [nonconstitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). In the context of a guilty plea, an error affects substantial rights when, considering the record as a whole, we do not have a fair assurance that the defendant’s decision to plead guilty would not have changed had the trial court properly admonished him. Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006).
Analysis
The trial court briefly questioned Appellant prior to his plea of guilty. During this exchange, the trial court could have determined that Appellant was competent to make the plea and that Appellant was making his plea freely and voluntarily. Citing Texas Code of Criminal Procedure 26.13(b), Appellant argues that the trial court was “mandated” to inquire about Appellant’s competency. Article 26.13 does not require or mandate such an inquiry,1 nor does it require admonishment about the consequences of a deadly weapon finding.
Appellant is correct, however, when he points out that the trial court did not specifically admonish him regarding the range of punishment as required. But the trial court discussed the range of punishment in great detail during jury selection. Appellant was present for this discussion, which occurred before he was asked for his plea. As was the case in Aguirre–Mata, “the record contains references to the correct punishment range and there is nothing in the record that shows Appellant was unaware of the consequences of his plea or that he was misled or harmed.” Aguirre–Mata, 125 S.W.3d at 476–77. In this case, there is nothing in the record that showed Appellant did not know the punishment range and that, if he had known it, he would not have pleaded guilty.2 We, thus, have a fair assurance that Appellant’s decision to plead guilty would not have changed had the trial court properly admonished him, and we conclude that his plea was made freely and voluntarily. See Anderson, 182 S.W.3d at 919.
We overrule Appellant’s first issue.
Prosecutorial Misconduct and Ineffective Assistance of Counsel
In his second issue, Appellant argues that the prosecutor committed misconduct by stating that his 2005 DWI offenses were felonies, implying that he had two prior convictions for driving while intoxicated. In his third issue, Appellant argues that he received ineffective assistance of counsel because trial counsel did not object to the prosecutor’s argument. We address these issues together.
Preservation of Error
To preserve a complaint for appellate review, an appellant must make a timely request, objection, or motion in the trial court. Tex. R. App. P. 33.1(a). The objection must be presented with sufficient specificity to make the trial court aware of the complaint, unless the grounds are evident from the context. Id. To preserve a complaint about a prosecutor’s argument, a defendant must pursue his complaint to an adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). The essential requirement is a timely, specific request that the trial court refuses. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).
Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.
To satisfy the second step of the Strickland analysis, the appellant must show prejudice from the deficient performance of his attorney. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A “reasonable probability” has been defined by the Supreme Court as a “probability sufficient to undermine confidence in the outcome.” Id.
Analysis
Appellant’s trial counsel did not object to the prosecutor’s opening statement. Therefore, Appellant’s complaint about the prosecutor’s misstatement is not preserved for appellate review. See Tex. R. App. P. 33.1(a).
Appellant argues in the alternative that counsel’s failure to object is ineffective assistance of counsel. We disagree. Our analysis of ineffective assistance of counsel affords substantial deference to trial counsel’s strategic decisions and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. See Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002). Appellant made no record to support his claim of ineffective assistance of counsel, which would ordinarily end our analysis. See Thompson v. State, 9 S.W.3d 808, 815 (Tex. Crim. App. 1999) (claim failed because appellant did not show reason for counsel’s failure to object). But here, trial counsel’s strategic decision to correct the prosecutor at a time of his own choosing is clear from the record. Appellant’s counsel corrected the prosecutor when records related to Appellant’s prior convictions were offered, and the prosecutor admitted that she misspoke.
Appellant argues that this exchange occurred outside of the presence of the jury. The State strongly contests this, and we conclude that the statements were made in the presence of the jury. The statements occurred immediately after a witness completed his testimony, and there is no reference to a recess. Additionally, the statements were made during a discussion regarding Exhibit 5, and immediately afterwards the record indicates that Exhibit 5 was published to the jury. It is possible that the statements came during a conference at the bench. But in an earlier part of the record, a bench conference is clearly indicated by the reporter. No such indication occurs in the record at the time of this exchange. It appears, therefore, that trial counsel’s statements were made in the presence of the jury.
Appellant bears the burden of proof. Burruss, 20 S.W.3d at 186. Trial counsel’s strategic decision about when to correct the prosecutor is both clear from the record and reasonable under the circumstances. Appellant has not carried his burden to show that counsel’s representation fell below professional norms.
We overrule Appellant’s second and third issues.
Cruel and Unusual Punishment
In his fourth issue, Appellant contends that the assessed sentence violates the Texas and United States constitutions.
Appellant did not raise this complaint in the trial court and has, therefore, waived appellate consideration of this issue. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); Tex. R. App. P. 33.1.
Appellant would not prevail on this issue even if it had been preserved for our review. Appellant concedes that his punishment is within the statutory range, but contends it is grossly disproportionate to the facts in violation of the constitutional prohibition against cruel and unusual punishment. See U.S. Const. amend. VIII; Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 3006, 77 L. Ed. 2d 637 (1983). The proportionality of a sentence is evaluated by considering (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. Solem, 463 U.S. at 292, 103 S. Ct. at 3011. Unless an appellant establishes the first element of the Solem test, that his sentence is grossly disproportionate to his crime, we need not address the second and third elements. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.–Texarkana 1999, no pet.).
In determining whether Appellant’s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). After considering the facts of the instant case in light of Rummel, we conclude that Appellant’s sentence was not unconstitutionally disproportionate. See id., 445 U.S. at 266, 100 S. Ct. at 1134-35 (holding that life sentence is not cruel and unusual punishment for obtaining $120.75 by false pretenses where Appellant had a prior felony conviction for fraudulent use of credit card to obtain $80 worth of goods or services and another for passing a forged check in amount of $28.36). The sentence in this case is far shorter than the sentence in Rummel, and the crime far more serious. Appellant caused the death of a young child. Furthermore, he had been arrested numerous times for a variety of offenses, including being arrested twice for DWI in the year prior to the accident. Furthermore, the State showed that Appellant had tried to obtain prescription pain killers by pretending to be a doctor and calling in prescriptions in the months after the wreck and that he had not been in compliance with the conditions of his pretrial release while awaiting trial in this case.
Appellant was convicted of intoxication manslaughter. The range of punishment for intoxication manslaughter is two to twenty years of imprisonment. See Tex. Penal Code Ann. § 49.08(b), 12.33. Appellant’s thirteen year sentence is close to the midpoint of that range. After a review of the evidence, we cannot conclude that Appellant has made a threshold showing of disproportionality. As such, we need not address the second and third Solem elements. We conclude that Appellant’s sentence was not cruel and unusual punishment.
We overrule Appellant’s fourth issue.
Disposition
Having overruled Appellant’s four issues, we affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Opinion delivered October 24, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 Article 26.13(b) provides that “[n]o plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.”
2 Appellant points to his motion for new trial, which he swore to be true, in which he asserts that he thought there was an agreement in place for him to receive community supervision. Even if this assertion can be considered to be in the record, it does not establish that Appellant did not understand the range of punishment. An agreement on punishment does not change the range of punishment.