Affirmed and Opinion filed September 5, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-00562-CR
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WILLIAM ALLEN LATHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 643,305
O P I N I O N
Appellant, William Allen Latham, was charged with and pleaded no contest to the offense of aggravated sexual assault of a child. On August 4, 1993, in accordance with the State’s recommendation, the trial court sentenced appellant to seven years’ deferred adjudication and a $500 fine. On December 6, 1999, the State filed a motion to adjudicate guilt based on numerous alleged violations of probation. The trial court granted the State’s motion and sentenced appellant to life in the Texas Department of Criminal Justice, Institutional Division.
I. ISSUES ON APPEAL
Appellant asserts several issues on appeal: (1) ineffective assistance of counsel; (2) the evidence was insufficient to demonstrate a violation of probation; (3) he was denied due process because the trial court refused to consider reinstatement of probation as a punishment option; (4) the sex-offender registration requirements of Chapter 62 of the Texas Code of Criminal Procedure violate constitutional prohibitions of ex post facto laws; and (5) Chapter 62 of the Texas Code of Criminal Procedure offends due process.
II. INEFFECTIVE ASSISTANCE OF COUNSEL[1]
Appellant contends his counsel was ineffective because he: (1) failed to object to the prosecutor’s allegedly improper argument during the punishment stage; (2) waited until sentencing to ask the court to consider reinstating probation; (3) failed to offer/was precluded by the court from offering evidence regarding reinstatement of probation; (4) failed to object to extraneous offense evidence introduced during the adjudication stage; (5) failed to object to polygraph testimony given during the adjudication stage; and (6) failed to file a motion for new trial.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel’s performance was deficient and not reasonably effective. Id. at 688B92. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693. Essentially, appellant must show that his counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).
If appellant proves his counsel’s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel’s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove counsel’s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.
A. Failure to Object: Prosecution’s Allegedly Improper Argument During Punishment Phase
Appellant argues his counsel was ineffective for failing to object to allegedly improper statements made by the State during the punishment phase. Specifically, appellant asserts the prosecution’s references to (1) statements contained in appellant’s psychological report and (2) specific facts regarding the offense were improper because they were not in evidence and were not supported by the record. Assuming the State’s references were improper, appellant’s argument still fails because appellant has failed to affirmatively prove he was prejudiced as a result of these errors.
1. References to Statements Contained in Appellant’s Psychological Report
In its closing argument at the punishment phase, the State directed the trial court’s attention to a psychological report on appellant that was contained in the court’s file. The State recited characterizations of appellant contained in the report that appellant is someone who “[was] preoccupied with sexuality, . . . experience[d] mixed sexual and aggressive feelings combined, . . . had sadistic impulses for which he felt no remorse, . . . [and] may take revenge on those who hurt him and has a potential for acute aggressive outbursts.” Appellant=s medical records were accompanied by an affidavit from the custodian of records. Although the State was prepared to introduce appellant’s medical records under an exception to the rule excluding hearsay, it does not appear from the record that the State ever offered them. See Tex. R. Evid. 803(6). If appellant’s trial counsel had objected to the State’s reference, the State would have properly been permitted to introduce the records concerning appellant’s psychiatric examination into evidence.[2] Counsel is not required to perform futile acts. Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). Therefore, appellant has not affirmatively shown he was prejudiced by his trial counsel’s failure to object.
2. References to the Offense
In its closing argument at the punishment phase, the State asserted that the victim had stated that appellant “stuffed a sock in her mouth and penetrated her between her legs with his penis.” The indictment to which appellant pleaded no contest reads: “[appellant] did . . . intentionally or knowingly cause the penetration of the mouth of [N.W.], a person younger than fourteen years of age, with the sexual organ of the Defendant.” The State’s allegation that appellant penetrated the complainant between her legs differs from the allegation in the indictment that appellant penetrated the victim’s mouth. However, the trial court was presumptively aware of the indictment and appellant=s stipulation that “witnesses for the State . . . would testify that [these] acts were committed . . . and that they are true and correct.” If appellant’s trial counsel had objected to the State’s argument and the discrepancy between its statement and the indictment, the State could have read appellant’s stipulation into evidence. See Tex. Crim. Proc. Code Ann. art. 37.07, ' 3(a) (Vernon Supp. 2002) (stating that a trial court may admit evidence concerning the circumstances of the offense during the punishment stage). Moreover, the trial court is aware of the charge in the indictment and would ignore such inaccurate statements. Appellant has failed to affirmatively prove he was prejudiced as a result of his trial counsel’s failure to object to this statement.
B. Reinstatement of Probation
Appellant’s contention his counsel was ineffective because he waited until sentencing to ask the court to consider reinstating probation and failed to offer (or was precluded by the court from offering) evidence to support reinstatement of probation is without merit. The court was statutorily prohibited from considering reinstatement of probation as an appropriate sentence at the punishment phase. Under Article 42.12, section 3(g) of the Texas Code of Criminal Procedure, judge-ordered community supervision is unavailable to a defendant adjudged guilty of certain offenses, including aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 42.12, ' 3(g)(a)(1)(E) (Vernon Supp. 2002). Appellant had been adjudged guilty of the offense of aggravated sexual assault of a child. Therefore, reinstating probation was not an option. See id. Counsel=s performance was not deficient because he failed to request a punishment that the trial court was prohibited from considering. See Mooney, 817 S.W.2d at 698. Furthermore, appellant was not prejudiced by counsel’s failure to request this punishment because the trial court was prohibited from considering it.
C. Failure to Object: Extraneous Offense Evidence, Polygraph Testimony During Adjudication Phase
Appellant asserts his trial counsel rendered ineffective assistance when he failed to object to extraneous-offense evidence and testimony regarding statements made by appellant during a polygraph exam admitted during the adjudication phase. Texas Code of Criminal Procedure Article 42.12, section 5(b), prohibits a defendant from appealing a trial court’s decision to proceed with an adjudication of guilt. Tex. Code. Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2002). This prohibition includes claims of ineffective assistance of counsel during the adjudication phase. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (holding defendant could not appeal on ground counsel was not present at adjudication hearing). Accordingly, we dismiss this claim. Id. (stating that an appellate court should dismiss appeals of the trial court=s decision to adjudicate).
D. Failure to File Motion for New Trial
Appellant claims he was without effective assistance of counsel during the period for filing a motion for new trial. This court has held the time period for filing a motion for new trial is a critical stage of the proceedings during which a defendant is constitutionally entitled to assistance of counsel. Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, pet. ref’d). There is a rebuttable presumption that appellant was represented by counsel and counsel acted effectively. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected. Id. The facts of this case are similar to those of Oldham. As in that case, appellant here filed a pro se notice of appeal and pauper=s oath shortly after sentencing, and the letter of assignment to this court indicated appellate counsel was to be determined. Without any evidence showing that trial counsel thought his duties complete and subsequently abandoned appellant, the Oldham court construed this as evidence appellant must have been informed of at least some of her appellate rights, and presumed appellant was adequately represented by counsel. Id. Appellant has failed to overcome the presumption that he was adequately represented by counsel during the time for filing a motion for a new trial.
We recognize that in cases such as this, review of the record is seldom an effective means to determine ineffective assistance of counsel, especially if the alleged derelictions are errors of omission de hors the record. Id. Though we find that appellant has not satisfied his burden of overcoming the strong presumption that counsel’s performance was effective, appellant is not without recourse. The Court of Criminal Appeals has held that the general doctrine that forbids an application for writ of habeas corpus after direct appeal has addressed the issue does not apply in these situations, and appellant can resubmit his claim via an application for writ of habeas corpus. Oldham, 977 S.W.2d at 363. We dismiss the portion of appellant’s first point of error that pertains to the trial court’s decision to proceed with an adjudication of guilt, and overrule the remainder of appellant=s first point of error and appellant=s sixth point of error.
III. INSUFFICIENT EVIDENCE OF PROBATION VIOLATIONS
Appellant contends there was insufficient evidence he violated the conditions of his probation. Sufficiency arguments, however, are an impermissible appeal of the trial court’s decision to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). We have no jurisdiction to address this issue. See Connolly, 983 S.W.2d at 741. Accordingly, we dismiss appellant=s second point of error.
IV. DUE PROCESS
Appellant asserts the trial court violated his right to due process by refusing to consider the full range of applicable punishment options (i.e., reinstating probation). He did not, however, present this objection to the trial court. Therefore, appellant has not preserved this issue for our review. See Tex. R. App. P. 33.1; see also Briggs v. State, 789 S.W.2d 918, 924 (Tex. 1990) (holding that even constitutional errors can be waived by failure to object at trial). We overrule appellant=s third point of error.
V. EX POST FACTO AND DUE PROCESS CHALLENGES
TO THE SEX OFFENDER REGISTRATION STATUTE
Appellant argues the registration requirements imposed under Chapter 62 of Texas Code of Criminal Procedure as applied to him violate the ex post facto and due process clauses of the United States Constitution. He did not, however, present these objections to the trial court. Therefore, appellant has not preserved these issues for our review. See Tex. R. App. P. 33.1; see also Briggs, 789 S.W.2d at 924; McGowan v. State, 938 S.W.2d 732, 740 (Tex. App.CHouston [14th Dist.] 1996) (stating Briggs line of cases as clearly indicating, unless statute is facially unconstitutional or void ab initio, one must preserve error for appeal), aff’d sub nom. Weightman v. State, 975 S.W.2d 621 (Tex. Crim. App. 1998). We overrule appellant’s fourth and fifth points of error.
VI. CONCLUSION
We dismiss for want of jurisdiction appellant=s second point of error and the portion of appellant’s first point of error regarding the trial court’s decision to proceed with an adjudication of guilt. We overrule the remainder of appellant’s points of errors and affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Opinion filed September 5, 2002.
Panel consists of Chief Justice Brister and Justices Anderson and Frost.
Do Not Publish C Tex. R. App. P. 47.3(b).
[1] Both appellant’s first and sixth points of error argue ineffective assistance of counsel claims. For purposes of our analysis, we will address these points of error together.
[2] Under Article 37.07 of the Texas Code of Criminal Procedure, the trial court may admit any evidence it deems relevant to sentencing, including evidence concerning the defendant’s general reputation, bad character, extraneous bad acts, and the circumstances of the offense. Tex. Crim. Proc. Code Ann. art. 37.07, ' 3(a) (Vernon Supp. 2002). Rule 401 is helpful to determine what is relevant under Article 37.07, but is not a “perfect fit.” Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). The Court of Criminal Appeals has said that the admissibility of evidence at the punishment stage is a “function of policy rather than relevancy.” Miller-El v. State, 782 S.W.2d 892, 895B96 (Tex. Crim. App. 1990). This is so because “there are no discreet factual issues at the punishment stage.” Id. Deciding the appropriate punishment “is a normative process, not intrinsically fact bound.” Id. (citations omitted).