Affirmed and Memorandum Opinion filed December 14, 2006.
In The
Fourteenth Court of Appeals
NO. 14-05-00936-CR
NO. 14-05-00937-CR
NO. 14-05-00938-CR
NO. 14-05-00939-CR
NO. 14-05-00940-CR
____________
JOSE NELSON GONZALES-GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 964,367; 994,717; 994,576;994,575;994,574
M E M O R A N D U M O P I N I O N
Appellant, Jose Nelson Gonzales-Garcia, entered pleas of guilty to two counts of aggravated robbery, one count of aggravated kidnapping, and one count of robbery. He also entered a plea of true on a motion to revoke probation for a felony conviction for driving while intoxicated (ADWI@). There was no agreement as to punishment. The trial court made no findings of guilt and ordered a presentence investigation (APSI@) report prepared. After evidence was presented at the PSI hearing, appellant was sentenced to six years on the DWI, twenty years on the robbery, and life imprisonment for the aggravated robberies and aggravated kidnapping, with the sentences to run concurrently.
In four issues on appeal, appellant contends he received ineffective assistance of counsel. We have examined the records, and for the reasons stated below, we affirm.
Factual and Procedural Background
The following facts are drawn from the PSI report and the hearing before the trial court.
Rosa Trejo testified that, on July 11, 2004, appellant forced his way into her home with a pistol. A second man also entered and helped tie up the other people in the apartment. Appellant forced Trejo into a bedroom and told her to take off her clothes. At the same time, he demanded drugs and money. He put the pistol in her vagina. When Trejo=s daughter cried, he hit the child and put the pistol into her mouth. Appellant also stuffed a sock into Trejo=s mouth. Appellant then rummaged through the house looking for drugs and money while the other man watched Trejo to make sure she did not move.
Margarita Valle testified that on July 13, 2004, appellant broke into her home with a pistol, hit her husband repeatedly on the head with the pistol, and then pointed the pistol at her. Appellant threw Valle to the floor, and, when Valle=s seventeen-month-old daughter began to scream, he hit the girl with the pistol. Two other men then entered the home. One of the men threatened to kill Valle as she tried to call 911; he pulled the phone from her hands and assaulted her and her daughter. After threatening the entire family with the pistol and ransacking their home while demanding drugs and money, appellant and the others left with a television and Valle=s wallet.
The PSI report reflects that, on July 15, 2004, appellant and his accomplices kidnapped Seyyed Ali at gunpoint while he was in his vehicle. Appellant pointed a gun at Ali and threatened to kill him if he did not cooperate. Ali was pushed to the floorboard of the vehicle and forced to provide his PIN number, which was used to withdraw money using Ali=s debit card. Ali was instructed that if he did not provide the correct PIN number, he would be shot and dropped out of the vehicle.
The State also presented evidence of an extraneous offense that occurred on June 25, 2005. Edwin Calderon testified that, on that day, appellant and two other men forced their way into his home with guns. They held his family at gunpoint while looking for drugs and money. Calderon testified that he felt safer since he and his family had moved from their apartment, and he further testified that his mother had a miscarriage a week or so after the incident. Calderon=s mother, Griselda Calderon, also testified that appellant was one of several men who entered their home and threatened them at gunpoint. The men stole a stereo, $10,000 in cash, and jewelry. She acknowledged that she miscarried about a week later, and she attributed it to the stress of the situation.
Analysis of Appellant=s Issues
In four issues, appellant contends that his trial counsel rendered ineffective assistance of counsel because she (1) failed to request that the trial court include in its PSI report an alcohol and drug evaluation (2) failed to request that the trial court include in its PSI report a mental health evaluation, (3) failed to ask the trial court to allow her to review the victim impact statements of several witnesses, and (4) during the punishment phase of the hearing, failed to object to extraneous victim impact testimony.
I. Standard of Review
Ineffective assistance claims are governed by the two‑pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show (1) that counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App .2005). Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Cr im. App. 1995).
A strong presumption exists that counsel=s conduct fell within the wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. To defeat this presumption, A>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, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). When no specific reason is given for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813B14. Further, when counsel has not been afforded an opportunity to explain his or her decisions, we do not find deficient performance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
II. Issues One and Two: Was Trial Counsel Ineffective for Failing to Request that the Trial Court Include Alcohol, Drug, and Mental Health Evaluations in Appellant=s PSI?
In his first and second issues, appellant contends he received ineffective assistance of counsel because his trial counsel failed to request that the trial court include in its PSI report either an alcohol and drug evaluation as provided in Texas Code of Criminal Procedure article 42.12, section 9(h),[1] or a mental health evaluation as provided in article 42.12, section 9(i).[2] Appellant notes that courts have held that such evaluations are mandatory, but may be waived by counsel=s failure to request them. See Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.CTexarkana 2003, no pet.) (recognizing alcohol or drug evaluation under article 42.12, section 9(h) is mandatory but can be waived if not asserted in the trial court);Smith v. State, 91 S.W.3d 407, 410 (Tex. App.CTexarkana 2002, no pet.) (same); Garrett v. State, 818 S.W.2d 227, 229 (Tex. App.CSan Antonio 1991, no pet.) (holding that, when record reflects a history of mental illness, a PSI is required under section 9(i) and cannot be forfeited by failure to object); but see Calcote v. State, 931 S.W.2d 668, 670 (Tex. App.CHouston [1st Dist] 1996, no pet.) (applying harmless error analysis to trial court=s failure to include proposed client supervision plan as required by article 42.12, section 9(a)).
Based on these cases, appellant claims his trial counsel rendered ineffective assistance by failing to object to the lack of these evaluations in his PSI. Appellant contends trial counsel should have been alerted to the need for alcohol, drug, and mental health evaluations because he was on felony DWI probation, and his wife testified that he had been attending Alcoholics Anonymous meetings while on probation. Appellant claims that A[a]lcohol, drugs, and mental impairment are frequent explanations for criminal wrongdoing.@ Appellant also asserts, without reference to any evidence, that mental impairment was Astrongly suggested by his alcohol abuse and attempted self-medication@ and any impairment Acould have explained how the polite, well-motivated young man friends and family described could be involved in such violent crime.@
Appellant acknowledges the record is silent as to any reasons why his trial counsel chose not to request these evaluations, but argues that no reasonable trial strategy justifies trial counsel=s waiver of the right to include alcohol, drug, and mental health evaluations. Appellant urges that this is an unusual case in which the record on direct appeal is sufficient to overcome the presumption that trial counsel was competent. However, we disagree.
Although appellant was on probation for felony DWI, the record contains no evidence that substance abuse contributed to appellant=s commission of the charged offenses. Moreover, the PSI report contradicts this contention. In the PSI report, appellant explained that the reason he participated in the crimes was that a co-defendant threatened to harm his family if he did not. Appellant also denied using alcohol since being placed on community supervision for DWI. He further denied any experimentation with illegal drugs, except for using cocaine one time at age twenty (approximately four years before the offenses). Similarly, the record contains no evidence that raises an issue of mental impairment. Because the record does not show that the trial court was required to request alcohol, drug, or mental health evaluations, appellant=s counsel had no reason to object to their omission. Therefore, this record is insufficient to overcome the strong presumption that trial counsel=s conduct was reasonable. See Abdulkarim v. State, Nos. 05-01233-CR, 05‑04‑01234‑CR, 05‑04‑01235‑CR, 2005 WL 2184852, *2 (Tex. App.CDallas Sept. 12, 2005, no pet.) (holding trial counsel did not render ineffective assistance when record was silent as to trial counsel=s strategy and contained no evidence raising any issues necessitating a psychological, alcohol, or drug evaluation).
We overrule appellant=s first and second issues.
III. Issue Three: Was Trial Counsel Ineffective for Failing to Request that She be Allowed to Review the Victim Impact Statements of the State=s Witnesses for Use at Trial?
In this issue, appellant contends his trial counsel rendered ineffective assistance of counsel by allegedly failing to ask the trial court to allow her to review the victim impact statements of Margarita Valle, Rosa Trejo, and Sayyed Ali for purposes of impeaching them, citing Texas Code of Criminal Procedure articles 56.03(g) (victim impact statement discoverable under article 39.14 before victim testifies only if it contains exculpatory material), and 56.03(e) (when court considers victim impact statement, before sentencing the defendant it shall permit the defendant or his counsel a reasonable time to read the statement and, with the court=s approval, the defendant or his counsel may introduce testimony or other information alleging a factual inaccuracy in the statement). Again, appellant contends there is no reasonable trial strategy for this alleged omission.
However, the record shows that appellant=s counsel did review the PSI report containing the complained-of victim impact statements, and she noted her objections to the PSI report at the start of the hearing.
We therefore overrule appellant=s third issue.
IV. Issue Four: Was Trial Counsel Ineffective for Failing to Object to Extraneous Victim Impact Testimony?
In his last issue, appellant contends that, during the punishment phase of his hearing, his trial counsel was ineffective because she failed to object to victim impact testimony elicited during the State=s questioning of Edwin Calderon and his mother, Griselda Calderon, about the extraneous offense. Specifically, he complains that his trial counsel failed to object Edwin Calderon=s testimony that (1) after the offense, he was scared for his family and afraid it would happen again, (2) his family had moved, and (3) his mother had a miscarriage a week or so later. Appellant further complains that trial counsel should have objected to Griselda Calderon=s testimony that she had miscarried and believed it was due to the stress of the situation.
Generally, victim-impact testimony regarding extraneous crimes is inadmissible. Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App. 1997) (stating that A[t]he danger of unfair prejudice to a defendant inherent in the introduction of >victim impact= evidence with respect to a victim not named in the indictment on which he is being tried is unacceptably high@). Victim‑impact testimony can run a risk of extreme prejudice and can lead to an unfair punishment hearing. Lindsay v. State, 102 S.W.3d 223, 228 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Appellant contends there is no reasonable trial strategy that would justify trial counsel=s failure to object to otherwise inadmissible evidence.
In Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), the Court of Criminal Appeals considered a similar claim of ineffective assistance of counsel for failing to object to victim impact testimony concerning an unadjudicated home invasion/aggravated robbery. Id. at 713. As in the present case, the record was silent as to why the defendant=s counsel failed to object. Id. at 714. Although the Court recognized that the extraneous victim impact testimony was Aarguably objectionable,@ it held that the silent record was insufficient to overcome the presumption that counsel=s actions were part of a strategic plan. Id. at 713B14. Following Tong, we hold that the record in this case is insufficient to overcome the presumption that trial counsel=s conduct fell within the wide range of reasonable professional assistance. See id. at 714; Thompson, 9 S.W.3d at 814.
We overrule appellant=s fourth issue.
Conclusion
We overrule appellant=s issues and affirm the trial court=s judgments.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed December 14, 2006.
Panel consists of Justices Fowler, Edelman, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] In relevant part, article 42.12, section 9(h) provides:
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 approved by the community supervision and corrections department or the judge or a person, program, or other agency approved by the Texas Commission on Alcohol and Drug Abuse, 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.
Tex. Code Crim. Proc. art. 42.12, ' 9(h).
[2] Article 42.12, section 9(i) provides as follows:
A presentence investigation conducted on any defendant convicted of a felony offense who appears to the judge through its own observation or on suggestion of a party to have a mental impairment shall include a psychological evaluation which determines, at a minimum, the defendant's IQ and adaptive behavior score. The results of the evaluation shall be included in the report to the judge as required by Subsection (a) of this section.
Tex. Code Crim. Proc. art. 42.12, ' 9(i).