Lead Opinion
OPINION
Appellant Harrington Christopher Young pleaded guilty, without an agreed recommendation as to punishment, to aggravated sexual assault of a child under the age of 14, a first-degree felony. Tex. Penal Code Ann. § 22.021(a)(l)(B)(iii), (a)(2)(B), (e) (West Supp. 2011). The trial court sentenced him to imprisonment for 15 years. Young appeals from the judgment on two grounds: (1) ineffective assistance of counsel, and (2) cruel and unusual punishment. We affirm the judgment of the trial court.
Background
At the time of Young’s guilty plea, there was no agreed recommendation as to his sentence. The trial court ordered the preparation of a presentenee investigation (PSI) report before making a finding of guilt.
Some statements in the PSI report appear to be inconsistent. For example, the report states that Young previously was arrested by Baytown police for a separate incident of aggravated sexual assault of a child. But the report states that Young had no prior arrests. In addition, the PSI report categorized the Baytown incident as part of Young’s adult criminal record, but Young was 16 years old at that time. The report also states that Young had no prior juvenile criminal record. Finally, although Young was 17 years old at the time of the underlying offense, the PSI report repeatedly recites Young’s age as 18, which was his age at the time the report was prepared.
The trial court sentenced Young to imprisonment for 15 years. There is no reporter’s record for any proceeding in the trial court, including the sentencing hearing.
In briefing to this court, Young’s initial court-appointed appellate counsel stated her professional opinion that there were no arguable grounds for reversal and that therefore any appeal would be wholly frivolous. Young, however, listed three specific grounds in his pro se notice of appeal, which his appellate counsel did not completely address. This court reviewed the entire record, including Young’s pro se notice of appeal, and based upon the brief filed by counsel a supplemental record containing the PSI report was ordered to determine whether arguable grounds for appeal existed. See Anders v. California,
Analysis
Young raises two issues. First, Young argues that he received ineffective assistance of counsel at the PSI hearing because his trial attorney (1) failed to file a motion requesting deferred adjudication, when the record otherwise reflects his eligibility, (2) failed to object to or move to correct the PSI report based on the inconsistencies regarding the Baytown incident and the implication that Young was 18 at the time of the underlying offense, and (3) failed to request a court reporter to preserve the record for appeal. Second, Young argues that his 15-year sentence constitutes cruel and unusual punishment under the Eighth Amendment, considering his contention that he was eligible for deferred adjudication. The State argues that Young has not met his burden to establish ineffective assistance of counsel and that the record does not show that he preserved his cruel-and-unusual-punishment objection to the sentence.
I. Ineffective assistance
The standard of review for ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984), and Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). To prevail, Young must first show that his counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Bone, 77 S.W.3d at 833. “Specifically, appellant must prove, by a preponderance of the evidence, that his counsel’s representation fell below the objective standard of professional norms.” Bone, 77 S.W.3d at 833. “Second, appellant must show that this deficient performance prejudiced his defense,” meaning that Young “must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002)). A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id. Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. “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).
A. Failure to request deferred adjudication
Young argues that he was deprived of a fair sentencing hearing because his counsel did not file a motion requesting deferred adjudication, and that his sentence might have been different if such a motion had been filed. In support of this argument, Young relies on May v. State, 722 S.W.2d
May is distinguishable from this case. A sworn motion is required for a jury’s sentence of community supervision. See State v. Posey, 330 S.W.3d 311, 316 (Tex.Crim.App.2011); Tex.Code Crim. Proc. Ann. art. 42.12, § 4(d)(3), (e). However, the Code of Criminal Procedure does not require such a motion, whether sworn or unsworn, in order for the judge to assess deferred adjudication after receiving a guilty plea. See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a). Because the defendant’s motion is unnecessary to permit the trial judge to assess deferred adjudication, Young cannot show that the alleged failure to file the motion infringed an objective standard of professional norms. See Bone, 77 S.W.3d at 833.
Moreover, the trial court is prohibited from assessing deferred adjudication for a defendant who has pleaded guilty to aggravated sexual assault unless “the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a). Because the record does not show that the trial court made this finding, or that the trial court would have made such a finding if requested, any request for deferred adjudication would have been futile. Young therefore cannot show that his counsel’s performance was deficient. See Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App.1991) (“Counsel is not required to engage in the filing of futile motions.”).
B. Failure to object to PSI
Young next argues that he received ineffective assistance because his trial counsel failed to object to or correct inconsistent information in the PSI report, specifically, (1) the Baytown incident being listed under adult criminal history when Young was, in fact, 16 on the indicated date, and (2) the implication that Young was 18 at the time of the offense, when he was, in fact, 17 at the time. Young does not rely on any authorities to support this ground, except for this court’s previous order identifying this as an arguable issue.
Even assuming that the trial court was under a misimpression regarding Young’s age at the time of the offense and the Baytown incident, Young has not established that there is a reasonable probability that he would have received a lesser sentence if his trial counsel had objected to or corrected the PSI. See Bone, 77 S.W.3d at 833. As previously mentioned, the trial court could not order deferred adjudication absent a finding that deferred adjudication is in the best interest of the victim. See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a). Since Young was convicted of a first-degree felony, the trial court was bound to enter a sentence of imprisonment for life or for a term between 5 and 99 years. See Klock v. State, 177 S.W.3d 53, 66 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd); Tex. Penal Code Ann. § 12.32(a) (West 2011). But within that range, the
C. Failure to request court reporter
Young’s final argument regarding ineffective assistance is premised on his trial counsel’s failure to request a court reporter. Young argues that if the court reporter had been requested, the record would have revealed whether his counsel made objections to the PSI report and sentence on the grounds previously discussed in this opinion. According to Young, such a record either would establish his counsel’s ineffective assistance for failing to make the objections, or the record would have reflected the objections and thereby preserved the matters for appellate review. Young also contends, without explanation, that his sentence might have been different if the court reporter were present.
Young’s only authority for this argument is Montez v. State, 824 S.W.2d 308 (Tex.App.-San Antonio 1992, no pet.). In Mon-tez, the court of appeals observed that a criminal defendant’s trial counsel had failed to follow the proper procedure for preserving error during jury selection. Id. at 310 (citing Jacobs v. State, 787 S.W.2d 397, 405 (Tex.Crim.App.1990)). However, contrary to Young’s interpretation, the court of appeals in Montez did not reverse the conviction because of the failure to preserve error, but rather it reversed because of the overall lack of “fundamental fairness” stemming from other faults committed during jury selection, along with “numerous other severe deficiencies” in defense counsel’s performance demonstrated on appeal. Id. at 310-11. Thus, Montez does not provide support for Young’s proposition that a failure to request a court reporter during a sentencing hearing constitutes reversible error.
A failure to request that a court reporter record trial court proceedings is not per se ineffective assistance of counsel. See Gonzales v. State, 732 S.W.2d 67, 68 (Tex.App.-Houston [1st Dist.] 1987, no pet.). When counsel fails to request a court reporter, this court will not speculate as to what actually transpired. See McQueen v. State, 702 S.W.2d 302, 304 (Tex. App.-Houston [1st Dist.] 1985, no pet.); Booher v. State, 668 S.W.2d 882, 885 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd). Young effectively asks this court to speculate about what objections his trial counsel did or did not make and what prejudice could have resulted. Because such speculation would not be firmly founded in the record, Young cannot establish his trial counsel’s deficient performance or any prejudice therefrom. See Thompson, 9 S.W.3d at 813; McQueen, 702 S.W.2d at 304.
We overrule Young’s first issue.
II. Cruel and unusual punishment
In his second issue, Young argues that his 15-year sentence for the first-degree felony offense of aggravated sexual assault of a child under the age of 14 is cruel and unusual, in violation of the Eighth Amendment. See U.S. Const, amend. VIII. Young contends that he meets the criteria for deferred adjudication and that the sentence is grossly disproportionate consider
Generally, to preserve error for appellate review, the record must show that an objection was made to the trial court, the grounds for relief were made with sufficient specificity, and the trial court ruled upon the objection. Clarke v. State, 270 S.W.3d 573, 579 (Tex.Crim.App.2008); Tex.R.App. P. 33.1 “The burden is on appellant to see that a sufficient record is presented on appeal to show error.” Montoya v. State, 872 S.W.2d 24, 25 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Even most constitutional errors are waived if not properly preserved. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).
Young contends that his sentence resulted from a constitutional violation of the variety so “fundamental” that he was not required to object to preserve error. The only authority Young provides for this argument is a citation to Rule 103(d) of the Rules of Evidence, which provides that notice may be taken of “fundamental errors affecting substantial rights although they were not brought to the attention of the court.” Tex.R. Evid. 103(d). The suggestion of fundamental error is inadequately briefed, see Tex.R.App. P. 38.1 (i), but without addressing whether and under what circumstances a violation of the Eighth Amendment could constitute fundamental error that requires no trial objection to be preserved for appeal, we conclude that no such error occurred in this case. Young was convicted of a first-degree felony and sentenced on the lower end of the statutory range of punishments authorized by the Legislature for such offenses. See Tex. Penal Code Ann. § 12.32(a) (first degree punishment shall be imprisonment “for life or for any term not more than 99 years or less than 5 years”). Punishment assessed within the statutory limits is generally not cruel and unusual punishment. Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App.1972); Gavin v. State, 404 S.W.3d 597, 606 (Tex.App.-Houston [1st Dist.] 2010, no pet.). Accordingly, we overrule Young’s second issue.
Conclusion
We affirm the judgment of the trial court.
Justice KEYES, concurring.
Concurrence Opinion
concurring opinion, Justice.
I respectfully concur. Appellant, Harrington Christopher Young, pleaded guilty to the first degree felony offense of aggravated sexual assault of a child under the age of fourteen.
Background
I adopt the majority’s description of the background facts, but respectfully add the following facts relevant to this opinion.
Young argues that his trial counsel told him that he was seeking deferred adjudication community supervision. The clerk’s record contains Young’s pro se notice of appeal, in which he states, “Defendant was [misled] by attorney into signing for a (PSI) presenteneing investigation, being lead to believe he was signing a plan for 8 years (PSI) probation sentencing investigation.” The record also includes a handwritten letter from Young to the trial court, in which he apologized for an outburst in court, presumably at his sentencing hearing, and explained that his trial counsel had informed him that he would be receiving probation.
The presentence investigation report (“PSI”) included a copy of a printout from the Justice Information Management System (“JIMS”). The JIMS printout included a “summary of facts” concerning the initial complaint against Young. This summary reflected that Young forcibly assaulted the complainant, who “kick[ed] and hit[ ] him” in an effort to make him stop.
The PSI included reports of interviews with Young’s family members, including the niece he admitted assaulting, who expressed forgiveness of Young, requested counseling and community supervision, and asked that he be sent home. The PSI also included statements by Young in which he expressed remorse, stated that he knew what he did was wrong and that he was “very ashamed” and “very sorry,” and asked for probation. The PSI also listed “supervision plan/sentencing options” available for Young and included a number of character-reference letters from family members vouching for Young’s character and requesting community supervision. Instead of placing Young on deferred adjudication community supervision, the trial court ultimately sentenced him to fifteen years’ confinement.
Ineffective Assistance of Counsel
On appeal, Young contends that his trial counsel was constitutionally ineffective because (1) he failed to file a motion for deferred adjudication, for which the record
To prevail on an ineffective assistance of counsel claim, Young must demonstrate two things by a preponderance of the evidence: (1) his trial counsel’s performance was deficient; and (2) a reasonable probability exists that, but for the deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068. An appellant seeking to establish ineffective assistance must meet both prongs of Strickland; thus, an appellate court reviewing an ineffective assistance of counsel claim is not required to address both “components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069 (“In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”). The majority concludes that Young has not demonstrated that his trial counsel’s performance was deficient; I would conclude that Young has not demonstrated that, but for his trial counsel’s alleged errors, a reasonable probability exists that the result of the proceeding would have been different and he would have received deferred adjudication community supervision instead of a fifteen-year sentence.
A. Failure to File Motion Requesting Deferred Adjudication
Young contends that his trial counsel was constitutionally ineffective because he failed to file a motion for probation when the record reflected that Young was eligible for deferred adjudication community supervision.
As the majority notes, unlike jury-recommended community supervision, which requires the defendant to file a pre-trial sworn motion averring that he has not been previously convicted of a felony, no such motion is required for the trial court to consider and impose deferred adjudication community supervision. Compare Tex.Code CRiM. Proc. Ann. art. 42.12, §§ 4(d)(3), (e) (Vernon Supp. 2011) (providing that defendant is not eligible for jury-recommended community supervision unless he files with trial court, before trial, sworn motion stating that he has not been convicted of felony in Texas or in any other state), with id. § 5 (providing that trial court may impose deferred adjudication community supervision when, in court’s discretion, “the best interest of society and the defendant will be served,” and containing no motion requirement). Instead, the decision to impose deferred adjudication community supervision lies entirely within the trial court’s discretion; although a defendant may be eligible for deferred adjudication community supervision, he is not entitled to it. See id. § 5(a) (“[Wjhen in the judge’s opinion the best interests of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an
Here, the record reflects that, although Young’s trial counsel did not file a specific motion seeking deferred adjudication community supervision, the trial court was aware that Young desired deferred adjudication. The PSI reflects, in two places, that Young was “hoping for” and “asking for” probation. The PSI also included statements from Young’s family members, including numerous character-reference letters, stating their desire that the trial court place Young on probation, require him to attend counseling, and allow him to return home. Thus, even though Young’s trial counsel did not file a specific motion seeking deferred adjudication, the trial court, by reading the PSI and the attached reference letters, was aware that Young desired probation.
To establish prejudice, Young must demonstrate that, had his trial counsel filed a motion for deferred adjudication, a reasonable probability exists that the trial court would have granted this motion and imposed deferred adjudication community supervision instead of a fifteen-year sentence. Some facts in the record indicate that Young might be a good candidate for deferred adjudication community supervision: he was only seventeen years old when the offense occurred; he admitted in the PSI that he knew what he did was wrong; he expressed remorse and a desire to obtain counseling; his family, including the complainant, expressed their forgiveness; and the PSI contained several reference letters from family members praising Young’s law-abiding ways and his general good character. The record also contains evidence, however, that Young sexually assaulted his twelve-year-old niece on two separate occasions, that these encounters were not consensual, and that violence was involved.
The trial court was aware of Young’s desire for deferred adjudication. Given the trial court’s broad discretion in sentencing and its broad discretion in determining whether to impose deferred adjudication community supervision, I cannot conclude, under the facts of this case, that the result probably would have been different had Young’s trial counsel filed a motion for deferred adjudication. Thus, I would conclude that Young has not demonstrated that a reasonable probability exists that, but for his trial counsel’s failure to file a motion seeking deferred adjudication, the trial court would have imposed deferred adjudication community supervision instead of a fifteen-year sentence.
B. Failure to Object to Errors in PSI
Young also contends that his trial counsel was ineffective because he did not object to or move to correct the PSI, which contained erroneous information regarding the Baytown incident and which erroneously reflected that Young was eighteen at the time of the charged offense.
A defendant charged with aggravated sexual assault of a child under the age of fourteen may be placed on deferred adjudication community supervision. See Tex. Code Crim. Proo. Ann. art. 42.12, § 5(a) (requiring, in these cases, affirmative finding in open court that community supervision is in best interest of victim before defendant can receive deferred adjudication community supervision). Article 42.12, section 5, subsection (d), however, limits the availability of deferred adjudication community supervision and provides that this sentencing option is not available
Here, regardless of the confusion concerning whether the Baytown incident, an aggravated sexual assault case, was part of Young’s juvenile or adult criminal record, the record is clear that no final disposition of the Baytown incident had occurred at the time the investigator prepared the PSI in this case. Thus, Young had not previously been placed on community supervision for aggravated sexual assault at the time the trial court sentenced him. Because Young would be ineligible for deferred adjudication community supervision only if he had been previously placed on community supervision for the Baytown incident, the mere fact that he had previously been arrested for this incident does not affect his eligibility. Moreover, whether this incident occurred when Young was a juvenile or an adult is irrelevant; article 42.12, section 5 does not, for example, provide that a defendant may be eligible for deferred adjudication community supervision if he has a juvenile criminal record, but ineligible if he has an adult criminal record. See id. § 5. Because these errors do not affect his eligibility for deferred adjudication community supervision, Young cannot demonstrate that, had his counsel objected to or moved to correct the errors regarding the Baytown incident, there is a reasonable probability that the trial court would have imposed deferred adjudication community supervision instead of fifteen years’ confinement.
Young’s age at the time that he committed the charged offense is likewise irrelevant to his eligibility for deferred adjudication. Article 42.12, section 5 imposes an additional requirement — a finding in open court that community supervision is in the best interest of the victim — in indecency with a child, sexual assault, and aggravated sexual assault cases in which the victim is under the age of fourteen. See id. § 5(a). The deferred adjudication statute contains no provisions restricting deferred-adjudication eligibility in aggravated sexual assault of a child under the age of fourteen cases to instances in which the defendant is a certain age, such as seventeen or younger. Thus, the erroneous implication in the PSI that Young was eighteen at the time of the charged offense has no effect on his eligibility for deferred adjudication community supervision. Young, therefore, cannot demonstrate that, had his trial counsel objected to the erroneous implication in the PSI concerning his age at the time of the charged offense, a reasonable probability exists that he would have received deferred adjudication instead of fifteen years’ confinement.
C. Failure to Request a Reporter’s Record
Finally, Young contends that his trial counsel rendered ineffective assistance be
The trial court has broad discretion in fashioning an appropriate sentencing plan. See Hurley, 130 S.W.3d at 506. Generally, punishment that is assessed within the statutory limits is not excessive, cruel, or unusual punishment. Dale v. State, 170 S.W.3d 797, 799 (Tex.App.-Fort Worth 2005, no pet.). We review Eighth Amendment challenges “by reviewing the proportionality of the sentence compared to the crime.” Arriaga v. State, 335 S.W.3d 331, 335 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd) (citing Graham v. Florida, 560 U.S. 48, 60-61, 130 S.Ct. 2011, 2022, 176 L.Ed.2d 825 (2010)). We consider (1) the gravity of the offense and the harshness of the penalty; (2) the sentence imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the commission of the crime in other jurisdictions. Id. We only consider the second two factors if we determine that the sentence is grossly disproportionate to the offense under the first factor. Id.
Young pleaded guilty to the charge of aggravated sexual assault of a child under the age of fourteen. Tex. Penal Code Ann. § 22.021(a)(l)(B)(iii), (2)(B) (Vernon Supp. 2011). As a first degree felony, this offense carries a potential punishment range of five to ninety-nine years’ imprisonment or confinement for-life. See id. § 22.021(e) (defining aggravated sexual assault as first-degree felony); id. § 12.32(a) (Vernon 2011) (describing punishment range for first degree felonies). “This legislative policy determination is entitled to wide deference.” Arriaga, 335 S.W.3d at 335.
Here, the trial court assessed punishment at fifteen years’ confinement. Other Texas courts have upheld more severe punishments for aggravated sexual assault of a child as not disproportionate to the offense and, therefore, as constitutionally permissible. See id. at 335-36 (upholding life sentence); Williamson v. State, 175 S.W.3d 522, 525 (Tex.App.-Texarkana 2005, no pet.) (upholding three life sentences for three counts of aggravated sexual assault of child); Nunez v. State, 110 S.W.3d 681, 682-83 (Tex.App.-Corpus Christi 2003, no pet.) (upholding twenty-year sentence for aggravated sexual assault of child).
Young argues that this sentence was disproportionate to the offense given his age and the fact that he was eligible for deferred adjudication. A trial court’s decision whether to impose deferred adjudication community supervision is entirely discretionary; a trial court is not statutorily required to impose deferred adjudication even if the defendant meets the eligibility requirements. See Tex.Code CRiM. PROC. Ann. art. 42.12, § 5(a); Hurley, 130 S.W.3d at 506. Given the trial court’s broad discretion in sentencing and the particular facts of this case — especially the fact that Young sexually assaulted his twelve-year-old niece on two occasions and that there is evidence that the encounters were violent and nonconsensual — I would conclude that the trial court did not abuse its discretion by refusing to impose deferred adjudication community supervision and by, instead, assessing punishment at fifteen years’ confinement. I would there
As the majority notes, trial counsel’s failure to request that a court reporter record specific proceedings is not per se ineffective assistance of counsel. Gonzales v. State, 732 S.W.2d 67, 68 (Tex.App.Houston [1st Dist.] 1987, no pet.). “Some injury resulting from the failure to request transcription must be raised by appellant on appeal.” Lopez v. State, 838 S.W.2d 758, 760 (Tex.App.-Corpus Christi 1992, no pet.).
As I have already stated, even if his trial counsel failed to object to the errors in the PSI, Young cannot demonstrate that, but for this failure, a reasonable probability exists that he would have received deferred adjudication community supervision. I would similarly hold that Young cannot demonstrate that the trial court abused its discretion when it assessed punishment at fifteen years’ confinement even though Young was eligible for deferred adjudication community supervision. Thus, regardless of whether a reporter’s record would have revealed that his trial counsel failed to object to the errors in the PSI and to the fifteen-year sentence as cruel and unusual punishment, Young cannot establish prejudice — that the result of the proceeding would have been different — as a result of his trial counsel’s failure to request a reporter’s record.
I would therefore overrule Young’s first issue on the basis that he cannot demonstrate prejudice as a result of his trial counsel’s alleged errors. I would overrule his second issue on the basis that he cannot demonstrate that the trial court abused its discretion in assessing punishment at fifteen years’ confinement instead of deferred adjudication community supervision.
Conclusion
Because I disagree with the majority’s reasoning regarding Young’s claims, but agree that Young has not established that his trial counsel rendered constitutionally ineffective assistance or that his sentence constituted cruel and unusual punishment, I respectfully concur.
. See Tex. Penal Code Ann. § 22.02l(a)(l)(B)(iii), (2)(B) (Vernon Supp. 2011).
. The facts in this summary are substantively identical to the facts contained in the probable cause affidavit included in the information initially charging Young with aggravated sexual assault in this case.