Opinion
NUMBER 13-19-00257-CR
07-23-2020
DONALD EUGENE SAYRE, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 25th District Court of Lavaca County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant Donald Eugene Sayre appeals his conviction for possession of a controlled substance, less than a gram, for which he was sentenced to eighteen months in a state jail facility. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). By two issues, he challenges his sentencing proceeding. We affirm.
I. BACKGROUND
Sayre was stopped by a Yoakum police officer on January 14, 2018, in the local hospital parking lot after a woman reported seeing him wandering around looking into cars and trying door handles. When the officer asked for his identification, Sayre pulled his wallet out of his pocket and the officer saw a green baggie with a crystal-like substance in Sayre's right hand underneath his wallet. Sayre tried to hide the baggie and the officer restrained him. He was arrested for possession of a controlled substance and told the officer that he had a baggie of cocaine and a baggie of methamphetamine. In addition, there were loose crystals that appeared to be methamphetamine in his wallet. Sayre was charged with a state jail felony of possession of a controlled substance, less than one gram. See id.
Sayre pleaded no contest in a March 2019 bench trial as part of an open plea. The trial court admonished him that his sentence could be 180 days to two years' imprisonment, day-for-day with little or no credit available other than his creditable jail time. The trial court encouraged him to cooperate with the Probation Department in preparation of his presentence investigation report (PSI) and informed Sayre that he would be sentenced by a visiting judge.
Sentencing was held in May 2019. Sayre's PSI was admitted at sentencing. Sayre had a lengthy misdemeanor record, but also had three felony convictions. He requested community supervision. He presented two witnesses, his girlfriend and himself. Lora Davis testified that she has end-stage liver disease, stage three kidney disease, and hepatic encephalitis. She receives some government benefits but would be homeless if she did not live with Sayre who takes care of her. Sayre testified that for eighteen months he has taken weekly drug tests that have all been clean. Probation verified that his drug tests have been clean for the past eighteen months. Sayre testified that he is disabled from an industrial injury and receives disability benefits. He further testified that he has successfully completed treatment in a Substance Abuse Felony Punishment Facility (SAFPF) on three prior occasions but has relapsed because he did not have the will to stay clean. He further testified that taking care of Davis has given him the will not to relapse and he requested to be sentenced to community supervision and not to SAFPF.
The PSI recommended SAFPF and designated Sayre a poor risk for supervision. At the time of sentencing, Sayre was fifty-six years old. For the eighteen months he had been on bond, he reported as directed and his tests were clean. His adult criminal history includes sixteen convictions of which four were felonies, the rest misdemeanors. Nearly all of Sayre's convictions are substance abuse related. He has been on probation six times and revoked three times.
Sayre has a long history of drug and alcohol abuse going back to his pre-teens. His most current substance abuse evaluation from April 2019 indicates that Sayre met the criteria for having a substance abuse disorder. He scored as a moderate risk on the Texas Risk Assessment System and offenders in this level tend to have a 38% chance of reoffending according to the PSR.
The trial court imposed a sentence of eighteen months' imprisonment in a state jail facility. Sayre appealed.
II. SENTENCING
By two issues, Sayre challenges his sentencing and requests a remand for a new sentencing. By his first issue he argues that his right against self-incrimination and his due process rights were violated when the trial court considered the PSI which included unwarned statements made by Sayre to the probation officer that were outside permissible PSI information. He argues that this violation is structural error not subject to a harm analysis.
Sayre takes issue with statements in the PSI that he made to the probation officer regarding the events leading to his arrest. According to the PSI:
The defendant reported that he was at the Yoakum hospital visiting his girlfriend. He left the hospital to walk next door to the pharmacy to get drinks for the two of them and a snack. While outside the pharmacy, the police arrived and began questioning him about looking in cars. He denied trying to get into any cars. The defendant stated that the police arrested him then and said he had drugs on him. The defendant stated, "If I did have drugs on me, I was not aware of it". He explained that he frequently picks up any trash that he sees on the ground and if there is not a trash can around, he places it in his pocket.The PSI noted that Sayre denied struggling with the arresting officer when he was handcuffed and assessed that Sayre had not taken responsibility for his possession of a controlled substance based upon his statement that "If I did have drugs on me, I was not aware of it."
Even after a guilty plea, a criminal defendant retains a right against self-incrimination as to sentencing. Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003); Carroll v. State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001); Collins v. State, 378 S.W.3d 629, 631 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However, failure to object to violation of that right waives the error on appeal. See TEX. R. APP. P. 33.1(a)(1); Collins, 378 S.W.3d at 631; Ketchum v. State, 655 S.W.2d 325, 326-27 (Tex. App.—Houston [14th Dist.] 1983, no writ) (holding defendant's failure to object at the sentencing hearing to the PSI, waived any claim that failure to admonish defendant of his rights prior to his interview violated his Fifth Amendment privilege against self-incrimination); see also Herrera v State, 599 S.W.3d 64, 67 (Tex. App. —Dallas 2020, no pet.) (failing to object to use of PSI statements at sentencing waived error); Reyes v. State, 361 S.W.3d 222, 230-231 (Tex. App.—Fort Worth 2012, pet. ref'd) (holding that objection required to preserve appellate consideration of alleged constitutional violations where probation officer interviewed defendant for PSI in his jail cell without counsel present or Miranda warnings given).
Sayre also argues that the error is structural, which precludes a harm analysis. See Turner v. State, 570 S.W.3d 250, 277 (Tex. Crim. App. 2018). Turner also addressed error preservation and held that the defendant had made his complaint known to the trial court, which Sayre did not. Nothing has been preserved for our review. Sayre's first issue is overruled.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Sayre argues that his counsel was ineffective by failing to protect him during the PSI interview and by failing to object to the use of his statements during sentencing. We review Sayre's claim of ineffective assistance of counsel under the Strickland v Washington standard. See Johnson v. State, 169 S.W.3d 223, 228 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 686, 691 (1986)). The Strickland analysis is two parts: (1) did counsel provide reasonably effective counsel, or was "counsel's performance 'so deficient that "counsel" was not functioning as the counsel guaranteed by the Sixth Amendment'"; and (2) did counsel's deficient performance prejudice the defense. Id. Both must be present. See Davis v. State, 278 S.W.3d 346, 353 (Tex. Crim. App. 2009).
Here, Sayre cannot establish prejudice from counsel's alleged failures. The applicable punishment range was 180 days to two years' state jail confinement with a possibility of community supervision. Sayre had not been successful in several previous community supervisions and had a long-standing history of substance abuse, despite his recent eighteen-month sobriety. In addition, Sayre had a substantial criminal history of substance abuse offenses. Given this record, we cannot say there is a reasonable probability that Sayre's sentence would have been different had the challenged information in the PSI been objected to and excluded.
We overrule Sayre's second issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 23rd day of July, 2020.