Opinion
NO. 14-15-01095-CR
03-02-2017
JOE MENDIOLA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas
Trial Court Cause No. 1462708
MEMORANDUM OPINION
Appellant Joe Mendiola appeals his conviction for indecency with a child. In two issues, appellant contends (1) he received ineffective assistance of counsel with regard to his sentencing hearing and (2) he suffered cruel and unusual punishment in violation of the Eighth Amendment. We affirm.
BACKGROUND
I. Plea Proceedings
On September 11, 2015, appellant pleaded guilty to indecency with a child by touching, without an agreed recommendation as to punishment. Prior to the plea proceeding, appellant signed written plea papers, by which he waived his right to a jury trial, consented to the introduction of evidence, and judicially confessed to the offense. By signing these papers, appellant also expressed that he understood the range of punishment for the offense was two to twenty years' imprisonment and up to a $10,000 fine. During the plea proceeding, the trial court orally admonished appellant regarding the range of punishment. Appellant stated on the record that he understood the offense with which he was charged and that he was entering his plea of guilty voluntarily. The trial court also admonished appellant that he would be required to register as a sex offender for life regardless of punishment. The trial court further reviewed the written plea papers signed by appellant before accepting his plea.
After accepting appellant's plea of guilty, the trial court announced the case would be reset for the pre-sentence investigation (PSI) hearing, during which the court would "take into consideration the report that's prepared and any argument or any further evidence and testimony from witnesses." At the State's request, the trial court also dismissed related case number 1462709, in which appellant had been charged with the offense of sexual assault of a child 14-17. The State acknowledged that it had given notice in the PSI of its intent to present evidence related to the dismissed case.
II. PSI Sentencing
On November 5, 2015, the trial court held a PSI sentencing hearing. At the outset, defense counsel directed the court's attention to a memorandum filed in support of deferring adjudication, which contained three letters of support on appellant's behalf. The State then offered a copy of the PSI, which was admitted without objection.
The PSI summarized the Houston Police Department's offense report related to the instant offense. On March 28, 2015, Deputy C. Weikel was dispatched to a residence in reference to a sexual assault of a child, Robert. According to Mother, she discovered appellant in bed with Robert. Robert's underwear was partially pulled down, and appellant was rubbing Robert's genitals with his hand. Robert informed Mother that this was not the first incident and that "it had happened numerous times before for approximately two years."
We use a pseudonym to refer to the child complainant in this case.
Appellant was taken into custody. During his custodial interrogation, appellant stated that he drank "way too much" that night and indicated that he did not remember what happened. Appellant denied having ever touched Robert in an inappropriate manner.
Deputy R.S. Ackley interviewed Father, who stated that Robert was diagnosed with a sexually transmitted disease. Ackley also interviewed Robert, who relayed a version of events similar to that shared with Weikel. Robert informed Ackley that appellant had touched him inappropriately about 10-15 times over a two-year period.
In addition to details from the police offense report, the PSI contained information concerning appellant's criminal and social histories. Appellant's "prior record" showed that he was charged with committing the offense of sexual assault of a child 14-17 on the same date as the instant offense but that the case was dismissed.
During the hearing, Robert and his parents all provided testimony in line with the details contained in the offense report. Appellant also testified, at which time he apologized for everything he had done and asked the court to defer adjudication.
At the conclusion of the hearing, the trial court found appellant guilty of the offense of indecency with a child by touching and assessed punishment at confinement for twelve years in the Institutional Division of the Texas Department of Criminal Justice. Appellant did not file a motion for new trial. This appeal timely followed.
ANALYSIS
In two issues, appellant contends (1) he received ineffective assistance of counsel with regard to his sentencing hearing and (2) he suffered cruel and unusual punishment in violation of the Eighth Amendment.
I. Ineffective-Assistance-of-Counsel Claims
In his first issue, appellant asserts he received ineffective assistance of counsel during his sentencing hearing because counsel: (1) failed to request notice of the State's intent to introduce evidence pursuant to Article 37.07, section 3(g) of the Texas Code of Criminal Procedure and Texas Rule of Evidence 404(b); (2) failed to object to the introduction of extraneous offenses in the pre-sentence investigation report and hearing; and (3) failed to object to cruel and unusual punishment when appellant was sentenced to twelve years in prison.
An accused is entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, absent counsel's deficient performance, the outcome of the trial would have been different. Strickland, 466 U.S. at 689; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
When evaluating a claim of ineffective assistance, a reviewing court considers the totality of the representation and the circumstances of each case, without the benefit of hindsight. Lopez, 343 S.W.3d at 143. An appellate court must make a strong presumption that trial counsel's performance fell within the wide range of reasonably professional assistance. Id. at 142. It is not sufficient that an appellant show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence. Id. at 142-43.
For an appellate court to find that counsel was ineffective, trial counsel's deficiency must be affirmatively demonstrated in the trial record. Id. at 142. The record must demonstrate that trial counsel's performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of trial counsel's subjective reasoning. Id. at 143.
When such direct evidence is not available, we will assume that trial counsel had a strategy if any reasonably sound strategic motivation can be imagined. Id. Absent direct evidence, an appellate court should not find ineffective assistance of counsel unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In this case appellant did not file a motion for new trial alleging ineffective assistance of counsel, or develop a record of counsel's reasons for his actions. Therefore, in addressing this issue, the record is silent as to counsel's strategy.
A. Failure to request notice
Appellant first asserts trial counsel was ineffective for failing to request notice of the State's intent to introduce extraneous offense evidence contained within the PSI report — namely, the dismissed charge of sexual assault of a child as well as "numerous incidents" of indecency with a child — pursuant to Article 37.07, section 3(g) of the Texas Code of Criminal Procedure and Texas Rule of Evidence 404(b). According to appellant, counsel's failure to request notice constitutes per se ineffective assistance of counsel.
As an initial matter, we address the State's contention that the PSI does not contain any extraneous offense evidence because the dismissed sexual assault case and numerous indications of indecency derive from the same instance as the instant indecency case. An extraneous offense is an offense other than the offense charged in the indictment. Linder v. State, 828 S.W.2d 290, 294 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd) (citing Parks v. State, 746 S.W.2d 738, 738 (Tex. Crim. App. 1987)). Appellant was indicted for the offense of sexual assault of a child 14-17 years of age in a related, but separate, case. Although arising out of the same transaction as the instant case, it nevertheless constitutes an extraneous offense for purposes of Article 37.07. Additionally, to the extent the PSI contained evidence of similar, but unalleged, acts of indecency with the complainant over a period of time, such evidence constitutes extraneous offense evidence. See Sansom v. State, 292 S.W.3d 112, 127 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (holding that testimony at punishment phase about acts of sexual abuse not alleged in the indictment amounted to evidence of extraneous offenses); but cf. Worley v. State, 870 S.W.2d 620, 621-23 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (holding that testimony at guilt-innocence phase that defendant had touched appellant in the same manner as alleged in the indictment "over a hundred times" did not describe a separate offense but "merely quantified its occurrence" and therefore was admissible under Rule 404(b)).
The Code of Criminal Procedure provides, in relevant part:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or a suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). There is no evidence in the record before us that trial counsel requested notice of the State's intent to introduce extraneous offense evidence. However, the record is clear that appellant and trial counsel received notice of the State's intent to introduce the dismissed sexual assault offense at punishment. During the plea proceeding, the State announced on the record, "[W]e have given notice in the PSI that we intend to present evidence concerning that [sexual assault] case although it was dismissed." In an effort to ensure that appellant understood the State's intentions, the trial court further explained, "Even though that sexual assault case is being dismissed, the State does intend to provide the details of that offense as an extraneous offense and the sentencing report will be presented to the Court." Appellant acknowledged that he understood this evidence would be presented to the trial court during the sentencing hearing.
Appellant contends the State's notice in the PSI is unreasonable because it does not indicate the State's intention to use evidence of the offenses during the hearing; nor does it indicate the dates on which and county or counties in which the alleged numerous acts of indecency with a child occurred, as required by Article 37.07. Contrary to appellant's argument, however, notice under Article 37.07, section 3(g), is not required as to references to extraneous offenses and bad acts contained within the PSI reports. See State v. Hart, 342 S.W.3d 659, 671 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (citing Tex. Code Crim. Proc. art. 37.07, § 3(g) (stating that, "[o]n timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence"); id. art. 37.07, § 3(d) (distinguishing between trial court's hearing of evidence introduced by the parties under article 37.07, section 3(a)(1) and the trial court's consideration of the PSI report when the trial court assesses punishment); Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007) (concluding that under the plain language of article 37.07, section 3(d), the Legislature placed no conditions upon the trial court in considering the contents of a PSI report); Fryer v. State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002) (stating that the rules of evidence generally do not apply to the contents of a PSI report and that the trial court can consider the contents of a PSI report, even if the contents are hearsay or would not have been admissible if offered into evidence at the punishment hearing)).
We cannot say that trial counsel's failure to request notice of the extraneous offenses contained within the PSI was conduct "so outrageous that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at 392; see also Perez v. State, 56 S.W.3d 727, 731 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (the first Strickland prong was not satisfied where record was silent as to why trial counsel did not make particular objection). On this record, we conclude that appellant fails to meet his burden of showing that trial counsel's assistance was ineffective with regard to failing to request notice.
B. Failure to object to extraneous offenses
Appellant further contends trial counsel was ineffective for failing to object to the introduction of these extraneous offenses in the pre-sentence investigation report and hearing.
The Texas Code of Criminal Procedure provides that when assessing punishment, the trial court shall direct a supervision officer to report to the court in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal-social history of the defendant and any other information relating to the defendant or the offense requested by the court. Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a); id. art. 37.07, § 3(d). "By statute, the Legislature has directed what is to be included in a PSI, and the statute does not limit the criminal history to final convictions." Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010). In assessing punishment, a trial court may consider extraneous misconduct evidence if that extraneous misconduct is included in a PSI, even where the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt. Smith, 227 S.W.3d at 763.
To establish ineffective assistance of counsel based on a failure to object, appellant must demonstrate that the trial court would have committed harmful error in overruling the objection had trial counsel objected. DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). Appellant contends he can demonstrate the trial court would have erred by overruling the objections to extraneous offenses, citing Glivens v. State, 918 S.W.2d 30 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd). Glivens was reversed for ineffective assistance of counsel when counsel failed to object to the introduction of unadjudicated, extraneous offenses during the punishment stage of trial. See id. However, appellant's reliance on Glivens is misplaced because the law applicable in that case did not allow evidence of unadjudicated, extraneous offenses to be admitted during the punishment phase of trials for noncapital cases. Prior to September 1, 1993, unadjudicated extraneous offenses were not admissible at the punishment trial of a noncapital case. Voisine v. State, 889 S.W.2d 371, 372 (Tex. App.—Houston [14th Dist.] 1994, no pet.). After the September 1, 1993 change in article 37.07, section 3(a) of the Texas Code of Criminal Procedure, unadjudicated extraneous offense are admissible at the punishment trial of a noncapital case. Id. The offense in Glivens was committed before September 1, 1993; therefore, counsel in that case was held to be ineffective for failing to object to the admission of unadjudicated, extraneous offenses, evidence inadmissible under the law in effect at the time. Glivens, 918 S.W.2d at 34. Since the offense date in this case was after September 1, 1993, article 37.07 applies, allowing the admission of unadjudicated extraneous offenses.
Because appellant did not file a motion for new trial, the record is silent as to counsel's motives at trial. However, counsel reasonably could have concluded that any objection to the extraneous offenses would have been overruled because the trial court may consider such offenses contained in a PSI if there is some evidence from any source from which the trial court may rationally infer that the defendant had any criminal responsibility for those extraneous offenses. See Smith, 227 S.W.3d at 764.
Whatever trial counsel's reasons for pursuing the chosen course, in the absence of a record identifying these reasons, we must presume they were made deliberately as part of sound trial strategy. Because we are unable to conclude that trial counsel's performance fell below an objective standard without evidence in the record, we conclude that appellant has failed to meet the first prong of the Strickland test as to this complaint. See Goodspeed, 187 S.W.3d at 392.
C. Failure to object to punishment
Finally, appellant contends trial counsel rendered ineffective assistance for failing to object to cruel and unusual punishment when appellant was sentenced to twelve years in prison. Appellant has not shown his counsel's failure to object was "so outrageous that no competent attorney would have engaged in it." See id.
Again, appellant must show the trial court would have erred in overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). It is not ineffective assistance for counsel to forego making frivolous arguments and objections. See Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd).
The record contains sufficient evidence to show any objection on the basis of cruel and unusual punishment would have been futile. The trial court sentenced appellant for indecency with a child, a second-degree felony. See Tex. Penal Code Ann. § 21.11. The punishment range for a second-degree felony is confinement for two to twenty years, and a fine not to exceed $10,000. Id. § 12.33. Appellant's sentence of twelve years' confinement lies within that range and, therefore, is not cruel and unusual punishment. See Rummel v. Estelle, 445 U.S. 263, 274 (1980) (noting that length of sentence for felonies generally is a matter of legislative prerogative); Jagaroo v. State, 180 S.W.3d 793, 800-01 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (concluding that punishment within statutory range did not constitute cruel and unusual punishment). Thus appellant cannot demonstrate the trial court would have erred in overruling any objection to the twelve-year sentence. Accordingly, appellant has not satisfied the first Strickland prong and we overrule appellant's first issue.
II. Cruel-and-Unusual-Punishment Claim
In his second issue, appellant contends he suffered cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, where the record reflects he was sentenced to twelve years in the Texas Department of Corrections but was eligible for deferred adjudication probation. The State argues appellant failed to preserve error for appeal with regard to this issue. We agree.
A defendant must object when his sentence is assessed or file a motion for new trial to preserve a complaint of cruel and unusual punishment. See Tex. R. App. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). Appellant did not object when his punishment was announced or file a motion for new trial. Accordingly, nothing is presented for our review.
Appellant acknowledges that failure to raise an Eighth Amendment objection at trial prevents him from raising the claim on appeal. However, appellant contends that in criminal cases nothing in the Texas Rules of Evidence precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court. See Tex. R. Evid. 103(e). Appellant cites only the Rules of Evidence in support of his fundamental error argument, and, thus, we conclude such argument is inadequately briefed. See Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (holding that suggestion of fundamental error was inadequately briefed where only authority provided for argument was a citation to Rule 103(d) of the Rules of Evidence).
Moreover, appellant's Eighth Amendment claim fails to constitute fundamental error. In Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), the Court of Criminal Appeals of Texas determined that the general preservation requirement does not apply to all claims. The high court separated the rights of the defendant into three categories:
• The first category of rights are those that are "widely considered so fundamental to the proper functioning of our adjudicatory process . . . that they cannot be forfeited . . . by inaction alone." These are considered "absolute rights."Garza v. State, 435 S.W.3d 258, 260 (Tex. Crim. App. 2014) (citing Marin, 851 S.W.2d at 278-80).
• The second category of rights is comprised of rights that are "not forfeitable"—they cannot be surrendered by mere inaction, but are "waivable" if the waiver is affirmatively, plainly, freely, and intelligently made. The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver.
• Finally, the third category of rights are "forfeitable" and must be requested by the litigant. Many rights of the criminal defendant, including some constitutional rights, are in this category and can be forfeited by inaction.
Rule 33.1's preservation requirements do not apply to rights falling within the first two categories. In Garza v. State, the Court of Criminal Appeals determined that a juvenile does not waive a complaint that mandatory punishment of life in prison without the possibility of parole violated the Eighth Amendment by failing to voice that complaint in the trial court. See 435 S.W.3d at 262. The Court of Criminal Appeals noted that Eighth Amendment issues generally are forfeited if not raised in the trial court. See id. at 261. But, the high court created an exception to the preservation-of-error requirement for "substantive status-based or individualized-sentencing claims under the Eighth Amendment . . . embraced by Miller." See id. at 262. Appellant does not assert a substantive status-based or individual-sentencing claim embraced by Miller. Rather, appellant urges that he was disproportionately sentenced in light of the fact that the court could have placed him on deferred adjudication probation. Accordingly, we reject appellant's contention that this complaint constituted a complaint of fundamental error and overrule appellant's second issue. See Cerna v. State, 441 S.W.3d 860, 867-68 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (rejecting complaint based on failure to preserve error in the trial court when appellant sought extension of Miller).
Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2464 (2012) (holding that imposing a mandatory sentence of life without the possibility of parole on individuals who commit capital murder before the age of eighteen violates the Eighth Amendment).
CONCLUSION
We affirm the judgment of the trial court.
/s/ John Donovan
Justice Panel consists of Justices Busby, Donovan, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).