Opinion
Nos. 01-02-01214-CR, 01-02-01215-CR, 01-02-01216-CR.
Opinion issued February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court Harris County, Texas, Trial Court Cause Nos. 897182, 896975, 896976.
Panel consists of Justices TAFT, KEYES, and BLAND.
MEMORANDUM OPINION
Appellant, Omar Andrew Pringle, pleaded guilty without an agreed punishment recommendation to three indictments charging aggravated robbery. See TEX. PEN. CODE ANN. § 29.03(a)(2) (Vernon 2003). The trial court assessed punishment for each offense at 70 years in prison, with the sentences to run concurrently. In considering appellant's sole issue, we determine whether trial counsel rendered ineffective assistance in (1) making certain statements in a memorandum addressed to the trial court for purposes of punishment and (2) allegedly failing to communicate to appellant the risks of an unnegotiated guilty plea. We affirm.
The State asks us to overrule appellant's issue summarily for inadequate briefing, specifically, for the lack of citations to authority and the record. We decline to do so because (1) appellant did cite authority, see TEX. R. APP. P. 38.1(h); (2) appellant has filed a "reply" brief that contains record references within the statement of facts, see TEX. R. APP. P. 38.1(f); and (3) we conclude that appellant's brief adequately informs us of the issues and of his arguments and thus substantially complies with the rules. See TEX. R. APP. P. 38.9.
Background
Within a matter of a few weeks, appellant committed three robberies at gunpoint. Appellant was arrested and charged separately with each offense. Appellant pleaded guilty to each offense without an agreed punishment recommendation. The trial court deferred a finding of guilt until a pre-sentence investigation ("PSI") report could be prepared. At the later PSI hearing, the trial court received punishment evidence from both parties, found appellant guilty of each offense, and assessed appellant's punishment at 70 years in prison.Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999) (applying Strickland standard at punishment phase of non-capital trial). Appellant must show both that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different, i.e., sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S.Ct. at 2064-69. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813. It is the defendant's burden to prove ineffective assistance of counsel by a preponderance of the evidence. Id. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). We normally will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Gamble, 916 S.W.2d at 93. However, "in the rare case where the record on direct appeal is sufficient to prove that counsel's performance was deficient, an appellate court should obviously address the claim. . . ." Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App. 2000).Ineffective Assistance of Counsel
A. Punishment Memorandum Appellant first argues that his trial counsel was ineffective for including certain statements in a memorandum that counsel submitted for consideration at the PSI hearing. Specifically, appellant complains that counsel (1) used "bizarre religious references that did not support the defendant's cause in any way" and that were "distracting, confusing, and inappropriate"; (2) inaccurately described appellant's crimes as having involved "debauchery," when there was no evidence of debauchery; and (3) used inflammatory language — such as "incorrigible" and "extremely heinous" — to describe appellant and his actions. Although appellant moved for new trial on this ground, he presented no evidence showing counsel's reasoning for the statements in the memorandum. Nothing shows whether counsel had previously employed the strategy underlying the memorandum, and nothing explains why he adopted that strategy here. Moreover, although some of the complained-of phrases alone may appear to be unhelpful, when we read them together with the entire letter and with counsel's argument and appellant's testimony at the sentencing hearing, we conclude that appellant has not overcome the strong presumption that the memorandum in its entirety could have constituted sound trial strategy. See Thompson, 9 S.W.3d at 813 (assigning to defendant burden to prove ineffective assistance of counsel by preponderance of evidence); Gamble, 916 S.W.2d at 93 (holding that defendant must overcome presumption that, under circumstances, challenged action might be considered sound trial strategy). For example, the heading preceding counsel's biblical references was "the mercy that comes with justice," and the biblical passages to which counsel referred were those involving mercy and justice. These references were made in the context of the remainder of the memorandum, which acknowledged the seriousness of appellant's offenses and then requested mercy from the court. In support of his plea for mercy, counsel argued six mitigating factors: appellant's age, his drug addiction, his lack of family structure and support, his lack of education, his being a non-citizen, and his good conduct since his incarceration. Counsel attached the report of a psychologist, who had concluded that "[t]here is a high probability that if [appellant] had not been under the influence of this drug he might not have committed the crimes he is accused of committing." Counsel's letter also asked the court to consider favorable letters of reference attached to the PSI report. Counsel's letter further noted that appellant denied having committed any of the eight extraneous offenses. In the letter's conclusion, counsel requested a punishment of 35 years in prison because "[t]his would allow [appellant] the opportunity at least by the time he is 38 or 39 an opportunity to make amends as a member of society" and because "[i]t meets the necessity of punishment and deterrence, but also provides the opportunity of rehabilitation." Given these aspects of the memorandum, one possible strategy was to evoke mercy by candidly admitting to the offenses, acknowledging their nature, showing remorse, revealing appellant's desire to improve his life, and denying the commission of the eight extraneous offenses listed in the PSI report (all but one of which offenses also involved the use of a firearm). Such a strategy comports with counsel's questioning and appellant's testimony at the PSI hearing. For example, appellant admitted that he had pled guilty because he was guilty; he apologized to the victims of his crimes and to his mother; he testified that he had had a serious drug problem and had been under the influence of drugs at the time of the offenses; he acknowledged that he needed to be punished for his crimes and that he was not seeking a "free ride" such as deferred adjudication or community supervision, but he also requested mercy from the court; and he claimed that he would seek an education to be productive in society and "to one day make amends" if the court gave him the opportunity through a lesser sentence. In closing, counsel again asked that justice be done, but that it be tempered with mercy, and he referred the court to the mitigating factors that were elicited in testimony, in counsel's punishment memorandum, and in the counselor's report. Counsel also emphasized that, given the nature of the offenses, appellant was not seeking a punishment as light as deferred adjudication or community supervision, but was instead seeking a lesser term of incarceration. Additionally, the totality of the record shows that counsel represented appellant vigorously. See Thompson, 9 S.W.3d at 813 (requiring consideration of totality of case's circumstances in determining counsel's effectiveness); Bui v. State, 68 S.W.3d 830, 835 (Tex.App.-Houston [1st Dist.] 2002, no pet.) ("Whether [ineffective-assistance] standard has been met is judged by the totality of the representation rather than by isolated acts or omissions by trial counsel."). Counsel successfully convinced the trial court not to consider one extraneous offense in the PSI report, and, after the trial court ruled that it would not consider three more of the offenses, counsel moved for the court to disregard the remainder. Counsel also obtained the psychologist's report noted above, which favorably found that appellant's drug use had probably induced his behavior. Counsel cross-examined the State's only witness. Furthermore, counsel presented appellant, who testified at punishment about his remorse, stated his plans to improve his life, and denied the commission of each of the four remaining extraneous offenses. Counsel then pleaded for mercy and implied that he was not seeking an unrealistic punishment, but instead a lower range of incarceration. We thus conclude that this is not one of those "rare cases" in which we can assess counsel's performance on a silent record. See Robinson, 16 S.W.3d at 813 n. 7. Moreover, counsel's strategy met with some success, and nothing shows a reasonable probability that the proceeding's result would have differed without the inclusion of the complained-of statements. See Strickland, 466 U.S. at 687-96, 104 S.Ct. at 2064-69 (requiring defendant to show reasonable probability that proceeding's result would have been different but for counsel's error or omission). Appellant faced up to life in prison and up to a $10,000 fine for each of the armed robberies. During one of the charged offenses, appellant used two guns, was "very aggressive," threatened to shoot one or two patrons, and shot at a plain-clothed police officer without "any hesitation whatsoever." The PSI set out eight extraneous offenses, as to four of which the trial court stated that the State had "established to the Court beyond a reasonable doubt" that appellant was the offender. As for the PSI report's remaining four extraneous offenses, the trial court ruled favorably to appellant, despite any effect that the complained-of statements might have had, by not considering them. Finally, the trial court may simply have found that appellant lacked credibility: appellant's testimony contradicted the testifying victim's version of one of the charged offenses, and appellant denied the commission of the four extraneous offenses that the trial court had already concluded that he had committed. We thus hold that appellant has not shown that counsel was ineffective for including the complained-of statements in the memorandum or that there was a reasonable probability that the proceeding's outcome would have differed without those statements. See Henderson, 29 S.W.3d at 624; Gamble, 916 S.W.2d at 93.B. Communicating Punishment Options
Appellant next claims that counsel was ineffective for "failing to convince his client of the enormous risk he was taking regarding sentencing" because "[h]ad [appellant] fully understood this risk, it would have made a difference in the decision he made in pleading guilty." Appellant notes that no punishment evidence would have been allowed "had [appellant] taken a plea bargain" and that "[t]here was very little evidence in favor of [appellant]. His counsel should have known that admitting the enormous amount of evidence against the defendant could not possibly help in his sentencing." Although appellant's new trial motion asserted this ground, there was no hearing on the motion, and he offered no evidence in support. The record does not show that a plea bargain was offered or requested. Neither does the record show that counsel did not fully advise appellant of the consequences of entering an open plea or that appellant would have refused to plead in any event. In fact, the record indicates the opposite. During the plea hearing, in response to his own counsel's questioning, appellant testified:Counsel: I have advised you how I feel about these cases in terms of how you're going to plead and whether it would be the best thing to plead to the Judge and have a [PSI] hearing.
Appellant: Yes, sir.
Counsel: You've understood the things that I shared with you?
Appellant: Yes, sir.
Counsel: I have explained to you that you are taking a huge risk in this case, haven't I?
Appellant: Yes, sir.
Counsel: And despite what I have explained to you, you have chosen this option, correct?
Appellant: Yes, sir.
Counsel: You understand that the Judge could give you as much as life imprisonment, you understand that?
Appellant: Yes, sir.
Counsel: You have chosen to go ahead with this particular procedure?
Appellant: Yes, sir.Similarly, when questioned by the trial court, appellant testified that he had not been promised a specific punishment; that he knew that, by pleading guilty without an agreed punishment recommendation, the trial court could assess punishment anywhere from deferred adjudication to life in prison and that there were not "any guarantees"; and that he had reviewed his plea papers with his counsel, who had explained to appellant each paragraph that appellant had initialed, and that he understood all of his counsel's explanations. And appellant again testified at the PSI hearing that his counsel had explained to him the allegations' severity and the punishment range, and appellant acknowledged that the trial court had the power "to take your freedom away from you for a long, long time." Accordingly, we hold that appellant has not shown that counsel was deficient. See Bone, 77 S.W.3d at 835 (holding that assertions of ineffective assistance of counsel must be firmly founded in record). Conclusion We overrule appellant's sole issue. We affirm the judgment of the trial court.