Seaton v. State

Full title: KATHY JO SEATON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 24, 2007

Nos. 05-06-01264-CR, 05-06-01265-CR (Tex. App. Apr. 24, 2007)

Opinion

Nos. 05-06-01264-CR, 05-06-01265-CR

Opinion issued April 24, 2007. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause Nos. F06-50419-NI and F06-67314-IMI.

Before Chief Justice THOMAS and Justices WHITTINGTON and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

SUE LAGARDE, Justice, Assigned.

In this appeal of two theft convictions, twice enhanced, appellant Kathy Jo Seaton brings two issues. First, she complains that following her pleas of guilty the trial court erred in failing to order an alcohol and drug evaluation of her pursuant to article 42.12, section 9(h) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12 § 9(h) (Vernon 2006). Second, appellant contends her trial counsel was ineffective for failing to object to the lack of such an evaluation. For reasons that follow, we affirm. Appellant was charged by indictment with theft over $500 and under $1500, twice enhanced. See Tex. Pen. Code Ann. §§ 31.03 (a), (b)(1), (e)(4)(D); 12.42 (a)(2) (Vernon Supp. 2006).² After signing plea bargain agreements and stipulations of fact, including judicial confessions, appellant pleaded guilty before the trial court as charged in the indictments.³ The trial court ordered a pre-sentence investigation report (PSI). The PSI was admitted into evidence.⁴ After considering the PSI, together with other evidence presented on the issue of punishment, the trial court found the enhancement paragraphs true and assessed punishment in each case at six years' confinement in the penitentiary and a $1,000 fine. Appellant now appeals seeking a new punishment hearing. Appellant's mother, Linda Seaton, testified at the punishment hearing. Seaton testified she had worked for Southern Methodist University (SMU) for 22 years. She felt appellant's trouble stemmed from drugs. When appellant was not on drugs she was a "totally different person." Seaton testified appellant had two children in the custody of Child Protective Services (CPS), and needed help with her addiction problems to enable her to get her children back. Seaton testified she and her husband were willing to help appellant if she was given probation. Appellant testified she wanted to get drug treatment and would like to go to Nexus because she had been ordered to do so in her CPS case. Appellant also testified about her two previous trips to the penitentiary-one for two years and one for five years. Appellant requested the trial court to place her in Nexus but testified she would go to SAFP if ordered to do so by the court. Appellant acknowledges her trial counsel did not object to the lack of an alcohol and drug evaluation; however, she contends she suffered substantial harm because of her trial counsel's failure to object. Therefore, appellant contends her trial counsel was ineffective in not objecting. She contends her request for deferred adjudication would have been more persuasive if such an evaluation had been ordered. The State responds that appellant forfeited any complaint under article 42.12 § 9(h) about the lack of an alcohol and drug evaluation by failing to object and by not requesting an evaluation. In the alternative, the State contends the PSI includes an alcohol and drug evaluation; therefore, no trial court error is shown. The State also contends appellant's ineffective assistance claim is, likewise, without merit.

2 One indictment alleged that appellant stole three packages of meat of the value of less than $1500, and that prior thereto she had twice previously duly, legally and finally been convicted of two other theft offenses. The other indictment alleged appellant stole eleven body sprays and four hygiene products of the value of less than $1500. The second paragraph of each indictment alleged appellant had previously been convicted in 2002 of a felony offense of possession of a controlled substance, and the third paragraph of each indictment alleged appellant had previously been convicted in 1998 of a felony offense of delivery of a controlled substance.

3 Apparently the pleas were open pleas because appellant and the State could not agree on whether appellant should receive deferred adjudication or penitentiary time.

4 Appellant acknowledges in footnote one of her brief the PSI indicated that if appellant received probation she needed "in patient treatment." Appellant complains that the PSI contained no specifics. In footnote two, appellant acknowledges the PSI "report indicates some history of drug use but it is not a drug evaluation as envisioned by the statute." Appellant also complains the PSI "also does not contain a supervision plan if the Appellant was placed on deferred adjudication."

Law

Article 42.12 § 9(h) provides:

On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense, or in any case involving a second or subsequent offense under Section 49.04, Penal Code, committed within five years of the date on which the most recent preceding offense was committed, or a second or subsequent offense under Section 49.07 or 49.08 of that code that involves the operation of a motor vehicle, committed within five years of the date on which the most recent preceding offense was committed, 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. The evaluation shall be made:

(1) after arrest and before conviction, if requested by the defendant;

(2) after conviction and before sentencing, if the judge assesses punishment in the case;

(3) after sentencing and before the entry of a final judgment, if the jury assesses punishment in the case; or

(4) after community supervision is granted, if the evaluation is required as a condition of community supervision under Section 13 of this article.

Preservation of Error

In order to preserve error for appeal, a party must show that the complaint was made to the trial court by a timely request, objection, or motion, stating the specific grounds for the court's ruling; the trial court must, either explicitly or implicitly, rule on the request, objection, or motion; or the trial court must refuse to rule, in which event the complaining party must object to the trial court's refusal. See Tex. R. App. P. 33.1(a)(1). The purpose of preservation of error is to give the trial court or the opposing party an opportunity to correct the error or remove the basis for the objection. See Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000). By its own terms, article 42.12 § 9(h) is triggered by a factual determination that drugs or alcohol contributed to the commission of the offense. The record before us does not reflect the trial court was ever asked to make, or did make, such factual determination. Thus, the statutory requirements of article 42.12 § 9(h) were never triggered. Nor does the record before us, which includes appellant's motion for new trial, show appellant ever objected in the trial court to the court's failure to order an alcohol and drug evaluation. Consequently, the record reflects appellant has forfeited her complaint raised in issue one. We resolve that issue against him.⁵

Ineffective Assistance of Counsel

In issue two, appellant complains her trial counsel was ineffective for failing to object to the lack of an alcohol and drug evaluation in the PSI. The standard of review for an ineffective assistance of counsel claim at punishment is the same as at guilt/innocence. See Ex parte Martinez, 195 S.W.3d 713, 726-27 (Tex.Crim.App. 2006). That is, that counsel's representation fell below an objective standard of reasonableness, and trial counsel's errors prejudiced the defense so that appellant was deprived of a fair and impartial trial. Put another way, the standard is that but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999); Ex parte Chandler, 182 S.W.3d 350, 354 (Tex.Crim.App. 2005). In the context of a guilty plea, as here, the second prong of Strickland is met by showing that but for counsel's errors, appellant would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Appellant has the burden to show ineffective assistance of counsel by a preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Such claim must be firmly grounded in the record. See Goodspeed, 187 S.W.3d at 392. In most cases, a silent record will not overcome the strong presumption of reasonable assistance, and where the record is silent regarding counsel's strategy or tactics, we will not speculate about the basis of counsel's decision. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). The court of criminal appeals has held that absent an opportunity for counsel to explain her actions before being denounced, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392. We have before us only the trial court record. Although a motion for new trial was filed, appellant did not complain in that motion of ineffective assistance nor was any post-trial evidence developed or presented to this court. Based on the record presented, appellant has failed in her burden to show her trial counsel's performance was deficient or that she was prejudiced by counsel's conduct, or lack thereof. In the face of a silent record, we decline to speculate about the basis of trial counsel's decision. Appellant has not overcome the presumption that trial counsel was competent. See Strickland, 466 U.S. at 689; Bone, 77 S.W.3d at 833. Nor has she presented any showing that but for counsel's actions, the result of her case would have been different. We resolve appellant's issue two against him. We affirm.