Opinion
Nos. 05-08-00196-CR, 05-08-00197-CR, 05-08-00198-CR, 05-08-00199-CR, 05-08-00200-CR
Opinion Filed December 23, 2008. DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause Nos. F06-38850-THK, F06-38866-YHK, F06-38867-YHK, F06-39144-YHK, F07-32437-JK.
Before Chief Justice THOMAS and Justices MORRIS and FRANCIS.
OPINION
Jerriel Deon Teal waived a jury and pleaded guilty to four aggravated robbery with a deadly weapon offenses and one aggravated robbery of an elderly person offense. The trial court assessed punishment at eight years in prison in each case. In three points of error, appellant contends the sentences constitute cruel and unusual punishment and he did not receive effective assistance of counsel. We affirm the trial court's judgments.
In his first two points of error, appellant argues the trial court abused its discretion in assessing unreasonable sentences because they are grossly disproportionate to the offenses and constitute cruel and unusual punishment, in violation of the United States and Texas Constitutions. Appellant asserts because he showed remorse for his actions and apologized to the complainants, and because he desired and needed rehabilitation, the trial court should have placed him on probation. The State responds that appellant failed to preserve his complaints for appellate review and, alternatively, the sentences were not grossly disproportionate so as to constitute cruel and unusual punishment.
Appellant did not complain about the sentences either at the time they were imposed or in motions for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, evidence shows the sentences are not cruel or unusual, and they are within the statutory punishment range for the offense. See Tex. Penal Code Ann. § 12.32 (Vernon 2003); Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing appellant's punishment at eight-year prison terms in each case. We overrule appellant's first two points of error.
In his third point of error, appellant contends trial counsel was ineffective for failing to present mitigating evidence. Appellant asserts that after he testified about his success in school and extra-curricular activities, counsel should have presented witnesses and documentary evidence to illustrate appellant's potential for rehabilitation. Appellant argues but for counsel's unprofessional errors, the results of the proceedings would have been different. The State contends appellant was not denied the effective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003).
During a hearing, the trial judge heard testimony from three individuals who identified appellant as the person who robbed them at gunpoint in three separate incidents. Another witness testified she saw appellant knock down an elderly woman and take the woman's purse. Appellant admitted he participated in the robberies, but denied being the gunman or the individual who knocked down an elderly woman and took her purse. Appellant testified that when he was sixteen years of age, he came home from school to find his mother had moved out and left his belongings in two trash bags. Appellant had been a good student and excelled in sports at school. After his mother left, appellant lived with a classmate's family and others while continuing school. Eventually, appellant dropped out of school and joined Job Corps, where he obtained a general education diploma and certification in painting and electrical work. Appellant became homeless and slept on the street. At some point, appellant met several young men and they became friends. Appellant was with these men when they committed the robberies.
Nothing in the record supports appellant's claim. The record does not show what witnesses, if any, were available or that their testimony would have benefitted appellant. Further, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 813; Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.). We overrule appellant's third point of error.
We affirm the trial court's judgment in each case.