Opinion
NO. 09-11-00189-CR
07-11-2012
VIET VAN HO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 09-04-03994-CR consolidated with
Cause No. 09-04-03993-CR
MEMORANDUM OPINION
This is an appeal of two judgments sentencing appellant, Viet Van Ho, to seventy-five years confinement on two counts of aggravated robbery, sentences to run concurrently. Van Ho pleaded guilty to both counts and three enhancement paragraphs and elected to have the trial court assess punishment. Van Ho argues on appeal that he received ineffective assistance of counsel. We affirm the judgment of the trial court.
Van Ho argues that trial counsel was ineffective for failing to object to his sentences under the Eighth Amendment of the United States Constitution, which prohibits cruel and unusual punishment. See U.S. CONST. amend. VIII. To show ineffective assistance of counsel, Van Ho must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
To show deficient performance, the defendant must prove by a preponderance of the evidence that his counsel's representation fell below the standard of professional norms. To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007) (footnotes omitted) (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). This standard applies to claims of ineffective assistance of counsel in both the guilt or innocence phase and the punishment phase of noncapital trials. Hernandez v. State, 988 S.W.2d 770, 771-73 (Tex. Crim. App. 1999).
We "'must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'" Williams, 301 S.W.3d at 687 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient and so lacking as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. In most cases, "'the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.'" Id. (quoting Thompson, 9 S.W.3d at 813-14).
The Eighth Amendment's prohibition against cruel and unusual punishment serves as the legal basis for a claim that one's sentence is excessive or disproportionate to the crime. See U.S. CONST. amend. VIII. A complaint that a sentence is excessive or unconstitutionally cruel and unusual is waived if not preserved by trial counsel by an objection at the time the sentence is imposed or by a motion for new trial. Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Van Ho's trial counsel did not object when Van Ho was sentenced. Although, counsel filed a motion for new trial, he did not argue that Van Ho's sentences violated the Eighth Amendment or were otherwise excessive or disproportionate. Counsel's failure to preserve a complaint that the defendant received an excessive or disproportionate sentence is not per se ineffective. To show ineffective assistance of counsel under these circumstances, Van Ho must establish that the trial court would have erred in either overruling an objection to the sentences imposed or overruling a motion for new trial complaining that the sentences were disproportionate or excessive. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). We conclude the trial court would not have erred in overruling an Eighth Amendment objection to Van Ho's sentences.
Van Ho pleaded guilty to two counts of aggravated robbery and true to three enhancement paragraphs. Prior to sentencing Van Ho, the trial court heard testimony from multiple witnesses regarding Van Ho's immigration to the United States at the age of twelve, his life struggles, his prior drug addiction, and his lengthy criminal history. The trial court also heard testimony from the victims of the aggravated robbery. After hearing the evidence and arguments of counsel, the trial court took a brief recess to further review the exhibits. On the record, the trial court complimented defense counsel on counsel's exemplary representation of Van Ho in the punishment hearing. The trial court sentenced Van Ho to seventy-five years confinement on each offense, sentences to run concurrently. While substantial, the sentences imposed are less than the maximum available punishment for aggravated robbery, which carries a maximum penalty of ninety-nine years confinement. Tex. Penal Code Ann. § 12.32 (West 2011).
We note that the charged offenses were committed in 2004. However, because subsequent statutory amendments do not affect our disposition of this appeal, we cite the current version of the statute.
Van Ho's sentences are within the range of punishment the legislature deems appropriate for the offense of aggravated robbery. See id. Generally, a sentence that is within the range of punishment established by the legislature will not be disturbed on appeal. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Appellate courts rarely consider sentences within the statutory range of punishment excessive, or unconstitutionally cruel or unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.— Dallas 1997, pet. ref'd). Outside the context of capital punishment, successful challenges to the proportionality of imposed sentences are exceedingly rare. Solem v. Helm, 463 U.S. 277, 289-90, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). A narrow exception to this rule is recognized where the sentence is grossly disproportionate to the offense. Harmelin v. Michigan, 501 U.S. 957, 1004-006, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring); Solem, 463 U.S. at 290-91. A punishment is grossly disproportionate to the crime committed only when an objective comparison of the gravity of the offense against the severity of the sentence shows that the imposed sentence was extreme. Harmelin, 501 U.S. at 1001; Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). We consider the gravity of the offense in light of the harm caused or threatened to the victim and the culpability of the offender. Solem, 463 U.S. at 292.
At the punishment hearing, the victims, S.B. and M.B., testified regarding the details of the aggravated robbery that occurred in their home. During the robbery, S.B. and M.B. were bound and held at gunpoint. The intruders threatened to shoot S.B.'s wife, M.B., and then shoot S.B. S.B. and M.B. both testified that the intruders threatened to cut off the other's fingers if S.B. did not get the safe open. S.B. testified that he opened two safes, as demanded by the intruders. The intruders took a large amount of cash, which S.B. testified was their life savings, saved over a period of forty-five years for their retirement. The intruders also took forty-two guns from S.B.'s gun collection, along with jewelry and other valuables. DNA evidence and testimony established that Van Ho was not a passive participant, but one of the primary actors. Van Ho pleaded guilty to two counts of aggravated robbery, a first degree felony, and true to three enhancement paragraphs. He received less than the maximum sentence for his offenses. The evidence also established past periods of incarceration and Van Ho's continuous involvement in criminal activity spanning nearly two decades.
Considering all of the facts and circumstances, Van Ho's sentences were not grossly disproportionate. Moreover, the record is silent as to any reason for trial counsel's actions or omissions at the punishment hearing. Under these circumstances, we cannot conclude trial counsel's performance in failing to object to the imposed sentences on Eighth Amendment grounds fell below an objective standard of reasonableness. Nor do we find that 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). We overrule Van Ho's sole issue on appeal and affirm the judgment of the trial court.
AFFIRMED.
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CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.