Opinion
Nos. 05-06-01308-CR, 05-06-01319-CR
Opinion Filed July 20, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F05-15208-RW, F05-15213-RW.
Before Justices WRIGHT, RICHTER, and LANG.
OPINION
Candi Marie Wiggins a/k/a Candi Wiggins Harris waived a jury and pleaded guilty to two counts of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2006). The trial court assessed punishment at life imprisonment and a $10,000 fine in each case, and ordered the sentences to be served consecutively. In three points of error, appellant contends the trial court abused its discretion in assessing unreasonable sentences and appellant did not receive effective assistance of counsel. We affirm the trial court's judgments. In her first and second points of error, appellant argues the trial court abused its discretion by assessing an unreasonable sentence in each case. Specifically, appellant asserts that consecutive life sentences are akin to receiving a death penalty and constitute cruel and unusual punishment. See U.S. Const. Amend. VIII, XIV; Tex. Const. art. 1, § 13. Appellant argues that because she suffers psychological and emotional damage from childhood sexual abuse, the sentences assessed are grossly disproportionate to the offenses. The State responds that appellant did not preserve her complaints for appellate review and, alternatively, the sentences do not violate the United States or Texas Constitution. Appellant did not complain about the sentences either at the time they were imposed or in her 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, there is no evidence the sentences are cruel or unusual, and they are within the statutory punishment range for the offenses. See Tex. Pen. Code Ann. § 12.32; Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We overrule appellant's first and second points of error. In her third point of error, appellant argues counsel was ineffective because he (1) elicited damaging testimony from appellant, (2) failed to argue against stacking the sentences, and (3) told the trial judge that stacked sentences were appropriate in these cases. Appellant asserts that because she accepted responsibility for her actions and was remorseful for what she had done, counsel's comments severely prejudiced her mitigation evidence. The State responds that the record does not support appellant's claims that counsel rendered ineffective assistance. 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 the plea hearing, appellant testified she was freely and voluntarily pleading guilty to the charges in the indictments, and voluntarily signed judicial confessions in these cases. Appellant also testified she was satisfied with counsel's representation. The trial judge passed the case for a presentence investigation report and sentencing. At the sentencing hearing, appellant testified about her own childhood sexual abuse by her mother's boyfriend, who took appellant to Mexico and prostituted her. Appellant testified about the sexual acts she performed on her daughter, and how she directed her husband to insert his penis in her daughter's vagina while appellant held the child down and put a gag in the child's mouth. Although appellant complains that counsel elicited damaging testimony from her, the record shows both the prosecutor and the trial judge questioned appellant about her actions in the sexual abuse of her daughter. The trial judge asked appellant whether she or her husband was the person controlling the sexual abuse of the daughter, and who made the husband insert his penis in the daughter's vagina. Appellant told the judge she controlled everything and told her husband to insert his penis in her daughter's vagina because that is what appellant wanted to happen. Appellant denied knowing that her husband made her daughter perform oral sex on him every morning. Appellant also told the judge that knowing her husband had already received a life sentence for his part in the sexual assaults, she believed she should receive more punishment than her husband because she was the person controlling everything. Appellant asked the judge to place her on deferred adjudication probation, as did her counsel in his closing arguments. After hearing appellant's testimony, the trial judge found appellant guilty on the evidence presented and sentenced her to life in prison and a $10,000 fine in each case. The prosecutor interrupted the judge and requested the sentences be stacked. During an off-the-record conversation between the prosecutor, trial judge, and appellant's counsel about the prosecutor's request, the judge said she believed appellant's actions were worse than her husband's actions. Counsel said, "Judge, if we go by the testimony in this case, then we could probably have about 20 life sentences stacked on. And if a life sentence isn't enough in this case, then I don't know what is." Counsel went on to point out that at least appellant took responsibility for her actions. The prosecutor pointed out that appellant testified she was more responsible than her husband and deserved worse punishment. Nothing in the record supports appellant's claims. Further, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met her burden of proving by a preponderance of the evidence that counsel was ineffective. See Rylander, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We overrule appellant's third point of error. We affirm the trial court's judgment in each case.