David Manuel Perez v. State

Affirmed and Memorandum Opinion filed May 13, 2008 Affirmed and Memorandum Opinion filed May 13, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00141-CR ____________ DAVID MANUEL PEREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1056013 M E M O R A N D U M   O P I N I O N David Manuel Perez entered a plea of guilty to the offense of aggravated robbery. See Tex. Penal Code Ann. ' 29.03 (Vernon 2003). The trial court assessed punishment at thirty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In three issues, appellant argues the trial court erred in failing to order an alcohol and drug evaluation as part of the pre-sentence investigation report (APSI@) pursuant to Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(h) (Vernon 2006), and argues he received ineffective assistance of counsel. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged by indictment with the offense of aggravated robbery as a second offender. On December 4, 2006, appellant entered a plea of guilty with no agreed recommendation for the sentence, and requested the court order a PSI report before sentencing. As part of the plea agreement, the State agreed to abandon the second offender enhancement paragraph. Appellant was informed by the court aggravated robbery is punishable by not less than five years, and no more than ninety-nine years or life in prison. Following a hearing on February 8, 2007, the court assessed punishment at thirty years= confinement. A. The PSI Report According to the PSI report, on January 31, 2006 at 6:03 p.m., a police officer was dispatched to the Value Village Store located at 9500 Jensen regarding a robbery. The complainant stated she was in her car with her three children, putting on her seat belt, when a man holding a shotgun and a bag opened her car door. The complainant later identified appellant as the suspect. Appellant told her to get out of her car or he was going to kill her and her children. The complainant and her children got out of the car, and appellant fled in her Excursion. At 11:31 p.m. that same day, officers were dispatched to 4703 North Main regarding a suspicious person. The caller stated the person was driving in and out of the parking lot screeching his tires. The officer, after watching this activity, checked the license plate number and learned the car had been stolen in an aggravated robbery at 9500 Jensen. The officer took appellant into custody and searched the vehicle, finding a shotgun next to appellant under a jacket. Appellant was interviewed by Officer Lovelace of the Robbery Division, and he denied any involvement in the robbery. Appellant claimed to have been with Joel Perez (Joel) and Shelly Wise at the time of the robbery. Officer Lovelace spoke with Joel and Wise, and Joel stated appellant came by his house bragging about Ajacking the car from some lady.@ Wise stated appellant picked her up in the vehicle and bragged about stealing it. Wise stated when she was in the vehicle with appellant, another man named Easy was also in the vehicle. Easy told her appellant had stolen a blue or white van from someone earlier in the morning. The robbery database was checked and it was found that a white van had been stolen at 9:15 a.m. that same day. The offense report stated that two Hispanic males approached the owner of the white van, pulled out a shotgun from a black duffel bag, and demanded the owner=s wallet. The owner of the white van was asked to come to the police station for a line-up to identify the suspect, but he never showed. Appellant claimed he was not guilty of the offense in a letter he wrote to the court. Appellant claimed he was in a car driven by a friend, and did not know the car was stolen. Appellant explained he was sitting in the drivers seat, waiting for his friend to come back to the car, when he fell asleep and was awakened by police officers. Appellant wrote he pled guilty because he hoped the court would grant him community supervision, and if the court did so he would straighten up his life and Astay away from all those negative people in [his] life that may mess over [him].@ In an interview with the PSI writer, appellant explained he pled guilty to the offense because the complainant=s daughter had picked him out in a lineup and he did not think he stood a chance at trial. Appellant also stated he was never on probation and wanted the court to give him a second chance. Appellant=s criminal record consists of eight felony convictions and three misdemeanor convictions. Appellant was convicted for controlled substance conspiracy in 2002, delivery of a controlled substance in 2003, and for possession of a controlled substance in 2004. The conviction for controlled substance conspiracy occurred in Denver, Colorado, and following that conviction appellant was placed on probation. Appellant failed to report for probation and was sentenced to sixty days in the Denver County Jail. Following his release, appellant failed to report for probation, fled Colorado, and moved to Houston. A warrant was issued for appellant=s arrest which is currently active. Appellant was on parole for a prior evading arrest conviction when he committed the aggravated robbery. Appellant was released from prison on parole on January 13, 2006, and his parole was revoked on March 1, 2006. The discharge date of appellant=s parole was May 9, 2007. Appellant reported in an interview with the PSI writer he smoked marijuana as a teenager, but denied any further use since he was fifteen. Appellant stated to the PSI writer he was addicted to cocaine at one point in his life and sought treatment at Charter Hospital in 1996, but he also stated the last time he used cocaine was when he was twenty-three years old, which was over four years ago. Appellant informed the PSI writer he drank alcohol occasionally and denied he had a problem with alcohol. B. Testimony During The Punishment Phase During the punishment phase, appellant testified he had a past drug problem and entered Alcoholic=s Anonymous (AA) while in jail. Appellant testified he attended AA meetings because he wanted a sponsor to help him, because A[he] still need[ed] all the help [he] c[ould] get.@ Appellant testified the drug problems he had in the past contributed to some of his past behavior prior to being placed in jail. DISCUSSION A. Did The Trial Court Err in Failing to Order a Drug and Alcohol Evaluation Prior to Sentencing? In appellant=s first issue, he argues the trial court erred when it failed to order a drug and alcohol evaluation as part of the PSI report pursuant to Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(h). Specifically, he argues there was ample evidence to determine that alcohol and drugs contributed to appellant committing the crime, and therefore the trial court erred by not ordering a drug and alcohol evaluation prior to sentencing. 1. Standard of Review Article 42.12, Section 9(h) provides in part: (h) On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense, . . . the judge shall direct a supervision officer . . . 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: . . . (2) after conviction and before sentencing, if the judge assesses punishment in the case. Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(h). The statute is mandatory. Smith v. State, 91 S.W.3d 407, 409 (Tex. App.CTexarkana 2002, no pet.). However, a party must assert his right to a substance abuse evaluation or it is waived.[1] Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.CTexarkana 2003, no pet.); see Nguyen v. State, 222 S.W.3d 537, 541B42 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d) (appellant=s failure to object at trial resulted in waiver of any error in trial court=s failure to order a psychological evaluation as part of the PSI report; psychological evaluation is Aanalogous@ to alcohol and drug evaluation); see also Tex. R. App. P. 33.1(a). 2. Error was Waived Appellant failed to object at or after the sentencing hearing to the court=s failure, if any, to order a report under Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(h). Because appellant failed to assert his right or bring the court=s attention to these alleged inadequacies of the PSI, any error is waived. See Tex. R. App. P. 33.1(a). Accordingly, appellant=s first issue is overruled. B. Did Appellant Receive Ineffective Assistance of Counsel? In his second and third issues, appellant argues he received ineffective assistance of counsel. First, appellant argues he received ineffective assistance of counsel because trial counsel failed to request that the trial court conduct an alcohol and drug evaluation. Second, he argues he received ineffective assistance of counsel because trial counsel failed to object that an extraneous aggravated robbery described in the PSI report was not proven beyond a reasonable doubt.[2] We disagree. 1. Standard of Review In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An accused is entitled to reasonably effective assistance of counsel. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). However, reasonably effective assistance of counsel does not mean an accused is entitled to error-free representation. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 813. When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). When the record is silent as to the reasons for counsel's conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 2. Trial Counsel=s Failure to Request a Drug and Alcohol Evaluation in the PSI Report was not Deficient. In his second issue, appellant contends trial counsel=s silence in regard to the alcohol and drug evaluation is evidence of ineffective assistance of counsel. We disagree. In order to show ineffective assistance of counsel, an appellant must first show that his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms. Salinas, 163 S.W.3d at 740. Appellant failed to show trial counsel=s failure to request an alcohol and drug evaluation fell below the standard of prevailing professional norms. There was no direct evidence that alcohol or drug abuse contributed to appellant=s commission of the aggravated robbery. Appellant admitted he had an addiction to cocaine, but he also stated in the PSI report he had not used cocaine in over four years. Appellant stated he occasionally drank alcohol, but denied having a problem with alcohol or being addicted to alcohol. Appellant stated in the PSI report he had not smoked marijuana since he was fifteen years old. The only testimony that even remotely indicated appellant had a problem with alcohol or drugs was his testimony during the punishment phase of the trial. Appellant testified he attends AA meetings in jail and he had a drug problem in the past. He testified his past drug problems contributed to some of his past behavior. All of appellant=s drug use was in the past, and he denied ever having an addiction to alcohol. There is no basis in the record to support trial counsel requesting an alcohol and drug evaluation. Trial counsel=s alleged errors do not rise to the level such that no reasonable attorney could have made such trial decisions. Appellant failed to rebut the strong presumption counsel was performing in a reasonably professional manner. Because appellant has failed to establish the deficient performance prong of Strickland, we do not reach the prejudice prong. We overrule appellant=s second issue. 3. Appellant Failed to Demonstrate How Trial Counsel=s Failure to Object to the Extraneous Aggravated Robbery in the PSI Report Caused Harm. In his third issue, appellant contends he received ineffective assistance of counsel because trial counsel failed to object that an extraneous aggravated robbery described in the PSI report was not proven beyond a reasonable doubt. Assuming without deciding trial counsel=s failure to object to the extraneous aggravated robbery described in the PSI report violates the first prong of Strickland, appellant failed to demonstrate how this failure harmed him. Appellant argues the extraneous aggravated robbery in the PSI report contributed to appellant=s lengthy punishment. Specifically, appellant argues the trial court likely considered the second aggravated robbery in assessing appellant=s punishment because it exceeded the State=s request for twenty-five years= confinement. We disagree. There is ample evidence supporting the trial court=s punishment. At the time appellant was sentenced, there was an active warrant for his arrest in Colorado for failing to report for probation. Appellant failed to report for probation after he was convicted for controlled substance conspiracy, a third degree felony. Appellant was sentenced to sixty days= confinement in the Denver County Jail. Upon release appellant once again failed to report for probation, fled Colorado, and moved to Houston. A warrant was issued for appellant=s arrest which at the time of sentencing was still active. Appellant has eight felony convictions and three misdemeanor convictions since 1999. Appellant=s felony convictions were for theft, delivery of a controlled substance, forgery, two convictions for unauthorized use of a motor vehicle, possession of a controlled substance, the aforementioned controlled substance conspiracy, and evading arrest. Appellant was released from prison on parole on January 13, 2006, following his conviction for evading arrest. Appellant committed this aggravated robbery a mere eighteen days later.[3] Appellant=s parole had been revoked at the time of sentencing in this case, and was set to discharge on May 9, 2007. Appellant pled guilty to an offense that carried a punishment range of five years to ninety-nine years or life in prison. Appellant was sentenced to thirty years= confinement. Under these facts, thirty years= confinement is a reasonable sentence in relation to the crime. Thus appellant has not established by a preponderance of the evidence that there is a reasonable probability that, but for trial counsel=s alleged deficiencies, the result of the trial would have been different. Appellant=s third issue is overruled. Conclusion Having overruled each of appellant=s issues, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed May 13, 2008. Panel consists of Chief Justices Hedges, and Justices Anderson and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] We have ruled on this issue before, and held the same. Leyva v. State, No. 14-02-00849-CR, 2005 WL 240610, at *1 (Tex. App.CHouston [14th Dist.] Feb. 3, 2005, no pet.) (mem. op., not designated for publication). [2] Appellant argues the extraneous aggravated robbery was not proven beyond a reasonable doubt because there was no direct, eye witness, or circumstantial evidence in the report linking appellant to the alleged event. [3] The date of the aggravated robbery was January 31, 2006.