Brandy Bergara v. State

• Court: Court of Appeals of Texas
• Decided: August 13, 2009
• Docket: 14-07-00938-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 13, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00938-CR

BRANDY BERGARA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 04CR0846

M E M O R A N D U M   O P I N I O N

Appellant, Brandy Bergara, appeals her conviction for capital murder.  Tex. Penal Code Ann. ' ' 7.02(b), 12.31(b), 19.03(a)(2) (Vernon 2003).  We affirm.

Factual and Procedural Background

On October 11, 2002, shortly before closing, a small number of patrons remained at Murphy=s on Main, a biker bar in La Marque, Texas.  William ABill@ Cronk, his wife, Tammy, and the complainant, Joe Morreale, were sitting at the table closest to the door when two masked and armed men entered through the front door yelling for everyone to get down on the floor.  Thinking it was an early Halloween prank, the Cronks and the complainant remained seated.  One robber moved quickly toward the bar, while the second remained near the door watching the Cronks and the complainant.  The first robber moved to the bar where Jeanie Collins, and her husband, David, were on the floor.  The first robber pressed his gun to Jeanie=s head and told her to get the money out of the register.  Jeanie did as she was told, got the money out of the register, and then asked the robber if he wanted her to include the checks as well.  He told her yes, and said they would throw them away later.  While this was happening, two other patrons, Chuck Haynes and his girlfriend, crawled along the floor and escaped out the bar=s back door.  As they were exiting the bar, they heard a commotion and then the sound of gunfire.

At some point, the second robber turned away from Bill, Tammy, and the complainant, and toward the robber getting the money from the register.  Bill got up and moved behind a small wall out of the second robber=s sight.  Bill could not see the second robber, but he could see the complainant still seated at the table.  Bill testified he could tell by reading the complainant=s face that the second robber had noticed he was missing and was coming toward him.  Bill then jumped from behind the wall and began struggling with the second robber in an effort to keep the gun pointed into the air.  Within a few seconds, Bill heard two gunshots and then the first robber moved to join the struggle.  Bill was hit on the head and fell against the wall and another shot went off close to Bill and hit the wall over his right shoulder.  The struggle continued and Bill had one of the robbers by the throat when he was hit in the throat and knocked down on a couch next to the front door.  The robbers then moved to leave and as the first opened the door, Bill was able to kick it into both robbers as they exited, forcing one of the robbers to drop his gun.  The police later recovered a Lama .45 caliber pistol from the floor of the bar.

Tammy Cronk testified that while Bill struggled with the second gunman, the complainant picked up a metal chair with a cushioned seat and rushed at the first robber.  The first robber saw the complainant and fired two quick shots, hitting the complainant.  On cross-examination, Tammy admitted that in her statement she gave to the police soon after the shooting, she said she did not see the complainant get shot and did not know who shot him.  Tammy testified that shortly before the trial A[she] remembered exactly where I was sitting.  I remember what happened. And like it all came back to me.@

After escaping from the bar, Charles AChuck@ Haynes encountered Wayne Rensch, the owner of the bar, outside Wayne=s trailer behind the bar.  A bar employee had run out of the bar immediately after the robbers entered and had run to Wayne=s trailer and told him the bar was being robbed.  Wayne grabbed a handgun and the trailer=s telephone and exited his trailer and dialed 9-1-1, he then heard gunshots from inside the bar.  Chuck came up, took the handgun from Wayne, saw the robbers run out of the bar, heard another gunshot, pursued the robbers, and fired numerous shots at them.  The robbers took more than $700 from the bar=s cash register.

After the robbers left the bar, Bill saw the complainant had been shot and was lying on the floor.  David Collins attempted to perform CPR on the complainant.  He stopped when he realized he was pumping the blood out of the complainant and there was nothing they could do to help him.  The police and an ambulance arrived at the bar within minutes.  The ambulance took the complainant to Mainland Hospital where he was pronounced dead.

The Galveston County Medical Examiner=s Office conducted an autopsy.  Dr. Stephen Pustilinik testified the complainant suffered three gunshot wounds.  According to Dr. Pustilinik, one bullet went through the complainant=s right arm and then traveled into the complainant=s chest and then out of his back, causing fatal injuries.  A .45 caliber bullet was recovered from the complainant=s clothes at Mainland Hospital.  Dr. Pustilinik also testified that a second bullet hit an object, causing it to split before entering the complainant=s chest in two pieces, each piece then causing severe injuries.  Each piece of this .45 caliber bullet was recovered from the complainant=s body during the autopsy.  According to Dr. Pustilinik, each of the three gunshot wounds was independently fatal.

Following the autopsy, and a full day after the robbery, the police and some of the bar=s patrons returned to the bar in an effort to locate whatever caused the bullet to split.  The police found no evidence of a ricochet, but did find a metal chair with metal springs under the seat cushion.  There was a hole through the chair and a spring protruding through the hole.  Wayne Rensch testified the chair was his, and there was not a hole in the chair prior to the shooting.  The chair was near the complainant after the shooting.  Both the State=s and appellant=s firearms experts testified that the hole could have been made by a .45 caliber bullet.

Months after the robbery and murder, the La Marque Police Department received a Crime Stoppers tip that led them to interview appellant and Amador Sanchez.  La Marque police detectives eventually interviewed appellant twice.  The second interview occurred on March 29, 2004.  The second interview was videotaped and played for the jury and admitted into evidence as State=s Exhibit 19.  Appellant initially told the detectives she drove Sanchez and Scott Copeland to a house where they were supposed to get appellant drugs and that she did not know anything about robbing a bar.  However, after being confronted with inconsistencies in her story, appellant admitted knowing about the planned robbery of Murphy=s on Main.  According to appellant, Sanchez told her he knew a place they could rob and make some money.  Sanchez told appellant he would pay her $200 if she drove the car to accomplish  the robbery.  Initially appellant was not interested; however, after her car was repossessed, she agreed.  About a week before the robbery, Sanchez took appellant to show appellant the bar and show her where she would have to go.  The night of October 11, 2002, appellant called Sanchez and asked if they were going to do the robbery.  Sanchez said to come and get him.  Appellant borrowed a car, picked up Sanchez and they drove by the bar to make certain appellant knew where she was going.  They then picked up Scott Copeland.  Appellant said the two men did not have anything in their hands because everything was in their pockets.  In response to a question from one of the detectives asking appellant if either man said where they got the guns, appellant said Sanchez told her he already had them, that he had everything he needed.  Prior to arriving at the bar, Sanchez and Copeland tied shirts up to cover their heads.  In addition, Copeland wore a black hood over his head and Sanchez wore a poncho and used a bandana-type object to cover his face.

Appellant dropped Sanchez and Copeland off near the bar and pulled around the corner and parked to await their return.  Appellant told the police she heard at least two gunshots and saw the two men running back to the car.  When Sanchez and Copeland got back into the car, they were both upset and screaming.  Sanchez told appellant he dropped his gun.  He also told her there was fighting and he shot a man who was reaching for something or coming toward him with something to fight.  After they returned to Copeland=s girlfriend=s apartment, Sanchez paid appellant $100.  When appellant confronted him about the short payment, Sanchez explained he did not get that much money.  At the end of the interview, appellant again admitted she knew about the robbery.

Following appellant=s arrest, James Smith was appointed as her trial counsel.  On May 20, 2004, appellant was indicted for capital murder and on June 11, 2004, Michael Charlton was appointed as her lead defense counsel.  James Smith remained as her second chair defense counsel.  In July, 2006, appellant agreed to a plea bargain where she would plead guilty to the charge of aggravated robbery in exchange for testifying against Scott Copeland.  In response to that plea bargain, the trial court granted a motion to amend appellant=s indictment to charge her with aggravated robbery.  In December, 2006, at the request of appellant, James Smith was dismissed as appellant=s attorney, and Kelly Case was appointed in his place.  In February, 2007, appellant withdrew her guilty plea and entered a plea of not guilty.  On April 12, 2007, appellant was re-indicted on the charge of capital murder.

The trial court entered a docket control order on May 22, 2007 setting appellant=s capital murder trial for September 24, 2007.  On June 1, 2007 Mr. Case filed a motion for a free copy of the transcript of Scott Copeland=s capital murder trial.  The trial court granted the motion on June 29, 2007.  Also on June 1, Mr. Case filed a motion requesting an increase in his rate of compensation.  Among his arguments in support of his request for additional compensation were the following:

The Court=s failure to Order that counsel be paid an appropriate rate per hour for representation of their client will certainly deny BRANDY BERGARA her right to the effective assistance of counsel.  This effectiveness will not come as a result of counsel=s failures, but will come as a result of a failure to adequately pay for the defendant=s representation by experienced, competent and qualified defense attorneys. United States v. Cronic, 466 U.S. 648 (1984).

On August 8, 2007, the trial court removed Mr. Charlton as one of appellant=s attorneys.  More than a month later, on September 14, 2007, the trial court appointed Mark Stevens as appellant=s second attorney.  The trial court finally granted appellant=s motion for additional compensation on September 19, 2007 and included Mr. Stevens in the order as well.

In the final weeks before appellant=s trial began, Mr. Case filed numerous motions.  Among them were three motions for continuance.  The first motion was filed on September 5, 2007, and appellant listed two reasons in support of her request for a continuance.  First, appellant asserted she was entitled to a continuance because her trial counsel still had not received a complete transcript of Copeland=s trial.  Next appellant alleged she was entitled to a continuance because the trial court still had not ruled on appellant=s motion to increase her trial counsel=s rate of compensation.  During the pre-trial hearing, Mr. Case told the court he had been getting portions of the Copeland trial transcript and had received additional portions that day and he may have received the complete transcript but he had not had an opportunity to verify that.  The trial court, having granted appellant=s motion for additional compensation for defense counsel, did not rule on appellant=s September 5th continuance motion.  Appellant did not request a ruling, and did not raise the issue of the transcript again as a basis for a continuance.

On September 17, 2007, appellant filed another motion seeking a continuance because her defense team lacked a Ateam member in the psychiatric field.@  Then, on September 24, 2007, appellant filed a final motion for continuance asserting there was a gap in representation on the charge of capital murder.  In conjunction with that final motion for continuance, appellant filed a ANotice of Failure to Appoint Counsel@ in which Mr. Case asserted he did not represent appellant on a charge of capital murder, but was only appointed to handle a charge of aggravated robbery.  The motion ended with a statement that appellant was Awithout representation on her new charge of Capital Murder@ and a request that the trial court appoint her an attorney qualified to handle death penalty cases in Galveston County with additional time to prepare for trial.  However, during the hearing on the motion immediately before the trial commenced, Mr. Case told the court he was qualified to handle a capital murder case and was in fact, on the list of qualified counsel for Galveston County.  In addition, in response to a direct question from the trial court asking AHave you been her lawyer all these months getting prepared for this trial or not?@  Mr. Case answered, AYes, I have been, Your Honor.@^[1]  In addition, Mr. Stevens, appellant=s second defense attorney, represented to the trial court that if he was lead counsel, he would be ready to go to trial.  The trial court never ruled on appellant=s September 17th and 24th motions for continuance, appellant did not request rulings on the motions, and appellant announced ready for trial.

The jury found appellant guilty of capital murder.  The trial court assessed the automatic punishment of confinement for life in the Institutional Division of the Texas Department of Criminal Justice.  This appeal followed.

Discussion

Appellant raises nine issues on appeal.^[2]  In her first issue, appellant challenges the legal and factual sufficiency of the evidence supporting her conviction.  In her second issue, appellant contends her life sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article 1, ' 13 of the Texas Constitution.  In her third issue appellant asserts the trial court erred in not appointing her second counsel as soon as practicable as required by article 26.052(e) of the Code of Criminal Procedure.  Next, appellant argues the trial court erred when Mr. Stevens, her second attorney, did not have ten days to prepare for trial.  Fifth, appellant contends the trial court erred when it did not provide appellant a transcript of her co-conspirator=s trial.  Sixth, appellant contends the trial court erred when it allegedly denied appellant=s motion for real-time transcripts of her trial.  In her three remaining issues, appellant contends her trial counsel was ineffective.  We address each issue in turn.

1.       Is the evidence legally and factually sufficient?

Within her first issue, appellant raises three separate reasons why the evidence is insufficient to convict her of capital murder.  First, appellant asserts there is insufficient evidence that she should have reasonably anticipated the murder.  Next, appellant contends there is insufficient evidence that the murder was committed with the intent required for a capital murder conviction.  Finally, appellant argues the evidence is insufficient because her confession was not corroborated at trial.

A.        The standard of review.

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness= testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  Reconciliation of conflicts in the evidence is within the jury=s discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction.  Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).  An appellate court may not re-evaluate the weight and credibility of the evidence produced at trial and in so doing substitute its judgment for that of the fact finder.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  Inconsistencies in the evidence are resolved in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).    We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  Id. at 731.  First, when considered by itself, the evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.  2003).

B.        Capital murder as a conspirator.

A person commits the offense of capital murder if she intentionally commits murder in the course of committing or attempting to commit robbery.  Tex. Penal Code Ann. ' 19.03(a)(2).  A person commits murder if she intentionally or knowingly causes the death of an individual.  Id. at ' 19.02(b)(1).  A person commits a robbery if, in the course of committing theft, and with the intent to obtain or maintain control of the property, she intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Id. at ' 29.02(a)(2).  If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.  Id. at ' 7.02(b).  A defendant in a capital murder case may be convicted solely on a conspiracy theory of culpability contained in the jury charge.  Love v. State, 199 S.W.3d 447, 452 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d) (citing Fuller v. State, 827 S.W.2d 919, 932B33 (Tex. Crim. App. 1992)).  Therefore, the State is not required to present evidence of a defendant=s intent to kill as long as the evidence establishes that a felony was committed as a result of a conspiracy and the murder should have been anticipated in carrying out the conspiracy to commit the underlying felony.  Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App. 1979).

C.        Appellant should have reasonably anticipated the murder.

Appellant, relying on her video statement, argues the evidence is insufficient to establish that she should have anticipated the murder because there was no evidence presented at trial that she knew Sanchez and Copeland were armed prior to entering the bar.  Appellant further contends that, in her video statement, she did not say that Sanchez or Copeland had guns prior to the robbery, thus making the evidence insufficient to support the conclusion she should have reasonably anticipated the murder.  We disagree.

Initially, it was undisputed at trial that a robbery occurred at Murphys on Main the night of October 11, 2002 and the complainant was shot and killed during the robbery by either Sanchez or Copeland.  In addition, the jury viewed appellant=s entire statement.  In response to a question from one of the detectives asking if Sanchez had mentioned where he got the guns used in the robbery, the jury heard appellant say Sanchez told her he already had them and had everything he needed for the robbery.  The jury also heard appellant state, even though she did not see either Sanchez or Copeland holding a gun prior to the robbery, that she had seen her boyfriend and others frequently carry guns hidden in their clothes in the past and therefore was aware it was possible Sanchez and Copeland were doing the same thing.  Finally, during her statement, in response to questions about the circumstances leading up to the robbery, appellant told the detectives conducting the interview that Ayou know if you=re going to drive someone there=s always a chance.@  From this testimony, the jury was free to draw the reasonable inference that appellant knew Sanchez and Copeland were armed the night they robbed Murphys.  Villani v. State, 116 S.W.3d 297, 303 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  We hold the evidence is legally and factually sufficient that appellant should have reasonably anticipated the murder.

D.        The evidence of specific intent is legally and factually sufficient.

Appellant next contends the evidence that the murder of the complainant was committed with specific intent as required for a capital murder conviction is insufficient.  Here, appellant initially focuses on the testimony of Tammy Cronk, the only trial witness who testified to actually witnessing the shooting.  Appellant points out that, in her statement given to the police soon after the murder, Tammy said she did not know who shot the complainant and did not see the actual shooting and testified during appellant=s trial that she had only recently remembered the details of the shooting.  Next, appellant focuses on the split bullet and argues Athe evidence tends to show that the split in the bullet was likely caused by the bullet ricocheting off of some other object.  This strongly implies that the gun was not aimed directly at Joe Morreale when it was fired thus negating the specific intent necessary for a capital murder conviction.@

With regard to Tammy=s testimony, we begin by noting the testimony of a single eye witness is sufficient to convict.  Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Also, appellant=s argument contravenes the well-established standard of review for a jury=s evaluation of the credibility of the witnesses.  The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  Our evaluation of the sufficiency of the evidence should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997).  The jury is free to believe any or all of the testimony of the State=s witnesses.  Cole v. State, 194 S.W.3d 538, 551 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d).  The jury heard Tammy Cronk=s testimony, considered the inconsistencies, if any, and still determined appellant was guilty of capital murder.

We turn now to appellant=s contention the physical evidence suggests the split bullet was the result of a ricochet rather than its passage through the bar owner=s chair.  Here, appellant argues the State=s firearms expert testified a .45 caliber bullet like those which struck and killed the complainant was too big to fit through the hole in the chair.  However, we disagree the State=s firearms expert testified to that effect.  Instead, he testified that a similar bullet stuck when he inserted it into the hole in the chair.  He also testified that when inserting the similar bullet he did not apply the same amount of pressure as a bullet fired from a handgun and, Ain many cases when you have a bullet pass through an object, the diameter of the hole left behind is slightly less than the diameter of the bullet that passed through.@  In addition, appellant overlooks the testimony not only of the State=s firearms expert, but also her own expert.  Both testified it was possible that the .45 caliber bullet that split could have made the hole in the bar owner=s chair and been split as a result of hitting one of the cushion=s springs.  Appellant also ignores the testimony that the police searched for, but did not find, any evidence of a ricochet.  While appellant=s theory of the case might have been the split bullet was caused by a ricochet, it was the jury=s decision to resolve any conflicts in the evidence and their decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.  Cain, 958 S.W.2d at 410.  Finally, while appellant spends much time addressing the split bullet, she does not mention the other bullet, the one that did not strike anything before it entered the complainant=s body through his arm.  The medical examiner testified the wound created by this bullet was independently fatal.  We hold the evidence is legally and factually sufficient that the murder of the complainant was committed with specific intent as required for a capital murder conviction.

E.        Appellant=s confession was sufficiently corroborated.

Last, appellant argues the evidence supporting her conviction is insufficient because her confession was not corroborated at trial.  Once again, we disagree.

The corpus delicti rule states that an extrajudicial confession of wrongdoing, standing alone, is not sufficient to support a conviction; there must be some evidence that a crime occurred.  Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000).  The corpus delicti rule is satisfied if some evidence exists outside of the confession which, considered alone or in connection with the confession, shows that the crime actually occurred.  Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002).  The corroborating evidence does not have to connect appellant to the crime.  Id. at 644B45; Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994).  Once the corpus delicti requirements are met, a confession to the crime is, by itself, sufficient evidence to support a conviction.  Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).  In a capital murder case, the corpus delicti requirement extends to both the murder and the underlying offense, in this case, robbery.  Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997).

The record of this case contains ample evidence corroborating appellant=s confession.  Numerous witnesses testified that on the night of October 11, 2002, two armed and masked men entered Murphy=s on Main and ordered the patrons and bartender to get on the floor.  Jeanie Collins testified that one of the robbers forced her to remove the cash and checks from the cash register.  There was also testimony that a struggle ensued between Bill Cronk and one of the robbers and that the other robber fired two shots at and killed the complainant as he attempted to assist Bill.  There was also testimony that one of the robbers dropped a .45 caliber pistol as a result of the struggle with the bar patrons.  In addition, the medical examiner testified the complainant suffered three gunshot wounds, two caused by a single .45 caliber bullet which had split, and that each wound was independently fatal.  Finally, there was testimony the robbers took more than $700 from the bar that night.  This evidence meets the requirements of the corpus delicti rule as it constitutes some evidence that the crime of capital murder committed during the course of a robbery actually occurred.  Williams, 958 S.W.2d at 190.

We hold the evidence is legally and factually sufficient to support appellant=s capital murder conviction.  We overrule appellant=s first issue.

2.         Is appellant=s automatic life sentence constitutional?

In her second issue, appellant contends the automatic life sentence for a non-death penalty capital murder conviction constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, ' 13 of the Texas Constitution.  In addition, appellant argues the life sentence violates her right to due process since it was automatic upon conviction and did not allow for any accounting of personal characteristics or mitigating factors.

A defendant found guilty of a capital felony in a case where the State did not seek the death penalty Ashall@ be punished by imprisonment for life.  Tex. Penal Code Ann. ' 12.31.  When this occurs, a trial court must sentence the defendant to life imprisonment.  Tex. Code Crim. Proc. Ann. art. 37.071 ' 1 (Vernon 2006).

In Cienfuegos v. State, a case involving a capital murder conviction under the law of parties, the First Court of Appeals addressed this very issue and after an extensive examination of non-death penalty capital murder cases stated: ATexas courts have consistently held that the life sentence required under section 12.31(a) of the Penal Code and article 37.071 of the Code of Criminal Procedure is not unconstitutional as cruel and unusual punishment under the Eighth Amendment and Article I, section 13 of the Texas Constitution.@  Cienfuegos v. State, 113 S.W.3d 481, 495 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).  The First Court of Appeals then went on to hold that, when a defendant has been convicted of capital murder under section 7.02(b) of the Penal Code, the mandatory life sentence required by section 12.31(a) of the Penal Code and article 37.071 of the Code of Criminal Procedure does not constitute cruel or unusual punishment under either the Eighth Amendment or Article I, section 13 of the Texas Constitution.  Id. at 496.   We agree with the First Court of Appeals and hold appellant=s life sentence does not constitute cruel and unusual punishment under either the Eighth Amendment to the United States Constitution or Article I, section 13 of the Texas Constitution.

In her second constitutional argument, appellant contends her mandatory life sentence violates her right to due process under the Fourteenth Amendment to the United States Constitution.  We have addressed this argument before.  In Laird v. State, we held the mandatory life sentence for capital murder did not violate the defendant=s due process rights. Laird v. State, 933 S.W.2d 707, 714B15 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).  Therefore, for the reasons stated in Laird, we hold the mandatory life sentence required by section 12.31(a) of the Penal Code and article 37.071 of the Code of Criminal Procedure does not violate appellant=s due process rights.  We overrule appellant=s second issue.

3.         Did appellant waive her third issue on appeal?

In her third issue on appeal, appellant contends the trial court violated article 26.052 of the Code of Criminal Procedure because it did not appoint her second counsel as soon as practicable.  See Tex. Code Crim. Proc. Ann. art. 26.052 (Vernon 2009) (providing that, in a capital felony case, a trial court Ashall appoint two attorneys, at least one of whom must be qualified under this chapter, to represent an indigent defendant as soon as practicable after charges are filed, unless the state gives notice in writing that the state will not seek the death penalty@).  In response, the State asserts appellant waived this issue because she failed to preserve the argument for appellate review.  We agree.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.  Tex. R. App. P. 33.1(a).  It is well-established that almost every right, constitutional and statutory, may be waived by failing to object.  Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); see also Rhoades v. State, 934 S.W.2d 113, 119B20 (Tex. Crim. App. 1996) (waiver of rights under Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver of rights under United States Constitution); Wissinger v. State, 702 S.W.2d 261, 265 (Tex. App.CHouston [1st Dist.] 1985, pet. ref=d) (waiver of due process claim).

With regard to the alleged violation of article 26.052, during the approximately thirty day period when appellant was without a second appointed defense attorney, she never objected or otherwise raised this issue with the trial court; therefore this issue is not preserved for appellate review.  We overrule appellant=s third issue on appeal.  See Wright v. State, 28 S.W.3d 526, 530 (Tex. Crim. App. 2000) (stating a criminal defendant can waive complaint regarding the procedures used to appoint counsel by failing to preserve the issue in the trial court).

4.         Was appellant harmed by the timing of the appointment of her second defense attorney?

In her fourth issue, appellant contends the trial court erred when it appointed her second defense attorney on September 14, 2007, when her trial was scheduled to start on September 24, 2007.  While the record does not show exactly when Mr. Stevens received actual notice of his appointment, appellant contends it had to be less than the required ten full days of preparation time because the appointment was not entered by the trial court until the morning of September 14, 2007; thus, the appointment violated article 1.051(e) of the Code of Criminal Procedure.^[3]  Appellant also argues this alleged error is not subject to a harm analysis.

We disagree with appellant that a violation of article 1.051(e) is not subject to a harmless error analysis under Rule 44.2 of the Texas Rules of Appellate Procedure.  While the Court of Criminal Appeals did hold in Marin v. State, 851 S.W.2d 275, 281 (Tex. Crim. App. 1993), that a violation of article 1.051(e) was not subject to a harm analysis, that holding has since been overruled.  See Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (holding that all errors, except certain federal constitutional errors labeled as Astructural@ by the United States Supreme Court, are subject to a harm analysis); Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).  Therefore, we hold a violation of the article 1.051(e) requirement that appointed counsel have ten days of preparation time prior to trial is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. 

Assuming without deciding this action by the trial court violated article 1.051(e), we hold the error was harmless.  Here, there is no question appellant=s lead attorney, Mr. Case, had months to prepare for trial.  Also, the trial court appointed Mr. Stevens, appellant=s second attorney, on September 14, 2007.  Mr. Stevens appeared at, and participated in, the pre-trial hearing on September 18, 2007, so we must conclude he received notice of his appointment prior to that day.  In addition, on September 24, 2007, the day appellant=s trial started, Mr. Stevens represented to the trial court that he was ready to go to trial and he went on to play an integral role in appellant=s defense.  Because it was undisputed that a robbery occurred, that the complainant was shot and killed during that robbery, appellant confessed to participating in the robbery, and the punishment was automatic, we cannot conclude that three additional days of preparation time for Mr. Stevens would have affected appellant=s defense and the outcome of the trial.  We conclude the error was harmless.  Rivera, 123 S.W.3d at 32.

5.         Did appellant fail to preserve her fifth and sixth issues on appeal dealing with transcripts?

In her fifth issue, appellant contends the trial court violated her equal protection rights when it did not provide her with a free transcript of Scott Copeland=s capital murder trial.  Here, appellant did file a motion with the trial court requesting a free copy of the Copeland transcript, which the trial court granted.  In addition, appellant filed a motion for continuance in which she asserted one reason she needed the continuance was the fact her trial counsel had still not received the entire transcript.  We therefore construe appellant=s fifth issue as asserting the trial court violated appellant=s equal protection rights when it denied her motion for continuance based on allegedly not receiving a complete transcript of Copeland=s trial.  In her sixth issue, appellant complains the trial court erred when it denied her motion to receive real-time transcripts of the testimony during her trial.  Because they raise similar issues, we address them together.

During the pre-trial conference one week before the start of the trial, appellant=s defense counsel brought up the issue of the Copeland trial transcript.  Counsel informed the court he had received portions of the transcript and had received additional portions that day but he had not had time to verify whether he had the complete transcript.  The trial court did not rule on appellant=s motion for continuance, appellant did not request a ruling, and in fact, did not raise the issue of the transcript again, even during the discussions of his later filed motion for continuance based on other grounds on the first day of trial.^[4]  Appellant also filed a motion to receive real-time trial transcripts.  The cost and technical issues involved in such a request were discussed during the pre-trial conference on September 18, 2007.  The trial court did not rule on appellant=s motion for real-time transcripts, appellant did not request a ruling, and did not raise the issue again.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.  Tex. R. App. P. 33.1(a).  Furthermore, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court=s refusal to rule.  Moore v. State, 278 S.W.3d 444, 451 (Tex. App.CHouston [14th Dist.] 2009, no pet.) (citing Tex. R. App. P. 33.1(a)(2) and Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004)).  As discussed above, almost every right, constitutional and statutory, may be waived by failing to object.  Here, while appellant brought the issues of the Copeland trial transcript and the real-time trial transcript to the trial court=s attention, in each case she failed to obtain a ruling and did not express an objection on the trial court=s failure to rule.  Therefore, appellant failed to preserve these issues for appellate review.  We overrule appellant=s fifth and sixth issues.

6.       Did appellant receive ineffective assistance of counsel?

In her seventh, eighth, and ninth issues, appellant contends she received ineffective assistance of counsel because her attorney (1) failed to obtain a psychological evaluation of appellant; (2) failed to show appellant her video statement in a timely manner prior to trial; and (3) was generally unprepared for trial and had neglected appellant=s case due to lack of payment.  We address each contention in turn.

A.      The 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) her 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. 

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 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 that 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 814.  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 normally 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.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  However, when no reasonable trial strategy could justify trial counsel=s conduct, counsel=s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as he did.   Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).  If a criminal defendant can prove trial counsel=s performance was deficient, he must still affirmatively prove he was prejudiced by counsel=s actions.  Thompson, 9 S.W.3d at 812.  This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally.  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).

 B.     Appellant failed to demonstrate the result of her trial would have been different if her trial counsel had obtained a psychological examination of appellant.

Assuming without deciding appellant=s trial counsel=s performance was deficient as a result of a failure to obtain a psychological evaluation of appellant, we must decide if, as a result of that deficient performance, there is a reasonable probability that, but for counsel=s deficient performance, the result of the trial would have been different.  Salinas, 163 S.W.3d at 740.  In other words, we must determine whether there is a probability sufficient to undermine confidence in the outcome.  Miller v. State, 757 S.W.2d 880, 884 (Tex. App.CDallas 1988, pet. ref=d).

Here, the evidence of appellant=s guilt is overwhelming.  Appellant confessed to her involvement in planning and carrying out the robbery that resulted in the complainant=s death.  Her confession was fully corroborated.  The complainant=s murder was foreseeable, a fact appellant admitted in her confession.  In addition, as the State was not seeking the death penalty, once appellant was found guilty, her punishment, confinement for life, was automatic.  Appellant has not demonstrated a reasonable probability that, but for her trial counsel=s failure to obtain a psychological evaluation of her, the result of the proceeding would have been different.  We overrule appellant=s seventh issue.

C.      Appellant failed to demonstrate the result of her trial would have been different if her trial counsel had shown appellant her videotaped confession earlier than he did.

In her eighth issue on appeal, appellant asserts her trial counsel=s performance was deficient because he did not show appellant her videotaped confession in a timely manner.

On September 24, 2007, prior to the start of appellant=s trial, appellant=s trial counsel informed the trial court, that, because of technical difficulties, he had not yet been able to show appellant her videotaped confession.  Appellant=s counsel informed the trial court he had reviewed the contents of her statement with her.  The trial court ordered appellant=s counsel to show appellant her entire statement during a recess, which he did.  Upon returning from that recess, appellant was again offered a plea bargain of twenty-three years= in prison and she would be eligible for parole in approximately seven years.  Even after viewing her confession, appellant still rejected the plea bargain.  Appellant=s trial started shortly thereafter.

Again, assuming without deciding appellant=s trial counsel=s performance was deficient as a result of his failure to show appellant her confession sooner, appellant, while spending a great deal of space in her brief arguing the deficiencies of her counsel=s performance, has not demonstrated how the result of her trial would have been different if her trial counsel had shown her the confession sooner.  The State=s plea bargain was still available after appellant viewed the confession and appellant still rejected the deal in favor of going to trial.  We hold appellant has not met the requirements of the second Strickland prong and overrule her eighth issue.

         D.      Appellant did not establish her trial counsel=s performance was deficient because he ignored her case as a result of not being adequately compensated.

In her ninth issue, appellant contends her trial counsel=s performance was deficient because he ignored her case and failed to prepare because he was not being adequately paid.  In order to show ineffective assistance of counsel, appellant must first show that her trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms. Salinas, 163 S.W.3d at 740.  Here, appellant again points to her trial counsel=s failure to obtain a psychological evaluation, his alleged failure to obtain the complete Copeland trial transcript, his request for the appointment of a mitigation specialist the morning of appellant=s trial, as well as his argument there was a Agap@ in appellant=s representation on the capital murder charge.

To overcome the presumption of reasonable professional assistance, any 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.  Appellant did not file a motion for new trial.  In addition, her trial counsel was not afforded the opportunity to explain his decisions or trial strategy.  Here, the record on appeal does not support appellant=s contention that her trial counsel ignored her case and was unprepared.  Trial counsel filed numerous motions, vigorously cross-examined the State=s witnesses, and located a firearms expert to counter the State=s firearms expert.  In addition, appellant=s trial counsel=s tactics of filing last minute motions for continuance, a request for a mitigation specialist, and a notice of a gap in appellant=s representation on the capital murder charge with suggestions he was not qualified to handle that defense, indicate a strategy to try to force the State to change the charge to aggravated robbery not because he was unprepared but because he was aware of the strength of the State=s capital murder case as well as his client=s unwillingness to accept a plea bargain.  Therefore, we hold appellant did not prove, based on the record on appeal, that her trial counsel=s performance fell below an objective standard of prevailing, professional norms.  See Bone, 77 S.W.3d at 833; Salinas, 163 S.W.3d at 740.  We overrule appellant=s ninth issue.

Conclusion

Having overruled all of appellant=s issues on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In addition, the trial court suggested appellant=s final motion for continuance was a Astunt to try to force [the prosecution] to change [the charge] to aggravated robbery.@

^[2]  Appellant initially raised ten issues.  However, her tenth issue addressed a document missing from the Clerk=s Record.  A Supplemental Clerk=s Record containing the missing document was eventually filed making appellant=s tenth issue moot.

^[3]  In her brief, appellant argued the trial court=s failure to provide her second defense attorney a full ten days to prepare for the trial violated Article 26.04(b) of the Code of Criminal Procedure.  We construe this issue to argue the trial court=s failure to give her second attorney ten full days to prepare violated article 1.051(e) of the Code of Criminal Procedure, the article actually creating the requirement of ten days preparation time.

^[4]  While we do not reach this issue, the record does indicate appellant received the complete Copeland trial transcript.  On September 24, 2007, while discussing appellant=s motion in limine, Mr. Stevens, appellant=s second attorney, informed the trial court: AWe reviewed the records of the prior trial, judge.  I=m referring to number 18.  And there was a tendency for witnesses to characterize a person as a quote, unquote, >the shooter,= without actually saying and apparently without actually seeing that they had seen this person or that person fire weapons at anyone.@