Corey Harrison v. State

• Court: Court of Appeals of Texas
• Decided: February 18, 2010
• Docket: 01-09-00046-CR
• Status: Published

Opinion

Opinion issued February 18, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00045-CR

NO. 01-09-00046-CR

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Corey Harrison, Appellant

V.

State of Texas, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Case Nos. 1188431 & 1188433

MEMORANDUM OPINION

          Appellant Corey Harrison pleaded guilty to the felony offenses of aggravated robbery and aggravated assault and true to two enhancement paragraphs, without an agreed punishment recommendation.[1]  See Tex. Penal Code Ann. §§ 22.02, 29.03 (Vernon 2003).  The trial court ordered a pre-sentence investigation (PSI) and, after receiving the PSI report, held a sentencing hearing.  See Tex. Code (Tex. Crim. App. Proc. Ann. art. 42.12, § 9 (Vernon Supp. 2008).  After the hearing, the trial court assessed punishment at forty years’ imprisonment.  Harrison contends that (1) the trial court erred in relying on allegedly inaccurate extraneous offenses listed in the PSI report; and (2) he received ineffective assistance of counsel because his counsel failed to object to the admission of the reported offenses in the PSI.  See U.S. Const. amend. VI; Tex. Const. art. I, § 10.  Finding no error, we affirm.

BACKGROUND

          One evening in December 2007, Linda Mazzei met her sister, Catherine Weiman, for dinner and shopping.  After the two women completed their errands, they began loading their purchases into the trunk of Mazzei’s car.  Harrison approached them in the parking lot, said something to Mazzei, and held a handgun to her forehead.  Mazzei tossed her purse to Harrison, then ran toward her sister to shield her.  Harrison shouted and again pointed his gun toward them.  Then, taking Mazzei’s purse with him, Harrison got into a nearby car and attempted to drive away.  Weiman followed Harrison’s car out of the parking lot and summoned the police.  The police stopped Harrison and arrested him.

          Harrison pled guilty to the felony offenses of aggravated burglary and aggravated assault as charged.  During the sentencing hearing, Harrison testified that he had an opportunity to read the pre-sentence investigation report and verified that the information in the report was correct.  He further testified to having been under the influence of marijuana when he committed the robbery.  On cross-examination, Harrison conceded that he had a history of illegal drug use, two prior convictions for unlawful possession of a firearm, and had been terminated from his last job for theft.

DISCUSSION

I.       Challenge to consideration of PSI

          Harrison’s social criminal history detailed in the PSI report constitutes extraneous evidence of crimes or bad acts governed by article 37.07 of the Texas Code of Criminal Procedure and Rule of Evidence 404(b).  See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon 2006) (citing Tex. R. Evid. 404(b)).  Article 37.07 provides that, “[o]n timely request of the defendant,” the State must provide “reasonable notice . . . in advance of trial” of its intent to introduce extraneous-conduct evidence.  Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g); see Tex. R. Evid. 404(b).  The trial court has broad discretion to admit or exclude extraneous-conduct evidence.  Garcia v. State, 239 S.W.3d 862, 866 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

          Harrison contends that the report of his criminal history in the PSI contains defects, such as the reporting of offenses with an “unknown” disposition and a charge he contends is false, as well as other errors.[2]  As a result, Harrison contends, we should reverse for a new sentencing hearing so that Harrison can point out those defects to the court. 

          A defendant’s allegation that information contained in his PSI report is factually inaccurate does not render the report inadmissible.  Stancliff v. State, 852 S.W.2d 630, 631–32 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Templeton v. State, No. 01-96-01150-CR, 1997 WL 167841 (Tex. App.—Houston [1st Dist.] Apr. 10, 1997, pet. ref’d) (unpublished).  Harrison bore the burden to point out any material inaccuracy in the PSI to the trial court at the time of the sentencing hearing.  See Garcia v. State, 930 S.W.2d 621, 623–24 (Tex. App.—Tyler 1996, no pet.); Stancliff, 852 S.W.2d at 632; see also Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a), (e) (Vernon Supp. 2003).  He waived this contention by failing to first object or make the required showing before raising the issue on appeal.  See Tex. R. App. P. 33.1; see Reagan v. State, 832 S.W.2d 125, 127 (Tex.App. —Houston [1st Dist.] 1992, no pet.).

II.      Ineffective assistance of counsel claim

          A.      Standard of review

          Harrison contends that trial counsel’s failure to object to the errors in the PSI amounts to ineffective assistance in violation of the federal and the Texas constitution.  In reviewing claims of ineffective assistance of counsel, we employ the standard of review established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).  See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (holding that Strickland two-prong test applies to ineffective assistance claims throughout trial, including punishment).  To obtain reversal of a conviction based on ineffective assistance of counsel, the defendant must show that (1) counsel’s representation fell below objective standards of reasonableness, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.  Id. at 775 n.3.

Harrison has not satisfied his burden.  The record before the trial court does not show that the extraneous offense report was materially inaccurate or that the trial court relied on inaccurate information in determining Harrison’s sentence.[3]  See Garcia, 930 S.W.2dat 623–24; Stancliff, 852 S.W.2d at 631–32; see also Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a), (e).  In particular, nothing in the record indicates that the trial judge, who is presumed to know the law, relied on any allegation of an extraneous offense that the State had failed to prove as a matter of law, including alleged offenses for which the disposition was “unknown.”  Neither the trial court nor the State mentioned the PSI report during the sentencing hearing, and the facts presented during the sentencing hearing support the forty-year sentence assessed in this case independently of the criminal history detailed in the PSI report. 

CONCLUSION

          We hold that Harrison waived his objection to the PSI report and that he failed to meet his burden to show ineffective assistance of counsel under Strickland.  We therefore affirm the judgment of the trial court.  All pending motions are dismissed as moot.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]  The enhancement paragraphs in the indictment recite that Harrison has a prior conviction for felony possession of a controlled substance and a prior conviction for being a felon in possession of a weapon.

[2]  At this court’s request, the trial court clerk supplemented the appellate record with a copy of the PSI report.

[3] Harrison filed a motion for new trial, but not until after the trial court’s plenary power expired.  The motion for new trial attaches Harrison’s Louisiana rap sheet and Louisiana authority concerning the listed offenses.  This evidence was not timely presented to the trial court.  Even considering it, the record still is not sufficiently developed to support a conclusion that the trial court relied on any materially inaccurate information in assessing Harrison’s sentence.