Dan Charles Powers v. State of Texas

• Court: Court of Appeals of Texas
• Decided: June 27, 2002
• Docket: 11-01-00129-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Dan Charles Powers

Appellant

Vs.                   No. 11-01-00129-CR  --  Appeal from Collin County

State of Texas

Appellee

Appellant was indicted for the sexual assault of his 14-year-old stepdaughter.  The indictment alleged that appellant:  (1) penetrated his stepdaughter=s female sexual organ with his finger and with a curling iron; (2) penetrated and caused contact with his stepdaughter=s mouth with his male sexual organ; and (3) engaged in sexual contact by touching his stepdaughter=s breast with his hand and  mouth.  Upon accepting appellant=s open plea of nolo contendere, the trial court ordered that a presentence investigation report be prepared and scheduled the matter for sentencing at a future date.  Upon the conclusion of the sentencing hearing, the trial court convicted appellant and sentenced him to confinement for 8 years.  We affirm.

Appellant argues in his first and second points of error that he was denied effective assistance of counsel under the protections of both the United States^[1]  and Texas Constitutions.^[2]  His allegation stems from the evidence offered at the sentencing hearing.  He contends that his trial counsel did not file appropriate requests which would have required the State to disclose extraneous offenses upon which it intended to rely during the punishment hearing.  Appellant further alleges that his trial counsel did not object to evidence of extraneous offenses which were offered at the punishment hearing.

In reviewing a claim of ineffective assistance of counsel, we must apply an objective standard of reasonableness.   A defendant making a claim of ineffective assistance of counsel must show:  (1) that counsel was deficient and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986).  We analyze appellant’s state and federal claims together because the Texas constitutional and statutory provisions do not provide any greater protection than the federal provisions.  See Butler v. State, 872 S.W.2d 227 (Tex.Cr.App.1994), cert. den'd, 513 U.S. 1157 (1995).

A claim of ineffective assistance of counsel must be determined on the particular facts and circumstances of each individual case.  See Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App. - San Antonio 1991, pet’n ref'd).  Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance deficient.  McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den'd, 508 U.S. 963 (1993).  Whether the Strickland test has been met is to be judged by the totality of the representation.  McFarland v. State, supra.   There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See Strickland v. Washington, supra at 689; Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App.1991). Stated another way, "competence is presumed  and appellant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy." Stafford v. State, supra at 506. 

Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Cr.App.1985).  Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. See Jimenez v. State, supra at 338. However, while a defendant must overcome the presumption that the complained of errors are supported by trial strategy, counsel's conduct will not be supported by the presumption of competence where counsel's actions cannot be attributed to any reasonable trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App.1994).

Appellant’s complaints primarily focus on the disclosure of information contained in the presentence investigation report.  Appellant contends that his trial counsel should have objected to the disclosure of information contained in the report which he asserts was extraneous.  Specifically, appellant’s wife was questioned about comments appellant had made about her daughter’s breasts, instances wherein appellant had removed the victim’s bathing suit in the swimming pool, and appellant’s use of alcohol.   Appellant contends that his trial counsel should have sought to exclude these matters under TEX. CODE CRIM. PRO. ANN. art. 37.07, § 3 (Vernon Supp. 2002) even though they were contained in the presentence investigation report.

TEX. CODE CRIM. PRO. ANN. art. 42.12, § 9(a) (Vernon Supp. 2002) provides in relevant part:

[B]efore the imposition of sentence by a judge...the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.

This statute is broadly worded and, by its plain language, allows inclusion of any information relating to the defendant or the offense.   Fryer v. State, 68 S.W.3d 628, 629 (Tex.Cr.App.2002).   Article 37.07, section 3(d) provides for the trial court's consideration of the report at the sentencing phase of trial.  Fryer v. State, supra at 629.   Contrary to appellant’s contention, Article 37.07, section 3 does not restrict the court’s consideration of matters contained in a presentence investigation report.  DuBose v. State, 977 S.W.2d 877, 880 (Tex.App. - Beaumont 1998, no pet’n).  Counsel cannot be held ineffective for failing to object to admissible evidence. See Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex.Cr.App.1997). 

The appellate record does not affirmatively demonstrate that appellant’s trial counsel fell below an objective standard of reasonableness.  Appellant freely acknowledged the acts of which he had been accused and the fact that he had a problem in the hopes of obtaining a reduced sentence.  Counsel may have had good reason, based on sound trial strategy, for not objecting to the evidence.

Moreover, the record does not demonstrate a reasonable probability that the outcome would have been different but for the mention of the items cited by appellant given the extreme conduct with which appellant was charged.  Viewing the entire record, we cannot say that trial counsel’s conduct constituted ineffective assistance.  Appellant’s first and second points of error are overruled.

Appellant argues in his third point of error that the trial court did not inform him that he could not be placed on deferred adjudication without the court making a finding in open court that doing so would be in the best interest of the victim.  See TEX. CODE CRIM. PRO. ANN. art. 42.12, § 5(a) (Vernon Supp. 2002).  Appellant contends that this omission rendered his plea of nolo contendere involuntary.  Appellant has not cited any authority which requires the trial court to advise an accused of this required finding prior to entering a plea of guilty/nolo contendere.   Even if such an admonishment were required, it could not have resulted in an involuntary plea by appellant.  When there is no agreement as to punishment or other indication that defendant had been promised deferred adjudication, his guilty/nolo contendere plea and an allegedly defective deferred adjudication admonishment are not connected.    See Fisher v. State, 921 S.W.2d 814 (Tex.App. -Houston [14th Dist.] 1996, pet’n ref’d).  Appellant’s third point of error is overruled.

The judgment of the trial court is affirmed.

                                                                           W. G. ARNOT, III

                                                                            CHIEF JUSTICE

June 27, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]U.S. CONST. amend. VI.

     ^[2]TEX. CONST. art. I, § 10.