Massoth, Wesley Earl v. State

• Court: Court of Appeals of Texas
• Decided: June 22, 2004
• Docket: 14-03-00606-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 22, 2004

Affirmed and Memorandum Opinion filed June 22, 2004.

In The

Fourteenth Court of Appeals

_______________

NOS. 14-03-00605-CR

          14-03-00606-CR

WESLEY EARL MASSOTH, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause Nos. 917,686 & 917,687

M E M O R A N D U M   O P I N I O N

Wesley Earl Massoth appeals two convictions for aggravated sexual assault of a child^[1] on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial court improperly imposed consecutive life sentences.  We affirm.

Ineffective Assistance of Counsel

Appellant=s first issue argues he was denied effective assistance of counsel because  his trial counsel failed to: (1) put on any evidence regarding appellant=s mental condition; (2) investigate appellant=s background thoroughly; (3) file any pre-trial motions; (4) respond to the State=s pre-trial request to consolidate the two cases and to have the sentences run consecutively; (5) have appellant examined by a psychiatrist; (6) call witnesses to corroborate appellant=s mental condition; and (7) call any witnesses at the punishment phase of trial besides appellant.  Appellant further claims that his counsel conceded appellant=s guilt in his closing argument and also told the jury that appellant was not asking for probation.

A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and thereby prejudices the defense to the extent of causing the result of the proceeding to be different. Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1660 (2004).  Ineffective assistance claims must be affirmatively demonstrated in the record.  Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).  If counsel=s reasons for the challenged conduct do not appear in the record and there is at least a possibility that it could have been legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal.  Murphy, 112 S.W.3d at 601.

In this case, appellant did not develop a record of either his counsel=s reasons for the challenged actions or the evidence that could have been introduced if a different approach had been taken.  Nor has he shown a reasonable likelihood that any part of the proceeding might have reached a different outcome.  Therefore, we overrule appellant=s first issue.

Consecutive Life Sentences

Appellant=s second issue contends that the trial court erroneously stacked his life sentences because the State did not prove that appellant committed aggravated sexual assault on a child by anal penetration on or after September 1, 1997, the effective date of the amendment to section 3.03 of the Texas Penal Code, allowing multiple sentences for this type of offense to be run consecutively.^[2]  However, the record reflects the child testified that appellant penetrated her anally and vaginally when she was thirteen or fourteen years old.  Because the child was born in 1985, she would have been thirteen and fourteen years old in 1998 and 1999, respectively.  Thus, there was evidence to show that appellant committed aggravated sexual assault on or after September 1, 1997, such that section 3.03 would have been applicable.  Therefore, appellant=s second issue is overruled.

Appellant=s third issue asserts that stacking his life sentences deprived him of his Sixth and Fourteenth Amendment rights to have any fact (other than a prior conviction)  that increased the penalty for the crime beyond the prescribed statutory maximum submitted to a jury and proved beyond a reasonable doubt.  See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).  However, a complaint on appeal must comport with the corresponding objection at trial.  See, e.g., Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2157 (2004).

At trial, appellant=s objection was:

Just for the record, the defense is opposed to having both cases run consecutively and we would ask that they run concurrent.  And also, Your Honor, since both of those cases were tried together, then the Code stipulates that they should be run B they have to run concurrently.

However, this objection or request did not mention any rights to Due Process, jury trial, proof of facts beyond a reasonable doubt, Apprendi, or otherwise, so as to apprise the trial court of any ground relied upon other than under the Texas Code of Criminal Procedure.  Because the trial court was thus given no opportunity to rule on the complaint presented in appellant=s third issue, it presents nothing for our review.  Accordingly, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed June 22, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

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

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^[1]           A jury found appellant guilty of aggravated sexual assault of a child and sentenced him to life imprisonment in each case.  The trial court cumulated these sentences.

^[2]           Section 3.03 of the Texas Penal Code provides in relevant part:

(a)        When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced.  Except as provided by Subsection (b), the sentences shall run concurrently.

(b)        If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(2)        an offense:

(A)       under Section 22.021 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section.

Tex. Pen. Code Ann. ' 3.03(a), (b)(2)(A) (Vernon 2003).  Section 22.021 includes the offense of aggravated sexual assault of a child.  Tex. Pen. Code Ann. ' 22.021(a)(1)(B) (Vernon Supp. 2004).  The decision to stack a defendant=s sentences when he has been found guilty of multiple sex‑related crimes, including aggravated sexual assault, even if prosecuted in a single proceeding, is within the trial court=s discretion.  Nicholas v. State, 56 S.W.3d 760, 766 n.9 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).