Steinberg, Barney David v. State

• Court: Court of Appeals of Texas
• Decided: September 19, 2002
• Docket: 01-01-01095-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-01095-CR

NO. 01-01-01096-CR

NO. 01-01-01097-CR

BARNEY DAVID STEINBERG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause Nos. 865621, 865562, 873551

O P I N I O N

Appellant, Barney David Steinberg, pled guilty without an agreed recommendation to one indictment alleging possession with intent to deliver between four and 200 grams of methamphetamine, ⁽¹⁾ a second indictment alleging possession with intent to deliver between four and 200 grams of 3,4-methylenedioxy methamphetamine, ⁽²⁾ and a third indictment alleging delivery of between 200 and 400 grams of methamphetamine. ⁽³⁾ The trial court assessed punishment at 25 years in prison in each cause and assessed a $1,000 fine only in the third cause. We consider whether trial counsel was ineffective at the punishment phase for not objecting to certain officers' statements in the pre-sentence investigation (PSI) report. We affirm.

Background

Appellant was arrested on December 14, 2000 for delivery of the 220 grams of methamphetamine. Appellant agreed to be a confidential informant for the Drug Enforcement Agency (DEA) in exchange for the dropping of all charges against him if he cooperated. Nevertheless, upon executing a search warrant on January 8, 2001, officers found appellant in possession of methamphetamine and 3,4-methylenedioxy methamphetamine. Accordingly, the plans to use appellant as an informant were dropped, and he was charged in three indictments for all three drug offenses.

After appellant pled guilty to the three offenses, the trial court deferred a finding of guilt and reset the hearing for a PSI report to be prepared. At the time of appellant's plea, the trial court instructed appellant that he could present witnesses and submit documents at the punishment hearing.

At that hearing, the trial court received the PSI report, which attached appellant's statement and three letters of reference in support of his motion for community supervision, and appellant testified on his own behalf. After the hearing, the trial judge found appellant guilty of all three offenses and assessed punishment.

Ineffective Assistance of Counsel

In his sole issue, appellant argues trial counsel was ineffective at the punishment stage for not objecting to officers' statements, in the PSI report, that (1) contained hearsay and (2) recommended that appellant receive the maximum punishment.

A. Standard of Review and Burden of Proof

To prevail on his claim of ineffective assistance of counsel, appellant has the burden to show by a preponderance of the evidence that (1) counsel's performance fell below the objective standard of professional norms and (2) but for counsel's errors, there is a reasonable probability that the proceeding's result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) (two-part standard); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (two-part standard; appellant's burden); Hernandez v. State, 988 S.W.2d 770, 770, 774 (Tex. Crim. App. 1999) (holding Strickland standard applies at punishment stage). There is a strong presumption that counsel's challenged action was sound trial strategy. Bone, 77 S.W.3d at 833. We review the denial of appellant's new trial motion, based entirely on ineffectiveness of counsel, for abuse of discretion. Melancon v. State, 66 S.W.3d 375, 378, 378 n.3 (Tex. App.--Houston [14th Dist.] 2001, pet. filed).

B. Hearsay

Appellant complains his counsel was ineffective for not objecting to Houston Police Department Officer A. Vanderberry's PSI statements because they were unsubstantiated hearsay. Specifically, appellant complains of the following statements by Officer Vanderberry: appellant used topless dancers to sell drugs; he was regularly seen with several nude girls in his apartment; he was a "con man"; he was one of the top two dealers of methamphetamine and ecstasy in Houston; he was well known on the street; his apartment had been burglarized many times by people looking for drugs; and he had been found in his apartment, bound and with duct tape covering his mouth, several times.

At the hearing on appellant's motion for new trial, his trial counsel was asked to explain why he did not object to the hearsay statements by the officers in the PSI report. After an initial claim of lack of opportunity to object, trial counsel explained that he and appellant planned in advance to "go through" each and every hearsay statement during appellant's testimony. Trial counsel also stated that he and appellant together believed that the best tactical move was for appellant to testify and refute the statements. When asked why he did not call the officers to testify, trial counsel explained that he had talked to Officer Vanderberry and his partner and had found out how they had come up with the statements. Trial counsel testified that he believed that the statements were objectionable. Based on this record, the trial court could have concluded that trial counsel's failure to object to the hearsay statements of Vanderberry was the result of trial strategy. See Jensen v. State, 66 S.W.3d 528, 543-44 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (holding trial counsel's explanation of strategy, though different from appellate counsel's suggested strategy, sufficiently supported trial court's denial of motion for new trial based on ineffective assistance of counsel).

We overrule this part of appellant's issue.

• Punishment Recommendation

In the remainder of his issue, appellant complains his trial counsel was ineffective for not objecting to Officer Vanderberry's and DEA Agent Paris's one-sentence recommendations that the trial court assess the maximum punishment. Rather than objecting, trial counsel rebutted these statements with appellant's denial of the supporting facts and argued for community supervision. At the new trial hearing, trial counsel testified that he believed the officers' punishment recommendations were objectionable, but nonetheless did not object.

Assuming without deciding that the officers' punishment recommendations were objectionable, we hold appellant has not shown a reasonable probability that the proceeding's outcome would have been different had counsel objected. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. First, the trial court did not take the officers' recommendation to assess the maximum punishment: instead, the trial court assessed punishment at 25 years for each offense, ⁽⁴⁾ and a $1,000 fine for only one offense, when the maximum penalty for each offense was far higher. ⁽⁵⁾ Second, the evidence of appellant's guilt was overwhelming, given his guilty pleas and judicial confessions. Third, appellant's own PSI statement recounts that he had been a drug dealer since what appears to be not long after he arrived in Houston in 1998. Fourth, appellant was arrested for the drug offenses charged in the first and second indictments within a month of his having been arrested, and agreeing to work with the DEA in exchange for leniency, for a similar drug offense. ⁽⁶⁾ Fifth, the PSI report revealed that, within three months after appellant's two January 8, 2001 drug offenses, he was arrested twice more for delivery of drugs (one state jail felony and one first degree felony) and once more for drug possession (a state jail felony) and that charges were pending for these offenses. ⁽⁷⁾ Sixth, appellant admitted in his PSI interview to pleading no contest to one charge of drug-paraphernalia possession in Florida some time in the past.

Given the above, and even assuming without deciding that trial counsel was deficient, we hold appellant did not carry his burden of showing the proceeding's outcome would have differed had trial counsel objected. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833.

We overrule the remainder of appellant's issue.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Alcala, and Price. ⁽⁸⁾

Do not publish. Tex. R. App. P. 47.4.

1. Trial court cause no. 865621, appellate cause no. 01-01-01095-CR.

2. Trial court cause no. 865562, appellate cause no. 01-01-01096-CR.

3. Trial court cause no. 873551, appellate cause no. 01-01-01097-CR.

4. The trial court actually followed the prosecutor's recommendation of 25 years.

5. The punishment range for possession with intent to deliver four to 200 grams of methamphetamine (trial court cause no. 865621) and of 3,4-methylenedioxy methamphetamine (trial court cause no. 865562), each a first degree felony, is five to 99 years and an optional fine up to $10,000, but appellant received only 25 years in prison for each offense.

See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.103(a)(1), 481.112(d), 481.113(d) (Vernon Supp. 2002); Tex. Pen. Code Ann. § 12.32 (Vernon 1994). The punishment range for delivery of 200 to 400 grams of methamphetamine (trial court cause no. 873551), a first degree felony, was 10 to 99 years in prison and a mandatory fine of up to $100,000, but appellant received only 25 years in prison and a $1,000 fine. See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.112(e) (Vernon Supp. 2002).

6. Appellant claimed that he committed the January offense because he had no one to "set up," he needed to stay credible in the drug community, and he had no other means of income. The credibility of this testimony was for the trial court to assess.

See Johnson v. State, 23 S.W.3d 1, 8-9 (Tex. Crim. App. 2000).

7. At the punishment hearing, appellant testified that he had never been convicted of a felony or placed on adult community supervision in any state. Even so, he still had three charges pending for drug offenses at the time of the PSI report's making, at least one of which offenses was a first degree felony (delivery of over 400 grams of a Penalty Group I drug) carrying a punishment range of 15 to 99 years or life in prison and a mandatory fine of up to $250,000.

See Tex. Health & Safety Code Ann. §§ 481.102, 481.112(f) (Vernon Supp. 2002).

8. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.