Chester Mosley v. State ( 2019 )

Opinion issued October 31, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00812-CR
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CHESTER MOSLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1554583
MEMORANDUM OPINION
Appellant, Chester Mosley, pleaded guilty to the first-degree felony offense
of injury to a child without an agreed recommendation. At the conclusion of a
presentence investigation (“PSI”) hearing, the trial court found appellant guilty of
the charged offense and sentenced him to twenty-six years’ confinement in the Texas
Department of Criminal Justice. In two points of error, appellant contends that (1)
he received ineffective assistance of counsel during the hearing and (2) he was
subjected to cruel and unusual punishment in violation of the Eighth Amendment to
the United States Constitution because he received a twenty-six year sentence when
he was eligible for probation. We affirm.
Background
On January 6, 2017, appellant stayed home with the twenty-three month old
son (“the complainant”) of his girlfriend, Erica Hill. At 6:40 p.m., appellant called
Hill and told her that he had given the complainant a bath, and that the complainant
had fallen and scraped his arm while playing. At 9:00 p.m., appellant called Hill
again and told her that the complainant had been scratching his “behind really bad
under his diaper.” Appellant stated that he had observed some “black stuff” under
the complainant’s nails, and that when he removed the complainant’s diaper he saw
what looked like a burn. Appellant sent Hill a picture of the burn. Hill left work
and called 911.
On April 26, 2018, appellant pleaded guilty to the first-degree felony offense
of injury to a child,1 without an agreed recommendation from the State. At the PSI
1
TEX. PENAL CODE § 22.04(a) (“A person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, causes to a child . . . (1) serious bodily
2
hearing, the State called four witnesses and introduced as exhibits the PSI report, the
complainant’s medical records, appellant’s recorded statements, and photographs of
the complainant’s injuries.
Dr. Todd Huzar, the director of pediatric burn surgery at Children’s Memorial
Hermann Hospital, testified that the complainant was transferred from Texas
Children’s Hospital to Memorial Hermann due to the severity of his burns, where he
remained hospitalized for approximately nineteen days. Dr. Huzar stated that the
complainant suffered second-degree burns to nine percent of his body, including his
buttocks, genitals, thighs, right elbow, and the back of his right leg, and that his burns
were consistent with being submerged in 121 degree Fahrenheit water for thirty to
sixty seconds. According to Dr. Huzar, the complainant would have cried,
screamed, and tried to get out of the scalding water, and that the complainant would
have sustained burns to his feet if he had been sitting or standing in the bathtub.
Kathleen Sagmiller, a social worker, spoke with Hill and appellant at the
hospital. Appellant told Sagmiller that the water temperature was “okay” when he
put the complainant in the bathtub. Appellant stated that he was in the adjoining part
of the bathroom while the complainant was in the bathtub, and that there was no
indication that the complainant was in pain. Sagmiller testified that she found
injury[.]); § 22.04(e) (“An offense under Subsection (a)(1) . . . is a felony of the first
degree when the conduct is committed intentionally or knowingly.”).
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appellant’s version of events inconsistent with an accident. After her conversation
with appellant, Sagmiller recommended that the care team consult with child abuse
physicians.
Dr. Michelle Ruda, a member of the University of Texas McGovern Medical
School’s child protection division, evaluated the complainant. She testified that he
was in pain, vomiting, and not eating. Dr. Ruda also observed bruising on the
complainant’s abdomen and noted that his liver and pancreatic enzymes were quite
elevated. An abdominal CT scan revealed that the complainant had a lacerated liver
and inflamed pancreas. Dr. Ruda testified that a liver laceration such as
complainant’s typically occurs from a significant blunt force trauma.
In the course of her evaluation, Dr. Ruda interviewed appellant. Appellant
told Dr. Ruda that he had filled the bathtub about one-third full and tested the water,
which he described as warm but not hot, with his foot. Appellant stated that the
complainant did not appear to be in any discomfort or pain, and that he did not
observe any issues with the complainant’s skin until about forty minutes later when
he noticed that the complainant’s skin on his right elbow was falling off. Dr. Ruda
testified that she found appellant’s explanation to be inconsistent with the
complainant’s injuries.
The complainant’s foster mother testified that the complainant was placed
with her family after he was released from the hospital. She stated that the
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complainant sustained permanent discoloration to the skin on his buttocks, lower
back, right leg, and elbow as a result of his burns. The foster mother testified that
when the complainant was first placed with her, he was very stoic and emotionless,
and that he would stand next to her rather than play with other children. She also
testified that bath time was initially very difficult for the complainant and that he is
still sometimes uncomfortable around men.
Appellant testified that he stayed home with the complainant while Hill was
at work. When he noticed that the complainant had soiled his diaper, appellant went
to the closet to look for baby wipes. Appellant testified that, as he turned to leave
the closet, he tripped over the complainant and accidentally stepped on him. He then
put the complainant in the bathtub and left the room. Appellant testified that he let
the water run in the bathtub while he brushed his hair and texted a girl on his phone
whom he planned to meet later with his friend. As he looked for clothes, appellant
heard the complainant moaning and “knew he was troubled.” Appellant returned to
the bathroom and noticed that the complainant, who was sitting in the bathtub, was
“red all over” and took him out of the bathtub. Appellant testified that he realized
that he had “messed up” but did not want Hill to find out. When appellant began
dressing the complainant, he noticed that the skin on the complainant’s arm had
come off and called Hill. Later that evening, appellant noticed the complainant
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scratching his bottom. When appellant took off the complainant’s diaper, he saw
that his skin had come off. Appellant called Hill again and Hill called 911.
Appellant testified that, when he was sixteen years old, he was charged with
capital murder but that the charge was later dropped to aggravated robbery and he
was sentenced to ten years’ juvenile supervision. During his juvenile detention,
appellant was written up twenty-two times for infractions, including verbal and
physical altercations. Between 2013 and 2016, appellant served jail time for six
misdemeanor offenses, including evading arrest, failure to identify as a fugitive,
possession of marijuana, burglary of a motor vehicle, and failure to stop and give
information after hitting someone with his car.
At the conclusion of the PSI hearing, the trial court sentenced appellant to
twenty-six years’ confinement. This timely appeal followed.
Ineffective Assistance of Counsel
In his first point of error, appellant contends that he received ineffective
assistance of counsel during the PSI hearing because his trial counsel failed to (1)
adequately prepare him to testify at trial, (2) prove his eligibility for probation, and
(3) object to his twenty-six year sentence as cruel and unusual punishment.
A. Standard of Review and Applicable Law
The standard of review for evaluating claims of ineffective assistance of
counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). Under
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the Strickland two-step analysis, a defendant must demonstrate that (1) his counsel’s
performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 687–88, 694; Andrews v. State, 159
S.W.3d 98, 101–02 (Tex. Crim. App. 2005). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
An “[a]ppellant bears the burden of proving by a preponderance of the
evidence that his counsel was ineffective.” Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). “Any allegation of ineffectiveness must be firmly founded
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. at 814. However, a reviewing court will rarely be able to fairly
evaluate the merits of an ineffective assistance claim on direct appeal because the
trial record is usually undeveloped and inadequate to reflect the motives behind trial
counsel’s actions. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005). In fact, trial counsel should have the opportunity to explain his or her actions
before being found ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.
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Crim. App. 2003). When the record is silent, we may not speculate to find trial
counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
In reviewing counsel’s performance, we look to the totality of the
representation to determine the effectiveness of counsel, indulging a strong
presumption that counsel’s performance is within a wide range of reasonable
professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475,
482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will find a
counsel’s performance deficient only if the conduct is so outrageous that no
competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. “When
handed the task of determining the validity of a defendant’s claim of ineffective
assistance of counsel, any judicial review must be highly deferential to trial counsel
and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813 (citing
Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).
B. Failure to Prepare Appellant to Testify
Appellant contends that his trial counsel was ineffective for failing to
adequately prepare him to testify. Specifically, appellant complains that his trial
counsel elicited testimony from him about how important he was, and that he stepped
on the complainant, was on the phone with a “little chick” even though the
complainant’s mother was his girlfriend, and he had suffered from the incident.
Appellant argues that trial counsel should have told him not to include unnecessary
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and prejudicial information about his social life, avoid appearing arrogant, and
respond with short answers rather than allowing him to ramble.
In support of his argument that trial counsel failed to adequately prepare him
to testify, appellant directs this Court to Ex parte Guzmon and Pererro v. State. In
Guzmon, a habeas proceeding, the Court of Criminal Appeals found defense
counsel’s performance deficient where counsel testified at the writ hearing that he
merely subpoenaed the punishment witnesses suggested by the applicant and met
them immediately before the punishment stage began. 730 S.W.2d 724, 734 (Tex.
Crim. App. 1987) (“This was insufficient preparation.”). In Perrerro, the
defendant’s trial counsel testified at the hearing on the motion for new trial that he
was negligent when he failed to sufficiently prepare the defendant to testify so as to
avoid opening the door to his criminal history, an omission supported by the
defendant’s testimony at the hearing. 990 S.W.2d 896, 899 (Tex. App.—El Paso
1999, pet. ref’d).
Appellant’s reliance on Guzmon and Perrerro is unavailing. In contrast to
those cases, the record here is silent regarding trial counsel’s preparation of appellant
for the PSI hearing. Appellant did not file a motion for new trial raising an
ineffective assistance claim, obtain an affidavit from trial counsel, or request a
post-conviction hearing. Based on this silent record, appellant has failed to meet his
burden to prove that his counsel’s performance was deficient. See Toledo v. State,
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519 S.W.3d 273, 289 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (concluding
that defendant’s claim that trial counsel failed to adequately prepare him to testify at
PSI hearing lacked merit where record was silent regarding counsel’s preparation);
Darkins v. State, 430 S.W.3d 559, 571 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (finding that defendant’s ineffective assistance claim that trial counsel failed
to adequately prepare him to testify in his own defense lacked merit where record
did not reflect counsel’s strategy for appellant’s testimony or defendant’s
preparation for trial).
C. Failure to Prove Probation Eligibility
Appellant argues that his trial counsel was ineffective because she did not
present evidence at the hearing showing that he was eligible for probation.
“A defendant is eligible for community supervision . . . if: (1) before the trial
begins, the defendant files a written sworn motion with the judge that the defendant
has not previously been convicted of a felony in this or any other state; and (2) the
jury enters in the verdict a finding that the information contained in the defendant’s
motion is true.” TEX. CODE CRIM. PROC. art. 42A.055(b). To be eligible for
jury-recommended probation, a defendant bears the burden of pleading and proving
that he has no prior felony convictions. Speth v. State, 6 S.W.3d 530, 533 (Tex.
Crim. App. 1999).
10
In support of his argument, appellant relies on San Roman v. State, 681
S.W.2d 872 (Tex. App.—El Paso 1984, writ ref’d). There, the court of appeals held
that trial counsel rendered ineffective assistance by failing to introduce any evidence
demonstrating the defendant’s eligibility for probation. See id. at 875. San Roman,
however, is distinguishable from the case before us. Here, appellant elected to have
the trial judge, not a jury, assess his sentence. A defendant who is sentenced by the
trial judge may be eligible for community supervision even if he has been convicted
of a felony. See TEX. CODE CRIM. PROC. art. 42A.053, 42A.054 (discussing
judge-ordered community supervision). Because appellant did not have to prove
that he had not been previously convicted of a felony to be eligible for probation, his
trial counsel was not ineffective for failing to offer such proof. See id. art. 42A.053;
see also Norris v. State, No. 01-15-00484-CR, 2016 WL 635122, at *2 (Tex. App.—
Houston [1st Dist.] Feb. 11, 2016, no pet.) (mem. op., not designated for publication)
(concluding that defendant’s counsel was not ineffective for failing to offer proof of
defendant’s eligibility for probation where trial judge, not jury, assessed defendant’s
punishment).
D. Failure to Object to Sentence as Cruel and Unusual Punishment
Appellant argues that his trial counsel rendered ineffective assistance when
she failed to object to appellant’s twenty-six year sentence as cruel and unusual
punishment in violation of the Eight Amendment.
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To establish ineffective assistance for failing to object, appellant must show
that, if his counsel had objected, the trial court would have erred in overruling the
objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (per
curiam); Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d). The Eighth Amendment forbids “extreme sentences that are
‘grossly disproportionate’ to the crime.” State v. Simpson, 488 S.W.3d 318, 322
(Tex. Crim. App. 2016) (citing Ewing v. California, 538 U.S. 11, 23 (2003) (plurality
op.)). Punishment assessed within the statutory limits is generally not cruel and
unusual punishment. Jacoby, 227 S.W.3d at 131. However, a punishment must be
in proportion to the crime even if assessed within the statutory range. Solem v. Helm,
463 U.S. 277, 290 (1983); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d).
To determine whether a sentence for a term of years is grossly
disproportionate for a particular defendant’s crime, a court must judge the severity
of the sentence in light of the harm caused or threatened to the victim, the culpability
of the offender, and the offender’s prior adjudicated and unadjudicated offenses.
Graham v. Florida, 560 U.S. 48, 60 (2010); Simpson, 488 S.W.3d at 323. In the rare
case in which this threshold comparison leads to an inference of gross
disproportionality, the court should then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
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imposed for the same crime in other jurisdictions. Solem, 463 U.S. at 290. If this
comparative analysis validates an initial judgment that the sentence is grossly
disproportionate, the sentence is cruel and unusual. Graham, 560 U.S. at 60;
Simpson, 488 S.W.3d at 323.
Serious bodily injury to a child is a first-degree felony for which the range of
punishment is “imprisonment . . . for life or for any term of not more than 99 years
or less than five years.” See TEX. PENAL CODE §§ 12.32, 22.04(a), (e). Appellant’s
sentence of twenty-six years is within the statutory range and at the lower end of the
punishment range. Appellant contends that his sentence is grossly disproportionate
to the crime because he has no prior felony convictions, he was eligible for
probation, and he has never been granted adult probation. However, the mere
possibility of probation or deferred adjudication community supervision does not
render a sentence of incarceration cruel and unusual. See Combs v. State, 652
S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1983, no pet.) (holding
punishment, which was within statutory limits, was not cruel and unusual even
though defendant was eligible for probation and had never been convicted of any
felony); Cadieux v. State, 711 S.W.2d 92, 95 (Tex. App.—Austin 1986, pet. ref’d)
(concluding no basis from departing from general rule that punishment assessed
within statutory limits is not cruel and unusual even though defendant was high
school graduate, had honorable military record, and was eligible for probation).
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With regard to the severity of appellant’s sentence in light of the harm caused
to the complainant, the evidence showed that the complainant suffered painful
second-decree burns to nine percent of his body, including his genitals, buttocks,
legs, and elbow, and that he sustained permanent skin discoloration as a result of his
burns. Although appellant testified that the complainant was sitting in the water and
only softly moaning, the trial court heard evidence that the complainant’s burns were
consistent with being submerged in 121 degree Fahrenheit water for thirty to sixty
seconds, that the complainant would have cried, screamed, and tried to get out of the
scalding water, and that the complainant did not sustain any burns to his feet which
he would have had he been sitting or standing in the bathtub. Although appellant
testified that he accidentally stepped on the complainant, the trial court also heard
testimony that the laceration to the complainant’s liver required significant force,
such as that sustained in high-velocity injuries. In addition to the physical trauma
and scars, the foster mother testified that the complainant has suffered emotional and
psychological trauma as a result of this incident. As to culpability, appellant pleaded
guilty to the charged offense.
Finally, appellant’s criminal history, including his charge for aggravated
robbery (reduced from capital murder) when he was sixteen years old, twenty-two
disciplinary write-ups while in juvenile detention, and subsequent misdemeanor
offenses for evading arrest, failure to identify as a fugitive, possession of marijuana,
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burglary of a motor vehicle, and failure to stop and give information after he hit
someone with his car, also support a finding that appellant’s sentence is not grossly
disproportionate to the crime he committed. See generally Simpson, 488 S.W.3d at
323 (stating courts consider offender’s prior adjudicated and unadjudicated offenses
when determining whether sentence is grossly disproportionate). In light of these
facts, we cannot say that appellant’s twenty-six year sentence is grossly
disproportionate.2 Thus, we conclude that appellant’s trial counsel was not
ineffective because, even if she had made an objection to appellant’s sentence as
grossly disproportionate to the convicted offense, the judge would not have erred in
overruling the objection. See Jagaroo v. State, 180 S.W.3d 793, 801 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d); Vaughn v. State, 888 S.W.2d 62, 74 (Tex.
App.—Houston [1st Dist.] 1995), aff’d, 931 S.W.2d 564 (Tex. Crim. App. 1996).
Because appellant has not satisfied the first prong of Strickland for any of the
three complaints about his trial counsel’s performance, appellant has failed to satisfy
his burden to show ineffective assistance of counsel. See Williams, 301 S.W.3d at
687. Accordingly, we overrule appellant’s first point of error.
2
Because we have found no gross disproportionality, we do not need to perform the
comparative analysis set forth in Solem. See State v. Simpson, 488 S.W.3d 318, 323
(Tex Crim. App. 2016).
15
Cruel and Unusual Punishment
In his second point of error, appellant contends that his sentence constitutes
cruel and unusual punishment in violation of the Eighth Amendment because the
trial court sentenced him to twenty-six years’ confinement even though he was
eligible for probation.
To preserve a complaint that a sentence constitutes cruel and unusual
punishment, a defendant must make a timely request, objection, or motion and
receive an adverse ruling. See TEX. R. APP. P. 33.1(a); Curry v. State, 910 S.W.2d
490, 497–98 (Tex. Crim. App. 1995). Appellant neither objected at sentencing nor
raised the issue in a motion for new trial. The Court of Criminal Appeals has held
that defendants may not assert an Eighth Amendment claim for the first time on
appeal. See e.g., Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citing
with approval Russell v. State, 341 S.W.3d 526 (Tex. App.—Fort Worth 2011, no
pet.), which held that defendant did not preserve Eighth Amendment complaint not
raised at sentencing); Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App. 2008)
(holding that defendant did not raise Eighth Amendment claim in trial court and
therefore did not preserve it for appellate review).
Appellant concedes that the failure to raise an objection on Eighth
Amendment grounds waives any such complaint on appeal. Citing Rule of Evidence
103, he nevertheless asserts that “nothing in the rules precludes taking notice of
16
fundamental errors affecting substantial rights although they were not brought to the
attention of the courts.” See TEX. R. EVID. 103(e) (“In criminal cases, a court may
take notice of a fundamental error affecting a substantial right, even if the claim of
error was not properly preserved.”) Appellant presents no argument or citation to
authority in support of the proposition that the trial court’s sentence amounts to
fundamental error. Therefore, he has waived this argument. See TEX. R. APP. P.
38.1(i). Even absent waiver, we conclude that no such error occurred in this case.
As previously discussed, appellant was convicted of a first-degree felony and
sentenced at the lower end of the statutory range of punishments authorized by the
Legislature for such offenses. See TEX. PENAL CODE § 12.32(a). Punishment
assessed within the statutory limits is generally not cruel and unusual punishment.
Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Young v. State, 425
S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). And, for the
reasons discussed above, appellant’s punishment is not grossly disproportionate to
the crime committed. Accordingly, we overrule appellant’s second point of error.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
17
Panel consists of Justices Lloyd, Goodman, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
18