Frankie Wayne Nealy v. State ( 2013 )

NUMBER 13-11-00288-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FRANKIE WAYNE NEALY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes1
Memorandum Opinion by Justice Perkes
Appellant, Frankie Wayne Nealy, appeals the revocation of his
deferred-adjudication probation. Appellant pleaded true to violating
community-supervision conditions, but complains that the trial court: (1) failed to give
1
The Honorable Rose Vela, former Justice of this Court, did not participate in this opinion because
her term of office expired on December 31, 2012.
him the opportunity to present mitigating evidence during punishment; (2) should have
disregarded his pleading of true to the offense of terroristic threat because it was
allegedly disproven by the evidence presented; and (3) assessed an excessive and
grossly disproportionate sentence. By a fourth issue, appellant claims he received
ineffective assistance of counsel. We affirm.
I. BACKGROUND
Appellant was placed on deferred-adjudication community supervision after he
pleaded guilty to the offenses of aggravated kidnapping, a first-degree felony, see TEX.
PENAL CODE ANN. § 20.04 (West 2011), and sexual assault, a second-degree felony, see
TEX. PENAL CODE ANN. § 22.011 (West 2011). The State subsequently moved to revoke
appellant’s community supervision, alleging he violated several community-supervision
conditions by: (1) committing an offense of “terroristic threat” against the laws of the
State, see TEX. PENAL CODE ANN. § 22.07 (West 2011); (2) failing to pay court costs and
fees; and (3) failing to abstain from using the internet. Appellant pleaded true to the
alleged violations. The trial court revoked appellant’s community supervision, and
sentenced him to a term of life in the Texas Department of Criminal Justice, Institutional
Division, for the aggravated kidnapping offense; and to a term of twenty years
confinement for the sexual assault offense, to run concurrently with the life imprisonment
sentence.
II. PUNISHMENT PHASE OF REVOCATION PROCEEDING
By his first issue, appellant argues that the trial court erred by not affording him the
opportunity to present mitigating evidence regarding punishment. Appellant complains
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that the trial court did not separate the evidentiary and punishment phases of the hearing,
but rather adjudicated and sentenced appellant “in one breath” without notifying him that
he should shift from presenting evidence concerning violations of community-supervision
conditions to mitigating factors for sentencing. No objection was made at the time of the
hearing. Rather, appellant filed a motion for new trial in which he describes evidence
that was not presented that would allegedly mitigate the trial court’s sentence.
A. Preservation
Preservation of error is a prerequisite to presenting a complaint for appellate
review. TEX. R. APP. P. 33.1; Moore v. State, 371 S.W.3d 221, 225 n.4 (Tex. Crim. App.
[panel op.] 2012). A complaint that the trial court erred by not providing a separate
punishment hearing following revocation of deferred-adjudication probation must be
preserved by making a grounded objection, which is pursued to an adverse ruling, or
raising the objection in a timely motion for new trial. See Vidaurri v. State, 49 S.W.3d
880, 885–86 (Tex. Crim. App. 2001). In either case, the objection presented to the trial
court must comport with the objection on appeal. See Guevara v. State, 97 S.W.3d 579,
583 (Tex. Crim. App. 2003); Moreno Denoso v. State, 156 S.W.3d 166, 174 (Tex.
App.—Corpus Christi 2005, pet. ref’d).
B. Discussion
In his motion for new trial, appellant states “[t]he court was not presented evidence
concerning Defendant’s improvement during his period of community supervision.”
Appellant then lists various events and activities that allegedly show he has improved.
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On appeal, however, appellant clarifies that such evidence was not presented due to the
fault of the trial court in failing to separate the revocation from the punishment proceeding.
We hold that appellant’s objection in the motion for new trial did not appraise the
trial court of the argument that he presents on appeal—that the trial court should have
conducted a distinct hearing on punishment. See TEX. R. APP. P. 33.1 (requiring
objection to be stated “with sufficient specificity to make the trial court aware of the
complaint . . . .”). Since appellant’s objection on appeal fails to comport with the
objection he made to the trial court, he has not preserved error for review. Guevara, 97
S.W.3d at 583; Moreno Denoso, 156 S.W.3d at 174. We overrule appellant’s first issue
III. SUFFICIENCY OF THE EVIDENCE
By his second issue, appellant contends that the evidence was insufficient to
support the trial court’s finding that appellant violated the conditions of his community
supervision. Appellant specifically challenges the sufficiency of the evidence to support
the finding that he committed a terroristic threat, despite the fact that appellant pleaded
true to the allegation. 2 Appellant does not challenge any of the other grounds for
revoking his community supervision.
In reviewing a probation revocation, a single violation of probation is sufficient to
support the trial court’s decision to revoke. Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. 1980); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.—Corpus Christi
1997, no pet.). A plea of true is sufficient to support revocation. Moses v. State, 590
2
In its motion to revoke probation, the State alleged that appellant “committed the offense of
Terroristic Threat during a phone conversation, by threatening to bomb the office of a Pay Pal employee.”
During the hearing to revoke probation, appellant pleaded true to this allegation. In addition, an audio
recording of the telephone call was played. In that conversation, appellant became angry and asked, “Do
you want a bomb placed in your building?”
4
S.W.2d 469, 470 (Tex. Crim. App. [panel op.] 1979); Nino v. State, No. 13-97-00930-CR,
1998 WL 34202482, at *1 (Tex. App.—Corpus Christi Aug. 20, 1998, no pet.) (not
designated for publication).
On appeal, appellant challenges the sufficiency of the evidence to support the
violation of the condition to not commit any offenses against the laws of the State.
Appellant does not challenge any of the other community-supervision conditions to which
he pleaded true. A single violation is sufficient to support revocation. See Moore, 605
S.W.2d at 926; Moses, 590 S.W.2d at 470; see also TEX. R. APP. P. 47.1. We overrule
appellant’s second issue.
IV. PROPRIETY OF SENTENCE
Appellant argues that the life imprisonment sentence is excessive and grossly
disproportionate to the offense of aggravated kidnapping. Appellant complains that the
sentence constitutes cruel and unusual punishment. U. S. CONST. amend. XVIII.
Sentencing is within the sound discretion of the trial court; we therefore review the
trial court’s sentence under an abuse of discretion standard. See Jackson v. State, 680
S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc). As a general rule, a penalty
assessed within the proper punishment range will not be disturbed on appeal. Id. at 814.
Punishment that falls within the limits prescribed by a valid statute is not excessive, cruel,
or unusual. Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005,
pet. ref’d) (citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (en banc);
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477
S.W.2d 611, 614 (Tex. Crim. App. 1972)).
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Appellant pleaded guilty to a first degree felony of aggravated kidnapping and to a
second degree felony of sexual assault. The sentences imposed for these offenses fall
within the range of punishment established by Legislature. See TEX. PENAL CODE ANN.
§§ 12.32 (first degree felony – “shall be punished by imprisonment . . . for life or for any
term of not more than 99 years or less than 5 years”); 12.33 (second degree felony –
“shall be punished by imprisonment . . . for any term of not more than 20 years or less
than 2 years”); see also Phillips v. State, 887 S.W.2d 267, 268–70 (Tex. App.—Beaumont
1994, writ ref’d) (defendant’s sentence of ninety-nine years was not excessive; defendant
pleaded guilty to a first degree felony for aggravated sexual assault, and subsequently
pleaded true to violating conditions of community-supervision).
Appellant contends that although a sentence falls within the range of punishment,
it may still violate the Eighth Amendment if it is grossly disproportionate to the offense
committed. See U. S. CONST. amend. XVIII; Solem v. Helm, 463 U.S. 277, 291 (1983).
In Solem, the United States Supreme Court established three factors for analyzing
proportionality: (1) the gravity of the offense relative to the harshness of the penalty;
(2) the sentences imposed for other crimes in the jurisdiction; and (3) the sentences
imposed for the same crime in other jurisdictions. Id. at 292. As this court noted in
Trevino, however, “the viability and mode of application of the proportionate analysis in
non-death penalty cases has been questioned since the Supreme Court’s decision in
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, L.Ed.2d 836 (1991).” Trevino, 174
S.W.3d at 928 (citing McGruder v. Puckett, 954 F.2d 313, 315–16 (5th Cir. 1992)); see
Sullivan v. State, 975 S.W.2d 755, 757–58 (Tex. App.—Corpus Christi 1998, no pet.).
6
Assuming arguendo the viability of the Solem factors, life imprisonment is not a
grossly disproportionate sentence given the gravity of the offenses for which appellant
was convicted. The evidence showed that appellant intentionally threw the complainant
to the ground and battered her; dragged her to his vehicle and kidnapped her; and
sexually assaulted her and demanded that she perform oral sex. Appellant does not
discuss the second and third Solem factors, and we therefore do not consider them. See
Trevino, 174 S.W.3d at 928–29. We overrule appellant’s third issue.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
By his final issue, appellant claims he received ineffective assistance of counsel.
Appellant argues that his trial counsel provided constitutionally deficient performance by
failing to submit mitigating evidence or argument on the issue of punishment, and by
failing to object when the prosecutor referenced personal opinions of members of the
probation department.
In order for appellant to succeed on this claim, he must satisfy the two prongs of
Strickland v. Washington. See 466 U.S. 668, 687 (1984); Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland two-prong test). Appellant
must show that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) the deficient performance prejudiced the defense. Lopez v.
State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland, 466 U.S. at 689);
see also Moreno v. State, 1 S.W.3d 846, 864 (Tex. App.—Corpus Christi 1999, pet. ref’d).
To satisfy the first prong, appellant must prove by a preponderance of the evidence that
trial counsel’s performance fell below “an objective standard of reasonableness under the
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prevailing professional norms.” Lopez, 343 S.W.3d at 142. To satisfy the second
prong, appellant must show that there is a reasonable probability, or a probability
sufficient to undermine the confidence in the outcome, that but for counsel’s deficient
performance the result of the proceeding would have been different. See id.; Moreno, 1
S.W.3d at 864 (citing Strickland, 466 U.S. at 694).
Our review of counsel’s performance is highly deferential; we must make a strong
presumption that counsel’s performance fell within the wide range of reasonably
professional assistance. Lopez, 343 S.W.3d at 142 (citing Robertson v. State, 187
S.W.3d 475, 483 (Tex. Crim. App. 2006)); Moreno, 1 S.W.3d at 865. This means that we
also “employ a strong presumption that counsel’s conduct constitutes sound trial
strategy.” Moreno, 1 S.W.3d at 865 (citing Strickland, 466 U.S. at 689; Miniel v. State,
831 S.W.2d 310, 323 (Tex. Crim. App. 1992)). The record must contain evidence of
counsel’s reasoning, or lack thereof, to rebut that presumption. Id. (citing Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)); see also Lopez, 343 S.W.3d at 143
(requiring a showing that no reasonable trial strategy could justify trial counsel’s acts or
omissions); Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002) (en banc) (“If
counsel’s reasons for his conduct do not appear in the record and there is at least the
possibility that the conduct could have been legitimate trial strategy, we will defer to
counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.”).
“When such direct evidence is not available, we will assume that counsel had a strategy if
any reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d at 143
(citing Garcia v.State, 57 .S.W.3d 436, 440 (Tex. Crim. App. 2001)).
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First, the record shows that appellant’s trial counsel offered mitigating evidence
during the hearing. Appellant’s counsel examined appellant and argued to the trial court
that continued community supervision would be the best for appellant and society for the
following reasons: appellant’s violation of using the internet was done to earn money to
pay the various fees that were a condition of appellant’s community supervision; any
alleged terroristic threat was unlikely to be acted upon given the great distance between
the callers; any anger problems that appellant manifested could be helped by anger
management classes; appellant had not been ordered to attend anger management
classes but would agree to attend to maintain community supervision; appellant served
sixty days in the county jail in addition to the original 120 days served; appellant had been
attending sexual offender classes every week and never missed a report; appellant was
aware that violating the conditions of probation would not be tolerated; and the State’s
motion to revoke was the first motion to revoke brought against appellant. Based on the
foregoing presentation of mitigating considerations, we hold that counsel’s representation
was not so deficient as to fall below the prevailing professional norms. See Lopez, 343
S.W.3d at 142.
Second, counsel’s isolated failure to object to improper evidence does not
necessarily constitute ineffective assistance. Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984) (en banc); Moralez v. State, No. 13-00-00380-CR, 2002 WL
58462, at *2 (Tex. App.—Corpus Christi Jan. 17, 2002, pet. ref’d) (mem. op., not
designated for publication). The right to effective representation does not equate to
errorless counsel, but to an objectively reasonable representation. Lopez, 343 S.W.3d
9
at 142 (citing Strickland, 466 U.S. at 686); Robertson, 187 S.W.3d at 483. That is one
reason why judicial scrutiny of counsel’s performance is highly deferential. See Ingham,
679 S.W.2d at 509. High deference is necessary when the record contains no evidence
of counsel’s strategy underlying whether or when to object. See Thompson v. State, 9
S.W.3d 808, 813–14 (Tex. Crim. App. 1999); Garza v. State, No. 13-11-00621-CR, 2012
WL 3525634, at *3 (Tex. App.—Corpus Christi Aug. 16, 2012, no pet.) (mem. op., not
designated for publication).
The record does not include any evidence of the trial counsel’s strategy. We are
thus constrained to presume that the counsel’s performance was effective. See Lopez,
343 S.W.3d at 143; Thompson 9 S.W.3d at 813; see also Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005) (holding that in cases where the record is silent
as to the trial counsel’s reasoning, the appellate court should find ineffective assistance
only if the challenged conduct is so outrageous that no competent attorney would have
engaged in it); Dominguez v. State, No. 13-10-00493-CR, 2012 WL 3043072, at *8–9
(Tex. App.—Corpus Christi Jul. 26, 2012, no pet.) (mem. op., not designated for
publication) (same).3 After reviewing the record, we hold the challenged conduct is not
so outrageous that no competent attorney would have engaged in it.
3
As the Texas Court of Criminal Appeals noted, “[G]enerally a claim of ineffective assistance of
counsel may not be addressed on direct appeal because the record on appeal is usually not sufficient to
conclude that counsel’s performance was deficient.” Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.
App. 2005). Given that “[t]he reasonableness of counsel’s choices often involve facts that do not appear in
the appellate record,” “[a] petition for writ of habeas corpus usually is the appropriate vehicle to investigate
ineffective-assistance claims.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).
Indeed, “[i]n most ineffective[-]assistance claims, a writ of habeas corpus is essential to gathering the facts
necessary to adequately evaluate such claims.” Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.
1997); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A substantial risk of failure
accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal. Rarely will a
reviewing court be provided the opportunity to make its determination on direct appeal with a record
capable of providing fair evaluation of the merits of the claim . . . .”).
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Even if we were to assume that trial counsel’s performance was deficient,
appellant fails to show that such deficiency prejudiced him. See Lopez, 343 S.W.3d at
142; Moreno, 1 S.W.3d at 864 (citing Strickland, 466 U.S. at 694). When the trial court
announced the sentence, the court explained, “Well, the underlying case was extremely
violent, kidnapping. A lady that was walking to work was kidnapped, raped, it was pretty
bad, beaten, and that’s one of the things I must consider.” This explanation did not focus
on appellant’s inability to improve himself or the perception of him at the parole
department; it emphasized the gravity of the underlying offense. Appellant has failed to
show that the result of the proceeding would have been different. See Lopez, 343
S.W.3d at 142; Moreno, 1 S.W.3d at 864.
We overrule appellant’s final issue.
VI. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of March, 2013.
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