Clara Marie Allen v. State ( 2009 )

Affirmed and Memorandum Opinion filed April 28, 2009

Affirmed and Memorandum Opinion filed April 28, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00134-CR

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CLARA MARIE ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1107143

M E M O R A N D U M   O P I N I O N

Appellant Clara Marie Allen pleaded guilty to aggregate theft without an agreed recommendation on punishment from the State.  She also pleaded Atrue@ to two enhancement paragraphs, one for felony forgery and the other for felony theft.  After a punishment hearing, the trial court sentenced her to sixty years= confinement.  In this appeal, she asserts that (a) her trial counsel was ineffective during the punishment hearing and (b) she received a cruel and unusual sentence.  We affirm.

I.  Background

Appellant used a credit card issued by her employer to charge over $75,000 worth of personal items, from airline tickets to jewelry to meals at restaurants.  In December 2007, she pleaded guilty without a plea agreement to the charge of aggregate theft resulting from her misuse of this company credit card.^[1] She judicially confessed to two enhancing felony convictions, one for forgery and the other for a prior theft.  She acknowledged that she would be sentenced as a habitual offender, with a range of punishment from twenty-five to ninety-nine years= confinement for the instant offense.  The trial court withheld a finding of guilt so that a pre-sentence investigation report (APSI report@) could be prepared.  In February 2008, the trial court conducted a hearing on punishment.  The trial court reviewed the PSI report, the State=s punishment memorandum, and several letters written on behalf of appellant.

In addition to the two enhancing felonies, both the PSI report and the State=s punishment memorandum detailed appellant=s significant history of theft-related offenses.  According to these documents, appellant had previously served sentences in both the United States Bureau of Prisons and the Texas Department of Corrections.^[2] Finally, the PSI report stated that appellant had two Aactive warrants: one for Obtaining Scheduled IV Dangerous Drug by Fraud from 1986 in Shreveport, Louisiana, and the other for Grand-Theft in Riverside, California in 2006.@

At the punishment hearing, appellant=s trial counsel stated that, instead of a closing argument, appellant would make a statement to the court.  The trial judge informed appellant that if she wanted to make a statement, she would be placed under oath and subject to cross-examination by the State.  Appellant was then sworn in and made the following statement:

I would like to thank the DA and you, Your Honor, for giving me the opportunity to be investigated for possible probation.

I=ve made some bad choices in my life, and they started with the loss of my husband, trying to support three children, maintain a home and my life.

I served time for that, corrected it, and my mother became very sick.

And then, instead of thinking things through, I didn=t. And since I had - - was granted the right to use the credit card, I did use it and I did make payments to credit card statements.

I worked for a month and was not paid.  I=m not saying that what I did was right or wrong, but I did do it, and I did have permission.

The credit card, in fact, was mailed to [the complainant]=s house, and he brought the credit card to me at the office and gave it to me.  That was for my use.  Then, when I needed to get to Louisiana, I called and asked him, and he said yes, and I charged on it, which I did pay.  And I was paying every time I used the credit card for my personal use, I paid the bill in full until the very end and then I didn=t, but I was making payments, not in full, but making payments.

And that=s what I would like to do if I=m granted probation: to correct my wrong, okay?

Since I=ve been incarcerated, I=ve realized I love my children and my mother the wrong way.  I mean you=re supposed to love them, but I did everything to try to make up everything for their loss and make them happy.

Now I want a chance to make [myself] happy and live for [myself] and do the right thing, not love to the extreme of doing things in the gray, instead of in the black and white, and I do apologize to the State for anything I=ve done wrong.

The State proceeded to cross-examine appellant, focusing on the details of the current offense, as well as highlighting some of her previous offenses.

After appellant testified, the trial court asked her trial counsel if she would like to make an argument.  Her counsel replied, AYour Honor, I=ve discussed everything with Ms. Allen in jail.  She knows the full range of punishment; and, of course, other than what she said, we have nothing else.@  The State made a very brief closing argument, noting appellant=s criminal history and her failure to accept responsibility for what she had done, and asked the trial court to impose Asubstantial punishment.@  Before assessing appellant=s punishment, the trial court stated,

I=ve been really interested to hear what you were going to say because I thought I would hear some kind of remorse or something, but what I heard is somebody who is completely disconnected from reality.  You stole from these people, from their family.  Do you have any idea of the havoc you=ve created in their business and destroying their lives?  You=ve been investigated by the PSI people and you stand up here and portray yourself as a selfish individual.

The trial court then sentenced appellant to sixty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  This appeal timely ensued.

II.  Issues Presented

In her first issue, appellant asserts that she received ineffective assistance of counsel during her punishment hearing because her counsel failed to call witnesses to testify on her behalf, make a closing argument, and provide letters of character reference.  In her second issue, she contends that her sentence of sixty years= confinement represents cruel and unusual punishment.

III.  Analysis

A.        Ineffective Assistance of Counsel

Appellant articulates her first issue as follows:

The court stated that it had reviewed four letters on behalf [of] the [a]ppellant but these letters were not attached to [the] pre-sentencing investigation report nor were they offered into evidence and made a part of the [appellate r]ecord. These witnesses were not called to testify for [a]ppellant nor did [a]ppellant=s counsel make a final argument requesting that [a]ppellant should receive the minimum sentence which would have been twenty-five years in the Texas Department of Criminal Justice or a sentence that trial counsel felt was reasonable under the facts.

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at  690B94.  An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).

Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that the attorney=s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When the record is silent as to trial counsel=s strategy, we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  AA claim of ineffective assistance of counsel based on counsel=s failure to call witnesses fails in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony.@  Wade v. State, 164 S.W.3d 788, 796 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

First, appellant concedes that the trial court considered four letters written on appellant=s behalf, although these letters are not a part of our record. Therefore, presumably, appellant is asserting that her trial counsel was ineffective by failing to include these letters in the appellate record.  But because appellant did not file a motion for new trial alleging ineffective assistance, we have not been Aprovided the opportunity to make [a] determination on direct appeal with a record capable of providing a fair evaluation@ of appellant=s allegation.  Thompson v. State, 9 S.W.3d 808, 813B14 (Tex. Crim. App. 1999) (A>Indeed in a case such as this, where the alleged derelictions primarily are errors of omission . . . rather than commission revealed in the trial record, collateral attack may be . . . the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.=@) (quoting Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (en banc)).  Further, nothing in our record establishes that any testimony would have differed from the statements presented to the trial court in the letters it considered.  See Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  Consequently, appellant has not established that her counsel=s performance was deficient in this regard.

Second, appellant asserts that the record reflects that there were witnesses who could have testified on her behalf.  To the contrary, however, the record does not reflect that there were witnesses who could have so testified; instead, the record indicates that the trial court reviewed four letters written on her behalf.  On this record, we can neither discern whether any of these witnesses were available to testify nor whether their testimony would have benefitted appellant.  We must therefore presume that counsel, in the exercise of reasonable professional judgment, made a decision not to call witnesses during punishment.^[3]  Wade, 164 S.W.3d at 796.

Finally, defense counsel=s decision to waive final argument is generally considered a matter of trial strategy that will not support a finding of deficient performance.^[4]  See, e.g., Ransonette v. State, 550 S.W.2d 36, 41 (Tex. Crim. App. 1976) (concluding that waiver of final argument, in the punishment phase of trial, was sound trial strategy); Salinas v. State, 773 S.W.2d 779, 783 (Tex. App.CSan Antonio 1989, pet. ref=d) (explaining A[i]t is the trial strategy of some attorneys to waive final argument in an attempt to cut off the State=s rebuttal@).  Here, given that appellant had already pleaded her case for leniency to the trial court through her own testimony, her trial counsel=s decision to forego further argument on her behalf may have been a strategic choice.

In sum, the record in this case is silent as to appellant=s trial strategy. Under these circumstances, we cannot say the challenged conduct was so outrageous that no competent attorney would have engaged in it.  See Goodspeed, 187 S.W.3d at 392.  Thus, appellant has not established that her trial counsel was ineffective, and we overrule her first issue.

B.        Cruel and Unusual Punishment

In appellant=s second issue, she argues that she received Acruel and unusual punishment where the record reflects that she could have received a sentence of twenty-five years but received a sentence of sixty years.@  But appellant did not raise this issue in the trial court.^[5] 

To present a complaint for appellate review, Athe record must show the complaint was made to the trial court by a timely request, objection, or motion.@  Tex. R. App. P. 33.1(a).  Appellant neither objected to her sentence, nor raised this argument in her motion for new trial.  AThe constitutional right to be free from cruel and unusual punishment may be waived.@    Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (citing Stewart v. LaGrand, 526 U.S. 115, 119 (1999) and Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d)).  Accordingly, appellant has not preserved this issue for our review, and it is overruled.

IV.  Conclusion

In sum, we conclude appellant has not established, by a preponderance of the evidence, that her trial counsel was ineffective.  Further, appellant has not preserved her complaint that the trial court=s sentence violated her right to be free from cruel and unusual

punishment.  We therefore overrule her two issues on appeal and affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

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

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^[1]  Specifically, appellant pleaded guilty to appropriating

by acquiring and otherwise exercising control over property, namely MONEY, owned by . . . the Complainant[] with the intent to deprive the Complainant of the property and the total value of the property appropriated was over twenty thousand dollars and under one hundred thousand dollars.

^[2]  Appellant had previously been placed on probation in Texas, but it had been revoked.  Further, according to the information in the PSI, one of the conditions of her release from the Bureau of Prisons was that she pay restitution, but she failed to pay the restitution as ordered.

^[3]  Appellant=s reliance on Milburn v. State is misplaced.  15 S.W.3d 267 (Tex. App.CHouston [14th Dist.] pet. ref=d) (op. on remand).  In Milburn, we concluded that the appellant=s trial counsel was ineffective by failing to investigate and interview various possible punishment witnesses, Adespite the availability and willingness of several of appellant=s relatives, friends, and co-workers to testify on his behalf.@  Id. at 269.  Milburn is distinguishable from appellant=s situation in several respects, however.  First, the appellant in Milburn filed a motion for new trial alleging ineffective assistance of counsel, Milburn v. State, 973 S.W.2d 337, 339 (Tex. App.CHouston [14th Dist.] 1998), vacated and remanded, 3 S.W.3d 918 (Tex. Crim. App. 1999), whereas here, appellant did not make such allegations in her motion for new trial.  Second, in Milburn, the parties stipulated that twenty of the appellant=s friends and relatives were available and would have testified in his favor, yet were not contacted by the appellant=s defense team.  Milburn, 15 S.W.3d at 269. Here, as noted above, there is no such evidence regarding the nature and availability of any witnesses who could or would have testified on behalf of appellant.  Third, Milburn=s trial counsel testified at the motion-for-new-trial hearing and admitted that he had neither investigated nor evaluated available punishment evidence.  Id. at 270.  In this case, we have no such admission from appellant=s trial counsel.  Indeed, as the State points out in its briefing, Athe existence of the letters of reference that the trial court considered at the [punishment] hearing suggests that counsel had investigated [a]ppellant=s punishment case.@

^[4]  As noted above, appellant=s trial counsel offered appellant=s testimony in lieu of argument.

^[5]  In her brief, appellant states, AAppellant is aware that failure to raise an Eighth Amendment objection at trial prevents making any such claim on appeal.@