Joseph Allen Kelley v. The State of Texas--Appeal from 203rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Joseph Allen Kelley

Appellant

Vs. No. 11-02-00245-CR B Appeal from Dallas County

State of Texas

Appellee

Joseph Allen Kelley entered an open plea of guilty before the trial court to the charged offense of robbery. TEX. PENAL CODE ANN. ' 29.02 (Vernon 2003). The trial court assessed punishment at 10 years confinement and a $2,500 fine. TEX. PENAL CODE ANN. ' 12.33 (Vernon 2003).

Points of Error

Appellant presents three points of error. First, appellant argues that the presentence investigation (PSI) report did not include a proposed client supervision plan as required by TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 9(a) (Vernon Supp. 2003). Second, appellant claims that the trial court failed to order a substance abuse evaluation under TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 9(h) (Vernon Supp. 2003) to determine the appropriateness of alcohol or drug rehabilitation. Third, appellant claims that his trial counsel was ineffective. We affirm.

Background Facts

The complainant Esperanza Jimenez opened her door to Randy Dewpree, who asked if her son-in-law was home. She told him that her son-in-law would be home later, and Dewpree asked if he could use her phone. As Jimenez let him in the house, Dewpree threw her on the floor and held her down. Two or three other men ran into the house and began to steal items. Jimenez=s daughter arrived home as the men were leaving.

A few days later, one of the men, Trent Mason, turned himself in to the police and told the police that appellant was one of the participants in the robbery. Appellant was subsequently arrested, and he confessed to the crime.

Presentence Investigation Report

In his first point, appellant complains that the PSI report did not comply with Article 42.12, section 9(a) because it did not include a proposed client supervision plan. Article 42.12, section 9(a) provides in part:

[B]efore the imposition of sentence by a judge in a felony case...the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge. It is not necessary that the report contain a sentencing recommendation, but the report must contain a proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication. (Emphasis added).

The PSI report may be waived absent a timely objection. Smith v. State, 91 S.W.3d 407, 409-10 (Tex.App. B Texarkana 2002, no pet=n); Summers v. State, 942 S.W.2d 695, 696-97 (Tex.App. B Houston [14th Dist.] 1997, no pet=n); Wright v. State, 873 S.W.2d 77, 83 (Tex.App. B Dallas 1994, pet=n ref=d). Appellant did not object to the omission in the PSI report or bring it to the trial court=s attention. Thus, appellant waived any complaint. Buchanan v. State, 68 S.W.3d 136, 140 (Tex.App. B Texarkana 2001, no pet=n). Appellant=s first point is overruled.

Substance Abuse Evaluation

In his second point, appellant argues that the trial court erred by sentencing him without first ordering a substance abuse evaluation based upon Article 42.12, section 9(h). Although the evidence indicated that appellant and his coconspirators stole marihuana from the complainant=s house, no determination was made by the trial court as to whether drugs or alcohol may have contributed to the offense; and appellant did not bring to the trial court=s attention that he believed an evaluation was necessary. Therefore, appellant has waived the point of error. Caster v. State, 87 S.W.3d 751, 752 (Tex.App. B Texarkana 2002, no pet=n). Appellant=s second point is overruled.

Ineffective Assistance of Counsel

In his third point, appellant complains that his trial counsel was ineffective because his counsel did not object to the lack of a proposed supervision plan in the PSI report and because his counsel did not request an alcohol or drug evaluation.

To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the result of the proceeding would have been different but for counsel s deficient performance. Strickland v. Washington, 466 U.S. 668 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The purpose of this two-pronged test is to determine whether counsel s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999)(citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den d, 508 U.S. 963 (1993)).

Our review of defense counsel s representation is highly deferential and presumes that counsel s actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000), cert. den d, 532 U.S. 1053 (2001). When the record is silent on the motivations underlying counsel s tactical decisions, appellant usually cannot overcome the strong presumption that counsel s conduct was reasonable. See Thompson v. State, supra at 813. In order to defeat the Strickland presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, supra at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den d, 519 U.S. 1119 (1997)). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel s actions. Thompson v. State, supra at 813-14.

In the present case, the record is silent as to why appellant s trial counsel chose not to object to the PSI report and not to request a substance abuse evaluation. The record is insufficient to overcome the strong presumption that counsel s conduct was reasonable. Appellant s third point is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

May 29, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.