Eric Tristan Barber v. The State of Texas--Appeal from 263rd District Court of Harris County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00807-CR

__________

ERIC TRISTAN BARBER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 973739

MEMORANDUM OPINION

Appellant, Eric Tristan Barber, pleaded guilty without an agreed recommendation to the offense of aggravated robbery. See Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 2003). After a pre-sentence investigation ( PSI ) hearing, the trial court assessed appellant s punishment at 10 years in prison. In two points of error, appellant contends that he was denied effective assistance of counsel because his trial counsel (1) failed to request that the trial court order preparation of a substance abuse evaluation prior to sentencing and (2) failed to request that he be allowed to review the victim impact statements for subsequent use at his PSI hearing.

We affirm.

Background

On January 1, 2004, appellant and three others were identified as suspects in a robbery that occurred on the same day at a local Houston restaurant. Dora Moreno advised Houston Police that three of the four suspects had entered the restaurant and that one of the men, later identified as appellant, was carrying a large shotgun and yelled for everyone in the restaurant to get down on the ground. Another suspect threatened Martha Pena with a handgun and forced her to take out money from the cash register, while appellant and another suspect went to the kitchen in the back.

Frian Diaz and Jasso Gonzalo were in the kitchen during the robbery, and Diaz testified that, when the suspects entered the kitchen, one of them put the butt of the shotgun into his chest.

Later that evening during a routine traffic stop, a sawed off shotgun and a loaded pistol were found in the car in which the four suspects were riding. A wallet containing identification and a cell phone were also found in the car and were identified as owned by two of the complainants. The officers further searched the suspects and found that they were holding a large amount of money.

Appellant pleaded guilty without an agreed recommendation to the offense of aggravated robbery. At the beginning of the PSI hearing, appellant s counsel requested permission to add letters of recommendation and appellant s GED certificate of completion to the PSI report. The trial court agreed to take notice of the items. After hearing testimony from appellant, his cousin, and the complainants and arguments from counsel, the trial court sentenced appellant to 10 years in prison. There was no motion for new trial.

Ineffective Assistance of Counsel

In two points of error, appellant contends that he was denied effective assistance of counsel because his trial counsel (1) failed to request that the trial court prepare a substance abuse evaluation prior to sentencing and (2) failed to request that he be allowed to review the victim impact statements for subsequent use at his PSI hearing.

Standard of Review

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Appellant must show both (1) that counsel s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) that, but for the counsel s error, the result of the proceedings would have been different. Id. This standard applies to both guilt/innocence and punishment stages of trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

It is the defendant s burden to prove ineffective assistance of counsel, and such a claim must be firmly supported in the record. Id; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Substance Abuse Evaluation

In point of error one, appellant contends that he was denied effective assistance of counsel because his trial counsel failed to request that the trial court order preparation of a substance abuse evaluation prior to sentencing. Article 42.12, section 9 of the Texas Code of Criminal Procedure states that:

(h) On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense, . . . the judge shall direct a supervision officer . . . to conduct an evaluation to determine the appropriateness of . . . alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge.

Tex. Code Crim. Proc. Ann. art. 42.12, 9(h) (Vernon 2005) (emphasis added). The evaluation shall be made after conviction and before sentencing, if the judge assesses punishment in the case. Id.

Appellant testified that, although he had smoked marihuana in the past, he had not used drugs in the previous three years. He also testified that he drinks beer occasionally, but not very much. Despite appellant s statement in the PSI that all co-defendants were drinking beer and all but appellant smoking marihuana, the record does not reflect any determination by the trial court that alcohol or drug abuse may have contributed to the commission of the offense. Furthermore, the trial court s judgment states that a controlled substance finding was not applicable in this case. Without something in the record to show otherwise, we cannot conclude that appellant s trial counsel s inaction regarding these evaluations constituted ineffective assistance of counsel.

Accordingly, appellant has failed to prove that his trial counsel erred by failing to request that a substance abuse evaluation be conducted. Because appellant failed to meet the first prong in Strickland, we overrule his first point of error.

Victim Impact Statements

In point of error two, appellant contends that he was denied effective assistance of counsel because his trial counsel failed to request that he be allowed to review the victim impact statements for subsequent use at his PSI hearing.

Article 56.03 of the Texas Code of Criminal Procedure states that:

prior to imposition of a sentence by the court in a criminal case, the court, if it has received a victim impact statement, shall consider the information provided in the statement. Before sentencing the defendant, the court shall permit the defendant or his counsel a reasonable time to read the statement . . . .

Tex. Code Crim. Proc. Ann. art. 56.03(e) (Vernon 2005) (emphasis added).

The record does not reflect that the trial court received any independent written victim impact statements. The PSI report did include statements from the PSI writer after he interviewed the victims, and the record indicates that appellant s counsel had access to and reviewed this information before the PSI hearing. During the PSI hearing, appellant s counsel referenced the alleged inconsistencies of the victims statements in the PSI report. // Thus, the record reflects that counsel reviewed the report before the hearing.

Appellant has failed to prove that his trial counsel erred by failing to request that he be allowed to review victim impact statements for use at his PSI hearing. Having failed to satisfy the first prong in Strickland, we overrule point of error two.

Conclusion

We affirm the trial court s judgment.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).