Opinion issued March 3, 2011
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-09-00858-CR
01-09-00859-CR
01-09-00860-CR
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COURTNEY WOODS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case Nos. 1199063, 1199276, and 1199277
MEMORANDUM OPINION
Appellant Courtney Myers Woods pleaded guilty, without a plea agreement,
to committing three aggravated robberies. The trial court sentenced him to twenty
years in prison on each case with the sentences to run concurrently. In a single
issue raised in all three appeals, appellant asserts that he received ineffective
assistance of counsel at punishment. We affirm.
Background
Appellant pleaded guilty to committing three aggravated robberies in Harris
County and requested the preparation of a presentence investigation report (―PSI‖)
and the continuation of the hearing. The trial court granted appellant’s request,
recessed the hearing without making a finding of guilt, and ordered the preparation
of a PSI.
A few months later the court reconvened the case to consider the PSI and
appellant’s other evidence and witnesses. Without objection from the defense, the
State introduced a DVD of one of the aggravated robberies. The State called no
witnesses.
The PSI included descriptions of the three robberies and statements of
appellant to the effect that he needed money and had been to see some
acquaintances known for having money who invited him to join a gang and
participate in robberies. When he was caught following a robbery of a ―Little
Caesar’s Pizza‖ restaurant, his participation in the gang ceased.
2
The PSI contained a ―Victim Impact Statement‖ from a complainant in the
robbery featured on the DVD that alleged that appellant had ―pointed a gun at him
during the robbery and he thought he was going to be killed.‖
The PSI also contained information on two alleged aggravated robberies by
appellant in Brazoria County: ―Aggravated Robbery, set for trial on 11/02/09 in
Brazoria County, Texas. An Aggravated Robbery of a post office is being carried
with that case, but it has not been indicted.‖ The ―post office‖ robbery was
described in detail and the PSI noted that, after a live lineup, appellant was
identified as the robber.
The PSI was not introduced into evidence but was considered by the trial
court.
The court invited both sides to provide additional information for its
consideration but there is no record of the trial court asking the defense to point out
any inaccuracies in the PSI report.
Appellant called numerous character witnesses—family, friends, a
counselor, and a pastor—and introduced a packet of letters attesting to his
character and asked the court to place him on deferred adjudication community
supervision. Appellant’s testimony noted that his need of money for college and to
raise his child was such that he succumbed to others who pressured him into a
―crime spree.‖ Appellant further pointed out that the DVD bolstered his testimony
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that he never took the gun (a pellet gun) out of his waistband or pointed it at
anyone.
When asked in cross-examination about other aggravated robberies that he
had committed, appellant invoked his Fifth Amendment privilege and his attorney
informed the court that appellant was set for trial in Brazoria County for
aggravated robbery. Since the PSI recited one case set for trial and another being
―carried along with that,‖ the trial court asked if the PSI was incorrect.
As
appellant’s trial counsel was also counsel in the Brazoria County cases, she
explained that, while the one case was indicted and set for trial, there was another
aggravated robbery case not yet charged, but which was being used by the Brazoria
County district attorney as an ―extraneous offense.‖
In her closing argument, trial counsel reminded the court that the DVD did
not show appellant brandishing a weapon, but only lifting his shirt to exhibit that
he had one. The trial court noted the inconsistency of having seen no pointed gun
in the video and the complainant’s statement that appellant pointed a gun at him
during the robbery. The prosecutor, too, responded, ―I would agree with that,
Judge.‖ The court acknowledged the State’s agreement: ―All right. So, at this
point, we’ll say that [the complainant’s] statement is mistaken.‖
The State
answered, ―Yes, Judge. Although there was some of - - some of the incident did
take place off video as you saw. But I can’t say what happened there.‖ The court
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then observed ―that there was no objection at that point to the PSI being accurate
when I asked [defense counsel] about it.‖ Trial counsel responded, ―I understand‖
and ―I apologize‖ and the trial court told her to continue her argument. She did,
stating ―So there wasn’t an actual brandishing of the weapon . . . .‖ Counsel asked
the court to give appellant another chance and place him on deferred adjudication
community supervision.
In the State’s argument, the prosecutor did not mention any brandishing of a
weapon but asked the court’s consideration of the ―eight people who got robbed at
gunpoint by‖ appellant; that appellant ―had a choice to commit these five separate
robberies, two of which he d[id] not want to acknowledge, and robbing eight
people;‖ that ―those eight people‖ had no choice; that appellant had forever
―impacted the lives of those eight people;‖ and that there were ―eight people whose
. . . lives changed forever.‖ The prosecutor asked for a prison sentence, pointing
―out that [appellant] ha[d] committed five robberies,‖ and that if he received the
minimum sentence for each crime, that would be twenty-five years, and if he
received the minimum sentence ―for each person that he robbed,‖ that would be
forty years.
The trial court sentenced appellant to twenty years in prison in each case,
with the sentences to run concurrently.
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Appellant filed a timely notice of appeal and a request for new counsel.
New counsel timely filed a motion for new trial, alleging, among other things, that
appellant received ineffective assistance of counsel due to counsel’s failure to
object to incorrect, harmful information in the PSI, namely that appellant pointed a
gun at a complainant rather than only displaying a gun handle in his waistband.
Trial counsel filed an affidavit stating that she had represented appellant in
Harris County and Brazoria County. She explained that there was one aggravated
robbery case pending in Brazoria County and another aggravated case involving a
U.S. Post Office never formally charged but only used as an extraneous offense.1
Counsel also explained that she had tried to reach a plea agreement but the State
would not offer less than thirty-five years in prison, which appellant rejected.
Appellant did not want a jury trial because of the risk and chose to plead without a
plea agreement in hope of obtaining community supervision.
No hearing was conducted on the motion for a new trial because Brazoria
County had sent appellant to prison rather than returning him to Harris County and
appellant could not be present. Appellate counsel asked the trial court not to make
findings of fact or conclusions of law and withdrew the motion for new trial.
1
In open court, appellate counsel later acknowledged receiving copies of the
Brazoria County offense report from the State involving the robbery of a
postal worker.
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Discussion
In his sole issue, appellant contends that he received ineffective assistance of
counsel at the punishment portion of his hearing because his counsel failed to
object to two statements in the presentence investigation report: (1) complainant’s
claim that appellant had pointed a gun at the complainant—a fact contradicted by
the video and appellant’s testimony—and (2) a statement that appellant had a
pending uncharged case in Brazoria County (making a total of five pending
aggravated robberies). Appellant acknowledges that there is no record of trial
counsel’s reasons for not objecting to these statements, but argues that there was
no plausible defense strategy for not objecting to these statements.
The United States Constitution, the Texas Constitution, and a Texas statute
guarantee an accused the right to reasonably effective assistance of counsel. See
U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art.
1.051 (West Supp. 2008); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App.
1997). To prove ineffective assistance of counsel, a defendant must show that (1)
trial counsel’s representation fell below an objective standard of reasonableness,
based on prevailing professional norms, and (2) there is a reasonable probability
that the result of the proceeding would have been different but for trial counsel’s
deficient performance. See Strickland, 466 U.S. at 687–95, 104 S. Ct. at 2064–69;
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Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (applying
Strickland test to review of claim of ineffective assistance of counsel under Texas
statutes and constitutional provisions). Under Strickland, the defendant ―must
prove, by a preponderance of the evidence, that there is, in fact, no plausible
professional reason for a specific act or omission.‖ Bone v. State, 77 S.W.3d 828,
836 (Tex. Crim. App. 2002).
The defendant must also show a reasonable
probability that, but for counsel’s error, the result of the proceeding would have
been different.
Id. at 833.
A ―reasonable probability‖ means a ―probability
sufficient to undermine confidence in the outcome.‖ Strickland, 466 U.S. at 694,
104 S. Ct. at 2068.
Judicial scrutiny of counsel’s performance must be highly deferential, and
the defendant must overcome the presumption that, under the circumstances of the
case, the challenged action might be considered sound trial strategy. Id. at 689,
104 S. Ct. at 2065.
We apply a strong presumption that trial counsel was
competent and presume that counsel’s actions and decisions were reasonably
professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1994).
Prior to sentencing by a judge in a felony case, the judge shall direct a
community supervision officer to prepare a pre-sentence investigation (PSI) report,
which report it is statutorily permitted to consider. See TEX. CODE CRIM. PROC.
8
ANN. art. 42.12, § 9(a) (West Supp. 2010); TEX. CODE CRIM. PROC. ANN. art.
37.07, § 3(d) (West Supp. 2010). The judge shall allow the defendant or his
counsel to review and comment on the report, and, with leave of the court, proffer
evidence as to any factual inaccuracies therein. See TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 9(d), (e). The allegation that information in the report is inaccurate
does not render the report inadmissible. Stancliff v. State, 852 S.W.2d 630, 632
(Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Rather, the defendant bears
the burden of proving that the information was materially inaccurate and that the
judge relied upon it. Id.
If the report contains information regarding extraneous offenses, ―Section
3(a)(1) of Article 37.07 [of the Code of Criminal Procedure] does not prohibit a
trial court, as a sentencing entity, from considering extraneous misconduct just
because the extraneous misconduct has not been show to have been committed by
the defendant beyond a reasonable doubt, if that extraneous conduct is contained in
a PSI.‖ Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007). Rather, the
trial court may consider extraneous acts contained in a PSI not proven beyond a
reasonable doubt if there is some evidence from some source (including the PSI
itself) from which the trial court may rationally infer that the defendant had any
criminal responsibility for the extraneous offense. Id. at 764.
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Appellant complains of trial counsel’s failure to make a ―proper objection‖
to the PSI statement of the complainant who claimed to have had a gun pointed at
him. Counsel, however, did point out to the trial court that this was inaccurate and
noted the disparity with the video.2
Appellant does not suggest what additional objections counsel should have
made beyond those permitted by the Code of Criminal Procedure, nor has he
presented any authority supporting the position that, had counsel made such
additional unspecified objections, the objections would have been granted and such
grant would have produced a source of reasonable probability, sufficient to
undermine confidence in the outcome, that the result of the proceeding would have
been different. We hold that appellant has failed to meet his burden under the first
and second prongs of Strickland as to this portion of his complaint.
Appellant further complains that trial counsel was ineffective for not
objecting to the ―misstatement that Appellant had 5 Aggravated Robberies‖ since
he submits there was ―no evidence that Appellant was at all connected to, involved
with or guilty of the fifth Aggravated robbery that was in the PSI.‖ Appellant
argues that trial counsel either failed to read the PSI and/or ―had no idea of her
2
We note also that the prosecutor pointed out that part of the offense took
place ―off-camera.‖ While appellant denied pointing the gun at any time,
the trial court could have chosen not to believe him, but to believe instead
that the complainant’s statement referred to the ―off-camera‖ period.
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duty to object‖ to this information he characterizes as inadmissible ―because there
is no evidence that he was guilty of another offense in Brazoria County, although
it’s stated so in the PSI.‖
We must first clarify that the PSI did not state that appellant was guilty of
two Brazoria County offenses, but only that there was one case set for trial and
another, not indicted, was being ―carried with‖ that trial case. Indeed, appellant’s
counsel focused the court’s attention on the fact that the unindicted, uncharged
case was being used as an extraneous. That case, the ―post office robbery,‖ was
the one discussed in the PSI in which appellant was identified by the complainant.
Although no evidence was proffered that these statements in the PSI were untrue,
trial counsel properly clarified the relationship of the cases.
Because there was no evidence connecting him to the uncharged aggravated
robbery, appellant argues, Code of Criminal Procedure article 37.07, section
3(a)(1) prohibits the consideration of this extraneous offense unless it was proven
beyond a reasonable doubt that he committed the crime. Appellant cites to a 1995
case from this Court and a 1993 case from the Fifth Circuit interpreting thenexisting Texas law and holding that the failure to object to extraneous offenses in a
PSI was ineffective assistance of counsel because extraneous offenses were then
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not admissible as evidence at punishment.3 See Thomas v. State, 923 S.W.2d 611,
612–13 (Tex. App.—Houston [1st Dist.] 1995, no pet.); see also Spriggs v. Collins,
993 F.2d 85, 89–90 (5th Cir. 1993). Both cases pre-date significant changes in the
Code of Criminal Procedure (notably, that extraneous offenses are now admissible
at punishment), and in 2007, the Court of Criminal Appeals specifically held
article 37.07, section 3(a) to be inapplicable to extraneous offenses discussed in a
PSI and so extraneous offenses contained in a PSI do not need to be proven beyond
a reasonable doubt in order to be considered by the trial court at punishment. See
Smith, 227 S.W.3d at 763–64. Rather, there only need be some evidence from
some source from which it could be rationally inferred that a defendant had any
criminal responsibility for the extraneous offense. Id. at 764. Here, information in
the PSI positively identifying appellant was sufficient for the trial court to
rationally infer he had some criminal responsibility for that offense. We hold that
appellant has failed to meet his burden under the first prong of Strickland as to this
portion of his complaint.
We overrule appellant’s sole issue.
3
The Fifth Circuit has since repudiated its holding in Spriggs, noting that
Texas law has now changed. See Givens v. Cockrell, 265 F.3d. 306, 310 n.4
(5th Cir. 2001).
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Conclusion
We affirm the judgment of the trial court in each cause.
Jim Sharp
Justice
Panel consists of Justices Jennings, Alcala, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
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