Michael Anthony Wiseman v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-99-00901-CR & 04-99-00902-CR

Michael Anthony WISEMAN,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th District Court, Bexar County, Texas

Trial Court No. 1999-CR-3097-W & 1999-CR-5180

Honorable Sam Katz, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: August 16, 2000

AFFIRMED

Michael Wiseman appeals his conviction for theft and revocation of his probation. In a single issue, Wiseman argues ineffective assistance of counsel deprived him of a fair trial. Because the record does not support Wiseman's complaint, we affirm the judgments of the trial court.

Factual and Procedural Background

Wiseman pled no contest to an enhanced theft charge in cause number 1999-CR-5180. The trial court entered a finding of guilty and imposed a two-year period of confinement in the State Jail Division of the Texas Department of Criminal Justice. The State later filed a motion to revoke probation in cause number 1999-CR-3097W. After Wiseman entered a plea of "true" to allegations of theft enhancement at the revocation hearing, the trial court revoked Wiseman's probation and sentenced him to a two-year confinement. On appeal, Wiseman argues he received ineffective assistance of counsel because counsel failed to request a pre-sentence investigation report prior to the imposition of sentencing. Because the issue presented involves well-settled law, we affirm the trial court's judgments in this memorandum opinion. See Tex. R. App. P. 47.1.

To prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that: (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 686, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). The absence of both showings of deficient performance defeats an ineffective assistance claim. Id. Further, whether a defendant has received ineffective assistance of counsel is to be judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

Turning to the rules regarding pre-sentence investigation, where a trial court assesses punishment, its decision to order a PSI report is discretionary. See Tex. Code Crim. Proc. Ann. art. 37.07 3(d) (Vernon Supp. 2000); Summers v. State, 942 S.W.2d 695, 696 (Tex. App.-Houston [14th] 1997, no pet.); Stancliff v. State, 852 S.W.2d 639, 640 (Tex. App.-Houston [14th Dist.] 1993,

pet. ref'd). The right to a PSI report is subject to waiver where a defendant fails to notify the trial

court of the lack of a PSI after punishment but prior to sentencing. (1) Summers, 942 S.W.2d at 696.

Using these well-settled principles, we examine the substance of Wiseman's claim. The following record excerpt demonstrates that the trial court gave Wiseman ample opportunity to request a PSI:

COURT: I am going to revoke the probation in cause number 99-CR-3097W and sentence you to two years in a state jail facility . . .Mr Davidson, at this time, do you wish to have your client sentenced on a different day with a PSI in cause number 99-CR-5180?

DEFENSE: May I consult with him, briefly, Your Honor.

COURT: Certainly. Or, if you request a PSI, as you have requested, and he waits, I have the authority to stack the sentence.

DEFENSE: My recommendation is to be sentenced today.

DEFENDANT: Yes.

DEFENSE: Yes, Your Honor. We would like to proceed and waive the PSI.

Under these circumstances, Wiseman waived any complaint on appeal as the record reveals he was afforded the opportunity to request a PSI. See Summers, 942 S.W.2d at 696(holding appellant waived right to have court order PSI preparation in the absence of an objection to the court). Because the trial court's decision to order a PSI is discretionary, no error occurred in the trial court's failure to do so in the instant case.

Moreover, Wiseman makes no showing of how the result of the proceeding would have been different with the introduction of the PSI. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). This point is especially relevant in light of Wiseman's plea of true, which alone supports the probation revocation. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). Because Wiseman fails to affirmatively demonstrate both prongs of the Strickland test, we affirm the judgments of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. Appellate counsel for Wiseman relies on the holding in Garrett v. State where the court's failure to conduct a PSI of a mentally ill defendant was error. See Garrett v. State, 818 S.W.2d 227, 229 (Tex. App.-San Antonio 1991, no pet.). We distinguish the narrow holding in Garrett from the facts here as there is no showing in the record or in appellate's brief to indicate a mental illness consideration.