Michael Wayne Nunn, Jr. v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00106-CR

Michael Wayne NUNN,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 1999-CR-1003

Honorable Sam Katz, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 29, 2000

AFFIRMED

The appellant, Michael Wayne Nunn, pled Ano contest@ to committing the offense of intoxication manslaughter, and pled Atrue@ to a repeater offense of theft of a vehicle. In exchange for Nunn=s plea, the State agreed to abandon a second charge of intoxication assault. After a punishment hearing during which the State presented evidence, the trial court sentenced Nunn to 99 years in prison. Nunn appeals the sentence in this appeal.

In his first issue, Nunn contends that his sentence constitutes cruel and unusual punishment. In response, the State correctly points out that Nunn waived this issue by failing to object to his sentence at trial. See Tex. R. App. P. 33.1 (requiring a ruling on a timely and specific objection to preserve an issue for appellate review); see also Robinson v. State, 906 S.W.2d 534, 536 (Tex. App.BTyler 1995, no pet.) (stating that appellant waived complaint about sentencing because he failed to object to the trial court). Because Nunn did not make this complaint to the trial court, we overrule this issue.

In his second issue, Nunn argues that his trial attorney was ineffective by failing to object to his sentence and by failing to object when the trial judge interjected himself into the trial proceedings. A claim of ineffective assistance of counsel is reviewed under the standard set out in Strickland v. Washington, 104 S. Ct. 2052 (1984). To prove ineffective assistance of counsel under Strickland, the appellant must prove that his lawyer=s conduct was deficient, and that the result of the proceeding would have been different but for the lawyer=s deficient performance. Strickland, 104 S. Ct. at 2064, 2068. This standard applies to both phases of trial.[1] Whether this standard has been met is judged by the totality of representation rather than by isolated acts or omissions by trial counsel. See Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).

The totality of representation here does not demonstrate deficient performance. Instead, the record shows that the attorney provided adequate representation. The attorney effectively cross-examined the State=s witnesses and presented character witnesses on his client=s behalf. Each character witness testified that Nunn was not a bad person, but that he had made bad choices in his life that had led to his difficulties. Each witness asked the trial judge to exercise leniency to see that Nunn received the help he needed. The attorney likewise asked the trial court to consider the effect of alcohol on Nunn=s life and appealed to the trial court for leniency. While the attorney probably should have objected when the trial court questioned the State=s witnesses, that omission alone does not constitute deficient performance. Faced with Nunn=s numerous prior offenses, the attorney appears to have done what he could to mitigate Nunn=s punishment. Under these circumstances, the record does not show deficient performance. We overrule this issue.

Having overruled each of Nunn=s issues on appeal, we affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

[1]See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (stating that Strickland applies to both the guilt/innocence and punishment phases of trial and overruling Ex Parte Duffy which was previously used to evaluate effectiveness of counsel during punishment phase).