Lakelvius Morquez Swain v. The State of Texas--Appeal from 241st District Court of Smith County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00155-CR

Lakelvius Morquez Swain,

Appellant

v.

The State of Texas,

Appellee

From the 241st District Court

Smith County, Texas

Trial Court No. 241-1439-05

MEMORANDUM Opinion

Lakelvius Morquez Swain pleaded guilty to aggravated sexual assault of a child and the jury sentenced him to seventy-five years in prison with a $10,000 fine. In two points of error, Swain contends that: (1) his sentence constitutes cruel and unusual punishment; and (2) his trial counsel rendered ineffective assistance. We affirm.

SENTENCE

In his first point, Swain argues that his sentence constitutes cruel and unusual punishment in violation of the United States and Texas Constitutions because it is grossly disproportionate. The State responds that Swain failed to preserve this point for appellate review. We agree with the State. Swain did not raise this point at trial and so has failed to preserve his complaint for our review. See Steadman v. State, 160 S.W.3d 582, 586 (Tex. App. Waco 2005, pet. ref d) (citing Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983)); see also Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App. Dallas 2003, no pet.). We overrule Swain s first point.

INEFFECTIVE ASSISTANCE

Swain contends, in his second point, that his trial counsel rendered ineffective assistance by failing to offer evidence of Swain s eligibility for a probated sentence.

To prove ineffective assistance, an appellant must show that: (1) counsel s performance was deficient; and (2) the defense was prejudiced by counsel s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). There is a strong presumption that counsel s conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). [A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Swain filed a sworn application for community supervision asserting that he had never been convicted of a felony. Swain s counsel did not call any witnesses to establish this assertion. Swain elected not to testify and informed the trial court that no family members were available to testify. The trial court admonished Swain that absent evidence of eligibility, there would be no basis for including probation in the jury charge and the jury would be instructed to impose a sentence of five to ninety-nine years in prison. Swain acknowledged this fact. Defense counsel argued that Swain s sworn application and criminal history consisting of three prior misdemeanors could enable the jury to decide whether Swain had been convicted of a felony. The trial court excluded probation from the jury charge.

In reliance on our opinion in Ware v. State, Swain argues that trial counsel s failure to present evidence of his eligibility for probation constitutes ineffective assistance. However, Ware addressed ineffective assistance under the Duffy standard. See Ware, 875 S.W.2d 432, 436 (Tex. App. Waco 1994, pet. ref d). Duffy has since been abandoned and Strickland now applies to both phases of trial. See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999).

As we noted in Ware, application of Strickland may result in a different outcome, such as in the present proceeding. See Ware, 875 S.W.2d at 436. Under Strickland, Swain has failed to overcome the presumption that trial counsel s conduct fell within the zone of reasonable representation. Salinas, 163 S.W.3d at 740. A claim of ineffective assistance based on counsel s failure to call witnesses fails in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony. Wade v. State, 164 S.W.3d 788, 796 (Tex. App. Houston [14th Dist.] 2005, no pet.) (citing Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)); see Cate v. State, 124 S.W.3d 922, 928 (Tex. App. Amarillo 2004, pet. ref d). Swain has not identified any witnesses or evidence that should have been presented in support of his eligibility for community supervision. Neither has Swain shown that any witnesses were available to testify on his behalf.

Accordingly, Swain has failed to show that trial counsel s performance was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Bone, 77 S.W.3d at 836. Because Swain cannot prove the first prong of the Strickland test, he cannot prevail on his ineffective assistance claim and we need not address the second prong of the Strickland test. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We overrule Swain s second point of error.

Having overruled both of Swain s points of error, we affirm the trial court s judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the result, but not the opinion, without a separate opinion)

Affirmed

Opinion delivered and filed July 18, 2007

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