CHARLES BENNETT MALONEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00599-CR
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CHARLES BENNETT MALONEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F06-22849-SI
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Charles Bennett Maloney appeals his conviction for aggravated assault. After finding appellant guilty, the trial court assessed punishment at twelve years' confinement. In five issues, appellant contends (1) he did not receive the effective assistance of counsel at trial; (2) the evidence is factually insufficient to support his conviction; and (3) his sentence is unreasonable, and cruel and unusual. We overrule appellant's issues and affirm the trial court's judgment.
Background
        Mark Stem testified he was confined in the Dallas County jail for fraudulently obtaining painkillers. He was assigned to the infirmary while awaiting a bed in a drug treatment facility. Appellant was also confined in the jail infirmary. According to Stem, appellant was “a bully” and “constantly” tried to take things from Stem, including a silver cross necklace worn by Stem. One evening, Stem was upset about missing dinner and church with his family, and was crying and praying at a window near appellant's bunk. Appellant told Stem to get away from his bunk and grabbed his necklace. Stem “patted [appellant's] hand down” and told appellant he could not have the necklace. Appellant began shouting and then hit Stem in the neck and the chest causing him to fall to the ground. Stem was on the ground with his arm up against a bed post when Stem saw appellant kick his arm. Stem explained that although he “lost consciousness for a little while,” he “clearly saw” appellant kick his arm. When appellant kicked him, Stem heard a “pop, pop” as the bones broke. The next thing Stem remembered is “coming to” when someone “sprinkled” water in his face. Another man was “kind of pushing” or “holding [appellant] back.” Stem pushed down with his arm as he tried to get up, and his arm “bent like an elbow right there behind the wrist.” As Stem pushed the button to call the guards for help, appellant told Stem to say he slipped in the shower or appellant would harm Stem's sons. Initially, Stem told the guards he had fallen in the shower and injured himself, but later told the guards he had been beaten. The “floor guard” told Stem to “fill out an affidavit, one saying that [Stem] slipped in the shower.” Stem did as he was told and was taken to the emergency room where doctors spent hours resetting the bones in his arm. According to Stem, there were thirteen different breaks in the two bones in his arm and wrist. Three months later, Stem had a bone graft and repair to his arm but has “little to no mobility in it . . . and no strength whatsoever in the wrist anymore because the tendons were badly damaged.”
        Elizar Chapa, a detention officer at the Dallas County jail, testified he was on duty in the infirmary when Stem's arm was broken. He received a call stating an inmate had fallen in the infirmary. According to Chapa, Stem appeared nervous, scared, and was sweating. Although Stem told Chapa he fell in the shower, Chapa suspected that was not what happened. Chapa explained that usually a report of an inmate being injured in the shower is “an informal code. It's spoken between [inmates] saying that if a situation is handled a certain way, then it stays that way. But if . . .[the inmate tells the authorities the truth] . . . and they have to put him back in that cell, well, then, you're putting that man in danger of getting killed.” After reassuring Stem and giving him the opportunity “to calm down,” Stem told Chapa that appellant had assaulted him.
        Appellant's version of the incident was substantially different than Stem's version. Appellant testified that a short time before he was incarcerated, appellant was in a car accident and broke his arm. His arm had screws in his arm and one of his fingers had been amputated. He was in a removable cast and was being treated in the infirmary. Appellant claimed that when Stem first arrived in the infirmary, appellant gave Stem some of his food and “a couple” of appellant's pain pills and Stem promised to pay appellant. Stem did not pay appellant, so when Stem began asking other men in the cell for “stuff,” appellant told them Stem “ain't going to pay you. He's going to use your stuff up.” Stem then called appellant a “MF” and began walking toward appellant. Because appellant thought Stem was “going to push me or something, [he] pushed” Stem. When appellant pushed Stem, he fell over a stool, injuring himself. Appellant denied that he tried to take Stem's necklace, denied kicking Stem's arm, and denied threatening to harm Stem's children if he told what had actually happened.
        After hearing this and other evidence, the trial court found appellant guilty of aggravated assault. This appeal followed.
Discussion
        In his first issue, appellant contends we must reverse his conviction because he did not receive the effective assistance of counsel at trial. In particular, appellant claims counsel was ineffective because he did not develop evidence during punishment regarding appellant's past mental health issues.
        We examine such claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56-7 (Tex. Crim. App. 1986). Appellant has the burden to show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812.
        “In the usual case in which an ineffective-assistance claim is made, 'the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional.'” Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). This is generally the case because a silent record provides no explanation for counsel's actions and therefore will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110.
        In this case, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. As a result, the record does not provide a discussion of trial counsel's purported errors. It contains no discernable explanation for counsel's failure to introduce evidence concerning appellant's past mental health. Although there are rare cases in which a record is sufficient for an appellate court to make a decision on the merits of an ineffective assistance of counsel claim, after reviewing the record, we conclude this is not one of those cases. See Cannon, 252 S.W.3d at 350. We conclude appellant has not met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in a particular manner). We overrule appellant's first issue.
        In his second issue, appellant claims the evidence is factually insufficient to support his conviction. Specifically, appellant maintains the State failed to present medical records showing the extent of Stem's injuries.
        When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). When reviewing the factual sufficiency of the evidence, we may substitute our judgment for the factfinder's “albeit to a very limited degree.” Id. at 624; Watson, 204 S.W.3d at 416-17. A “factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review.” Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
        To support appellant's conviction for aggravated assault, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused serious bodily injury to Stem by striking Stem with appellant's hand or by kicking Stem with appellant's foot. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(1) (Vernon Supp. 2007). “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2007); Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004).
        Stem testified that appellant hit him in the neck and chest causing Stem to fall to the ground. As he lay on the ground, appellant kicked his arm, breaking it in thirteen places. Stem had surgery to graft and repair the bone and continues to have weakness and loss of mobility in his wrist. Nevertheless, appellant contends Stem's testimony is insufficient to show serious bodily injury because Stems's statements were “inherently intertwined with the fact that he suffered from the aftereffects of a stroke, and because he lost consciousness during the alleged assault” and the State failed to present medical records showing the extent of Stem's injuries. However, there is no requirement that Stem's testimony be corroborated by medical evidence; his testimony alone is sufficient to show he was seriously injured. In short, the jury was in the best position to evaluate Stem's credibility. The lack of medical records does not render the evidence insufficient. Reviewing the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's conviction for aggravated assault. We overrule appellant's second issue.
        In appellant's third, fourth, and fifth issues, he contends his twelve-year sentence is unreasonable, and constitutes cruel and unusual punishment in violation of the United States and Texas Constitutions. See U.S. Const. amend. VIII, XIV; Tex. Const. art. 1, § 13. Appellant asserts that because of his mental health and related substance abuse problems, the trial court should have exercised restraint in sentencing.
        Appellant did not complain about his sentence either at the time it was imposed or in his motion for new trial. Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). By failing to complain about his sentence, he has failed to preserve error for our review. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Moreover, even if appellant had preserved error, appellant's sentence is within the statutory punishment range for the offense. See Tex. Penal Code Ann. §§ 12.42(b), 22.02(b) (Vernon Supp. 2007). Thus, we conclude appellant's sentence is not unreasonable and it does not constitute cruel and unusual punishment in violation of the United States and Texas constitutions. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We overrule appellant's third, fourth, and fifth issues.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070599F.U05