Darryl Kinney v. The State of Texas--Appeal from 179th District Court of Harris County

Opinion issued June 30, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01039-CR

DARRYL BENET KINNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 961044

MEMORANDUM OPINION

Appellant Darryl Benet Kinney pleaded guilty to the state jail felony of possession of a controlled substance, and pleaded true to two enhancement paragraphs of prior state jail felony convictions, as alleged in the indictment. The trial court assessed punishment at four years deferred adjudication community supervision conditioned, upon Kinney s completion of the Success Through Addiction Recovery ( STAR ) program. Ten months later, the State moved to adjudicate Kinney s guilt. Kinney stipulated to the evidence of the allegations in the State s motion without an agreed punishment recommendation. The trial court adjudicated Kinney s guilt and assessed punishment at six years confinement. Kinney contends (1) his sentence is grossly disproportionate to his offense, thereby violating the Eighth Amendment s prohibition against cruel and unusual punishment; and (2) he received ineffective assistance of counsel. We affirm.

Discussion

Cruel and Unusual Punishment

In his first issue, Kinney contends that his sentence is grossly disproportionate to the offense he committed, and thus constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The State responds that Kinney failed to preserve his issue for appeal. We agree.

In order to preserve error on appeal, a party must specifically object and obtain a ruling from the trial court, or object to the trial court s refusal to rule. Tex. R. App. P. 33.1(a). The complaining party must object at the earliest possible opportunity and obtain an adverse ruling. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Arguments on appeal must comport with the objection at trial, or the error is waived. Id. (quoting Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). An objection will be sufficient to preserve error for appellate review if it communicates to the trial judge the objecting party s requested relief and the basis for the relief in a manner clear enough for the judge to understand the objection and request, at a time when the trial court can act upon the request. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). This is true even if the complaint is based upon constitutional grounds. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); see also Espinosa v. State, 29 S.W.3d 257, 260 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). The failure to specifically object in the trial court waives an Eighth Amendment cruel and unusual punishment claim. See Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App. Houston [14th Dist.] 2001, pet. ref d); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). Here, Kinney failed to raise his error in the trial court either by an in-court objection or a post-trial motion. We therefore conclude that Kinney failed to preserve his issue for appeal.

Ineffective Assistance of Counsel

In his second issue, Kinney contends he received ineffective assistance of counsel because his trial counsel failed to conduct a thorough background investigation in order to present mitigating evidence to the trial court during the sentencing phase of his trial. Kinney further contends that his trial counsel should have requested a presentence investigation ( PSI ) report to introduce sufficient evidence into the record to allow the trial court to meaningfully exercise its discretion. The State responds that no evidence exists in the record to rebut the presumption that Kinney s trial counsel s strategy was reasonable.

To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) his counsel s performance was deficient; and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

The first prong of Strickland requires the defendant to show that counsel s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove by a preponderance of the evidence that his counsel s representation objectively fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

The second prong requires the defendant to show a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Thompson, 9 S.W.3d at 812. The Court of Criminal Appeals has observed that the purpose of this two-pronged test is to judge whether counsel s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see also Thompson, 9 S.W.3d at 812 13 (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992)). A reviewing court must indulge a strong presumption, however, that counsel s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and the record affirmatively must demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Id.

Here, both parties concede that no reporter s record is available for this Court to review the adjudication or sentencing hearing. We cannot speculate whether Kinney s trial counsel introduced witness testimony or presented arguments. Further, Kinney failed to move for a new trial to further develop the record alleging his trial counsel s ineffective assistance. Without more in the record, we must presume that Kinney s trial counsel took actions as part of his strategic plan to represent his client. See Young v. State, 991 S.W.2d 835, 837 38 (Tex. Crim. App. 1999). We conclude that Kinney fails to rebut the presumption that his trial counsel s strategy was reasonable and therefore hold that he received effective assistance of counsel.

Conclusion

We hold that (1) Kinney failed to preserve his Eighth Amendment cruel and unusual punishment issue for appeal, and (2) he fails to establish that he received ineffective assistance of counsel. We therefore affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).