Harvey Mellard v. State of Texas--Appeal from 81st Judicial District Court of Wilson County

Nos. 04-00-00558-CR & 04-00-00559-CR
Harvey MELLARD,
Appellant
v.
STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court Nos. 98-11-131-CRW & 99-01-023-CRW
Honorable Stella Saxon, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: June 13, 2001

AFFIRMED

Harvey Mellard ("Mellard") challenges his convictions of indecency with a child and aggravated sexual assault. In his sole point of error, Mellard contends that his trial counsel rendered ineffective assistance of counsel by: (1) waiving a jury; (2) arguing in favor of probation and deferred adjudication which the trial judge was not authorized to grant; and (3) failing to object to extraneous offense evidence. We overrule Mellard's point of error and affirm the trial court's judgment.

Facts

Mellard repeatedly fondled his stepdaughter from the time she was four until she was almost thirteen years old. When Mellard's stepdaughter made an outcry statement at the age of seventeen, she reported that the touching escalated to digital and penile penetration and oral sex. Mellard admitted to the sexual contact in a written statement, but denied any allegations of penetration. Mellard blamed alcohol and drug consumption.

Mellard pleaded not guilty to both charges in a trial before the court. The trial court found Mellard guilty and sentenced him to twenty years and fifty years imprisonment, respectively, with the sentences to run concurrently.

Standard of Review

In order to prevail on an ineffective assistance of counsel point of error, Mellard must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) Mellard was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat this presumption, any allegation of ineffectiveness must be firmly founded in the record, with the record affirmatively demonstrating the alleged ineffectiveness. Id. at 814.

Discussion
Waiver of Jury and Request for Probation/Deferred Adjudication

Mellard initially asserts that trial counsel was ineffective in counseling him to waive his right to a jury. Mellard contends that the trial judge was not authorized to grant probation on the aggravated sexual assault offense but a jury could have granted probation. Since trial counsel argued in favor of probation, trial counsel should not have waived a jury. Furthermore, Mellard notes that trial counsel argued in favor of deferred adjudication even though Mellard was not eligible for deferred adjudication.

"The decision to have the trial court assess punishment goes hand in hand with counsel's decision to try guilt-innocence to the trial judge. Consequently, we must take into consideration counsel's reasons for trying the entire case before the court" in evaluating whether trial counsel was ineffective in counseling Mellard to waive his right to a jury. Ortiz v. State, 866 S.W.2d 312, 314 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd). Because the record is silent as to trial counsel's reasons for trying the case before the court, as opposed to a jury, the record does not rebut the presumption that trial counsel's decision was made in the exercise of reasonable professional judgment and that the waiver was part of trial counsel's strategy. See Thompson, 9 S.W.3d at 813 (allegation of ineffective assistance must be firmly founded in record). In addition, Mellard's ineffective assistance complaint is based on his contention that the jury could have granted him probation. However, the record does not affirmatively demonstrate that Mellard was eligible for probation. See Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981) (rejecting ineffective assistance of counsel claim where record did not contain any sworn evidence establishing appellant was eligible for probation). The officer who prepared Mellard's presentence investigation referenced Mellard's "criminal history" as a basis for her recommendation that Mellard be sent to the penitentiary. Although the officer further noted Mellard's failure to disclose two prior DWIs, we cannot determine from the officer's testimony whether Mellard's criminal history was limited to the two prior DWIs.

Mellard also contends that trial counsel was ineffective in arguing in favor of probation and deferred adjudication, which the trial judge was not authorized to grant. Reviewing the totality of the evidence and argument presented at the punishment hearing, it is clear that trial counsel was arguing for leniency. Although trial counsel argued for a form of leniency that was not authorized, the record does not demonstrate that Mellard was prejudiced by trial counsel's arguments. Given the nature of the sentences the trial judge imposed, the result of the proceeding would not likely have been different if trial counsel argued for leniency in sentencing as opposed to probation/deferred adjudication.

Extraneous Offense

Mellard also asserts trial counsel was ineffective in allowing evidence to be introduced regarding an extraneous offense involving an indecency with a child allegation with respect to a second victim. Because the evidence was introduced during the punishment phase of the trial, it was admissible, and trial counsel was not ineffective in failing to object. See Tex. Code Crim. Proc. Ann. art. 37.07, 3, 38.37 4 (Vernon Supp. 2001); Romero v. State, 34 S.W.3d 323, 326 (Tex. App.--San Antonio 2000, pet. ref'd).

Conclusion

Mellard has failed to meet the requisite burden for establishing ineffective assistance of counsel. The trial court's judgments are affirmed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH