Daniel Lee Boss v. The State of Texas--Appeal from Crim Dist Ct 4 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-129-CR

No. 10-95-130-CR

No. 10-95-131-CR

No. 10-95-132-CR

No. 10-95-133-CR

DANIEL LEE BOSS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 4

Dallas County, Texas

Trial Court Nos. F92-57671-K, F94-19645-K, F94-19646-K,

F94-440008-TMK & F94-44301-K

O P I N I O N

Four of the above causes (10-95-129-CR, 10-95-130-CR, 10-95-132-CR & 10-95-133-CR) are burglary cases, enhanced by allegation of a prior felony conviction, and cause 10-95-232-CR is a case of theft of property valued over $1,500; all five cases were tried together on March 3, 1995. In each case Appellant waived a jury, pled guilty, signed a stipulation of evidence, and pled true to the enhancement paragraphs in the four burglary cases. The same attorney represented Appellant in all five cases; and there is one statement of facts for all five cases.

The trial court found Appellant guilty in each case, and found the enhancement paragraph to be true in the four burglary cases.

In Cause No. 10-95-129-CR the trial court sentenced Appellant to ninety-nine years in the Texas Department of Criminal Justice.

In Cause No. 10-95-130-CR the trial court sentenced Appellant to ninety-nine years and a $1,000 fine.

In Cause No. 10-95-131-CR the trial court sentenced Appellant to ninety-nine years and a $1,000 fine.

In Cause No. 10-95-133-CR the trial court sentenced Appellant to ninety-nine years and a $1,000 fine.

In Cause No. 10-95-132-CR the trial court sentenced Appellant to two years in State jail, probated for five years.

Appellant appeals his convictions and sentences in all five cases.

In Cause No. 10-95-129-CR Appellant appeals on two points of error:

Point I: "The trial court erred in assessing punishment without sentencing the appellant."

As noted, the five cases in which Appellant was the defendant, were tried together. After both sides closed and argument had been waived, the court asked if there was any reason why the defendant should not be sentenced on these cases at this time. The trial counsel answered, "none." The court then ordered the defendant transferred to the Texas Department of Criminal Justice to be confined for ninety-nine years, and a fine of $1,000 in the new burglary cases or until "your" sentences are discharged according to law.

On the same day, March 3, 1995, the court signed a written judgment which stated:

Thereupon the defendant was asked by the court whether he had anything to say why sentence should not be pronounced against him, and he answered nothing in bar thereof, and it appearing to the court that defendant is mentally competent and understanding of the proceedings, the court proceeded in the presence of said defendant, his counsel also being present, to pronounce sentence against him.

The record reflects that the court assessed Appellant's punishment and sentenced him as required by law. Five cases were being handled at the same time, and the court only referred to these cases when pronouncing sentence. Point I in Cause No. 10-95-129-CR is overruled.

Point II: "Appellant received ineffective assistance of counsel when trial counsel failed to object to the State's circumventing the agreement between the State and the appellant, and trial counsel failed to make an argument at conclusion of the punishment hearing for a sentence less than life."

The standard of review when ineffective assistance of counsel is alleged is set out in Strickland v. Washington, 466 U.S. 688 (1984), and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980). The burden of proving ineffective assistance of counsel is on the appellant and must be proved by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1981).

Appellant claims counsel was ineffective for letting the State go behind an alleged agreement between Appellant and the State and inform the court he had committed more offenses than those for which he was on trial. Counsel had no reason to object because the prosecutor did not violate any agreement to which the State was a party. Any agreement was between Appellant and a police officer, the agreement being that the police officer would not file more cases if Appellant confessed to the three offenses the police officer had already filed.

Defendant pled guilty to five felony indictments, four enhanced by a prior felony conviction to which Appellant pled "true." Given the fact that the record established conclusively that Appellant was an habitual criminal; that he was addicted to drugs and has been so addicted since he was about nine years old; there was no reason for trial counsel to present a final argument on punishment.

After reviewing the totality of trial counsel's representation in this case, it is clear that counsel was competent and effective. Point II in Cause No. 10-95-129-CR is overruled.

In Case No. 10-95-130-CR Appellant appeals on three points of error.

Point I: "Forcing the appellant, an indigent, to be punished by a fine of $1,000 constitutes cruel and unusual punishment."

As noted, the trial court sentenced Appellant to ninety-nine years in prison and a fine of $1,000. The fine assessed against Appellant is not unconstitutional, cruel, or unusual because such punishment was within the statutory range and there is nothing in the record to show that Appellant is currently imprisoned due to any failure to pay the fine. Braudrick v. State, 572 S.W.2d 709, 711 (Tex. Crim. App. 1978), cert. denied, 440 U.S. 923 (1979). Point I in Cause No. 10-95-130-CR is overruled.

Point II is identical to Appellant's Point II in Cause No. 10-95-129-CR, supra, and contends that Appellant received ineffective assistance of counsel in this case. Our discussion under Point II in the prior case is applicable here, and is adopted. Point II in Cause No. 10-95-130-CR is overruled.

Point III: "The trial court's failure to order a presentence report before sentencing the appellant requires a new trial."

Appellant entered a plea of guilty and a plea of "true" to the enhancement paragraph. His judicial confession was admitted into evidence. The record established Appellant was an habitual criminal with at least six felony convictions; that he was a hard drug addict, and had been all of his adult life.

The trial court did sentence Appellant without ordering or receiving a presentence investigation report. No objection was made at trial by Appellant to his being sentenced without the court having a PSI prepared before sentencing. Tex. R. App. P. 52(a) provides that "in order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion." Appellant did not object and thus failed to preserve any error. Matthews v. State, 803 S.W.2d 347, 350 (Tex. App. Houston [14th Dist.] 1990, no pet.); Fugett v. State, 855 S.W.2d 227, 230 (Tex. App. Fort Worth 1993, no pet.). Moreover, any error was harmless. The proper use of a PSI is to enable the trial court to pass on the issue of probation, not to determine the punishment to be assessed. Green v. State, 617 S.W.2d 253, 255 (Tex. Crim. App. 1981). Given Appellant's extensive criminal record and the punishment assessed in the five cases tried together here, the lack of a PSI could in no way have harmed Appellant. Tex. P. App. P. 81(b)(2). Point III in Cause No. 10-95-130-CR is overruled.

In Cause No.95-131-CR Appellant appeals on three points of error. These three points are identical to the three points appealed on in Cause No. 10-95-130-CR. Our discussion under the three points in Cause No. 10-95-130-CR is applicable here, and is adopted. Points I, II and III Cause No. 10-95-131-CR are overruled.

In Cause No. 10-95-133-CR Appellant appeals on three points of error. These three points are identical to the three points Appellant appeals on in Nos. 10-95-130-CR and in 10-95-131-CR. Out discussion under the points in those cases is applicable here, and is adopted. Points I, II and III in Cause No. 10-95-133-CR are overruled.

In Cause No. 10-95-132-CR Appellant appeals on three points of error. Points I and II are identical to Points I and II in Nos. 10-95-130-CR and in 10-95-131-CR. Our discussion under the two points in those cases in applicable here, and is adopted. Points I and II in Case No. 10-95-132-CR are overruled.

Point III: "The trial court's failure to write Appellant's true name in the indictment is and ought to be reversible error."

The grand jury indicted Appellant under the name of "Brian Scot Perry." At his trial, Appellant told the court that his true and correct name was Daniel Lee Boss. The court stated that it had changed Appellant's name on the minutes of the court and on the docket sheet, but his name on the indictment was not changed. Appellant made no objection to the failure of the court to correct the indictment and complains of this for the first time on appeal.

The purpose of naming the accused in an indictment is for his identification. It is a matter of form which can easily be altered at the election of the accused. Since this is so, should the accused suffer this defect of form to remain in the indictment, he must suffer the consequences of his election, unless the defect is such as to prejudice his substantial rights. Jones v. State, 504 S.W.2d 442, 444 (Tex. Crim. App. 1976).

Appellant, by not objecting to the failure of the trial court to physically correct his name on the indictment, has waived any right to complain on appeal. Tex. R. App. P. 52(a). Moreover, the trial court's failure to place Appellant's true name on the indictment was harmless under Tex. R. App. P. 81(b)(2). Point III in Cause No. 10-95-132-CR is overruled.

All of Appellant's points and contentions having been overruled, the judgments in all five cases are affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 19, 1995

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