Christopher James Henderson v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00030-CR

No. 10-07-00031-CR

Christopher James Henderson,

Appellant

v.

The State of Texas,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court Nos. 32,446 and 32,447

MEMORANDUM Opinion

Christopher James Henderson pleaded nolo contendere to two counts of aggravated sexual assault of a child. He received ten years deferred adjudication community supervision. The State later filed an Application to Proceed to Final Adjudication, alleging that Henderson had violated several conditions of community supervision. Henderson was adjudicated, and the court sentenced him to fifteen years in prison. On appeal, Henderson contends that: (1) the court erroneously reviewed the presentence investigation report; (2) the trial court failed to conduct a separate punishment hearing; (3) he was not properly notified of the charges against him; and (4) he received ineffective assistance of counsel. We affirm.

PreSentence Investigation Report

Henderson s first issue challenges whether the trial court erred by considering the presentence investigation report ( PSI ) and failing to allow Henderson an opportunity to comment on the PSI.[1]

Unless waived by the defendant, the court shall permit the defendant or his attorney to read a PSI at least 48 hours before sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12 9(d) (Vernon Supp. 2007). The defendant or his attorney must be given the opportunity to comment on a presentence investigation or a postsentence report and, with the approval of the judge, introduce testimony or other information alleging a factual inaccuracy in the investigation or report. Tex. Code Crim. Proc. Ann. art. 42.12 9(e) (Vernon Supp. 2007).

Henderson did not request an opportunity to review the PSI. Nor did he object to the trial court s consideration of the PSI or to a lack of opportunity to comment on the report. See Tex. R. App. P. 33.1(a) (to preserve a complaint for appellate review, a party must make a timely, specific objection and obtain a ruling from the trial court); see also Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) ( almost every right, constitutional and statutory, may be waived by the failure to object ). Nevertheless, in reliance on Watson v. State, 919 S.W.2d 845 (Tex. App. Austin 1996, no pet.), Henderson argues that it should not be the burden of the defendant to make demands on the court when the court is about to pass sentence on the defendant.

In Watson, the trial court stated:

I don t need to hear any arguments from either side in this case. The Court has read the presentence investigation. It has made its decision of the findings to be made and the punishment to be assessed.

Id. at 845-46. Watson neither objected nor filed a motion for new trial. See id. at 846. The Austin Court found that the trial court essentially prohibited either party to present evidence or argument concerning the presentence investigation or any other matter relevant to sentencing. Id.

No such foreclosure occurred in this case. The trial court asked to see the PSI and subsequently inquired whether there s any reason at law why sentence should not be pronounced at this time. Counsel replied, No, Your Honor. Unlike the defendant in Watson, Henderson had an opportunity to object before the trial court took any action to sentence Henderson.[2] His motion for new trial was not timely filed and generally complains of improperly admitted evidence, with no mention of the PSI.[3] Because he has failed to preserve his complaint for our review, we overrule Henderson s first issue.

Separate Punishment Hearing

Henderson complains, in his second issue, of the trial court s failure to hold a separate punishment hearing and failure to allow Henderson to present evidence.

A defendant is entitled to a punishment hearing after an adjudication of guilt, and the trial court must allow the accused the opportunity to present evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). In Issa, the trial court immediately left the bench before Issa could object to the imposition of sentence, but Issa preserved the issue for appellate review by filing a timely motion for new trial in which the objection was made. Id. at 160-61. Here, Henderson had the opportunity to object, but did not do so. See Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001); see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). When asked if there s any reason at law why sentence should not be pronounced at this time, counsel responded, No, Your Honor. Henderson s untimely motion for new trial does not complain of the trial court s failure to hold a separate punishment hearing or provide an opportunity to present mitigating punishment evidence. See Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999). Henderson has failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a). We overrule Henderson s second issue.

Notification of Charges

In his third issue, Henderson argues that he was not properly notified of the reasons for adjudication. Specifically, he complains that the trial court s admonishment refers to the Original or Amended MOTION TO PROCEED TO FINAL ADJUDICATION filed on 11-22-06. The record does not contain a motion filed on November 22, but rather a motion filed on November 29.[4] This appears to be a mere clerical error. The record does not indicate that this error prevented Henderson from being notified of the grounds for adjudication. He signed the trial court s admonishment, entered pleas of true and not true to the various allegations, acknowledged that his pleas of true were made because they are true and for no other reason, and waived the right to have the charges read aloud. Moreover, at no time did Henderson object to any lack of notice. His complaint is not preserved for appellate review. See Tex. R. App. P. 33.1(a). We overrule his third issue.

Ineffective Assistance

In his fourth issue, Henderson contends that trial counsel rendered ineffective assistance by: (1) failing to object to the court s review of the PSI and the court s failure to allow Henderson to comment on the PSI; (2) failing to object to the court s failure to hold a separate punishment hearing or to allow Henderson to present evidence; (3) entering open pleas of true absent a plea agreement; (4) failing to object to hearsay and conclusory evidence; and (5) failing to object to inconsistencies in a previous order.

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).

Although Henderson made a general allegation of ineffective assistance in his untimely motion for new trial, he failed to explain how trial counsel was ineffective.[5] He attached no evidence to his motion, and the trial court denied the motion without a hearing. Thus, the record is silent as to any reasons explaining trial counsel s actions. We will not speculate as to those reasons. See Thompson, 9 S.W.3d at 814. Absent a record revealing trial counsel s strategy or motivation, Henderson has not defeated the strong presumption that trial counsel s actions fell within the wide range of reasonable professional assistance. See id. His ineffective assistance claim is better raised through an application for a writ of habeas corpus. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Bone, 77 S.W.3d at 837 n.30.

The trial court s judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed March 5, 2008

Do not publish

[CR25]

[1] To support this claim, Henderson included an affidavit in the appendix to his brief. The State filed a motion to strike the affidavit because it is not part of the appellate record. Because we agree, the State s motion is granted. See Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002); see also Ex parte Lekavich, 145 S.W.3d 699, 702 n.2 (Tex. App. Fort Worth 2004, no pet.).

[2] The PSI appears to have influenced the trial court s decision to impose a lighter sentence. After reviewing the PSI, the trial court stated, At first I thought even more than 20 years might be appropriate, but after refreshing my memory, there were some extenuating circumstances. Henderson argues that it is ludicrous to conclude that the allegations and comments in the PSI, mostly negative, diminished the sentence. Yet, the trial court s statement seems to suggest otherwise.

[3] Henderson was sentenced on January 16 and his motion was filed on February 22. See Tex. R. App. P. 21.4(a) (a motion for new trial must be filed no later than 30 days after, the date when the trial court imposes or suspends sentence in open court ).

[4] Because this case involves two cause numbers, the record contains two separate motions.

[5] The motion alleges:

Attorney for defendant believes that evidence may have been improperly admitted or that the defendant did not receive effective assistance of counsel. Attorney for defendant believes that the defendant may not have understood the ramifications of his actions and thus certain pleas or actions at the hearings on application to proceed to final adjudication, adjudication, and sentencing were involuntary.