Eddie Guy v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00244-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EDDIE GUY, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Eddie Guy appeals his conviction for aggravated assault on a public servant, for which he was sentenced to imprisonment for life. Appellant raises two issues on appeal. We affirm.

Background

On October 7, 2004, officers from the Tyler Police Department responded to a call from Shelly Matthews, who claimed that Appellant, her roommate, had fired a gun in her general direction. Following the officers arrival at the residence, Officer Ralph Buckingham used the loudspeaker in his patrol car to ask Appellant to answer his telephone because other officers wanted to speak to him. Appellant subsequently exited the house. Buckingham was crouching outside his patrol car. Appellant, who was armed, fired multiple shots, one of which struck the windshield of Buckingham s patrol car leaving glass fragments in Buckingham s hair.

Appellant was indicted for aggravated assault of a public servant and pleaded guilty. 1

The indictment further contained an allegation that Appellant used or exhibited a deadly weapon. The matter proceeded to a jury trial on punishment. Ultimately, the jury assessed Appellant s punishment at imprisonment for life and fined Appellant ten thousand dollars. The trial court sentenced Appellant accordingly, and this appeal followed.

Cruel and Unusual Punishment

In his first issue, Appellant argues that Appellant s life sentence was grossly disproportionate to the crime for which he was convicted. Initially, we note that Appellant made no objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, waived such an issue on appeal. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); Tex. R. App. P. 33.1. However, even absent waiver, we conclude that Appellant s sentence did not constitute cruel and unusual punishment.

The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex. App. Texarkana 1995, pet. ref d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App. Tyler 1996, pet. ref d). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664.

In the case at hand, Appellant was charged with aggravated assault of a public servant. See Tex. Pen. Code Ann. 22.02(a)(2) (Vernon Supp. 2006). The punishment range for such an offense is between five and ninety-nine years, or life. SeeTex. Pen. Code Ann. 12.32(a); 22.02(b) (Vernon 2003 & Supp. 2006). Here, the sentence imposed by the trial court falls within the range set forth by the legislature. Id. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.

Nonetheless, Appellant urges the court to perform the three-part test originally set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at 3011.2 The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court s decision in Harmelin to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder, 954 F.2d at 316; see also Jackson v. State, 989 S.W.2d 842, 845 46 (Tex. App. Texarkana 1999, no pet.).

In determining whether Appellant s sentence is grossly disproportionate, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).3 In Rummel, the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. Id., 445 U.S. at 266, 100 S. Ct. at 1135. The life sentence was imposed because the appellant also had two prior felony convictions one for fraudulent use of a credit card to obtain $80.00 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct. at 1134-35. After recognizing the legislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitual offender statute, the court determined that the appellant s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 285, 100 S. Ct. at 1145.

In the case at hand, the offense committed by Appellant aggravated assault of a public servant was far more serious than any of the offenses committed by the appellant in Rummel, while Appellant s life sentence is no more severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test to be satisfied, we need not apply the remaining elements of the Solem test. Appellant s first issue is overruled.

Ineffective Assistance of Counsel

In his second issue, Appellant argues that he received ineffective assistance of counsel. Specifically, Appellant contends that his counsel was ineffective for the following reasons: (1) he failed to seek a change of venue; (2) he allowed Appellant to plead guilty even though Appellant did not consider himself to be guilty; (3) he failed to object to Appellant s stipulation of evidence where such stipulation did not provide facts supporting Appellant s guilt, (4) he failed to pursue Appellant s plea of not guilty by reason of insanity ; and (5) he failed to seek an instruction that Appellant was temporarily insane due to alcohol consumption.

Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel s representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel s actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App. Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim);see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App. Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App. Houston [1st Dist.] 1994, pet. ref'd).

In the case at hand, Appellant chronicles, in great detail, his attorney s allegedly poor performance at trial. Yet, the record is silent as to the reasons underlying Appellant s counsel s alleged ineffective acts and omissions during the trial of the case at hand. Although Appellant urges repeatedly that certain actions on his trial counsel s behalf are surely not trial strategy, this is not a substitute for record evidence indicating why Appellant s trial counsel chose the course he did. See Jackson, 877 S.W.2d at 771. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectively. Therefore, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant s trial counsel s reasons for choosing the course he did. Thus, we cannot conclude that Appellant's trial counsel was ineffective. Appellant s second issue is overruled.

Conclusion

Having overruled Appellant s first and second issues, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 16, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 The record reflects that Appellant initially pleaded not guilty, but later changed his plea to guilty.

2 The strict application of the Solemtest has been questioned since the Supreme Court rendered its opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). See Simmons, 944 S.W.2d at 15. The Texarkana Court of Appeals discussed the applicability of Solem in Davis v. State and observed that five members of the Supreme Court in Harmelin rejected the application of the three factor test. See Simmons, 944 S.W.2d at 15 (citing Davis, 905 S.W.2d at 664). However, the court in Davis nevertheless evaluated the sentence under the elements of Solem, recognizing that seven of the justices in Harmelin still supported an Eighth Amendment prohibition against grossly disproportionate sentences. See Davis, 905 S.W.2d at 664 (citing McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992) and Lackey v. State, 881 S.W.2d 418, 421 (Tex. App. Dallas 1994, pet. ref d)).

3 Incidentally, the Fifth Circuit has referred to Rummel as a handy guide in conducting a proportionality review. See McGruder, 954 F.2d at 317.