Affirmed and Memorandum Opinion filed January 29, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-11-00799-CR

                    OSCAR JAVIER SANCHEZ, Appellant,
                                         V.

                      THE STATE OF TEXAS, Appellee.

                   On Appeal from the 232nd District Court
                               Harris County
                       Trial Court Cause No. 1288484

                 MEMORANDUM                      OPINION


      Appellant Oscar Javier Sanchez pleaded guilty to the offense of intoxication
manslaughter. The trial court, after considering a presentence investigation (PSI)
report, sentenced Sanchez to 20 years‘ confinement in the Institutional Division of
the Texas Department of Criminal Justice. On appeal, Sanchez contends he
received ineffective assistance of counsel because his trial counsel failed to object
to the quantity of victim statements included in the PSI report. We affirm.
                                              I

       On December 11, 2010, Sanchez was intoxicated and driving erratically at
speeds over ninety miles per hour when he struck a car and then a truck, causing
both vehicles to spin out of control. The driver of the car, Paul Mueller, was
seriously injured. The truck, driven by Christopher Sargent, flipped over several
times, causing Sargent to sustain a broken back. Ashley Barnett, Sargent‘s
passenger and girlfriend, was ejected from the truck and died at the scene.1

       Sanchez pleaded guilty to intoxication manslaughter without an agreed
recommendation. The trial court found sufficient evidence to convict him but reset
the case to allow for preparation of a PSI report. At the hearing on the PSI report,
Sanchez admitted that he had been drinking on the day of the incident. He also
admitted that he was intoxicated and speeding while driving. Sanchez explained
that as he was driving home he received telephone calls from both his child‘s
mother and her new boyfriend which made him angry, and he decided to drive to
the boyfriend‘s house to fight him. Michael Barnett, Ashley‘s father, testified
about his daughter and the affect of her death on him. The PSI report was admitted
without objection.

       At the conclusion of the hearing, the trial court found Sanchez guilty of the
offense of intoxication manslaughter, made a deadly-weapon finding, and assessed
punishment at 20 years‘ confinement. This appeal followed.




       1
        Sanchez was also charged with two counts of intoxication assault, but these cases were
dismissed as part of his plea agreement.

                                              2
                                          II

                                          A

      An accused is entitled to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984); King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref‘d). In reviewing claims of ineffective assistance
of counsel, we apply a two-prong test. See Strickland, 466 U.S. at 687; Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective
assistance, an appellant must prove by a preponderance of the evidence that (1) his
trial counsel‘s representation fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that, but for counsel‘s deficient
performance, the result of the trial would have been different. Strickland, 466 U.S.
at 687; Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). The
appellant bears the burden of proving by a preponderance of the evidence that
counsel was ineffective. Thompson, 9 S.W.3d at 813 (citing Cannon v. State, 668
S.W.2d 401, 403 (Tex. Crim. App. 1984)).

      When evaluating a claim of ineffective assistance, the appellate court looks
to the totality of the representation and the particular circumstances of the case
without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011); Thompson, 9 S.W.3d at 813. There is a strong presumption that trial
counsel‘s actions and decisions were reasonably professional and were motivated
by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005). It is not sufficient that an appellant show, with the benefit of hindsight, that
his counsel‘s actions or omissions during trial were merely of questionable
competence. Lopez, 343 S.W.3d at 142–43. Instead, in order for an appellate court
to find that counsel was ineffective, counsel‘s deficiency must be affirmatively

                                          3
demonstrated in the trial record and the court must not engage in retrospective
speculation. Id. at 142.


      When direct evidence is not available, we will assume that counsel had a
strategy if any reasonably sound strategic motivation can be imagined. Id. at 143.
Absent specific explanations for counsel‘s decisions, a record on direct appeal will
rarely contain sufficient information to evaluate an ineffective assistance claim.
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When trial counsel has
not had an opportunity to explain his or her actions or inactions, an appellate court
cannot find deficient performance unless the challenged conduct was so outrageous
that no competent attorney would have engaged in it. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005).

      If a criminal defendant can prove trial counsel‘s performance was deficient,
he still must prove he was prejudiced by his counsel‘s actions. Thompson, 9
S.W.3d at 812. This requires the defendant to demonstrate a reasonable probability
that the result of the proceeding would have been different if the trial counsel had
acted professionally. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Mallett, 65 S.W.3d at 63.

                                         B

      Sanchez contends his trial counsel failed to object to improper victim
character evidence contained in the PSI report. Specifically, Sanchez asserts that
the PSI report is eleven pages in length, but attached to the report are, among other
things, 214 pages of ―letters and messages regarding the character of the
complainant.‖ Sanchez maintains that ―this quantity of testimony regarding the
character of the complainant‖ weighs against its admissibility and therefore trial
counsel‘s failure to object to it constituted ineffective assistance. But Sanchez did

                                          4
not file a motion for new trial, and the record does not contain evidence of trial
counsel‘s reasons or strategy regarding the challenged actions.

      Ordinarily, counsel should be afforded an opportunity to explain his actions
before being condemned as unprofessional and incompetent. Bone, 77 S.W.3d at
836. When counsel‘s reasons for his conduct do not appear in the record and there
is at least the possibility that the conduct could have been grounded in legitimate
trial strategy, we will defer to counsel‘s decisions and deny relief on an ineffective-
assistance claim on direct appeal. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim.
App. 2007); Jackson v. State, 877 S.W2d 768, 771 (Tex. Crim. App. 1994). In this
case, it is possible that trial counsel‘s conduct could have been grounded in
legitimate trial strategy. Absent any evidence from trial counsel explaining his
actions, the record in this case is inadequate to review Sanchez‘s claim of
ineffectiveness. Sanchez has therefore failed to rebut the presumption that
counsel‘s decisions were reasonable. See Lopez, 343 S.W.3d at 143–44.

      Moreover, Sanchez has not demonstrated that trial counsel‘s performance
was deficient. Sanchez suggests that his counsel should have objected to the
volume of ―victim evidence‖ contained in the PSI report because it violated Texas
Rule of Evidence 403. In support of this argument, Sanchez cites Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998), and McCain v. State, 995 S.W.2d 229
(Tex. App.—Houston [14th Dist.] 1999, pet. ref‘d).

      In Mosley, the court held that victim-impact and character evidence offered
on the mitigation issue in a capital murder trial was admissible to show the
uniqueness of the victim, the harm caused by the defendant, and as rebuttal to
defendant‘s mitigating evidence. Id. at 262. But the court cautioned that Rule 403
limits the admissibility of such evidence when it ―predominantly encourages
comparisons based upon the greater or lesser worth or morality of the victim.‖ Id.

                                          5
The court also encouraged trial courts to place appropriate limits on the amount,
kind, and source of victim impact and character evidence to avoid unfair prejudice
under Rule 403. Id. at 263. In McCain, a panel of this court concluded that trial
counsel‘s failure to object to testimony from the victim‘s father concerning the
victim‘s academic accomplishments and school and community involvement
during the punishment phase of a murder trial constituted deficient performance.
Id. at 248–49. Mosley and McCain are distinguishable, however, because neither
addresses evidentiary limits on the admissible contents of a PSI report.

      When assessing punishment, a trial court may consider any evidence
relevant to sentencing, including the contents of a PSI report. Tex. Code Crim.
Proc. art. 42.12, § 9; see Jagaroo v. State, 180 S.W.3d 793, 799 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref‘d) (―The trial court was authorized by statute to
consider the PSI report and testimony [of the victim and the victim‘s relatives]
prior to pronouncing punishment.‖). Further, the Court of Criminal Appeals has
recognized that a PSI report may contain evidence that would not have been
admissible in the punishment stage of a trial due to its subject matter, noting that
generally ―the rules of evidence do not apply to the contents of a PSI.‖ Fryer v.
State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002) (holding trial court had
authority to consider victim‘s punishment recommendation contained in PSI
report). The court reasoned that ―[t]o hold otherwise . . . would be ‗to deny the
obvious purpose of the statute.‘‖ Id. (quoting Brown v. State, 478 S.W.2d 550, 551
(Tex. Crim. App. 1972)). The Fryer court also concluded that other criminal
statutes relating to victim impact statements do not restrict the information
contained in a PSI; indeed, the court explained, ―they have nothing to do with a
PSI at all.‖ Id. at 632 (discussing Texas Code of Criminal Procedure articles 42.03
and 56.03).


                                         6
       Sanchez cites no authority to support his argument that his trial counsel‘s
performance was deficient based on counsel‘s failure to object that the number of
statements included in the PSI report was unfairly prejudicial under Rule 403.
Sanchez‘s argument also conflicts with the Fryer court‘s directive that the rules of
evidence generally do not apply to the contents of a PSI. See id. at 631. Moreover,
the record is silent concerning counsel‘s reasons for his conduct. Therefore, we
conclude that Sanchez has failed to carry his burden to show that counsel‘s
performance was deficient. See Jagaroo, 180 S.W.3d at 799 (holding appellant
failed to overcome presumption that his counsel‘s actions were part of a strategic
plan when counsel did not object to testimony by victim and victim‘s family
offered before the trial court assessed punishment).

       Even if we concluded that Sanchez met his burden to show that trial
counsel‘s performance was deficient, Sanchez would still be required to show that
a reasonable probability exists that, but for his counsel‘s allegedly deficient
performance, the result of the trial would have been different. See Strickland, 466
U.S. at 687. Sanchez contends he was prejudiced due to the ―limited nature of the
proceeding and the overwhelming nature of the inadmissible evidence.‖ Sanchez
argues that the legislature created a statutory provision allowing counsel to object
to the contents of a PSI report, and questions why such a procedure exists if there
is no reason to object. See Tex. Code Crim. Proc. art. 42.12, § 9(d), (e).2 According
to Sanchez, his counsel‘s failure ―to argue evidentiary limitations on what the trial
court should consider in passing sentence‖ affected the outcome of the case.



       2
          We note that article 42.12 allows a defendant or his attorney ―to comment on a
presentence investigation . . . 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.
art. 42.12, § 9(e). Sanchez does not contend that any factual inaccuracies exist in the PSI report.

                                                7
       In this case, the parties agree that the range of punishment for intoxication
manslaughter with a deadly-weapon finding is 2 to 20 years‘ imprisonment.
Sanchez notes that he had no prior criminal record, he entered a guilty plea, and he
expressed remorse. Considering the gravity of Sanchez‘s offense, however, we
cannot say the sentence was unreasonable. Sanchez pleaded guilty while fully
aware of both the range of punishment and the fact that a deadly-weapon finding
would render him ineligible for probation. On appeal, Sanchez recognizes that the
facts of the case were not favorable to him. Sanchez admits that (1) the alcohol
concentration in his blood was ―.05 over the legal limit of .08‖;3 (2) he drove over
90 miles per hour, rapidly changing lanes, and hit two cars on the freeway; and (3)
he caused the death of Ashley Bennett, who ―was a young woman in the prime of
her life, [and] obviously special to many people.‖ Indeed, Sanchez acknowledges
that ―[t]he facts of the case may well warrant twenty years in prison.‖ On this
record, Sanchez has failed to show a reasonable probability that the result of the
proceeding would have been different but for counsel‘s allegedly deficient
performance. See Strickland, 466 U.S. at 691–92; Thompson, 9 S.W.3d at 812.

                                           ***

       We overrule Sanchez‘s issue and affirm the trial court‘s judgment.




                                          /s/       Jeffrey V. Brown
                                                    Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).

       3
        Sanchez characterizes his blood-alcohol content as being ―toward the low end‖ of the
spectrum of intoxication.

                                                8
