

Opinion issued March 1, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00790-CR
———————————
Harrington Christopher Young, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 263rd District Court
Harris County, Texas

Trial Court Case No. 1192658
 

 
CONCURRING OPINION
I respectfully concur. 
Appellant, Harrington Christopher Young, pleaded guilty to the first
degree felony offense of aggravated sexual assault of a child under the age of
fourteen.[1]  Pursuant to a plea bargain without an agreed
recommendation as to punishment, the trial court sentenced Young to fifteen
years’ confinement.  In two issues, Young
contends that (1) his trial counsel rendered ineffective assistance and (2) his
sentence constitutes cruel and unusual punishment.  I agree with the majority that Young has not
established ineffective assistance of counsel, but I would decide the issue on
the basis that Young cannot demonstrate that a reasonable probability exists
that had his trial counsel taken the actions that Young contends he should have
taken, the result of the proceeding would have been different and Young would
have received deferred adjudication community supervision.  Regarding Young’s second issue, I would hold
that he cannot establish that his sentence, which falls within the permissible statutory
range, constitutes cruel and unusual punishment.
Background
          I adopt the majority’s description of
the background facts, but respectfully add the following facts relevant to this
opinion.
Young argues that his trial counsel told him that he was
seeking deferred adjudication community supervision.  The clerk’s record contains Young’s pro se
notice of appeal, in which he states, “Defendant was [misled] by attorney into
signing for a (PSI) presentencing investigation, being lead to believe he was
signing a plan for 8 years (PSI) probation sentencing investigation.”  The record also includes a handwritten letter
from Young to the trial court, in which he apologized for an outburst in court,
presumably at his sentencing hearing, and explained that his trial counsel had
informed him that he would be receiving probation.
          The presentence investigation report
(“PSI”) included a copy of a printout from the Justice Information Management System
(“JIMS”).  The JIMS printout included a
“summary of facts” concerning the initial complaint against Young.  This summary reflected that Young forcibly
assaulted the complainant, who “kick[ed] and hit[] him” in an effort to make him stop.[2]  In an interview with the PSI investigator,
Young denied that the complainant kicked and screamed, but he acknowledged that
she twice told him to stop and that she pushed him away.
          The PSI included reports of interviews
with Young’s family members, including the niece he admitted assaulting, who
expressed forgiveness of Young, requested counseling and community supervision,
and asked that he be sent home.  The PSI
also included statements by Young in which he expressed remorse, stated that he
knew what he did was wrong and that he was “very ashamed” and “very sorry,” and
asked for probation.  The PSI also listed
“supervision plan/sentencing options” available for Young and included a number
of character-reference letters from family members vouching for Young’s character
and requesting community supervision. 
Instead of placing Young on deferred adjudication community supervision,
the trial court ultimately sentenced him to fifteen years’ confinement.
Ineffective Assistance of Counsel
          On appeal, Young contends that his
trial counsel was constitutionally ineffective because (1) he failed to file a
motion for deferred adjudication, for which the record reflected Young was
eligible; (2) he failed to object to or move to correct the PSI based on the
apparent errors regarding a pending aggravated sexual assault of a child case
allegedly occurring in Baytown (“the Baytown incident”) and the implication
that Young was eighteen at the time of the charged offense; and (3) he failed
to request a court reporter to preserve the record for appeal at the sentencing
hearing.
          To prevail on an ineffective
assistance of counsel claim, Young must demonstrate two things by a
preponderance of the evidence:  (1) his
trial counsel’s performance was deficient; and (2) a reasonable probability
exists that, but for the deficiency, the result of the proceeding would have
been different.  Strickland v. Washington, 466 U.S. 668,
687, 694, 104 S. Ct. 2052, 2064, 2068 (1984).  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.  Id. at 694, 104 S. Ct. at 2068.  An appellant seeking to establish ineffective
assistance must meet both prongs of Strickland; thus, an appellate court
reviewing an ineffective assistance of counsel claim is not required to address
both “components of the inquiry if the defendant makes an insufficient showing
on one.”  Id. at 697, 104 S. Ct. at 2069 (“In particular, a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies. . . .  If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be
followed.”).  The majority concludes that
Young has not demonstrated that his trial counsel’s performance was deficient;
I would conclude that Young has not demonstrated that, but for his trial
counsel’s alleged errors, a reasonable probability exists that the result of
the proceeding would have been different and he would have received deferred
adjudication community supervision instead of a fifteen-year sentence.
A.            
Failure to File Motion Requesting Deferred Adjudication
Young contends that his trial counsel was constitutionally
ineffective because he failed to file a motion for probation when the record
reflected that Young was eligible for deferred adjudication community
supervision.
As the majority notes, unlike jury-recommended community
supervision, which requires the defendant to file a pre-trial sworn motion
averring that he has not been previously convicted of a felony, no such motion
is required for the trial court to consider and impose deferred adjudication
community supervision.  Compare Tex. Code Crim. Proc. Ann. art. 42.12, §§ 4(d)(3), (e) (Vernon Supp. 2011)
(providing that defendant is not eligible for jury-recommended community
supervision unless he files with trial court, before trial, sworn motion stating
that he has not been convicted of felony in Texas or in any other state), with id. § 5 (providing that trial
court may impose deferred adjudication community supervision when, in court’s
discretion, “the best interest of society and the defendant will be served,”
and containing no motion requirement). 
Instead, the decision to impose deferred adjudication community
supervision lies entirely within the trial court’s discretion; although a
defendant may be eligible for deferred adjudication community supervision, he
is not entitled to it.  See id. § 5(a) (“[W]hen in the judge’s opinion the best
interests of society and the defendant will be served, the judge may, after receiving a plea of guilty or
plea of nolo contendere, hearing the evidence, and finding that it substantiates
the defendant’s guilt, defer further proceedings without entering an
adjudication of guilt, and place the defendant on community supervision.”) (emphasis added); Hurley
v. State, 130 S.W.3d 501, 506 (Tex. App.—Dallas 2004, no pet.) (“The trial
court has broad discretion to fashion appropriate [sentencing] plans using the
full range of punishment, community supervision, and deferred adjudication
community supervision.”).
Here, the record reflects that, although Young’s trial
counsel did not file a specific motion seeking deferred adjudication community
supervision, the trial court was aware that Young desired deferred
adjudication.  The PSI reflects, in two
places, that Young was “hoping for” and “asking for” probation.  The PSI also included statements from Young’s
family members, including numerous character-reference letters, stating their
desire that the trial court place Young on probation, require him to attend
counseling, and allow him to return home. 
Thus, even though Young’s trial counsel did not file a specific motion
seeking deferred adjudication, the trial court, by reading the PSI and the
attached reference letters, was aware that Young desired probation.
To establish prejudice, Young must demonstrate that, had his
trial counsel filed a motion for deferred adjudication, a reasonable
probability exists that the trial court would have granted this motion and
imposed deferred adjudication community supervision instead of a fifteen-year sentence.  Some facts in the record indicate that Young might
be a good candidate for deferred adjudication community supervision:  he was only seventeen years old when the
offense occurred; he admitted in the PSI that he knew what he did was wrong; he
expressed remorse and a desire to obtain counseling; his family, including the complainant,
expressed their forgiveness; and the PSI contained several reference letters
from family members praising Young’s law-abiding ways and his general good
character.  The record also contains
evidence, however, that Young sexually assaulted his twelve-year-old niece on
two separate occasions, that these encounters were not
consensual, and that violence was involved.
The trial court was aware of Young’s desire for deferred
adjudication.  Given the trial court’s
broad discretion in sentencing and its broad discretion in determining whether
to impose deferred adjudication community supervision, I cannot conclude, under
the facts of this case, that the result probably would have been different had
Young’s trial counsel filed a motion for deferred adjudication.  Thus, I would conclude that Young has not
demonstrated that a reasonable probability exists that, but for his trial
counsel’s failure to file a motion seeking deferred adjudication, the trial
court would have imposed deferred adjudication community supervision instead of
a fifteen-year sentence.
B.            
Failure to Object to Errors in PSI
Young also contends that his trial counsel was ineffective
because he did not object to or move to correct the PSI, which contained
erroneous information regarding the Baytown incident and which erroneously
reflected that Young was eighteen at the time of the charged offense.
A defendant charged with aggravated sexual assault of a child
under the age of fourteen may be placed on deferred adjudication community
supervision.  See Tex. Code
Crim. Proc. Ann. art.
42.12, § 5(a) (requiring, in these cases, affirmative finding in open
court that community supervision is in best interest of victim before defendant
can receive deferred adjudication community supervision).  Article 42.12, section 5, subsection (d),
however, limits the availability of deferred adjudication community supervision
and provides that this sentencing option is not available if the defendant (1)
is charged with indecency with a child, sexual assault, or aggravated sexual
assault, regardless of the age of the victim, and (2) has previously been
placed on community supervision “for any offense under Paragraph (A) of this
subdivision.”  Id. § 5(d)(2).  This limitation, however, applies only when
the defendant has been previously placed on community supervision for one of
the listed offenses.  There is no such
limitation on the availability of deferred adjudication community supervision
if the defendant merely has a prior arrest
for one of these offenses.  Furthermore,
although section 5, subsection (a) requires a “best interest of the victim”
finding before the trial court can place the defendant on deferred adjudication
community supervision when the aggravated sexual assault victim is under the age of fourteen, section 5 includes no
limitations on the availability of deferred adjudication community supervision
that are dependent upon the age of the defendant.  See id.
§ 5(a).
Here, regardless of the confusion concerning whether the
Baytown incident, an aggravated sexual assault case, was part of Young’s
juvenile or adult criminal record, the record is clear that no final
disposition of the Baytown incident had occurred at the time the investigator
prepared the PSI in this case.  Thus,
Young had not previously been placed on community supervision for aggravated
sexual assault at the time the trial court sentenced him.  Because Young would be ineligible for
deferred adjudication community supervision only if he had been previously
placed on community supervision for the Baytown incident, the mere fact that he
had previously been arrested for this incident does not affect his
eligibility.  Moreover, whether this
incident occurred when Young was a juvenile or an adult is irrelevant; article
42.12, section 5 does not, for example, provide that a defendant may be
eligible for deferred adjudication community supervision if he has a juvenile criminal record, but ineligible
if he has an adult criminal
record.  See id. § 5.  Because
these errors do not affect his eligibility for deferred adjudication community
supervision, Young cannot demonstrate that, had his counsel objected to or
moved to correct the errors regarding the Baytown incident, there is a
reasonable probability that the trial court would have imposed deferred
adjudication community supervision instead of fifteen years’ confinement.
Young’s age at the time that he committed the charged offense
is likewise irrelevant to his eligibility for deferred adjudication.  Article 42.12, section 5 imposes an
additional requirement—a finding in open court that community supervision is in
the best interest of the victim—in indecency with a child, sexual assault, and
aggravated sexual assault cases in which the victim is under the age of fourteen.  See id.
§ 5(a).  The deferred
adjudication statute contains no provisions restricting deferred-adjudication eligibility
in aggravated sexual assault of a child under the age of fourteen cases to
instances in which the defendant is a
certain age, such as seventeen or younger. 
Thus, the erroneous implication in the PSI that Young was eighteen at
the time of the charged offense has no effect on his eligibility for deferred
adjudication community supervision. 
Young, therefore, cannot demonstrate that, had his trial counsel
objected to the erroneous implication in the PSI concerning his age at the time
of the charged offense, a reasonable probability exists that he would have
received deferred adjudication instead of fifteen years’ confinement.
C.            
Failure to Request a Reporter’s Record
Finally, Young contends that his trial counsel rendered
ineffective assistance because his counsel failed to request a court reporter
for the sentencing hearing, and a transcript of the hearing would have revealed
(1) counsel’s objections to the errors in the PSI or his failure to so object,
and (2) counsel’s objection to the fifteen-year sentence as cruel and unusual
or his failure to so object.  Young
contends, in his second issue, that his fifteen-year sentence constitutes cruel
and unusual punishment.  I first consider
Young’s second issue, as it is relevant in determining whether Young’s trial
counsel was constitutionally ineffective for failing to request a reporter’s
record.
The trial court has broad discretion in fashioning an
appropriate sentencing plan.  See Hurley, 130 S.W.3d
at 506.  Generally, punishment
that is assessed within the statutory limits is not excessive, cruel, or
unusual punishment.  Dale v. State, 170 S.W.3d 797, 799 (Tex.
App.—Fort Worth 2005, no pet.). 
We review Eighth Amendment challenges “by reviewing the proportionality
of the sentence compared to the crime.”  Arriaga v. State, 335 S.W.3d 331, 335 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Graham v. Florida, 130 S. Ct. 2011, 2022
(2010)).  We consider (1) the gravity of
the offense and the harshness of the penalty; (2) the sentence imposed on other
criminals in the same jurisdiction; and (3) the sentences imposed for the
commission of the crime in other jurisdictions. 
Id.  We only consider the second two factors if we
determine that the sentence is grossly disproportionate to the offense under
the first factor.  Id.
Young pleaded guilty to the charge of aggravated sexual
assault of a child under the age of fourteen. 
Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2011).  As a first degree felony, this offense
carries a potential punishment range of five to ninety-nine years’ imprisonment
or confinement for life.  See id. § 22.021(e) (defining
aggravated sexual assault as first-degree felony); id § 12.32(a) (Vernon 2011) (describing punishment range for
first degree felonies).  “This
legislative policy determination is entitled to wide deference.”  Arriaga, 335 S.W.3d at 335.
Here, the trial court assessed punishment at fifteen years’
confinement.  Other Texas courts have
upheld more severe punishments for aggravated sexual assault of a child as not
disproportionate to the offense and, therefore, as constitutionally
permissible.  See id. at 335–36 (upholding life
sentence); Williamson v. State, 175
S.W.3d 522, 525 (Tex. App.—Texarkana 2005, no pet.) (upholding
three life sentences for three counts of aggravated sexual assault of child); Nunez v. State, 110 S.W.3d 681, 682–83
(Tex. App.—Corpus Christi 2003, no pet.) (upholding
twenty-year sentence for aggravated sexual assault of child).
Young argues that this sentence was disproportionate to the
offense given his age and the fact that he was eligible for deferred
adjudication.  A trial court’s decision
whether to impose deferred adjudication community supervision is entirely
discretionary; a trial court is not statutorily required to impose deferred
adjudication even if the defendant meets the eligibility requirements.  See Tex. Code Crim. Proc. Ann. art. 42.12,
§ 5(a); Hurley, 130 S.W.3d at
506.  Given the trial court’s
broad discretion in sentencing and the particular facts of this case—especially
the fact that Young sexually assaulted his twelve-year-old niece on two
occasions and that there is evidence that the encounters were violent and
non-consensual—I would conclude that the trial court did not abuse its
discretion by refusing to impose deferred adjudication community supervision
and by, instead, assessing punishment at fifteen years’ confinement.  I would therefore overrule Young’s second
issue on the basis that he cannot demonstrate that the trial court abused its
discretion in sentencing him, and, thus, he cannot demonstrate that his
fifteen-year sentence constitutes cruel and unusual punishment.
As the majority notes, trial counsel’s failure to request
that a court reporter record specific proceedings is not per se ineffective assistance of counsel.  Gonzales v. State, 732 S.W.2d 67, 68 (Tex. App.—Houston [1st Dist.]
1987, no pet.).  “Some injury
resulting from the failure to request transcription must be raised by appellant
on appeal.”  Lopez v. State, 838 S.W.2d 758, 760
(Tex. App.—Corpus Christi 1992, no pet.).
As I have already stated, even if his trial counsel failed to
object to the errors in the PSI, Young cannot demonstrate that, but for this
failure, a reasonable probability exists that he would have received deferred
adjudication community supervision.  I
would similarly hold that Young cannot demonstrate that the trial court abused its
discretion when it assessed punishment at fifteen years’ confinement even
though Young was eligible for deferred adjudication community supervision.  Thus, regardless of whether a reporter’s
record would have revealed that his trial counsel failed to object to the
errors in the PSI and to the fifteen-year sentence as cruel and unusual
punishment, Young cannot establish prejudice—that the result of the proceeding
would have been different—as a result of his trial counsel’s failure to request
a reporter’s record.
I would therefore overrule Young’s
first issue on the basis that he cannot demonstrate prejudice as a result of
his trial counsel’s alleged errors.  I
would overrule his second issue on the basis that he cannot demonstrate that
the trial court abused its discretion in assessing punishment at fifteen years’
confinement instead of deferred adjudication community supervision.
Conclusion
          Because
I disagree with the majority’s reasoning regarding Young’s claims, but agree
that Young has not established that his trial counsel rendered constitutionally
ineffective assistance or that his sentence constituted cruel and unusual
punishment, I respectfully concur.
 
 
                                                                      Evelyn
V. Keyes
                                                                      Justice

 
Panel
consists of Justices Keyes, Higley, and Massengale.
Justice Keyes, concurring.
Publish.   Tex. R. App. P. 47.2(b).
 




[1]
        See Tex. Penal Code Ann.
§ 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp.
2011).


[2]
        The facts in this summary are
substantively identical to the facts contained in the probable cause affidavit
included in the information initially charging Young with aggravated sexual
assault in this case.


