                                         NUMBERS
                                       13-10-00292-CR
                                       13-10-00293-CR
                                       13-10-00294-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG

HENRY G. MONTEMAYOR, JR.,                                                            Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                    Appellee.


                       On appeal from the 36th District Court
                          of San Patricio County, Texas.


                            MEMORANDUM OPINION
                      Before Justices Garza, Vela, and Perkes
                      Memorandum Opinion by Justice Garza

      Pursuant to a plea bargain, appellant, Henry G. Montemayor Jr., pleaded guilty to

three offenses of third-degree felony driving while intoxicated.1 See TEX. PENAL CODE


      1
          In appellate cause number 13-10-292-CR, appellant pleaded guilty to an offense committed on
ANN. § 49.04 (Vernon 2003); § 49.09(b) (Vernon Supp. 2010).                   By two issues, he

contends that: (1) he received ineffective assistance of counsel; and (2) his sentences

were unconstitutionally disproportionate given his “mental status,” and thus violate the

Eighth Amendment to the United States Constitution. We affirm.

                                         I. BACKGROUND

            On August 28, 2009, in each cause, the trial court accepted appellant’s plea,

sentenced him to ten years’ imprisonment, suspended the sentences, and placed him

on community supervision for ten years.2 See id. § 12.34 (Vernon Supp. 2010); TEX.

CODE CRIM. PROC. ANN. art. 42.12 (Vernon Supp. 2010). On March 9, 2010, the State

filed identical motions to revoke in each cause, alleging that appellant had violated the

terms of his community supervision by (1) failing to successfully complete treatment for

substance abuse, and (2) exposing himself to a counselor intern at a substance abuse

facility.

        At a hearing on April 16, 2010, appellant pleaded “true” to the State’s allegations.

The trial court found the allegations “true” and revoked appellant’s community

supervision. After considering the pre-sentence investigation report and testimony from

appellant and Dianna Herschap, a counselor intern at a substance abuse facility where

appellant resided, the trial court sentenced appellant to ten years’ imprisonment in each

cause3 and imposed a $2,500 fine in appellate cause number 13-10-292-CR. This


January 2, 2009. In appellate cause number 13-10-293-CR, he pleaded guilty to an offense committed
on March 13, 2009; in appellate cause number 13-10-294-CR, he pleaded guilty to an offense committed
on March 31, 2009.
        2
         In appellate cause number 13-10-292-CR, the trial court also imposed a fine of $2,500. See
TEX. PENAL CODE ANN. § 12.34(b) (Vernon Supp. 2010).
        3
         Although the judgments do not so specify, the trial court ordered the sentences to run
concurrently.

                                                 2
appeal followed.

                               II. INEFFECTIVE ASSISTANCE

       By his first issue, appellant contends his counsel was ineffective by failing to

investigate appellant’s claims that Herschap acted improperly by making “a game” of

looking at him naked in the shower.        According to appellant, his counsel failed to

thoroughly cross-examine Herschap and “failed to present mitigating evidence on the

allegations.”

   A. Standard of Review

       Ineffective assistance of counsel claims are evaluated under the two-part test

articulated by the United States Supreme Court in Strickland v. Washington.            See

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999). The Strickland test requires the appellant to show that counsel's

performance was deficient, or in other words, that counsel's assistance fell below an

objective standard of reasonableness. Thompson, 9 S.W.3d at 812; see Strickland, 466

U.S. at 687. Assuming appellant has demonstrated deficient assistance, he must then

show that there is a reasonable probability that, but for counsel's errors, the result would

have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694. In

determining the validity of appellant's claim of ineffective assistance of counsel, "any

judicial review must be highly deferential to trial counsel and avoid the deleterious

effects of hindsight." Thompson, 9 S.W.3d at 813.

       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Id. Appellant must overcome the strong presumption



                                             3
that counsel's conduct fell within the wide range of reasonable professional assistance

and that his actions could be considered sound trial strategy. See Strickland, 466 U.S.

at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.).

A reviewing court will not second-guess legitimate tactical decisions made by trial

counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there

is a record sufficient to demonstrate that counsel's conduct was not the product of a

strategic or tactical decision, a reviewing court should presume that trial counsel's

performance was constitutionally adequate . . . ."). Counsel's effectiveness is judged by

the totality of the representation, not by isolated acts or omissions.     Thompson, 9

S.W.3d at 813; Jaynes, 216 S.W.3d at 851.

B. Analysis

      An allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77

S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6 (setting out

that "in the vast majority of cases, the undeveloped record on direct appeal will be

insufficient for an appellant to satisfy the dual prongs of Strickland"); see Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc) (stating that "we must

presume that counsel is better positioned than the appellate court to judge the

pragmatism of the particular case, and that he made all significant decisions in the

exercise of reasonable professional judgment" and that "[d]ue to the lack of evidence in

the record concerning trial counsel's reasons" for the alleged ineffectiveness, the court

was "unable to conclude that appellant's trial counsel's performance was deficient")

(internal quotations omitted). Here, the record is silent regarding trial counsel's reason



                                            4
for failing to aggressively cross-examine Herschap and for failing to present evidence

regarding appellant’s claims that Herschap and other counselors engaged in

misconduct.4      Therefore, appellant has not overcome the strong presumption that

counsel's conduct fell within the wide range of reasonable professional assistance and

that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at

689; Jaynes, 216 S.W.3d at 851.

        Furthermore, appellant does not address at all the second prong of Strickland:

whether there is a reasonable probability that but for trial counsel's alleged errors, the

result would have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S.

at 694. Therefore, appellant has not met his burden to prove ineffective assistance of

counsel by a preponderance of the evidence.                  Thompson, 9 S.W.3d at 813.              We

overrule appellant's first issue.

                                    III. DISPROPORTIONATE SENTENCES

        By his second issue, appellant contends that his sentences are excessive “given

[his] mental status.” Appellant points us to no evidence in the record suggesting that he

is incompetent. Appellant asserts that his “past mental health issue raised the issue of

incompetency,” and cites a sentence included in the State’s “Supervision/Violation

Summary and Recommendation”: “The defendant brought up issues of mental health

after being unsuccessfully discharged, was transported to Jester 4 in Richmond, Texas

for a psychiatric evaluation and diagnosis or condition was deferred on Axis I.”

Appellant provided no further explanation or argument as to how this statement


        4
          We note that even if appellant’s counsel had established misconduct by Herschap, appellant
admitted that he exposed himself. He pleaded “true” to the allegations, and acknowledged that he “did
wrong” and “should have controlled [himself].” Herschap testified that she “felt disgusted” when appellant
exposed himself.

                                                    5
supports his claim that “his past mental health issue raised the issue of incompetency.”

No issue was raised to the trial court regarding appellant’s competency at the

revocation hearing. At the hearing, appellant addressed the court articulately on his

own behalf, requesting that the judge “see all sides of this” and make a judgment based

on appellant’s DWI history instead of the sexual misconduct.            To the extent that

appellant argues that he should have been given a more lenient sentence given his

“mental status,” we find the argument to be without merit.

         Moreover, to preserve a complaint of disproportionate sentencing, the criminal

defendant must make a timely, specific objection to the trial court or raise the issue in a

motion for new trial. Kim v. State, 283 S.W.3d 473, 475 (Tex. App.–Fort Worth 2009,

pet. ref'd) ("To preserve for appellate review a complaint that a sentence is grossly

disproportionate, constituting cruel and unusual punishment, a defendant must present

to the trial court a timely request, objection, or motion stating the specific grounds for

the ruling desired."); Noland v. State, 264 S.W.3d 144, 151-52, (Tex. App.–Houston [1st

Dist.] 2007, pet. ref'd); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.–Corpus

Christi 1989, pet. ref'd) (holding defendant waived cruel and unusual punishment

argument by failing to object). Here, appellant did not object to his punishment at the

hearing. Although his counsel later filed a “Motion for Reconsideration or Reduction of

Sentence” in each case, the motion asserts only that the sentences create “a hardship

and      burden”;   it   does   not   assert   that   the   sentences are   unconstitutionally

disproportionate. We hold that appellant failed to preserve the issue for review. See

TEX. R. APP. P. 33.1; Quintana, 777 S.W.2d at 479. We overrule appellant’s second

issue.



                                                 6
                                IV. CONCLUSION

      We affirm the trial court’s judgments in cause numbers 13-10-292-CR, 13-10-

293-CR, and 13-10-294-CR.


                                           ________________________
                                           DORI CONTRERAS GARZA
                                           Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
17th day of March, 2011.




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