

Opinion issued May 20, 2010

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-08-00881-CR
———————————
Carl Darnell Gavin, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 177th District Court  
Harris County, Texas

Trial Court Case No. 1085545
 

 
O P I N I O N
          Carl
Darnell Gavin pleaded guilty to the offense of indecency with a child, and the
trial court ordered deferred adjudication.  See Tex. Penal Code Ann. § 21.11
(Vernon Supp. 2009).  After Gavin
violated the terms of his community supervision, the State moved to adjudicate
guilt, and the trial court sentenced him to prison for 20 years.  On appeal, Gavin argues that he received
ineffective assistance of counsel during the proceedings to adjudicate his
guilt and assess his punishment, and that the trial court’s imposition of the
maximum sentence allowed by statute constituted cruel and unusual punishment.[*]  We affirm.
Background
          When
she was ten years old, Gavin’s stepdaughter, D.L., told her father that Gavin
had been sexually abusing her since she was seven years old.  Gavin was initially charged with aggravated
sexual assault of a child, but the State later reduced the charge to indecency
with a child by contact.  In May 2007,
Gavin pleaded guilty, and the 177th Criminal District Court (hereinafter, the
trial court) deferred adjudication of guilt for 8 years, placing Gavin on
community supervision. 
At the time the trial court
deferred adjudication of Gavin’s guilt, it admonished him, among other matters,
that he was subject to being punished by a fine not to exceed $10,000 and
confinement of not more than 20 years or less than 2 years.  Although the trial court previously had
allowed Gavin to have supervised visits with his three biological sons during
the pendency of his criminal case, the conditions of Gavin’s community
supervision restricted him from any contact with any minor under the age of 17,
including his children, except with the trial court’s permission.  In addition to the trial court’s
admonishments, this requirement was explained to Gavin by his probation
officer, who specifically explained that the requirement applied to Gavin’s own
children, and that even if some other court, such as a civil or family court,
gave him permission to contact his children, he was still required to obtain
the permission of the trial court, which maintained jurisdiction over his
community supervision.  In this appeal
Gavin is not challenging these conditions of his community supervision.
          In November
2007, after Gavin had unauthorized contact with his biological sons by
telephone, the trial court sentenced him to 30 days in jail as a form of
therapy to impress upon him the importance of complying with the terms and
conditions of his community supervision. 
In a separate proceeding, in
July 2008 the 313th Juvenile District Court (hereinafter, the juvenile
court) authorized Gavin to have a supervised visitation with his sons.  The record on appeal contains few details
about the nature of this proceeding in the juvenile court, but it is apparent
that the proceeding was related to Gavin’s family’s
involvement with Child Protective Services (CPS), a division of the
Texas Department of Family and Protective Services.  Gavin
and his wife visited with their children for approximately one hour at a CPS
office. 
          The
State subsequently moved in the trial court to adjudicate guilt on the charge
of indecency with a child, alleging that Gavin again violated the terms and
conditions of his community supervision by having contact with his biological
sons from or about June 1, 2008 to July 8, 2008, and from or about July 11,
2008 to July 15, 2008. 
S. Bolton, the CPS investigative worker who supervised the
visitation, testified at the trial court’s hearing to determine whether to
proceed with an adjudication of Gavin’s guilt. 
Bolton said CPS received a report that the children were seeing Gavin,
including staying with him on the weekends. 
Bolton was asked to remove the children, who were living with their
mother at their grandmother’s house.  In
addition, Bolton testified that she supervised Gavin’s visit with his children
in July 2008, and she testified that he hugged them, played with them, prayed
with them, and behaved appropriately. 
However, Bolton also said that Gavin told the juvenile court that he did
not know if he was on probation and that he did not register as a sex
offender.  Registration as a sex offender
was one of the conditions of Gavin’s community supervision, and Bolton
testified that she knew he was a registered sex offender because she had seen
his registration card.
          Gavin
presented two witnesses in his defense: his mother-in-law Gwendolynn Giles and
his wife Erica Gavin.  Giles testified
that her daughter and three grandsons live with her and her husband.  Giles testified that CPS said that she told
them her grandsons had contact with Gavin, but despite CPS’s assertion, Giles
denied having personal knowledge of whether Gavin had contact with his sons.  However, Giles also testified that she believed
her grandsons when they said they had contact with Gavin. 
Erica denied that the children had
been staying with Gavin.  Erica denied
that Gavin saw his children on the dates alleged in the motion to
adjudicate.  She also denied that Gavin
misrepresented the status of his criminal case to the juvenile court.  Erica testified that the children miss their
father and that she and they need his emotional, financial, and physical
support.  Erica testified that Gavin is a
good father and that she thought the trial court should continue Gavin’s
deferred adjudication.
However, on cross-examination,
Erica agreed that Gavin had been advised by his probation officer that he was
not to have contact with his children without the trial court’s permission,
regardless of any ruling from a juvenile court. 
Erica conceded that Gavin had spent 30 days in jail for previously
contacting his sons by telephone and that Gavin had contact with his children
during a CPS visit in the three months prior to the hearing on the motion to
adjudicate.  Although Erica conceded that
Gavin pleaded guilty to charges of sexually abusing her daughter, Erica said
she did not believe her daughter “with certain things.”  She said, “I don’t believe that.”  Rather, Erica insisted that Gavin is a good
father and agreed that she would consider having more children with him.  In closing, Gavin’s trial counsel asked the
court to take judicial notice of its files, particularly regarding the prior
order permitting supervised visitation.
          The
trial court found the allegation in the motion to adjudicate true, stating:
I do want the record to
reflect the court has taken judicial notice of not only the probation file in
this case but also the clerk’s file.  And
in the clerk’s file I have found an order entered on March 23rd, 2007, by me
allowing Mr. Gavin to have supervised contact with his biological sons, said
order to terminate at the conclusion of the matter of the State of Texas versus
Carl Gavin.  This matter was terminated
when Mr. Gavin pled guilty to indecency with a child on May 29th, 2007.  Mr. Gavin was told by this court and by Ms.
Davila [Gavin’s probation officer] not to have any contact with any children.
          
Review of the probation file
shows that not only did Miss Bolton hear him say that he was not on probation
and was not a registered sex offender to Judge Molder [of the juvenile court],
but Mr. Burkholder, assistant county attorney, also heard him say that.
 
          The
State presented no evidence during the proceeding for assessment of Gavin’s
punishment.  Erica testified again for
Gavin, addressing the issues of how difficult it is to raise her children
without him and how much financial help he provided for her and the
children.  She denied that D.L. ever told
her that Gavin had been molesting her, asserted that Gavin is a good father,
and agreed that “[t]he second he’s out of prison, he’s coming back home to take
care of [his] kids.”  In response to the
trial court’s question, Erica testified that D.L. no longer lives with her.
          In
addition, Gavin’s pastor Thurman West testified that Gavin attends church
regularly and seeks spiritual counseling. 
Pastor West testified about the evident stress in Gavin’s and Erica’s
lives, yet he conceded that he does not know what Gavin does “in the darkness
of his own home when nobody is looking” or whether Gavin has molested children.
          Despite
the trial court’s finding that the allegations against Gavin were true, defense
counsel argued in closing that Gavin should remain on community supervision and
that the court should create some conditions that would allow Gavin to see his
children.  Counsel for the State argued
for imprisonment of at least 10 years, saying, “I’ll leave it up to the court
as to what prison sentence to assess, but clearly 20 years is not enough for
the allegations that he’s pled true to, sexually assaulting a child from the
age of seven to ten years old on a repeated basis.”
Cruel and Unusual Punishment
In his second issue, Gavin contends
that the trial court’s imposition of the maximum sentence of confinement for 20
years violates the Eighth Amendment prohibition against cruel and unusual
punishment.  We hold that Gavin waived
this issue on appeal because he failed to assert this challenge to the trial
court.  See Tex. R. App. P.
33.1; Curry v. State, 910 S.W.2d 490,
497 (Tex. Crim. App. 1995) (holding that failure to make specific objection at
trial waives Eighth Amendment claim of cruel and unusual punishment); accord Solis v. State, 945 S.W.2d 300,
301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi
2005, pet. ref’d) (“Because the sentence imposed is within the punishment range
and is not illegal, we conclude that the rights [the appellant] asserts for the
first time on appeal are not so fundamental as to have relieved him of the
necessity of a timely, specific trial objection.” (footnote omitted)).  We overrule Gavin’s second issue.
Ineffective Assistance of Counsel
          In
his first issue, Gavin contends his trial counsel was ineffective in the
following ways: (1) calling witnesses whose testimony did more harm than good;
(2) not adequately preparing the witnesses to testify; (3) not adequately
investigating Gavin’s case; (4) delivering a legally flawed closing argument;
and (5) failing to object to Gavin’s sentence as cruel and unusual punishment.
Standard of
Review
The standard of review for claims
of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052,
2064–69 (1984), and Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). 
To prevail, Gavin must first show that his counsel’s performance was
deficient.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. “Specifically,
appellant must prove, by a preponderance of the evidence, that his counsel’s
representation fell below the objective standard of professional norms.” Bone, 77 S.W.3d at 833.  “Second, appellant must show that this
deficient performance prejudiced his defense,” meaning that Gavin “must show a reasonable probability that, but for his
counsel’s unprofessional errors, the result of the proceeding would have been
different.”  Id. (quoting Mitchell v.
State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)).  A “reasonable probability” is one “sufficient
to undermine confidence in the outcome.” 
Bone, 77 S.W.3d at 833. Thus,
the “benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just
result.”  Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.
There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional
assistance, and the defendant must overcome the presumption that the challenged
action might be considered sound trial strategy.  Id.,
466 U.S. at 689, 104 S. Ct. at 2065.  To
overcome the presumption of reasonable professional assistance, “any 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, 814 (Tex. Crim. App. 1999).  When determining the validity of an
ineffective-assistance-of-counsel claim, judicial review must be highly
deferential to trial counsel and avoid the deleterious effects of
hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  The record on direct appeal will rarely
contain sufficient information to evaluate an ineffective-assistance-of-counsel
claim.  See Bone, 77 S.W.3d at 833. Based on such a record, a finding that
counsel was ineffective would normally require impermissible speculation by the
appellate court.  Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d).  When the record is
silent as to trial counsel’s strategy, we will not conclude that defense
counsel’s assistance was ineffective 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) (quoting Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001)).
Appeal Permitted from Decision to Adjudicate Guilt 
In Gavin’s first issue, he
complains that his trial counsel was ineffective during the proceedings for
both the adjudication of his guilt and the determination of his
punishment.  Gavin’s brief states that
“an appellant cannot appeal the trial court’s decision to adjudicate guilt.”  Article 42.12, § 5(b), of the Texas
Code of Criminal Procedure formerly prohibited an appeal from the trial court’s
decision to adjudicate guilt.  See Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim.
App. 2006).  However, a 2007 amendment removed the
language stating “no appeal may be taken from this determination,” i.e., the
determination to adjudicate guilt.  See Act of May 28, 2007, 80th Leg.,
R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws
4395, 4397.  The statute now provides
that the trial court’s determination to adjudicate guilt on the original charge
“is reviewable in the same manner as a revocation hearing conducted under
Section 21 of this article in a case in which an adjudication of guilt has not
been deferred.”  Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon. Supp.
2009).  Thus, in proceedings governed by
the amended provision of the Code, a defendant is no longer barred from
challenging a trial court’s decision to adjudicate guilt.  See
Durgan v. State, 240 S.W.3d 875, 878 n.1 (Tex. Crim. App. 2007).  
In his brief, Gavin expressly
complains that he received ineffective assistance of counsel during the
proceeding to adjudicate his guilt.  His
complaints about that stage of the proceeding are that his counsel introduced
harmful evidence by calling his wife and his mother-in-law to testify, and that
his counsel requested in closing argument that the trial court “take judicial
notice of its own file,” which revealed that Gavin knew he was not allowed to
be in contact with his children and misled the civil court concerning his
status as a probationer and registered sex offender.  Thus, we will review Gavin’s challenges
regarding both the adjudication-of-guilt and punishment phases of the proceedings.  See
Tex. R. App. P. 38.1(f) (“The
statement of an issue or point will be treated as covering every subsidiary
question that is fairly included.”).
Adjudication Phase
          Gavin
contends that his counsel was ineffective during the adjudication phase by
eliciting harmful testimony from Gwendolynn Giles and Erica Gavin, by asking
the trial court to take judicial notice of its files, and by not sufficiently
investigating his case.
First Gavin contends that Giles’s
testimony was harmful to him and that his counsel should not have called her to
testify.  Giles testified that she had no
personal knowledge of whether Gavin had contact with his sons but that she
believed her grandsons when they said they had contact with Gavin.  Because Giles also testified that the
children lived with her, her testimony that she had no personal knowledge of
Gavin’s contact with the children could have been helpful to Gavin.
Gavin relies on Fernandez v. State, 830 S.W.2d 693, 697
(Tex. App.—Houston [1st Dist.] 1992, no pet.), for the proposition that his
trial counsel was ineffective for calling Giles and failing to object to
hearsay.  In Fernandez, the appellant’s wife gave incriminating testimony that
was not corroborated by any other witness. 
Id.  Here, CPS investigator Bolton testified that
she observed a visitation in which Gavin had contact with his sons.  Thus Gavin was not harmed by Giles’s
testimony about believing her grandsons. 
See Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that error in admitting hearsay
was harmless because other properly admitted evidence proved same fact).  Moreover, as to the decision to call Giles as
a witness, Gavin has not overcome the presumption of reasonable trial
strategy.  See Goodspeed, 187 S.W.3d at 392.
Second, Gavin argues that his wife
Erica’s testimony was only harmful to him and his counsel should not have
called her to testify.  Erica testified
about Gavin’s 30-day “jail therapy” for previously contacting his children, the
probation officer’s explanation of his community-supervision conditions, and
Gavin’s visitation with his children. 
However, she also testified that Gavin is a good father, describing the
financial, material, and emotional support Gavin has provided to them.  As with Giles’s testimony, Erica’s
incriminating testimony was similar to that of the probation officer, P.
Davila.  Gavin argues that Erica’s
testimony about her daughter D.L.’s outcry introduced the “egregious facts of
the underlying offense,” which would not have otherwise been introduced.  Gavin’s logic is flawed, however, because
this was not a jury trial: it was a hearing before the same trial court that
previously deferred adjudication of Gavin’s guilt and placed him on community
supervision.  The “egregious facts” of
the underlying offense to which Gavin pleaded guilty were already known to the
trial court.  Under these circumstances,
we cannot conclude that the introduction of Erica’s testimony, in which she
repeatedly emphasized that Gavin was a good father, was “so outrageous that no
competent attorney would have engaged in it.” 
Goodspeed, 187 S.W.3d at 392.
          Third, Gavin challenges as
ineffective his counsel’s request that the trial court to take judicial notice
of its own file.  “In a criminal case, a
trial court may notice judicially all of its own records, including all
judgments and convictions entered by it.” 
Turner v. State, 733 S.W.2d
218, 221–22 (Tex. Crim. App. 1987). 
Moreover, all of the information that the trial court noted from its
files was duplicative of testimony offered by Davila and Bolton.  Thus, Gavin cannot show that but for his
counsel’s request for the trial court to take notice of its records, the result
of the proceeding would have been different. 
See Bone, 77 S.W.3d at 833.
Fourth, Gavin argues that his trial
counsel did not sufficiently investigate the facts of this case.  Specifically, Gavin contends that if his
trial counsel had more fully investigated the case, his attorney could have
advised him not to have contact with his children, despite the juvenile court’s
order permitting visitation.  Here, Gavin
attacks the competency of the trial counsel who represented him at the original
plea proceeding.  Moreover, rather than
complaining about counsel’s performance in the proceeding to adjudicate his
guilt, Gavin complains about allegedly not receiving legal advice, which he
claims “perhaps” may have saved him from violating the conditions of his
community supervision.  This complaint
about the quality of legal advice, allegedly resulting in a violation of the
terms of his community supervision and resulting adjudication of guilt and
imposition of punishment, does not implicate the Sixth Amendment right to the
assistance of counsel as applied by Strickland
and its progeny to review the performance of defense counsel in a criminal
proceeding.  To the extent that Gavin’s challenge
may be construed to encompass the effectiveness of his counsel from the
original plea proceeding, he is unable to raise that issue now.  “[A] defendant placed on deferred
adjudication community supervision may raise issues relating to the original
plea proceeding, such as evidentiary sufficiency, only in appeals taken when
deferred adjudication community supervision is first imposed.”  Manuel
v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Guillory v. State, 99 S.W.3d 735, 738
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).  Manuel has
been construed as obliging a defendant to appeal any issue relating to the
original plea hearing at the time he is placed on deferred adjudication.  Webb v.
State, 20 S.W.3d 834, 836 (Tex. App.—Amarillo 2000, no pet.).
Punishment Phase
          Gavin
contends that his counsel was ineffective during the punishment phase of the
proceeding, by eliciting testimony from Erica, by not adequately preparing
Erica and Giles to testify, by asking the trial court to continue Gavin’s
deferred adjudication after the trial court adjudicated his guilt, and by
failing to object to Gavin’s sentence as cruel and unusual punishment.  
First, Gavin contends that Erica’s
testimony suggested that she was “an unfit mother herself,” and that it “would
have been better to call no one at all to testify.”  As we have observed, Erica testified
repeatedly that Gavin was a good father and to her need for his financial,
physical, and emotional support.  Again,
Gavin has not overcome the presumption of reasonable trial strategy.  See
Goodspeed, 187 S.W.3d at 392.
          Second,
Gavin contends that his trial counsel failed to adequately prepare Erica and
Giles to testify.  The record is silent
as to how or to what extent Gavin’s trial counsel prepared these witnesses to
testify.  Because this allegation of
ineffectiveness is not firmly founded in the record, Gavin has not overcome the
presumption of reasonable professional assistance.  See
Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999).
Third, Gavin argues that his trial
counsel was ineffective for asking the trial court to continue Gavin’s deferred
adjudication after the trial court adjudicated his guilt.  Gavin contends this was a procedurally
hopeless request insofar as his guilt had been adjudicated at that stage; the
bell could not be unrung and there could be no deferral of an adjudication that
had already occurred.  In this regard,
Gavin relies upon two pre-Strickland
authorities, Ex parte Morse, 591 S.W.2d 904, 905 (Tex. Crim.
App. 1980), and Ex parte Gallegos,
511 S.W.2d 510, 513–14 (Tex. Crim. App. 1974), for the proposition that inadequate knowledge or explanation of the law
may constitute ineffective assistance of counsel.  That argument is unavailing when, as here,
the appellate record does not disclose Gavin’s counsel’s reasons for making the
argument, which appears to be a plea for leniency.  In light of the trial court’s prior order for
“jail therapy,” we cannot conclude that this argument was “‘so outrageous that
no competent attorney would have engaged in it.’”  See
Goodspeed, 187 S.W.3d at 392. 
Moreover, even if counsel’s argument had no basis in the law, Gavin has
not established that he was harmed by the argument, as would be necessary to
establish a claim for ineffective assistance. 
See, e.g., Bone, 77 S.W.3d at 833.  
Fourth, Gavin challenges his trial
counsel’s failure to object to Gavin’s sentence as cruel and unusual
punishment.  Punishment assessed within the
statutory limits is generally not cruel and unusual punishment.  Samuel
v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d).  The trial court
sentenced Gavin to 20 years in prison, which is within the statutory
limits.  See Tex. Penal Code Ann.
§12.33 (Vernon Supp. 2009) (establishing statutory punishment range of
two-to-twenty years’ imprisonment for second-degree felony).  Thus, Gavin’s counsel’s failure to object was
not ineffective assistance of counsel.  
Having considered each of Gavin’s
contentions and allegations of ineffective assistance of counsel, we hold that
his trial counsel counsel’s conduct did not so undermine the proper functioning
of the adversarial process that Gavin’s hearing cannot be relied on as having
produced a just result.  See Strickland, 466 U.S. at 686, 104 S.
Ct. at 2064.  We overrule Gavin’s first
issue.
Conclusion
          We
affirm the judgment of the trial court.
 
 
 
Michael
Massengale
Justice
 
 
Panel consists
of Justices Keyes, Sharp, and Massengale.
 
Publish.  Tex.
R. App. P. 47.2(b).




[*]
          Gavin filed a document with the Court in which he
discusses his case.  It does not purport
to be a brief, and we do not construe it as such.  A criminal defendant is not entitled to
hybrid representation.  See Robinson v. State, 240 S.W.3d 919,
922 (Tex. Crim. App. 2007).
 


