
                           NO. 07-08-0501-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                              JUNE 16, 2010








                      ROGELIO PENA, JR., APPELLANT


                                   v.


                      THE STATE OF TEXAS, APPELLEE





            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2007-417,493; HONORABLE BRADLEY UNDERWOOD, JUDGE






Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION


      Appellant, Rogelio Pena, Jr., pled guilty in open  court  to  two
felony  offenses,  aggravated  sexual  assault  and  indecency  with  a
child.[1] He was sentenced by a jury to  two  concurrent  sentences  of
sixty and twenty years confinement,  respectively,  and  fined  $10,000
for each offense.  Appellant asserts  (1)  the  trial  court  erred  by
imposing sentences disproportionate  to  the  offenses  underlying  his
convictions  resulting  in   a   violation   of   federal   and   state
constitutional prohibitions against cruel and  unusual  punishment  and
(2) his counsel rendered ineffective assistance during  the  punishment
phase of his case.   We affirm.

I.  Cruel and Unusual Punishment


      Appellant contends the trial  court's  imposition  of  concurrent
sentences of sixty years confinement for aggravated sexual assault  and
twenty years confinement for indecency with  a  child[2]  violates  the
state and federal constitutional prohibition against cruel and  unusual
punishment.[3]

      In order 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  requested.[4]   Curry   v.   State,   910   S.W.2d   490,   497
(Tex.Crim.App. 1995) (holding failure to  make  specific  objection  at
trial waives Eighth Amendment claim of cruel and  unusual  punishment).
Accord Nicholas v. State, 56 S.W.3d 760, 768  (Tex.App.--Houston  [14th
Dist.]  2001,  pet.  ref'd);  Solis  v.  State,  945  S.W.2d  300,  301
(Tex.App.--Houston [1st Dist.] 1997, pet.  ref'd).   Because  Appellant
failed to object on grounds of cruel  and  unusual  punishment  at  the
sentencing hearing or in  his  motion  for  new  trial,  he  failed  to
preserve error for review.  See  Ladd  v.  State,  3  S.W.3d  547,  564
(Tex.Crim.App. 1999); Rodriquez v. State, 917 S.W.2d 90, 92 (Tex.App.--
Amarillo 1996, pet.  ref'd).   Appellant's  first  point  of  error  is
overruled.

II.  Ineffective Assistance of Counsel


      Appellant asserts his counsel was ineffective because  he  failed
to  object  to:   (1)   his   disproportionate   sentences,   (2)   the
admissibility of his confession, and  (3)  irrelevant  and  prejudicial
testimony by Adam Puckett, a Lubbock County Probation Officer.

      A.  Standard of Review

      The Sixth  Amendment  guarantees  the  right  to  the  reasonably
effective  assistance  of  counsel  in  state  criminal   prosecutions.
McMann v. Richardson, 397  U.S.  359,  771  n.14,  90  S.Ct.  1441,  24
L.Ed.2d 763 (1970).   We  examine  ineffective  assistance  of  counsel
claims by the standard enunciated  in  Strickland  v.  Washington,  466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),  and  adopted  by
Texas in Hernandez  v.  State,  726  S.W.2d  53,  56-57  (Tex.Crim.App.
1986).  This standard applies to both  the  punishment  stage  and  the
guilt/innocence  and  punishment   stage   of   criminal   proceedings.
Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999).


      Under this standard, Appellant  has  the  burden  to  show  by  a
preponderance of the evidence that (1) trial counsel's performance  was
deficient, i.e., fell below the prevailing professional norms, and  (2)
the  deficiency  prejudiced  the  defendant;  that  is,  but  for   the
deficiency, there is a reasonable probability[5]  that  the  result  of
the proceeding would have been different.  See Mitchell  v.  State,  68
S.W.3d 640, 642 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d  808,
812 (Tex.Crim.App. 1999).  To  overcome  the  strong  presumption  that
counsel's  conduct  fell  within   the   wide   range   of   reasonable
professional assistance and  presumption  that  the  challenged  action
might be considered valid trial strategy; Strickland, 466 U.S. at  689,
"any allegation of  ineffectiveness  must  be  firmly  founded  in  the
record, and the  record  must  affirmatively  demonstrate  the  alleged
ineffectiveness."  Thompson, 9 S.W.3d at 814.  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).  See Goodspeed v. State,  187  S.W.3d  390,  392  (Tex.Crim.App.
2005); Thompson, 9 S.W.3d at 812-13.

      In the usual case in which an  ineffective  assistance  claim  is
made, "the record on direct appeal will not be sufficient to show  that
counsel's representation was so deficient and so  lacking  in  tactical
or strategic  decision-making  as  to  overcome  the  presumption  that
counsel's conduct was reasonable and professional."  Bone v. State,  77
S.W.3d 828, 833 (Tex.Crim.App.  2002).   This  is  generally  the  case
because a silent record provides no explanation for  counsel's  actions
and therefore will not overcome the strong  presumption  of  reasonable
assistance.  Freeman v.  State,  125  S.W.3d  505,  506  (Tex.Crim.App.
2003);  Rylander  v.  State,  101  S.W.3d  107,  110-11  (Tex.Crim.App.
2003).[6]

      This case demonstrates "the inadequacies inherent  in  evaluating
ineffective assistance claims on direct appeal."  Patterson  v.  State,
46 S.W.3d 294, 306 (Tex.App.  --Fort Worth  2001,  pet.  ref'd).   Like
Patterson, Appellant's motion for new trial did not  claim  ineffective
assistance, the trial  court  did  not  hold  a  hearing  to  determine
whether  Appellant's  complaints  of  ineffective  assistance  involved
actions that may or may not be  grounded  in  trial  strategy  and  the
record does not reflect counsel's reasons for doing or  failing  to  do
the things of which Appellant complains.

      B.  Disproportionate Sentences

      Appellant challenges his trial counsel's  failure  to  object  to
his  two  concurrent  sentences  as  cruel  and   unusual   punishment.
However, other than to refer this  Court  to  arguments  asserting  his
punishment  was  cruel  and  unusual,  Appellant's  brief  contains  no
citations  to  the  record  or  case  law  establishing   counsel   was
ineffective in not making  the  objection.   Appellant's  brief  merely
states  "[s]uffice  it  to  say  that,  assuming   this   Court   holds
appellant's point of  error  waived  despite  its  fundamental  nature,
counsel  erred  by  not  objecting  on  those  grounds  and  thus   not
preserving error."  Appellant does not  cite  any  case  law  or  other
authority in support of this  contention.   Thus,  the  contention  was
insufficiently  briefed,  and  therefore,  waived.   Tex.  R.  App.  P.
38.1(h).  See Cardenas v. State,  30  S.W.3d  384,  393  (Tex.Crim.App.
2000).


      Even if this contention had not been waived,  Appellant  has  not
established  that  the  trial  court  would  have  committed  error  in
overruling such an objection.  See Vaughn v.  State,  931  S.W.2d  564,
566 (Tex.Crim.App. 1996).  Where, as  here,  an  appellant's  sentences
were  within  the  range  authorized  by  statute,  the  punishment  is
generally not considered  cruel  and  unusual  punishment.   Harris  v.
State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); McNew  v.  State,  608
S.W.2d 166, 174 (Tex.Crim.App. 1978); Samuel v. State, 477 S.W.2d  611,
615 (Tex.Crim.App.  1972);  Rodriquez  v.  State,  917  S.W.2d  90,  92
(Tex.App.--Amarillo 1996, pet. ref'd).  See  Ajisebutu  v.  State,  236
S.W.3d 309, 314  (Tex.App.--Houston  [1st  Dist.]  2007,  pet.  ref'd);
Jacoby v. State, 227 S.W.3d 128,  131  (Tex.App.--Houston  [1st  Dist.]
2006, pet. ref'd).


      Moreover, we will not  engage  in  prohibited  speculation.   See
Stafford v. State,  101  S.W.3d  611,  613-14  (Tex.App.--Houston  [1st
Dist.]  2003,  pet.  ref'd);  Stultz  v.  State,  23  S.W.3d  198,  208
(Tex.App.--Houston [14th Dist.] 2000, pet.  ref'd).   A  silent  record
provides no explanation for counsel's actions and  therefore  will  not
overcome the strong presumption  of  reasonable  assistance.   Freeman,
125  S.W.3d  at  506.   Based  on  this  record,  we  cannot  say  that
Appellant's counsel's failure to object  was  "so  outrageous  that  no
competent attorney would have engaged in it."   Goodspeed,  187  S.W.3d
at 392 (quoting Garcia v. State,  57  S.W.3d  436,  440  (Tex.Crim.App.
2001)).

      C.  Confession


      Appellant next contends his counsel was  ineffective  because  he
did not  object  to  the  admissibility  of  his  confession  when  two
"promises,"  made  by  the  State   during   interrogation   prior   to
Appellant's confession, rendered  Appellant's  confession  involuntary,
i.e., Detective Davidson testified he told  Appellant  that  "the  only
way appellant's situation would get any  better  is  for  appellant  to
tell the truth"  and  "he  would  speak  highly  of  appellant  to  the
district attorney's office."


      Before a promise  will  render  a  confession  inadmissible,  the
promise must be shown to have induced the confession.  Muniz v.  State,
851 S.W.2d 238, 254 (Tex.Crim.App.), cert. denied, 510  U.S.  837,  114
S.Ct. 116, 126 L.Ed.2d 82 (1993).  In order  to  induce  a  confession,
the promise  must  be  (1)  of  some  benefit  to  the  defendant,  (2)
positive, (3) made or sanctioned by someone in authority,  and  (4)  of
such an influential nature that it would likely influence  a  defendant
to  speak  untruthfully.   Fisher  v.  State,  379  S.W.2d   900,   902
(Tex.Crim.App. 1964).  An improper inducement must  be  of  exceptional
character before it will  invalidate  an  otherwise  valid  confession.
Espinosa v. State, 899 S.W.2d 359, 364 (Tex.App.--Houston [14th  Dist.]
1995, pet. ref'd).   Thus,  general,  non-specific  offers  to  help  a
defendant are unlikely to elicit a false statement by the suspect,  and
will not render a confession invalid.  Id.   (citing  Dykes  v.  State,
657  S.W.2d  796,  797  (Tex.Crim.App.  1983).   Neither  will  general
statements  about  how  a  confession  might  result  in  more  lenient
treatment invalidate a confession.  Id.

      Statements similar to, if not more specific than, those  made  to
Appellant by Detective Davidson have been held insufficient  to  render
a suspect's statement involuntary.  See Chambers v. State,  866  S.W.2d
9, 21 (Tex.Crim.App. 1993)  ("everything  is  going  to  be  alright"),
cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128  L.Ed.2d  491  (1994);
Coursey v. State, 457 S.W.2d  565,  568-69  (Tex.Crim.App.  1970)  ("it
would be best for him to go ahead and make a statement"  or  "it  would
be better to get his business straight"), Brown v.  State,  220  S.W.2d
476, 478 (Tex.Crim.App. 1949) (officer told suspect "the best thing  to
do was to tell the truth about it, that people might think more of  him
to do it").  See also Herrera v. State, 194 S.W.3d 656, 660 (Tex.App.--
Houston [14th Dist.] 2006, pet. ref'd) ("[w]e can  talk  to  the  D.A.,
get you an offer, if you can help us"); Lee v. State, 964 S.W.2d 3,  13
(Tex.App.--Houston [1st Dist.] 1997, pet. ref'd) ("if I was you .  .  .
I would tell what I knew to get it off of my chest,  so  that  I  would
feel better"); Espinosa v. State, 899 S.W.2d  359,  362-63  (Tex.App.--
Houston [14th Dist.] 1995, pet. ref'd) ("[g]o ahead and  tell  us  what
happened.  Everything will  be  better  for  you,  you  will  get  less
time").  Moreover, a confession is not  rendered  inadmissible  because
it is made after an accused has been told it would be best to tell  the
truth.  Smith v. State, 91 Tex. Crim. 15, 237  S.W.  265,  267  (1922).
See also Humphries v. State, 163 Tex. Crim. 601, 295  S.W.2d  218,  220
(1956); Brown v. State, 153 Tex. Crim.  381,  220  S.W.2d  476,  478-79
(1949).


      Even assuming Detective Davidson made a promise of some  benefit,
the  statements  are  not  positive  promises  of  leniency,  Detective
Davidson never claimed to have authority to  make  an  offer,  and  the
statements were certainly not of such an influential nature to cause  a
defendant to speak untruthfully.   Under  the  circumstances,  even  if
counsel had objected to admission of the confession on  the  basis  now
asserted  by  Appellant,  we  cannot  say  there   was   a   reasonable
probability the result would have been any different.

      D.  Probation Officer's Testimony


      Appellant also contends his counsel was  ineffective  because  he
did not object to testimony from the  State's  rebuttal  witness,  Adam
Puckett, a Lubbock  County  Probation  Officer,  as  irrelevant  and/or
extremely prejudicial.  Specifically,  Appellant  asserts  his  counsel
should  have  objected  to  Puckett's  testimony  regarding   probation
violations         by         convicted         sex          offenders.






      The record does not reflect defense  counsel's  reasons  for  not
objecting to the testimony.    In  assessing  a  claim  of  ineffective
assistance, we  "must  indulge  a  strong  presumption  that  counsel's
conduct  [fell]  within  the  wide  range  of  reasonable  professional
assistance; that is, the  [appellant]  must  overcome  the  presumption
that,  under  the  circumstances,  the  challenged  action   might   be
considered sound trial strategy."  Strickland, 466 U.S. at 689.   Also,
in the absence of evidence of  counsel's  reasons  for  the  challenged
conduct,  an  appellate  court  "commonly  will  assume   a   strategic
motivation if any can  possibly  be  imagined."  Garcia  v.  State,  57
S.W.3d 436, 440 (Tex.Crim.App. 2001) (quoting  3  W.  LaFave,  et  al.,
Criminal Procedure § 11.10(c) (2d. ed 1999)).


      Appellant has failed to  demonstrate  that  his  trial  counsel's
performance fell below an objective standard  of  reasonableness.   His
counsel may have considered  such  an  objection  futile  because  Suzy
Byrd,  a  court  officer  for  the  Lubbock  County   Adult   Probation
Department, testified for the defense to the terms  and  conditions  of
probation for sex offenders, what occurs if there  is  a  violation  of
the conditions of probation, and  how  common  it  is  for  persons  to
violate their probation.  She  also  testified  that,  based  upon  her
experience with sex offenders on probation, it was less common for  sex
offenders to violate their  probation  than  other  probationers.   Jim
Branaman,  a  psychologist,  also  testified  for  the  defense  on  an
evaluation he performed on Appellant for the  purposes  of  determining
the likelihood he would  reoffend.   Branaman  also  testified  whether
treatment was available for sex offenders while on probation  and  what
would occur if conditions of probation were violated.  Puckett was  the
State's rebuttal witness to Byrd's and Branaman's testimony.


      Evidence that is otherwise  inadmissible  may  become  admissible
when a party opens the door to such evidence; Williams  v.  State,  301
S.W.3d 675, 685 (Tex.Crim.App.  2009)  (citing  Hayden  v.  State,  296
S.W.3d 549, 554  (Tex.Crim.App.  2009)),  and  it  is  not  ineffective
assistance for trial counsel to forego making frivolous  arguments  and
objections.  See Edmond v.  State,  116  S.W.3d  110,  115  (Tex.App.--
Houston [14th Dist.]  2002,  pet.  ref'd).   Accordingly,  we  conclude
Appellant has not met the first prong of the Strictland test.

       Having  considered   each   of   Appellant's   contentions   and
allegations of ineffective assistance of  counsel,  we  hold  that  his
trial counsel's conduct did not so undermine the proper functioning  of
the adversarial process that Appellant's punishment hearing  cannot  be
relied on as having produced a just result.  See Strickland,  466  U.S.
at 686.  Appellant's second point of error is overruled.

                               Conclusion

      The trial court’s judgment is affirmed.



                                             Patrick A. Pirtle
                                                          Justice



Do not publish.








-----------------------
[1]See Tex. Penal Code Ann. §§ 22.021(a)(2)(B), 21.11(a)(1) (Vernon
Supp. 2009).

[2]The offense of "aggravated sexual assault" is classified as a  first
degree felony punishable by life or for any term of not  more  than  99
years or less than 5 years and a fine up to $10,000.  Tex.  Penal  Code
Ann. § 12.32 (Vernon Supp. 2009).  The offense  of  "indecency  with  a
child" is classified as a second degree felony punishable by  not  more
than 20 years or less than 2 years confinement  and  up  to  a  $10,000
fine.  Id. at § 12.33.

[3]See Tex. Const. art. I, § 13; U.S. Const. amend. VIII, XIV.

[4]See Tex. R. App. P. 33.1(a).  The complaining party must  object  at
the earliest possible opportunity and obtain an adverse ruling;  Wilson
v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002), and, on appeal,  the
arguments must comport with the objection at trial,  or  the  error  is
waived.   Id.  (quoting  Thomas  v.  State,   723   S.W.2d   696,   700
(Tex.Crim.App. 1986)).  Even constitutional errors may be waived  by  a
failure to object at trial.  Fuller  v.  State,  253  S.W.3d  220,  232
(Tex.Crim.App. 2008).  Although appellate courts  may  take  notice  of
fundamental error affecting  rights  so  fundamental  to  the  judicial
system that they are granted special protection and  cannot  be  waived
by inaction alone; Blue v. State, 41  S.W.3d  129,  131  (Tex.Crim.App.
2000), a cruel and unusual complaint does  not  constitute  fundamental
error.  Trevino v. State,  174  S.W.3d  925,  927-28  (Tex.App.--Corpus
Christi 2005, pet.ref'd).



[5]A "reasonable probability" is one "sufficient to undermine
confidence in the outcome."  Bone v. State, 77 S.W.3d 828, 833
(Tex.Crim.App. 2002).

[6]An adequate record is best developed by an application  for  a  writ
of habeas corpus or by developing facts and  details  with  a  thorough
and detailed examination of the alleged ineffectiveness.   See  Jackson
v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998).  See  also  Aldrich
v. State, 104 S.W.3d 890, 896 (Tex.Crim.App.  2003)  (proper  procedure
for raising a claim of ineffective assistance is almost  always  habeas
corpus).



