Affirmed and Memorandum Opinion filed June 29, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-01021-CR

NO. 14-20-00058-CR

ROBERT LEWIS FELDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause Nos. 1574593 & 1574595

MEMORANDUM OPINION

Appellant pleaded guilty to two separate charges of aggravated robbery, and 

for each offense, he was sentenced to a concurrent term of twenty-five years’ 

imprisonment. Now on appeal, he contends that his trial counsel was ineffective 

because counsel did not object to a presentence investigation (PSI), which contained 

evidence of certain unadjudicated offenses. In one other issue, appellant also 

contends that the trial court deprived him of due process by failing to ensure that his 
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guilty pleas were knowing and voluntary. For the reasons given below, we overrule 

both of these issues and affirm the trial court’s judgments.

INEFFECTIVENESS CLAIM

The PSI described three extraneous offenses, the first of which was an assault 

involving bodily injury where the complainant was appellant’s father. According to 

the PSI, the father told the police that he got into a verbal argument with appellant, 

and that the argument escalated to the point where appellant punched his father in 

the face. Appellant disputed his father’s version of events and claimed that his father 

had actually thrown the first punch, meaning appellant had acted in self-defense. The 

case was forwarded to the district attorney’s office, which declined to pursue 

charges.

The second extraneous offense was labeled as a combined “terroristic threat 

and sexual assault.” The PSI indicated that appellant had a fifteen-year-old girlfriend 

and that he had engaged in consensual intercourse with her when he was eighteen 

years old. The girlfriend’s mother verbally confronted appellant about his behavior, 

and then she followed appellant to his house to discuss his behavior with his parents. 

At his house, appellant allegedly threatened to come out with a gun if the girlfriend’s 

mother did not leave. The girlfriend’s mother called police afterwards, but she 

ultimately decided that she did not want to press charges.

The third offense was another assault involving bodily injury, and the 

complainant was a female classmate. The PSI indicated that appellant had previously 

wanted to date the classmate, but she had spurned all of his romantic advances. When 

appellant saw the classmate jogging outside, he allegedly yelled at her and slapped 

her in the face. Other witnesses described a different series of events. These 

witnesses informed the police that the classmate had been the first aggressor, and 
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that she had tried to hit appellant with a bat. The case was forwarded to the district 

attorney’s office, which declined to pursue charges.

Appellant’s trial counsel never objected to the PSI’s discussion of these 

extraneous offenses. Citing that omission, appellant claims that counsel’s assistance 

was constitutionally ineffective.

We review such claims of ineffectiveness under the standard set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, appellant must 

prove by a preponderance of the evidence that his counsel’s performance was 

deficient, and that the deficient performance was so prejudicial that it deprived him 

of a fair trial. Id. at 687. To establish deficient performance, appellant must show 

that his counsel’s performance fell below an objective standard of reasonableness. 

Id. at 688. And to establish prejudice, appellant must show a reasonable probability 

that, but for counsel’s deficient performance, the result of the proceeding would have 

been different. Id. at 694.

Appellant contends that counsel should have objected to the PSI because 

appellant never admitted to committing the extraneous offenses and because the 

offenses themselves were “unfounded.” He bases his sole argument on Smith v. 

State, 227 S.W.3d 753 (Tex. Crim. App. 2007), which held that “a PSI does not 

necessarily have to establish beyond a reasonable doubt that the defendant is 

responsible for extraneous conduct,” but “the PSI must provide the trial court with 

some basis from which it can rationally infer that the defendant was responsible 

before using [the extraneous conduct] to inform its normative judgment of what 

punishment to assess.” Id. at 758–59. Appellant argues that the trial court could not 

have made an inference of responsibility here because the extraneous offenses have 

“no direct connection” to him. And because counsel did not object on that basis, 

appellant argues that his counsel’s performance was deficient.
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When assessing counsel’s performance, our review is highly deferential and 

begins with the strong presumption that counsel’s decisions were reasonably 

professional and were motivated by sound trial strategy. See Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). The effect of this presumption is that we 

cannot ordinarily conclude that counsel’s performance was deficient on a silent 

record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Counsel 

must usually be given an opportunity to explain his actions and omissions before he 

is condemned by a court for being unprofessional or incompetent. See Bone v. State, 

77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

In this case, appellant did not file a motion for new trial complaining of 

counsel’s performance, nor did counsel otherwise testify or file an affidavit 

explaining his strategic decisions. When the record is silent, as it is here, we cannot 

conclude that counsel’s performance was deficient unless the challenged conduct 

was “so outrageous that no competent attorney would have engaged in it.” See 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This is a difficult 

standard, and we cannot say that counsel’s decisions rise to that level.

Counsel could have reasonably concluded that the PSI was admissible 

because, contrary to appellant’s assertions, the PSI established a direct connection 

between appellant and the extraneous offenses. Appellant’s father directly claimed 

that appellant punched him in the face; the girlfriend’s mother directly claimed that 

appellant threatened her with a gun; and the female classmate directly claimed that 

appellant slapped her in the face. Thus, there were multiple sources identified in the 

PSI from which the trial court could have rationally found that appellant was 

criminally responsible for the extraneous offenses. These sources serve to 

distinguish the case from Smith, which said that due process is violated when the PSI 
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does not provide any source from which the trial court can rationally infer the 

defendant’s criminal responsibility. See Smith, 227 S.W.3d at 764.

Appellant has not cited to any other authority showing that a PSI was 

inadmissible on similar facts, and we cannot say that the PSI was inadmissible here 

simply because appellant did not admit to the extraneous offenses or because the 

offenses were unadjudicated. See Tex. Code Crim. Proc. art. 42A.253(a)(3), (9) 

(providing that the PSI must include “the criminal and social history of the 

defendant” and “any other information relating to the defendant or the offense as 

requested by the judge”); Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 

2010) (considering the former version of the statute, which is similarly worded, and 

concluding that “the Legislature has directed what is to be included in a PSI, and the 

statute does not limit the criminal history to final convictions”).

Because appellant has not rebutted the strong presumption that his counsel’s 

performance was motivated by sound trial strategy, his claim of ineffectiveness must 

fail, and we need not consider his remaining arguments on prejudice. See Perez v. 

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (“To succeed on an 

ineffectiveness claim, a defendant must show both components; failure to show 

either deficient performance or prejudice will defeat the ineffectiveness claim.”).

DUE PROCESS CLAIM

The docket sheets reflect that appellant appeared in person on the same date 

for both of his arraignments, and he entered his guilty pleas after having 

affirmatively waived the making of a transcript by a court reporter. Because no 

transcript was ever prepared of his guilty pleas, appellant claims that the record fails 

to show that his pleas were knowing and voluntary, in violation of his right to due 

process as stated in Boykin v. Alabama, 395 U.S. 238, 243 & n.5 (1969) (stating that 

the waiver of constitutional rights cannot be presumed on a silent record).
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Despite there being no transcript from the plea hearing, the record is not 

actually silent because appellant signed written admonishments that formally 

advised him of all of his rights. He also initialed the following statements in his plea 

paperwork: “I WAIVE the right to have a court reporter record my plea,” and “I 

further state my plea is freely, knowingly, and voluntarily made.” And at the 

subsequent punishment hearing, which was transcribed by a court reporter, appellant 

confirmed again on the record that his pleas were “done freely and voluntarily.” 

Appellant has not challenged whether his written admonishments and other 

statements were sufficient to show that his pleas were actually knowing and 

voluntary. In fact, appellant does not even acknowledge the existence of these 

records in his brief.

Our court has previously held that written admonishments can satisfy the 

demands of due process. See Wiggins v. State, 499 S.W.3d 149, 152 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d) (concluding that there was no Boykin error 

where the defendant signed written admonishments). And we are not alone. See Scott 

v. State, 86 S.W.3d 374, 376 (Tex. App.—Fort Worth 2002, no pet.) (“There is no 

constitutional requirement that appellant’s plea be noted in a court reporter’s 

record.”); see also Tex. Code Crim. Proc. art. 26.13(d) (authorizing the trial court to 

make certain admonishments “either orally or in writing”). Appellant has not 

attempted to challenge or distinguish this precedent. Following that precedent, we 

conclude that appellant’s due process claim must fail.
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CONCLUSION

The trial court’s judgments are affirmed.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Spain and Wilson.

Do Not Publish — Tex. R. App. P. 47.2(b).