In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-23-00038-CR

MICAH DAVID BROWN, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 4th District Court

Rusk County, Texas

Trial Court No. CR21-130

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice Rambin
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MEMORANDUM OPINION

Micah David Brown entered an open plea of guilty to intoxication manslaughter with a 

motor vehicle. After a bench trial on punishment, the trial court sentenced Brown to fifteen 

years’ imprisonment. On appeal, Brown argues (1) that the trial court did not allow him to 

comment on his presentence investigation (PSI) report during the sentencing hearing and (2) that 

his counsel “was ineffective in failing to object to this oversight.”1 We find that Brown failed to 

preserve his first point of error and cannot show that his counsel rendered ineffective assistance 

on this silent record. As a result, we affirm the trial court’s judgment. 

I. Background and Relevant Law 

A PSI report was prepared after Brown pled guilty to the State’s indictment. See Stringer 

v. State, 309 S.W.3d 42, 45 (Tex. Crim. App. 2010) (“A PSI is used anytime a sentence is to be 

determined by a judge.”). “Unless waived by the defendant, at least 48 hours before sentencing a 

defendant, the judge shall permit the defendant or the defendant’s attorney to read the 

presentence report.” TEX. CODE CRIM. PROC. ANN. art. 42A.255(a). The record indicates that 

this procedure was followed. 

At the beginning of the punishment hearing, the trial court made the following 

announcement:

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In companion cause number 06-23-00039-CR, Brown appeals his conviction for intoxication assault with a vehicle 

causing serious bodily injury and the resulting sentence of eight years’ imprisonment. 
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THE COURT: All right. Additionally, the Court has before it -- I know 

both counsel have reviewed this matter -- the presentence investigation report. 

And so the Court will take judicial notice of the contents of the presentence 

investigation report in this case.

All right. The State may proceed at this time.

Brown argues that the trial court should have expressly asked his counsel if he wished to 

make any comments about the PSI report. He points to Article 42A.255 of the Texas Code of 

Criminal Procedure, which states, “The judge shall allow the defendant or the defendant’s 

attorney to comment on a presentence investigation . . . report and, with the approval of the 

judge, introduce testimony or other information alleging a factual inaccuracy in the investigation 

or report.” TEX. CODE CRIM. PROC. ANN. art. 42A.255(b). 

The opportunity to comment on the PSI report is rooted in the defendant’s right to 

allocution. “Allocution” refers to a trial judge affording a criminal defendant the opportunity “to 

present his personal plea to the Court in mitigation of punishment before sentence is imposed.” 

McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh’g). The statutory 

right of allocution is contained in Article 42.07 of the Texas Code of Criminal Procedure, which 

requires the defendant to be asked “whether he has anything to say why the sentence should not 

be pronounced against him” before his sentence is imposed. TEX. CODE CRIM. PROC. ANN. art. 

42.07.

With this relevant law in mind, we address Brown’s two points of error. 
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II. Any Complaint About the Trial Court’s Actions Related to the PSI Report Is 

Unpreserved

Brown’s briefing states that he had no criminal history. He testified at the punishment 

hearing and sought community supervision. His counsel introduced eight witnesses in his favor 

during punishment. Also, nothing indicated that the PSI report, which is not a part of our 

appellate record, contained any inaccurate information. Even so, in his first point of error, 

Brown complains that the trial court failed to expressly ask his counsel if he wished to comment 

on the PSI report. We find this issue unpreserved. 

“As a prerequisite to presenting a complaint for appellate review, the record must show 

that” it “was made to the trial court by a timely request, objection, or motion that . . . stated the 

grounds for the ruling . . . with sufficient specificity to make the trial court aware of the 

complaint, unless the specific grounds were apparent from the context” and that either the trial 

court “ruled on the request, objection, or motion, either expressly or implicitly,” or “refused to 

rule on the request, objection, or motion, and the complaining party objected to the refusal.”

TEX. R. APP. P. 33.1(a). 

Brown admits that there was no objection alerting the trial court that his counsel wished 

to comment on the PSI report. As a result, his complaint is waived. See TEX. R. APP. P. 33.1(a); 

Ybarra v. State, No. 13-18-00141-CR, 2019 WL 3819871, at *4 (Tex. App.—Corpus Christi–

Edinburg Aug. 15, 2019, pet. ref’d) (mem. op., not designated for publication) (overruling 

unpreserved complaint that defendant “should have been permitted to personally address the trial 

court regarding the allegations in the PSI report”); see also Tenon v. State, 563 S.W.2d 622, 623 

(Tex. Crim. App. [Panel Op.] 1978); Reyna v. State, No. 06-20-00090-CR, 2021 WL 297585, at 
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*1 (Tex. App.—Texarkana Jan. 29, 2021, pet. ref’d) (mem. op., not designated for publication)

Kadlec v. State, 704 S.W.2d 526, 527 (Tex. App.—Dallas 1986, pet. ref’d) ( “[B]y not objecting 

to the contents of the presentence report at trial, [Brown] has waived . . . any error contained in 

that report and has failed to preserve anything for review on appeal.”) Consequently, we 

overrule Brown’s first point of error. 

III. Brown Cannot Show that His Counsel Rendered Ineffective Assistance 

In his second point of error, Brown argues that his counsel rendered ineffective assistance 

by failing to object to the trial court’s alleged refusal to allow comment on the PSI report. 

A. Standard of Review

As many cases have noted, the right to counsel does not mean the right to errorless 

counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[T]o prevail on a 

claim of ineffective assistance of counsel, [the defendant] must satisfy the two-prong[ed] test set 

forth in Strickland v. Washington, 466 U.S. 668, 687–88 (1984).” Ex parte Imoudu, 284 S.W.3d

866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to make a showing under either 

prong of the Strickland test defeats a claim for ineffective assistance. Rylander v. State, 101 

S.W.3d 107, 110–11 (Tex. Crim. App. 2003).

To prove ineffective assistance of his counsel, Brown must show (1) that trial “counsel’s 

representation fell below an objective standard of reasonableness,” based on prevailing 

professional norms, and (2) that “there is a reasonable probability that . . . the result of the

proceeding would have been different” but for trial counsel’s deficient performance. Strickland 

v. Washington, 466 U.S. 668, 688, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55–57 
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(Tex. Crim. App. 1986). A “reasonable probability” means a “probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

B. Analysis

Under the first Strickland prong, “the defendant must prove, by a preponderance of the 

evidence, that there is . . . no plausible professional reason for a specific act or omission.” Bone 

v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). We note that “[j]udicial scrutiny of 

counsel’s performance must be highly deferential,” Strickland, 466 U.S. at 689, and “the 

defendant must overcome the presumption that, under the circumstances of the case, the 

challenged action ‘might be considered sound trial strategy,’” id. (quoting Michel v. Louisiana

350 U.S. 91, 101 (1955)). We apply a strong presumption that trial counsel was competent and 

presume that counsel’s actions and decisions were reasonably professional and motivated by 

sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Also, when 

an appellate record is silent on why trial counsel failed to take certain actions, the appellant has 

“failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable 

or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Here, the record is silent as to why counsel did not object. As a result, “[w]e must 

presume that competent counsel . . . consult[ed] with his client about the contents of the 

presentence report and . . . act[ed] in his client’s best interest at trial.” Kadlec, 704 S.W.2d at 

527. Because Brown had no criminal history and identifies no inaccuracy in the PSI report, it is 

entirely possible that counsel had no objections to the report and no need to comment about it. 
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Also, we find that counsel may have failed to object because he was aware that he was 

introducing several witnesses, including Brown, to testify that Brown would be a good candidate 

for community supervision. Consequently, we cannot find Brown’s counsel ineffective on this 

silent record and conclude that Brown has failed to meet the first Strickland prong.

We also find that Brown cannot meet the second Strickland prong. First, Brown’s 

briefing fails to show what might have been accomplished by objecting to or commenting on the 

PSI report. Instead, it shows that he had no criminal history and introduced testimony showing 

that he was participating in community programs, counseling, and treatment for alcohol abuse. 

Brown took the stand and explained why he would be a good candidate for community 

supervision. Counsel introduced many other supporting witnesses who commented about 

Brown’s contributions to society and supported his request for community supervision, and his 

closing argument made an effective plea for community supervision. As a result, we find that 

Brown has not met the Strickland prejudice prong. 

We find that Brown cannot meet either prong of the Strickland test. As a result, we 

overrule his last point of error. 

IV. Disposition

We affirm the trial court’s judgment

Jeff Rambin

Justice

Date Submitted: June 30, 2023

Date Decided: July 6, 2023

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