## In t he 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 S tevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION Micah David Brown entered an open plea of guilt y to intoxication manslaughter with a motor vehicle. After a bench trial on punishm ent , the trial court s entenced Brown to fifteen years’ imprisonment. On appeal, Brown argues (1) that the trial court did not allow him to

comme nt on his presentence investigation (PSI ) report during the sentencing hearing and (2) that his counsel “ was ineffective in failing t o object to this ov ersight.” 1 W e find that Brown failed to
preser ve 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 Rele v ant 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
determine d b y a judge .”). “Unless waived by the de fendant, at least 48 hours before sentencing a defendant, the judge shall permit the defendant or the defendant’s attorney to read the presentence report.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42A.255(a). The record in dic ates tha t this procedure was followed. At the beginning of the punishment hearing , the trial court made the following
announcement:

1 In companion cause number 06

- 23

- 00039

- CR, Brown appea ls his conviction for intoxication assault with a vehic le causing serious bod ily injury a nd the resulting sentenc e o f eight years’ imprisonment.3 THE COURT: All right. Additionally, the Court has before it

-- I know both counsel have reviewed this matter

-- the pre sen tence investigation report. And so the Court will take judicial notice of the cont ents 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 expr ess ly asked h is coun sel if he wished to make any comm ents a bout 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 inves tig ation

. . . re port and, with the approval of the j u dg e, introduce testimony or other information alleging a factual inaccuracy in the investigation or report. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42A.255(b). The opportunity to comment on the PSI report is rooted in t he defendant ’s right to allocution. “A llocutio n ” r efers 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 6 1 6, 618 (Tex. Crim. App. 1974) (op. on r eh’g). T he 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 pr onounced agai nst him” before his sen t ence is imposed

. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.07. With this relevant law in mind, we address Brown’s two points of error.4

II. Any Complaint About the Trial Court’s Actions Related to the PSI Report Is Unpreser ved
Bro wn’s brief

ing states that h e h ad no criminal h istory. 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 , w hich is not a par t of our appellate rec ord, contained any inac curate 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 unpreserve d.

“ As a prerequisite to presenting a complaint for app ellate 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 spec ificity to make the t ria l co urt aware o f the complaint, unle ss the specific gro unds were apparent from the context ” and t hat either the trial court “ruled on the request, objection, or motion, either expressly or implicitly , ” or “refused to rule on the req u est, objection, or mo tio n, a nd the com plaining party objecte d to the refusal.”
T EX
. R. A PP
. 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 compl aint is waived

. See T EX
. R. A PP
. P. 33.1(a ) ; Ybarra v . State , No. 13

- 18

- 00141

- CR, 2019 WL 3819871, at *4 ( Tex. App.

— Corpus Chr isti

– Edi nburg Aug. 15, 2019, pet. ref’d) (mem. op., not designated for publication) (overruling unpreserved complaint that defendant “should have been permitted to personal l y address the trial court regarding the allegations in the PS I re por t ”) ; see also Tenon v. St ate , 563 S.W.2 d 622, 623 (Tex. Crim. App. [Panel Op. ] 1 978); Reyna v. State , No. 06

- 20

- 00090

- CR, 2021 WL 297585, at5

*1 (T ex. App.

— Texarkana Jan. 29, 2021, pet . re f’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 rep ort at trial, [Brown] has waived

. . . any err o r contained in that repor t a nd has failed to preserve anything for review on appeal.” ) Conseque ntly, we overrule B rown’s first point of error.
III. Brown Cannot Show t hat His Counsel Rendered Ineffective Assistance In his second point of error, Brown argues that his counsel ren d er ed ineffective assistance by failing to objec t to the trial court’ s alleged refusal t o 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. St ate , 1 87 S.W.3d 475, 483 (Tex. Crim. App. 2006). “ [ T ] o prevail on a claim of i neffective assista n ce 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. proce e ding). A fa ilu re to make a showing under eith er 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 ineffe cti v e a ssistance of his counsel, Brown must show (1 ) that trial “ cou nsel ’ s
repr esentation fel l bel ow an objective standard of reasonableness , ” bas ed on prevailing professional norms , and (2) that “ there is a reasonable probability that

. . . the resul t of the
pr oceeding would have been different ” but for t r ial counsel ’ s deficient per for ma nce. Strickland

v. Washington , 466 U.S. 668, 68 8 , 694 (1984 ) ; s ee Her nandez v. State , 726 S.W.2d 53, 55

– 576

(Tex. Crim. App. 1986). A “reasonable probability” means a “probab i li ty sufficient to undermine confidence in the o utcome.” St r ickland , 466 U.S. at 694.
B. Analysis
Un d er the first Strickland prong, “ the defend ant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a sp ec if ic act or omission.” Bone
v. State , 77 S.W. 3 d 828, 836 ( T ex. Crim. App. 2002 ). W e note that “ [ j ] udi cia l scrutiny of counsel ’ s performance must be highly deferential, ” Strickland , 466 U.S. at 6 89 , and “ the defendant must overcome the presumpti on that, u nd er the circumstances of the case, the challe n ged action ‘ m ight be considered sound trial strateg y , ’ ” i d. (quoting Michel v. Louisiana 350 U .S. 91, 101 (1955))

. We apply a strong pr esu mption that trial counsel was competent and
pres ume that counsel ’ s a ct io ns and decisions were reasonably professi ona l 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 certai n actions , the appel la nt has “failed to rebut the presumption th at t r ial counsel’s decision was in some way

— be it con ceivable
or not

— reasonable.” Mata v. State , 2 26 S.W.3d 425, 431 (T ex. Crim. App. 2007) ; s ee Thompson v. State , 9 S.W.3d 808, 814 (Tex. Cri m. App. 1 999). Here, t he record is silent as to why counsel did not o bject. As a result, “[w]e mu st presume that com petent counsel

. . . consult[ed] with his clie nt about the contents of the presentence rep ort and

. . . act[ed] in his client’s best intere st at tri al.” Kadle c , 7 04 S.W.2d at 527. Because Brown had no c rim i nal history and identifies no inaccuracy in the PSI report , it is entirely possible that couns el had no objections to the r eport an d no need to comment ab out it.7

Also, we find that c ounsel ma y have failed t o ob ject because he was aware that he was introd u c ing s everal witnesses, including Brown , to testif y that B rown would be a good candidate for c ommunity supervision. Consequently, we cannot find Brown ’s counsel ineffective on this

s ilent rec ord and conclud e th at Brown has failed to meet the first Strick l a nd pr ong. We also find that Brown can not meet the second Strickland prong. First, Brown’s
b riefing fails to show what might have been accomplished b y o bjecting to or commenting on the
PSI repo rt . Instead , it shows that he had no criminal history and i n troduced te stimo ny showing that he was participat ing in community pr ograms, counseling, and tr eatment for alcohol abuse.
Brown to ok the stand and exp lai ned why he would be a good can didate for c ommunity
sup er vi sion. Counsel introduced many other support i ng witnesse s who commented about Brown’ s contribu tions to society an d supported his request fo r community supervision, and his closing arg ume nt made an effective plea for community su pervision. As a result, w e find that Brown has not met the Strickland p r ejud ice p rong. We find that Brown canno t meet either prong of the Strickland test. As a re sult, we overrule his las t p oint of error. IV. Disposition We affirm the trial c ourt’s judgm ent

Jeff Rambin Justice Date Submitted: June 30, 2023 Date Decided: July 6 , 2023
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