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 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2007-417,493; HONORABLE BR ADLEY 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 assert s (1) the trial court erred by imposing

1 See Tex. Penal Code Ann. §§ 22.021(a) (2)(B), 21.11(a)(1) (Vernon Supp. 2009).2 sentences disproportionate to the offenses underlying his c onvictions resulting in a violation of federal and state constituti onal prohibitions against cruel and unusual punishment and (2) his counsel rendered ineffe ctive assistance during the punishment phase of his case. We affirm.

I. Cruel and Unusual Punishment

Appellant contends the trial court's imposit ion of concurrent sentences of sixty years confinement for aggravat ed sexual assault and tw enty years confinement for indecency with a child 2 violates the state and federal c onstitutional 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 unus ual 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)

2 The offense of "aggravated sexual as sault" is classified as a first degree felony punishable by life or for any term of not more than 99 years or less than 5 ye ars and a fine up to $10,000. Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009). The offense of "indecenc y 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 compla int does not constitute fundamental error. Trevino v. State , 174 S.W.3d 925, 927-28 (Tex.App.--Corpus Christi 2005, pet.ref'd).3 (holding failure to make specific objecti on at trial waives Eighth Amendment claim of cruel and unusual punishment). A ccord 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 t he sentencing hearing or in his motion for new trial, he failed to pres erve 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.A pp.--Amarillo 1996, pet. ref'd). Appellant's first point of error is overruled.

II. Ineffective Assistance of Counsel

Appellant asserts his couns el was ineffective because he failed to object to: (1) his disproportionate sentences, (2) the admissibi lity of his confession, and (3) irrelevant and prejudicial testimony by Adam Pu ckett, a Lubbock County Probation Officer.

A. Standard of Review

The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in stat e 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.C t. 2052, 80 L.Ed.2d 674 ( 1984), and adopted by Texas in Hernandez v. State , 726 S.W.2d 53, 56-57 (Tex.Cri m.App. 1986). This standard4 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, Appe llant has the burden to s how by a preponderance of the evidence that (1) trial counsel's perf ormance was deficient, i.e., fell below the prevailing professional norms, and (2) the def iciency prejudiced the defendant; that is, but for the deficiency, ther e 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.Ap p. 1999). To overcome the strong presumption that couns el's conduct fell within t he 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 alleg ed ineffectiveness." Thompson , 9 S.W.3d at 814. Judicial review must be highly deferential to trial counsel a nd 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 ineffectiv e assistance claim is made, "the record on direct appeal will not be suffi cient to show that counsel's representation was so deficient and so lacking in tactical or strategic decis ion-making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State , 77 S.W.3d

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).5 828, 833 (Tex.Crim.App. 2002). This is gener ally the case because a silent record provides no explanation for co unsel's actions and therefore will not overcome the strong presumption of reas onable 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 cour t did not hold a hearing to determine whether Appellant's complaints of ineffective assistan ce involved actions th at 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 wh ich Appellant complains.

B. Disproportionate Sentences

Appellant challenges his trial counsel's fa ilure to object to his two concurrent sentences as cruel and unusual punishment. Howe ver, 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 est ablishing counsel was ineffective in not making the objection. Appellant's brief merely states "[s]uffice it to say that, assuming this Court

6 An adequate record is best developed by an applicat ion 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).6 holds appellant's point of error waived despi te its fundamental nature, counsel erred by not objecting on those grounds and thus not preserving erro r." 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 erro r 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 r ange authorized by statut e, 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.--Ama rillo 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.--Houst on [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 co unsel's actions and therefore will not overcome the strong presumption of reas onable assistance. Freeman , 125 S.W.3d at 506. Based on this record, we cannot say that Appellant's couns el's failure to object was "so outrageous7 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 wa s ineffective because he did not object to the admissibility of his confession when tw o "promises," made by the State during interrogation prior to Appellant's confe ssion, rendered Appell ant'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 di strict attorney's office."

Before a promise will render a confession inadmissibl e, the promise must be shown to have induc ed 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 so meone in authority, and (4) of such an influential nature that it w ould likely influence a defendant to speak untruthfully. Fisher v. State , 379 S.W.2d 900, 902 (Tex.Crim.App. 1964) . An improper in ducement must be of exceptional character bef ore it will invalidate an ot herwise valid confession. Espinosa v. State , 899 S.W.2d 359, 364 (Tex.App.--Houston [1 4th Dist.] 1995, pet. ref'd). Thus, general, non-specific offers to hel p a defendant are unli kely to elicit a false statement by the suspect, and will not render a confession invalid. Id. (citing Dykes v. State , 6578 S.W.2d 796, 797 (Tex.Crim.App. 1983). Neit her will general st atements about how a confession might result in more lenient treatment invalidate a confession. Id.

Statements similar to, if not more spec ific than, those made to Appellant by Detective Davidson have been held insuffici ent 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.--H ouston [1st Dist.] 1997, pet. ref'd) ("if I was you . . . I would tell what I k new 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 an d tell us what happ ened. 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 to ld 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).9 Even assuming Detective Davidson ma de a promise of some benefit, the statements are not positive prom ises of leniency, Detective Davidson never claimed to have authority to make an offe r, and the statements were ce rtainly not of such an influential nature to cause a defendant to sp eak 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 r easonable 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 Pucke tt, a Lubbock County Probation Officer, as irrelevant and/or extremely prejudi cial. Specifically, Appellant asserts his counsel should have objected to Puckett's te stimony regarding probat ion violations by convicted sex offenders.

The record does not reflect defense couns el's reasons for not objecting to the testimony. In assessing a claim of ineffe ctive assistance, we "must indulge a strong presumption that counsel's conduct [fe ll] within the wide range of reasonable professional assistance; that is, the [appellant] must over come 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 a ppellate court "commonly will assume a strategic motivation if any can possibly be imagined." Garcia v. State , 57 S.W.3d 436,10 440 (Tex.Crim.App. 2001) (quoting 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d. ed 1999)).

Appellant has failed to dem onstrate that his trial coun sel's performance fell below an objective standard of reas onableness. His counsel may have considered such an objection futile because Suzy Byrd, a c ourt 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 thei r 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 pe rformed on Appellant for the purposes of determining the lik elihood he would reoff end. Branaman also testified whether treatment was available for sex offender s while on probation and what would occur if conditions of probation were violated. Puckett was the State's rebuttal witness to Byrd's and Br anaman's testimony.

Evidence that is other wise inadmissible may becom e 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). Accord ingly, we conclude A ppellant has not met the first prong of the Strictland test.11 Having considered each of Appellant's c ontentions and allegatio ns of ineffective assistance of counsel, we hold that his tr ial counsel's conduct did not so undermine the proper functioning of the adversarial proc ess that Appellant's punishment hearing cannot be relied on as havi ng produced a just result. See Strickland , 466 U.S. at 686. Appellant's second point of error is overruled.

Conclusion
The trial court’s judgm ent is affirmed.

Patrick A. Pirtle Justice

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