### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00282- CR
Miguel Angel Gonzale z, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 671 41, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Migue l Ang el Gonzalez pleade d g uilty to th e o ff ense of ag g rava ted sexual assault. See Tex. Penal Code Ann. § 22.021 (West Supp. 2011). Following a sentenc ing hear ing, the district court assessed punishment at 60 y ear s’ imprisonment. On appea l, Gonzalez, pro se, has filed a brief i n which he assert s fo u r i s s ues: (1) his g uilty plea was involuntary due to ineffe ctive assistance of counsel; (2) counsel rende red ineffe ctive assistance in failing to adequately investiga te the case ; ( 3) prior to be ing sentenc ed, Gonzalez wa s denied his rig ht to allocution; and (4) the leng th of his sentenc e constitutes crue l and unusual punishment. We will aff irm the judgme nt of convic tion.

BACK GR OUND

Gonzalez was char g ed with sex ually assaulting his daug hter, J .G., when she was y oung er than 14 y ear s of age

. Gonzal ez pleade d g uilty to the offense, and the case was there afte rrese t for sentenc ing. At the sentenc ing hear ing, the distr i ct co u rt hear d evidenc e rela ting to the

circ umstances surrounding the offe nse, including testimony from th e v i ct i m , J .G., who descr ibed in detail how Gonzalez had sexually assaulted her on multipl e occa sions when she was six or
seven y ear s old; Gonzalez’s adult stepdaug hter, S.R., who testified that Gonzalez had also sexually assaulted her when she was a child; Melissa Salter, a sexual assault nurse examiner (SANE) who had perf ormed a phy sical ex am on J .G. and found that J .G. had a heale d tear on her hy men that was “consistent with blunt penetr ating trauma” ; and Dr. Aar on Pierce , a defe nse wi t n es s and licensed profe ssional sex offe nder trea tment provider who testified t h at i n his opinion, Gonzalez was at

a “medium-low risk” to re- offe nd. At the conclusion of the hear ing, t h e d i s t ri ct court assessed punishment as noted above . This appea l followed.

ANALYSIS Ineff ect ive assistance of counsel I n his first issue, Gonzalez asser ts that his plea was involuntary due to the err oneous advice of his trial counsel. I n his second issue, Gonzalez asser ts that trial counsel wa s ineffe ctive in failing to adequa tely

investiga te the ca se. To establish that he rec eived ineffe ctive assistance of counsel, Gonzalez must show that (1) c ounsel’s per formanc e fe ll be low an objective standa rd of r easona

bleness, and ( 2) there is a reasonable probability

that, but for counse l’s defic ient perf ormanc e, the r esult of t he procee ding would have been differ ent. See Strickland v. W ashington , 466 U.S. 668, 687-88 (1984). Thus, the “benc hmark for judging any claim of ineffe ctiveness must be whet h er counsel’s conduct so

2undermined the proper functioning of the adver sarial proce ss that the tri al cannot be relied on as

having produce d a just result.” Id . at 686.

For a claim of in ef

fe ct i v e assistance of counsel to succe ed, the rec ord must demonstrate both defic ient perf ormanc e by counsel and prejudice suffe red by the defe n d an t
. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Cri m . Ap p . 2005). An ineffe ctive-a ssistance claim must be “fir

mly founded in the rec ord” and “the rec ord must a ffirma tively demonstrate” the meritorious n at u re o f the claim. Id

. (quoting Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999)). “Dire ct appea l is usually an inadequa te vehicle for raising such a claim because the rec ord is g ener ally undevelope d.” Id

. This statement is true wi t h reg ard to the “def icient perf ormanc e” prong of the inquiry , when counsel’s rea sons for failing to d o s o m et h i ng do not appea r in the rec ord. Id

. Trial counsel “should ordinarily be aff orded an opportunity to explain his actions befor e being denounce d as ineffe ctive.” Id

. (quoting Rylander v. State , 101 S.W .3d 107, 111 (Tex. Crim. App. 2003)). I f trial counsel is not g iven that op p o rt u n i t y , then the appellate court

s h o u l d n ot find defic ient perf ormanc e unless the challeng ed conduct was “so outrag eous that no
co m p et ent attorney would have eng ag ed in it.” Id

. (quoting Garcia v. State , 57 S.W .3d 436, 44 0 (Tex. Crim. App. 2001)).

Reg arding the voluntariness of his plea, Gonzalez claims that trial counsel promised him that he would rec eive a sentenc e of ten y ear s’ adjudicate d probation, told him that if convicted he would g et 15 y ear s in prison, and did not provid e h i m wi t h “enoug h information to make a
rea sonable, intelligent and knowledg eabl e ch o ice” as to whether to plead g uilty

. Gonzalez also claims that he was “pre ssur ed, intimi dated,” and place d under “dure ss” by his counsel and the

3prosec utor. Fina lly , Gonzalez claims that counsel failed t o explain eac h of t he plea paper s to him and also failed to explain the waiver of cer tain rig hts as a conseque nce of enter ing a g uilty plea. Howeve r, as Gonzalez conce des in his brief, “[t] he rec ord is silent as to t h es e cl ai m s . ” We find nothing in the rec ord to sug g est that counsel provided err oneous advice to Gonzalez on any matter rela ting to his g uilty plea. Howeve r, the rec ord does ref lect that, during the plea hear ing, when the distri ct court inquired as to whether or not Gonzalez was fre ely and voluntarily pleading g uilty , Gonzalez r eplied that he was. Gonzalez also indicated that he understood the char g es ag ainst him and the conseque nces if he was convicted. And, when the court asked Gonzalez if any one had forc ed, threa tened, or promised him an y t h i n g i n o rder to g et him to plead g uilty , he replied that they had not and that he was pleading g uilty only beca use he was g uilty

. On this rec ord, we cannot conclude that counsel prov i d ed er ro neous advice to Gonzalez reg arding his plea. Moreove r, Gonzalez has failed to make a showing that there is a rea sonable probability that, but for counsel’s alleg edly err oneous advice , he would not ha ve pleade d g uilty

and would have insisted on going to trial. See H

ill v. Lockhart , 474 U.S. 52, 59-60 (1985). We rea ch simil ar conclusi o ns reg arding Gonzalez’s claim that counsel failed to adequately investiga te the case . Gonzalez asser ts that counsel’s inadequa te investigation is demonstrated by counsel not calling char acte r witnesses on Gonzalez’s behalf , inadequa tely crossexamining the State’s witnesses, and hiring an investiga tor who, Gonzalez claims, stole exculpatory evidenc e from counsel’s office

. But the rec ord is silent as to counsel’s strateg y in the case , the

rea sons why he did not call char acte r witnesses and limit ed his cross-e x am ination of the State’s witnesses, and the circ umstances surrounding the hiring and conduct of counsel’s investiga tor. On

4this record, we cannot conclude that counsel’s investiga tion of the case fell below an objective

standard of rea sonablene ss. Nor can we conclude that there is a rea sonable probability that, but for counsel’s alleg edly defic ient investiga tion, the result of the proce eding s would have been differ ent. We overrule Gonzalez’s first and sec ond issues.

Allocution I n his third issue, Gonz al ez as s er ts that he was denied his rig ht to allocution. Allocution is the point during trial when, “[b] efor e pronouncing s en t ence , the defe ndant shall be asked whether he has any thing to sa

y why the sentenc e should not be pronounce d ag ainst him.” Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006). Althoug h the re cord doe s not refle ct that t he district court complied with this require ment, Gonzalez failed to bring this appar ent oversig ht to the district court’s attention. I t is well settled that a violation of the righ t t o al l o cu t i o n is waived by the failure to obje ct at trial. See Tenon v . State , 563 S.W .2d 622, 623-24 (Te x . Crim. App. 1978); McClintick v. State , 508 S.W .2d 616, 618 (Tex. Crim. App. 1974); Jarvis v. S t a t e , 3 5 3 S.W .3d 253, 254-55 (Tex. App

. — Fo rt W o rth 2011, pet. ref ’d); Eisen v. State , 40 S.W .3d 628, 637 (Tex. App.—Waco 2001, pet. ref ’d). Acc ording ly , Gonzalez has failed to p reserve err or on this point. See Tex. R. App. P . 33.1(a)

.

Additionally , even if Gonzalez had prese rved err or, he has failed to demonstrate how he was harme d. There are only three rea sons for which sentenc e cannot be pronounce d: (1) that the defe ndant has rec eived a pardon from the proper authority ; (2) that the defe ndant is incompetent to stand trial; and (3) that the person appea ring befor e the court for sentenc ing is not the same person who was convicted of the offe nse. Tex. Code Crim. Proc. Ann. art. 42.07. Gonz al ez has failed 5to make a showing that any of the three rea sons apply to him. Thus, even if this issue had been

prese rved for our revie w, we could not conclude on this rec ord that Gonzalez was ent i t l ed t o a
new se ntencing hear ing. See Tennon , 563 S.W .2d at 624. We overr ule Gonzalez’s third issue.

Cruel and un usu al pu nish m ent

I n his fourth issue, Gonzalez asser ts that his sentenc e of 60 y ear s’ imprison m en t constitutes crue l and unusual punishment and is excessive in light of evidenc e in the rec ord tending to show that he has no prior convictions, that the victim of his offense “is doing good in school,” that he served “honorably ” in the m ilitary for 20 y ear s, and that he is consider ed a “medium-low” risk to re- offe nd i n the future. Howeve r, i t is well s ettled t hat as long as the puni shment assessed is within the rang e presc ribed by the leg islature in a valid statute, the punishment is not considere d excessive, crue l, or unusual

. S ee , e.g. , Jordan v. State , 495 S.W .2d 949, 952 (Tex. Crim. App. 1973); Holley v. State , 167 S.W .3d 546, 549-50 (Tex. App.—Houston 2005, pet. ref ’d); Castaneda

v. State , 135 S.W .3d 719, 724 (Tex. A pp.—Dallas 2003, no pet.). The offe nse to which Gonzalez pleade d g uilty is a first-deg ree felony punishable by imprisonment for life or any term of not mor e than 99 y ear s or l ess than 5 y ear s, and may include a f

ine of up to $10,000.00. Gonzalez rec eived

a sentenc e of 60 y ear s’ imprisonment and no fine. This is well within the statutory rang e established by the leg islature. Thus, we cannot conclude that Gonzalez’s sentenc e is ex cessive, crue l, or unusual, particula

rly in light of the circ umstances of this c ase, which included evidenc e tending to show that Gonzalez had sexually assaulted his daug hter on multipl e occa sions when she was six or
seven y ear s old and had also sexually assaulted his stepdaug hter when she was a child. We overr ule Gonzalez’s fourth issue. 6CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: June 22, 2012 Do Not Publish

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