No. 05-06-01581-CR
Opinion issued April 14, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F05-01383-QI.
Before Justices, MORRIS, WRIGHT, and MOSELEY.
JIM MOSELEY, Justice.
Tyrodney Vartex Goldman pleaded guilty to the charge of unlawful possession of a firearm by a convicted felon. See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2007). He pleaded true to an enhancement paragraph. The trial court sentenced him to eight years' confinement. Goldman brings two issues premised on the trial court's misstatement of the sentencing options. First, Goldman argues such statement denied him due process. Second, Goldman argues his counsel's failure to correct or object to such statement constituted ineffective assistance of counsel. We reject Goldman's due process argument because he failed to preserve this complaint for review. We reject Goldman's ineffective assistance of counsel argument because he has not shown prejudice. We affirm the trial court's judgment.
I. BACKGROUND
At the punishment hearing, Goldman's counsel asked him about punishment options, specifically, if he understood that the trial court could give him twenty years' confinement or community supervision or "any sentence in between" pursuant to the range of punishment for enhancement from a third to a second degree felony offense. Goldman replied that he understood. In closing argument, counsel asked the trial court to "consider a probated sentence." After counsel's closing argument, the trial court said: THE COURT: Mr. Goldman, the issue on this is — as you've, I'm sure, discussed with your attorney. If you had gone to a jury, you wouldn't be entitled or be eligible for probation. Do you understand that? [GOLDMAN]:
Yes, sir.
THE COURT:
And in order for this Court to give you probation, I would have to make it deferred, that is, no conviction. In order to do that, there needs [sic] to be overriding reasons as to why I should depart from what law [sic] normally calls for.
[GOLDMAN]:
Yes, sir.
THE COURT:
Based upon the evidence before me, I really can't find those reasons. . . .
The trial court then found Goldman guilty of the charged offense and the enhancement paragraph true and assessed punishment. II. DUE PROCESS
In his first issue, Goldman argues the trial court's misstatement that Goldman was not eligible for "'conviction' and community supervision" constitutes a failure to consider the entire range of punishment and this mistake denied him due process. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3 ("Limitation on Judge Ordered Community Supervision") 5 ("Deferred Adjudication; Community Supervision") (Vernon Supp. 2007). A.
Preservation of Error The defendant waives any due process complaint when he does not object to the punishment or to the failure to consider the evidence. Cole v. State, 931 S.W.2d 578, 580 (Tex.App.-Dallas 1995, pet. ref'd). See Tex. R. App. P. 33.1(a)(1)(A). We do not consider any error counsel could have called, but did not call, to the trial court's attention when the trial court could have avoided or corrected the error. See Cole, 931 S.W.2d at 580. This rule applies even to errors of constitutional dimension. Id. Here, the record shows that Goldman did not object to the trial court's statements. Nor did his motion for new trial include such a complaint; its ground for new trial that "the verdict is contrary to the law and the evidence" is too general to inform the trial court he is complaining about a denial of due process at punishment. B.
Fundamental Error Nevertheless, Goldman argues he is subject to two exceptions to the principles of preservation. First, Goldman argues the doctrine of fundamental error applies here. We disagree. In Cole, 931 S.W.2d at 579-80, this Court, considered a complaint that the trial court denied due process when it arbitrarily refused to consider the entire range of punishment and ruled it was subject to the preservation rules. Goldman relies on Blue v. State, 41 S.W.3d 129, 130-31 (Tex.Crim.App. 2000) (plurality op.). In that case, the trial court stated to the jury panel, among other things, that he would have preferred that the defendant plead guilty rather than go to trial. Id. at 130. The plurality held this comment struck directly at the presumption of innocence of the defendant, adversely affecting the defendant's right to a fair trial, and was fundamental error of constitutional dimension. Id. at 132. A concurring justice opined that the right at issue was the fundamental right to an impartial judge, and as such, no objection was required. Id. at 138 (Keasler, J., concurring). Thus, the issue in Blue concerned the influence the trial judge has on a jury and the effect of the trial judge's comments on the jury. The statement at issue here was not made to a jury. While it shows a misapprehension about the law, it does not show impartiality or unfairness. See Black's Law Dictionary 767 (8th ed. 2004) (defining "impartial" as "unbiased"; "disinterested"). It does not show an intent to misapply the law to Goldman individually. Given that counsel established through direct examination that Goldman was asking the court for community supervision, and that he asked for community supervision in closing argument, it appears an objection would have alerted the trial court to his misstatement as to the community supervision option. We conclude the trial court's statement does not rise to the level of the comments made in Blue. Therefore, we reject Goldman's argument that such statement constituted fundamental error. C.
Futility Second, Goldman argues an objection here was futile. Specifically, Goldman argues he never had the opportunity to object because the trial court made the erroneous statement of law at the beginning of "an uninterrupted sentencing colloquy" that concluded in the imposition of sentence. See, e.g., Jefferson v. State, 803 S.W.2d 470, 472 (Tex.App.-Dallas 1991, pet. ref'd) ("Once the judge assesses punishment based on factors such as his promised punishment period, the recusal motion or an objection would be futile."). We agree that there was little time between the trial court's first statement about "probation" and the imposition of sentence. However, the statement came immediately after counsel's closing argument in which he specifically asked for probation. Therefore, the probation issue was under discussion. The trial court made two probation-related statements before pronouncing sentence. Therefore, in light of this record, we cannot agree that an objection to either statement would have been futile. Cf. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992) (trial court "in one proclamation" revoked probation, adjudicated, and sentenced appellant to prison term). Moreover, Goldman's "futility" argument does not excuse his failure to assert this objection-if not at sentencing-in his motion for new trial. See Tex. R. App. P. 33.1(a)(1)(A); Cole, 931 S.W.2d at 580. Having rejected Goldman's arguments, we conclude timely objection was required to preserve error. See Tex. R. App. P. 33.1(a)(1)(A). We resolve Goldman's first issue against him. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Goldman argues he received ineffective assistance of counsel when his counsel failed to correct or object to the trial court's misstatements as to the sentencing options. A.
Applicable Law and Standard of Review We measure a claim of ineffective assistance of counsel against the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986). First, the appellant must show that his counsel's performance was deficient. Strickland, 466 U.S. at 687. This means that the appellant must prove by a preponderance of the evidence that his counsel's representation objectively fell below the standard of professional norms. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Second, the appellant must show that the deficient performance prejudiced his defense. This means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. When addressing the second part of Strickland, merely showing that errors had some conceivable effect on the proceedings is inadequate proof. McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Absent both showings an appellate court cannot conclude that the conviction resulted in a breakdown in the adversarial process that renders the result unreliable. Id. Generally, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The reasonableness of counsel's choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. Id. Here, assuming Goldman met the first step of the Strickland standard, we conclude the record is insufficient to show he has met the second step of the analysis-whether the appellant was prejudiced by his attorney's error. See id. B.
Discussion Although Goldman does not make a separate argument under his second issue as to prejudice, he argues under his first issue that he was harmed by the failure to object to the misstatements because the trial court "would likely have given straight community supervision had it only realized the legal availability of it as a sentencing option." The State argues that the record shows both harmless error and lack of prejudice: (1) Goldman was convicted of delivery of a controlled substance and placed on community supervision in 1993 and committed two offenses while on community supervision; (2) this is Goldman's fourth criminal offense; (3) the trial court chose not to place Goldman on deferred adjudication, indicating it had reviewed the evidence; and (4) the sentence is well above the minimum in the applicable sentencing range. See Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp. 2007) (previous felony conviction enhances third degree felony to second degree), § 12.33(a) (Vernon 2003) (second degree felony punishment is imprisonment for not more than twenty years or less than two years). We agree with the State that Goldman has failed to show a reasonable probability that, but for his counsel's unprofessional error, the result of the punishment proceeding would have been different. See Andrews, 159 S.W.3d at 102. Failure to make this required showing of prejudice defeats his ineffectiveness claim on direct appeal. See Thompson, 9 S.W.3d at 813. We resolve Goldman's second issue against him. IV. CONCLUSION
Having resolved Goldman's two issues against him, we affirm the trial court's judgment.