By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Not ineffective assistance to fail to object
to juvenile adjudiation recited in adult presentence investigation report
(99-4-20)
On October 28, 1999, the Houston First
District Court of Appeals held that the transferred juvenile was not provided
with ineffective assistance of counsel because his lawyer failed to object to a
juvenile adjudication recited in an adult presentence investigation report.
99-4-20. Rodgers v. State, UNPUBLISHED, No. 01-99-00104-CR, 1999 WL 977862, 1999
Tex.App.Lexis ____ (Tex.App.--Houston [1st Dist.] 10/28/99)[Texas Juvenile Law
237 (4th Edition 1996)].
Facts: Robert Lewis Rodgers, the appellant, was charged by indictment with
aggravated robbery. The appellant plead guilty without an agreed recommendation
from the State. The trial court found the appellant guilty and sentenced him to
fifteen years imprisonment. The appellant claims that he was denied effective
assistance of counsel because his trial counsel allowed him to make statements
to the pre-sentence report preparer contrary to his express desire "not to
do so." As a result, the appellant argues, the trial judge considered an
unadjudicated extraneous offense.
Held: Affirmed.
Opinion Text: The appellant bears the burden of proving ineffective assistance
of counsel claims by a preponderance of the evidence. Jackson v. State, 973
S.W.2d 954 (Tex.Crim.App.1998). The two prong test under Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2070 (1994), applies to
ineffective assistance of counsel cases alleging deficient performance at
noncapital sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 774
(Tex.Crim.App.1999). Under this test, a defendant must show: (1) counsel's
representation fell below an objective standard of reasonableness under
prevailing professional norms and (2) there is a reasonable probability that,
but for counsel's error, the result of the trial would have been different.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2070 (1994); Kennerson v. State, 984
S.W.2d 705, 708 (Tex.App.--Houston [1st Dist.] 1998, pet. ref'd).
The appellant complains that his trial counsel should not have allowed him to
participate in the PSI after he signed a waiver. Appellate counsel did not
request a hearing on motion for new trial or develop the record in any other
way. Because there was no motion for new trial hearing, the record is silent as
to why the appellant's trial counsel allowed him to participate in the
interview. To find trial counsel was ineffective based on his not stopping the
appellant from interviewing for the PSI would require this Court to speculate,
which it will not do. See Jackson v. State, 877 S.W.2d 768, 771
(Tex.Crim.App.1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.--Houston [1st
Dist.] 1996, no pet.).
During punishment, the State introduced evidence that the appellant committed
burglary of a habitation. The appellant was a juvenile at the time of the
offense. The appellant contends this evidence was inadmissible during the
punishment phase of the trial under Code of Criminal Procedure Article 37.07,
section 3. The appellant complains his counsel was ineffective for not objecting
to the admission of the alleged prior offense. We disagree.
Article 37.07, section 3(a) allows, during the punishment phase, the admission
of any evidence of an extraneous crime shown by evidence beyond a reasonable
doubt to have been committed by the defendant or for which he could be held
criminally responsible. Mitchell v. State, 931 S.W.2d 950, 953
(Tex.Crim.App.1996); see also Williams v. State, 958 S.W.2d 844, 846 (Tex.App.--Houston
[14th Dist.] 1997, pet. ref'd). The evidence may be admitted regardless of
whether the defendant was charged with or finally convicted of the crime or act
so long as the court deems it relevant. Id.
Because Article 37.07, section 3(a) specifically allows the introduction of
extraneous offenses or prior bad acts into evidence at sentencing, trial counsel
correctly did not object to the portions of the PSI relating to the extraneous
offense because it was relevant to the appellant's sentence. Id.
The appellant's arguments do not satisfy the first prong of Strickland. We
overrule the appellant's point of error.
We affirm the trial court's judgment.