Schillereff, Steven Ray v. State ( 2005 )

Affirmed and Memorandum Opinion filed July 5, 2005

Affirmed and Memorandum Opinion filed July 5, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01410-CR

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STEVEN RAY SCHILLEREFF, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 947,737

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M E M O R A N D U M O P I N I O N

Steven Ray Schillereff appeals a conviction for aggravated assault^[1] on the ground that he was denied effective assistance of counsel in the punishment phase because his trial counsel failed to object to the admission into evidence of a videotaped statement (the Astatement@) by the complainant, his estranged wife.  We affirm.

Appellant=s sole issue argues that his counsel=s failure to object to the statement denied his right to cross-examine the witness and contained inadmissible hearsay, including  the complainant=s request that appellant be given the maximum punishment.

A defendant’s right to effective assistance of counsel is denied when: (1) a defense attorney’s performance falls below an objective standard of reasonableness; and (2) thereby prejudices the defense to the extent that there is a reasonable probability that, but for the error, the result of the proceeding would be different.  Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004).

In this case, when the videotape was offered into evidence, defense counsel stated that he was not objecting because A[i]t is pretty much the same thing that=s in the pre-sentence investigation records report.@  Attached to the pre-sentence investigation report was a five-page, single-spaced, typed letter (the Aletter@) in which the complainant gave a detailed and highly disturbing account of a lengthy sequence of increasingly violent assaults appellant had committed on her, including death threats.  The letter also described the physical and emotional damage the complainant had suffered and requested that the maximum sentence be imposed.  In light of the magnitude of the evidence before the trial court in this letter: (1) the variations between the letter and statement, relative to the overall thrust of each, were minor, as counsel had indicated in the trial court; and, more importantly, (2) there is no indication whatever, let alone a reasonable probability, that, had the statement been excluded from evidence, the result of the sentencing proceeding would have been any different. Accordingly, appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 5, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           Appellant pleaded guilty to the aggravated assault charge without an agreed recommendation.  After a pre-sentence investigation hearing, the trial court found appellant guilty of the offense and sentenced him to 20 years confinement.