Isacc Isaiah Perkins v. State ( 2008 )

Affirmed and Memorandum Opinion filed November 25, 2008

Affirmed and Memorandum Opinion filed November 25, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-01003-CR

NO. 14-07-01004-CR

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ISAAC ISAIAH PERKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1005520, 1005521

M E M O R A N D U M   O P I N I O N

In this appeal from the hearing on the State=s motion to adjudicate guilt, appellant Isaac Isaiah Perkins challenges the trial court=s assessment of punishment.  In his sole issue, appellant asserts his counsel was ineffective at this hearing by failing to offer any mitigating evidence.  We affirm.

I.  Background

In 2005, appellant pleaded guilty to two offenses of aggravated assault of a child under fourteen and was sentenced to ten years= deferred adjudication community supervision in each case.  For each offense, the State filed motions to adjudicate his guilt in October 2007, alleging that he violated numerous conditions of his community supervision.  These allegations included that appellant: (a) failed to present written verification of his employment, (b) failed to pay his supervision fees, (c) failed to perform his community service hours, (d) failed to timely submit to a sex-offender treatment evaluation, (e) failed to attend sex offender treatment sessions and was discharged from the treatment program, and (f) had contact with several minor children who were not his biological children.

The trial court held a hearing on these motions on November 15, 2007.  During this hearing, appellant=s community supervision officer, Valerie Banks, testified regarding the written conditions of appellant=s community supervision.^[1] Banks stated that, at each of his office visits, appellant did not present written proof of employment,  in violation of one of the conditions of community supervision.  She also stated that appellant should have completed at least 240 hours of community service, but had only completed 138 of these hours and was Afalling behind@ schedule.  Banks testified that, according to the conditions of his community supervision, appellant was prohibited from having contact with minors, except his own biological child. His community supervision records indicate that Banks received a telephone call from a Ms. Edwards, who reported that five young children were residing in the same house as appellant.  On a home visit to appellant made shortly after receiving this call, Banks saw five young children exiting appellant=s residence, although she admitted that appellant was not there when she saw them.   

Banks also testified that, as a condition of probation, appellant was required to participate in sex-offender treatment.  She stated that he did not attend several counseling sessions and had been discharged from the counseling program.  Banks further testified that appellant told her he was unable to attend many of the sessions because he lacked transportation, and that he missed some of them due to an injury requiring hospitalization.

Alonso Mable, a counselor with O=Brien Counseling Services, also testified.  He stated that he was assigned as a counselor to appellant.  According to Mable, appellant did not consistently attend treatment sessions.  He stated that on the date that appellant was discharged, appellant had arrived about two and a half hours late for his counseling.  Mable emphasized the importance of attendance at both group and individual counseling sessions; he agreed that if sex offenders do not attend sessions regularly, they cannot come out of denial and accept responsibility for their actions.  Although Mable testified that appellant was not making any progress, Mable stated he believed appellant could successfully complete the program if he made a decision to change, attended sessions regularly, and put forth an effort.  He also stated that appellant told him his lack of attendance was caused by transportation and financial problems.  But Mable also testified that there was a bus stop about two blocks away from O=Brien Counseling and that those having problems with transportation could Aeasily ride the bus.@ 

Sandra Tillman, appellant=s fiancée, also testified at the hearing.  She stated that appellant had lived with her until he was placed in jail.  She confirmed that several children were at her house on the day that Banks was there.  She stated that the children were her sister=s and that they were there while their mother was moving residences.  According to Tillman, appellant was helping her sister move and was not at her house that day.  She explained that the children were dropped off and picked up by her sister and her sister=s fiancé.  She stated, AI=m not sure where [appellant] was when they picked [the children] up, but after they dropped them off he was - - I don=t know, I don=t know how he got back to the house, but he wasn=t with them.@  She further testified that appellant never had contact with any of these children.  When asked whether her aunt, Patricia Edwards, might have a reason to think that appellant lived with other children at her house, Tillman explained, ABecause the house is the family=s house.  Her and my mother - - how should I put this - - they have ownership over the house since my grandparents died.  And they=ve been feuding about the house, and she didn=t want him to live there.@  She testified that this feud would have caused her aunt to fabricate the allegation that appellant had been living with the children seen at her house.

Finally, appellant testified that he missed several of his counseling sessions because he was hospitalized with a staph infection.  He also explained that another of his absences was due to his car being stolen.  According to appellant, he missed other sessions because of some deaths in his family.  He also testified that he made up some of his individual and group sessions on other dates. Appellant stated that, on the date Banks came to his residence, the children she saw there were not living at his house.  He insisted he did not see or have any contact with the children that day.  He also testified that he had never been in contact with those children.  Appellant explained that he was having trouble getting a job because he is on probation for aggravated sexual assault and that he was having financial problems resulting from his inability to get a job.  He also testified that he understood the importance of regular attendance at counseling sessions. 

In closing argument, appellant=s trial counsel summarized appellant=s position as follows:

Mr. Perkins would just like to ask that you consider leaving him on probation.  He believes that if he can get his transportation and his money problems solved, if he can get a job, he will be able to attend his sex counseling on a regular basis.  He has been able to attend his probation meetings with his probation officer; but because his counseling is across town, he=s had some problems with that.  He=s also had medical problems.  And he would like another chance to complete his probation.

The trial court found that the allegations in the State=s motion to adjudicate guilt were true and adjudicated appellant guilty as charged in each of the cases.  After this finding, the following colloquy occurred:

The Court:      Both sides ready to proceed on punishment?

[State]:            State=s ready.

[Trial Counsel]:         Yes, Your Honor.

[State]:            State would reoffer all the evidence in the disposition phase of the hearing, and State rests.

The Court:      Mr. Gumberger.

[Trial Counsel]:         I have no objection. My objections and all the rulings be included.

The Court:      Your objections at the primary stage will be included, and my rulings will be the same . . . .  Do you have anything - - arguments?

[State]:            State waives opening.

[Trial Counsel]:         Same arguments as we had before.

(emphasis added). Additionally, before pronouncing sentence, the trial court offered appellant the opportunity to speak.  Appellant addressed the court as follows:

First time I was sent away from O=Brien Counseling I talked to you on the stand.  You told me the most important thing in being on probation is going to your counseling.  At that time I was - - I was going to work.  And I had tried to commit suicide, and Mr. Mable told me to get my medication.  He said I can=t treat you if you did not have your medication.  That was the first time I was terminated.  I got my medication.  I was going to group.  And then after that, after I got back on the - - back into group, I started having the car problems and all that other stuff.  I am sure that I can do this probation.

The trial court sentenced appellant to twenty-five years= confinement for each count, to run concurrently, in the Texas Department of Criminal Justice, Institutional Division.  This appeal timely ensued.

II.  Issue Presented

In a single issue, appellant asserts that he received ineffective assistance of counsel at the punishment stage of the hearing because his counsel allegedly failed to present any mitigation evidence after the trial court adjudicated him guilty.

IV.  Analysis

A.        Ineffective Assistance of Counsel

As a preliminary matter, we note that nothing prohibits an appellant from claiming ineffective assistance of counsel during a punishment hearing after adjudication of guilt on appeal.  Kirtley v. State, 56 S.W.3d 48, 51B52 (Tex. Crim. App. 2001).  We review a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington. 466 U.S. 668 (1984).  Under Strickland, an appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms and that there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at 687.  The Strickland standard applies to ineffectiveness claims regarding trial counsel=s performance at both the guilt‑innocence and the punishment stages of trial. Hernandez v. State, 988 S.W.2d 770, 772B74 (Tex. Crim. App. 1999) (en banc).

Confronted with a silent record, we must begin our review with the strong presumption that defense counsel=s actions were motivated by sound trial strategy. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  We sustain allegations of ineffective assistance only if firmly founded in a record that affirmatively demonstrates the alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (en banc), abrogated on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex. Crim. App. 1998) (en banc). The record on direct appeal is usually inadequate to overcome the presumption and show that counsel=s conduct fell below an objectively reasonable standard of performance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).   But if the attorney=s conduct was so outrageous that no competent attorney would have engaged in it, then defense counsel=s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the attorney=s subjective reasons for the act or omission.  See Goodspeed, 187 S.W.3d at 392.

B.        Application

Appellant asserts that his counsel was ineffective because he failed to present any witnesses during the punishment phase.  Appellant claims his counsel could have called him to the stand to explain his attempts to avoid contact with children, as well as his sister-in-law, who allegedly could have testified that appellant was not around her children.

A defendant may base an ineffective assistance claim on an attorney=s failure to present witnesses only if the defendant can show that the witnesses were available and their testimony would have benefitted the defendant.  See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005) (en banc).  Nothing in the record supports appellant=s claim that his sister-in-law was available to testify or would have testified beneficially for him.  Cf. Rangel v. State, 972 S.W.2d 827, 837B39 (Tex. App.CCorpus Christi 1998, pet. ref=d) (concluding that the appellant failed to meet his burden of presenting the court with record to show ineffective assistance at punishment phase by establishing availability of beneficial witnesses who were not called through motion for new trial and affidavit).

Moreover, as noted above, the evidence and argument from the hearing on the State=s motion to adjudicate guilt were re-offered before the punishment phase.  And appellant himself testified at the adjudication of guilt hearing regarding his efforts to meet the conditions of probation, one of which was to avoid contact with children.  Further, appellant addressed the trial court prior to the trial court=s pronouncement of his sentence, stating that he was Asure@ he could Ado this probation.@  Appellant has not identified anything else about which he would have testified that would have affected the trial court=s determination of his punishment.  Additionally, appellant=s trial counsel presented mitigation evidence during the adjudication phase of the hearing through both cross-examination of the State=s witnesses and the testimony of appellant and his fiancée.  Cf. Hardeman v. State, 1 S.W.3d 689, 690B91 (Tex. Crim. App. 1999) (determining that the appellant could not establish harm from his counsel=s lack of objection to the trial court=s failure to provide a separate punishment hearing when the appellant presented mitigating evidence during the adjudication of guilt hearing).

Under these circumstances, appellant has failed to establish his trial counsel was ineffective.  We therefore overrule his sole issue.

IV.  Conclusion

Having concluded that appellant failed to establish his counsel was ineffective at the punishment phase of his hearing on the State=s motion to adjudicate his guilt, we affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed November 25, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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

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^[1]  Appellant=s probation records were admitted into evidence.