No. 13-05-561-CR
Memorandum Opinion Delivered and Filed August 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 24th District Court of Calhoun County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
Appellant, Michael Arthur McGiffin, was convicted of sexual assault of a child. See Tex. Pen. Code Ann. § 22.011(f) (Vernon 2003). The trial court sentenced appellant to fifty-five years' confinement and ordered him to pay a $10,000 fine. By three issues, appellant asserts that (1) the sentence assessed by the trial court constitutes cruel and unusual punishment, (2) the trial court abused its discretion in denying his motion for continuance, and (3) trial counsel provided ineffective assistance. We affirm.
I. Background
Appellant was represented throughout the various stages of trial by a total of four different attorneys. Appellant's fourth and final trial attorney requested a thirty-day continuance, which the trial court granted. The trial was reset from June 20, 2005 to July 18, 2005. On July 7, 2005, trial counsel requested, orally, an additional thirty-day continuance due to a back injury he had sustained. The trial court denied said motion. II. Cruel and Unusual Punishment
By his first point of error, appellant contends that the sentence imposed by the trial court in this case constitutes cruel and unusual punishment. More specifically, appellant claims that the punishment assessed by the trial court was disproportionate to the gravity of the offense. We disagree. Appellant urges this Court to apply the Solem proportionate analysis test to his sentence. See Solem v. Helm, 463 U.S. 277, 291 (1983). This Court has recognized that "the viability and mode of application of proportionate analysis . . has been questioned since the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957 (1991)." Trevino v. State, 174 S.W.3d 925, 928 (Tex.App.-Corpus Christi 2005, pet. ref'd) (citing McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various opinions issued in Harmelin, 501 U.S. at 957, and their impact on the Solem decision)); see Sullivan v. State, 975 S.W.2d 755, 757-58 (Tex.App.-Corpus Christi 1998, no pet.) (discussing the implications of the Harmelin opinion and reviewing the proportionality of appellant's sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of a proportionality review, as we did in Sullivan, we will apply both the Solem and McGruder tests to the facts of this case. See Sullivan, 975 S.W.2d at 757-58. In both Solem and McGruder, we look first at the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290; McGruder, 954 F.2d at 316. Appellant was found guilty of sexual assault of a child, a second degree felony, enhanced to a first degree felony based on prior offenses. A first degree felony is punishable by imprisonment in the institutional division for life or for any term of not more than ninety-nine years or less than five years. TEX. PEN. CODE ANN. § 12.32 (Vernon 2003). The fifty-five year sentence is forty-four years shorter than the available ninety-nine year maximum term permitted for a state jail felony. In light of the nature of appellant's offense and the punishment range available, we conclude that appellant's fifty-five year sentence is not grossly disproportionate to his crime. This finding ends our analysis under McGruder. See McGruder, 954 F.2d at 316; see also Sullivan, 975 S.W.2d at 757. Because there is no evidence in the appellate record of the sentences imposed for other crimes in Texas or for the same crime in other jurisdictions, we may not perform a comparative evaluation using the remaining Solem factors. See Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we conclude that appellant's sentence in this case is neither grossly disproportionate nor cruel and unusual. Appellant's first point of error is overruled. III. Motion for Continuance
By his second point of error, appellant asserts that the trial court abused its discretion in denying his motion for continuance. The State argues, however, that appellant failed to preserve this complaint for review. We agree. Article 29.03 of the Texas Code of Criminal Procedure requires that a motion for continuance be in writing. See TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 2005). In addition, article 29.08 requires that all motions for continuance be sworn to by a person having personal knowledge of the facts relied on for the continuance. Id. art. 29.08. Moreover, the Texas Court of Criminal Appeals has held that "a motion for continuance not in writing and not sworn to preserves nothing for review." Dewberry v. State, 4 S.W.3d 735, 755 (1999) (citing Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex.Crim.App. 1989)). Here, appellant presented an unsworn oral motion for a continuance. Because this motion was oral, instead of written, and not sworn to, appellant failed to preserve error with respect to the motion. Id. Therefore, we overrule appellant's second point of error. IV. Ineffective Assistance of Counsel
By his third point of error, appellant contends that he was denied effective assistance of counsel. More specifically, appellant claims that his counsel's failure to properly present his motion for continuance to the trial court prior to the commencement of trial precluded appellant from obtaining relevant witness testimony. We disagree. A. Standard of Review
The standard of review for an ineffective assistance of counsel claim is well-established. Appellant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). We must indulge a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689. To carry this burden, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id. at 694. Whether this burden has been met is to be judged by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App. 1995). Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984); see Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Crim.App. 1993). B. Applicable Law
Although counsel may fail to present a proper motion for continuance, this failure does not necessarily constitute ineffective assistance. See Bernal v. State, 930 S.W.2d 636, 641 (Tex.App.-Corpus Christi 1996, pet. ref'd). Without a showing that a potential witness's testimony would have benefitted him, an appellant cannot show that his trial counsel erred in failing to file a proper motion for continuance. See Holland v. State, 761 S.W.2d 307, 319 (Tex.Crim.App. 1988); see also Johnson v. State, 915 S.W.2d 653, 662 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). C. Analysis
Here, appellant asserts that his counsel was ineffective for not filing a proper motion for continuance to obtain the presence of witnesses appellant alleges could have testified on his behalf at trial. However, the record does not reveal the names of any such witnesses, nor does it show the substance of any of the testimony that such witnesses could have offered. Without a showing that he would have benefitted from any such testimony, appellant cannot show that his trial counsel erred in failing to file a proper motion for continuance. See Holland, 761 S.W.2d at 319; see also Bernal, 930 S.W.2d at 641 (stating "We fail to see how a continuance would have benefitted appellant. . . . We hold that the trial counsel's decision not to seek a continuance was not deficient conduct."). Thus, we conclude that appellant failed to establish that trial counsel's conduct fell below an objective standard of reasonableness or was deficient. See Strickland, 466 U.S. at 689. Because appellant did not satisfy the first prong of the Strickland test, we need not address the second prong. See id. at 688. Appellant's third point of error is overruled. V. Conclusion
Accordingly, we affirm the judgment of the trial court.