Opinion issued September 26, 2002
In The
Court of Appeals
For The
First District of Texas
01-01-00975-CR
01-01-00976-CR
____________
DERRICK COBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause Nos. 01CR1420, 01CR1361, 01CR1362
O P I N I O N
Appellant, Derrick Cobbs, pleaded not guilty to two counts of retaliation and one count of possession of a controlled substance. A jury found appellant guilty and sentenced him to eight years in prison for possession and eight and six years, respectively, for the two retaliation offenses. In two points of error, appellant argues (1) the Texas Rules of Appellate Procedure prevent indigent criminal defendants from asserting ineffective assistance of counsel claims, and (2) his trial counsel was ineffective. We affirm.
Background
On July 25, 2001, appellant was stopped by League City Police Officers Ward and Yates after they noticed he was driving with his hazard lights on in a car that had a flat tire and was not displaying license plates. During the stop, Officer Ward saw what appeared to be a marihuana cigarette lying on the console. After searching the car, the officer discovered a "baggy of a powdery substance" and a rock of what appeared to be crack cocaine. Appellant was arrested for possession of a controlled substance after the substance was field tested for cocaine. While at the League City Jail, appellant slapped Officer Ward and told him, "Next time I see you I'm going to shoot you in the face." During the booking process, appellant told League City Police Lieutenant James Spencer, "When I get out of here, I'm going to shoot you in the face." Appellant was charged with two counts of retaliation.
Appellant executed a pauper's oath and was appointed counsel by the trial court. After the verdict was entered, appellant filed a timely notice of appeal, trial counsel withdrew, and appellate counsel was appointed. Neither the trial counsel nor the appellate counsel filed a motion for new trial.
Constitutional Challenge
In his first point of error, appellant argues his constitutional rights were violated because he, as an indigent defendant, was "structurally and procedurally" prevented from asserting ineffective assistance of counsel.
Appellant argues that filing ineffective assistance of counsel claims are a "Catch-22." (1) A defendant has 30 days to file a motion for new trial. Tex. R. App. P. 21.4(a) (Vernon 2002). A court reporter has 60 days to transcribe the record. Tex. R. App. P. 35.3 (Vernon 2002). Therefore, if an attorney is appointed to represent the defendant on appeal, he must, in most circumstances, file the motion for new trial without the benefit of the record. If the newly appointed appellate counsel opted to forego the motion for new trial, the law is well-settled that, absent a record on the motion for new trial, it is difficult for the defendant to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2064 (1984); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Appellant suggests appellate counsel is faced with the choice of either filing a potentially frivolous motion for new trial or waiving his client's claim due to time limitations.
Appellant proposes two alternative resolutions for rectifying this alleged "Catch-22:" (1) tolling the deadline for a motion for new trial based on ineffective assistance of counsel until 30 days after the reporter's record has been prepared, or (2) appointing counsel for a post-conviction writ alleging ineffective assistance of counsel.
Here, appellant was represented by appellate counsel the day after sentences were imposed, but no motion for new trial was ever filed. Even if the record was not fully developed, counsel could have filed a motion for new trial in order to have a hearing to further develop the issues of ineffective assistance of counsel.
Additionally, appellant concedes that a writ of habeas corpus is a collateral attack, and he does not have a constitutional right to counsel when pursuing a collateral attack on a conviction. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987).
We overrule appellant's first point of error.
Ineffective Assistance of Counsel
In his second point of error, appellant contends his trial counsel was ineffective. Appellant asserts his trial counsel was ineffective because she (1) failed to file a Batson (2) challenge at voir dire, (2) failed to call appellant as a witness, (3) failed to file a motion to suppress, (4) failed to ask for a jury instruction, (5) failed to develop a defense theory, (6) failed to object to inflammatory questions at the punishment, and (7) failed to call witnesses during the punishment hearing.
To show ineffective assistance of counsel, an appellant must demonstrate counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and that, but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A "reasonable probability" is defined as a probability sufficient enough to undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). It is an appellant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). An appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. 466 U.S. at 697, 104 S. Ct. 2052; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. We must look to the "totality of the representation and the particular circumstances of each case" in evaluating the effectiveness of counsel. Id. In so doing, we must also recognize the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. As the Supreme Court observed "it is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To defeat this presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
Appellant lists seven omissions of his trial counsel that he believes constitute ineffective assistance of counsel. First, appellant, who is black, argues that, despite the fact there were numerous black people on the jury panel, there were no black people seated on the jury, and his trial counsel did not raise a Batson challenge. Second, appellant complains that, in her opening statement, trial counsel told the jury that she expected her "witness," referring to appellant, to testify. Counsel never called appellant to testify during the guilt/innocence phase of trial. Appellant argues that there is "no conceivable trial strategy that would support telling a jury you expect your client to testify and then not calling him." Third, appellant contends that trial counsel tried to establish that the drugs were not in plain view, but counsel was ineffective because she failed to file a motion to suppress the evidence that she was trying to establish was obtained by an illegal search. Fourth, appellant complains that trial counsel did not request a jury instruction regarding probable cause and plain view. Appellant asserts that "there is no conceivable trial strategy that would justify arguing a defense, but not requesting an instruction for it in the jury charge." Fifth, another defense theory was that appellant did not have control of the car and that the drugs were in the car before he got in. Appellant is critical of trial counsel for failing to call any witnesses to support this theory and for failing to offer any evidence in support of this theory. Sixth, during the punishment phase, trial counsel failed to object when the prosecution asked appellant whether the police officers who testified were lying. Appellant argues this improper question was "so inflammatory that there can be no conceivable trial strategy to allow this testimony to go unchallenged." Seventh, lastly, appellant argues trial counsel failed to call any witnesses during the punishment phase in support of appellant.
Without determining whether the seven alleged omissions constituted ineffective assistance of counsel, we hold appellant has failed to demonstrate that, but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65. Officers Ward and Yates saw appellant driving a car with a flat tire, its hazard lights on, and missing license plates. Once appellant finally stopped the car, Officer Ward saw drugs on the console and floorboard of the car. After he was arrested, appellant threatened to shoot Officer Ward and Lieutenant Spencer. There was overwhelming evidence to establish appellant's guilt.
We overrule appellant's second point of error.
Conclusion
We affirm the judgment.
Evelyn V. Keyes
Justice
Panel consists of Justices Hedges, Keyes, and Evans. (3)
Do not publish. Tex. R. App. P. 47.
1. 2. 3.