IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 17, 2001
______________________________
STEVE D. MCNEAL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 99-431348; HONORABLE JIM B. DARNELL, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and REAVIS, JJ.
Appellant Steve D. McNeal attempts to appeal from his conviction of assault on a public servant and the resulting sentence of confinement for five years in the Institutional Division of the Department of Criminal Justice. Appellant filed a general pro se notice of appeal on June 27, 2001, and a motion to have counsel appointed for him on the same date. While we have not yet received the clerk's record in this case, we have been provided with a certified copy of an order entered by the trial court on July 5, 2001, stating that the sentence was based on a plea bargain agreement which precluded the right to appeal. The trial court thus denied the notice of appeal and the motion for appointment of counsel.
In a criminal case, a notice of appeal may be perfected by giving notice in writing and filing it with the court clerk. Tex. R. App. P. 25.2(b)(1). However, if the appeal is from a judgment rendered on a plea of guilty or nolo contendere and the punishment assessed did not exceed that recommended by the prosecutor, the notice must "(A) specify that the appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (C) state that the trial court granted permission to appeal." Tex. R. App. P. 25.2(b)(3). As already noted, the trial court has denied permission to appeal, and appellant has filed only a general notice of appeal.
However, even if we accept as true the statement in the trial court's order that the sentence was based upon a plea bargain agreement which precluded a right to appeal, denying permission to appeal by the trial court does not foreclose all possible issues that could be raised on appeal. Perez v. State, 4 S.W.3d 305, 306 (Tex.App.--Houston [1st Dist.] 1999, no pet.). In Perez, appointed counsel filed a general notice of appeal and then sent the court a letter stating he should no longer be considered as counsel of record because the court had denied permission to appeal to a defendant who accepted a plea bargain. The court then issued an oral order contradicting its prior order appointing appellate counsel. Although the court of appeals declined to say what merit any issue might have in the appeal or how the court might rule, it noted that an amended notice of appeal could be filed any time before an appellant's brief was filed and opined that the defendant was entitled to appointed counsel on appeal. Id. at 307. Since we have no record before us at this time, we likewise can neither speculate as to the merit of any issues appellant may raise on appeal, nor is it for us to determine what jurisdictional issues appellant should raise or what arguments may support those issues. However, we believe appellant is entitled to appointed counsel if indigent.
Therefore, this appeal is abated and remanded to the 364th District Court of Lubbock County for a hearing to determine if counsel should be appointed for appellant. Upon remand, the judge of the trial court shall immediately cause notice to be given and conduct a hearing to determine:
1. Whether appellant wishes to pursue his appeal.
2. If appellant does wish to pursue his appeal, whether he is presently indigent and, if so, whether counsel should be appointed to represent him.
3. If it be determined that an attorney should be appointed, the name, address, and State Bar of Texas identification number of the attorney appointed.
4. If any other orders are necessary to ensure the proper and timely pursuit of appellant's appeal.
In support of its determination, the trial court will prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. The hearing proceedings shall be transcribed and included in a supplemental reporter's record. The supplemental clerk's and reporter's records shall be submitted to this clerk no later than August 17, 2001.
It is so ordered.
Per Curiam
Do not publish.
, 323 (Tex.Crim.App. 1984).
In analyzing the first part of the argument made by the State, "If he uses or shows this, and he did. He did. That's undisputed" it is apparent that, rather than referring to the failure of appellant to testify, the statement is a reaffirmation of the State's position that the evidence before the jury clearly shows that a deadly weapon was used during the commission of the aggravated sexual assault. The State's argument that use of a deadly weapon was undisputed does not directly allude to appellant's right not to testify. See Fuentes, 991 S.W.2d at 275. Appellant can and did attack the State's allegation of the use of a deadly weapon by contending that the injuries were inconsistent with the use of force, without appellant being required to testify. It cannot be said that the statement by the State was manifestly intended to be or that it was of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. Id. In addition, the comments of the State about the DNA being undisputed are born out in the stipulation signed by appellant. (1) This argument can not be said to have been manifestly intended to necessarily or naturally be taken as a comment on the appellant's failure to testify. Id. Accordingly, appellant's issue on the State commenting on appellant's failure to testify is overruled.
Ineffective assistance of counsel
Next, appellant contends that his trial counsel was ineffective in ten issues covering four general areas of the trial. (2) Appellant alleges counsel was ineffective because counsel failed to: 1) request a continuance; 2) object to evidence seized pursuant to a search warrant; 3) preserve voir dire error; and, 4) effectively represent him by, what appellant styles as ineffective assistance, cumulative effect.
When confronted with an ineffective assistance of counsel claim, we apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986) (adopting Strickland as applicable standard under Texas Constitution).
Under the first prong of the Strickland test, an appellant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard, an appellant "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Id. at 687. The appropriate standard for judging prejudice requires an appellant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694 "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Appellant must prove both prongs of Strickland by a preponderance of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Appellate review of counsel's representation is highly deferential and presumes counsel's actions fell within the wide range of reasonableness and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002).
Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 835. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700. Appellate courts look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex.Crim.App. 2004).
Normally the record on direct appeal is not sufficiently developed to show that trial counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption of reasonableness and professional assistance. See Bone, 77 S.W.3d at 833. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective assistance claims. Id. Having set out the standard of review with respect to claims of ineffective assistance of counsel, we now review each of appellant's issues.
Failure to request a continuance and subpoena medical records
Appellant contends that trial counsel's failure to request a continuance to subpoena medical records is an act of ineffective assistance of counsel warranting reversal. Prior to beginning jury voir dire, trial counsel indicated that appellant wished to make a statement to the court. During the statement, which contained a litany of complaints against his trial counsel, appellant stated one of the acts that had not been done ". . . had to do with medical reports that can prove that someone lied. The other had to do with a medical report that will prove the size of me having a hernia because of the nature of this case." To support his position, appellant directs this court to a statement by counsel wherein appellant alleges that trial counsel confessed error. When read in context, appellant's trial counsel agrees that appellant had sent him the requests to subpoena the medical records but not that the records were germane, relevant or dispositive of any issue to be tried. Without any support in the record, we are asked to presume that the requested records support the unsworn statement by appellant. Even the unsworn statement by appellant does not demonstrate the relevance or necessity for the medical records. Rather, all we have is a conclusory statement by appellant that the records are necessary. We are further asked to assume that trial counsel had no tactical or strategic reason for not subpoenaing the requested records. However, it is appellant's burden to show that the failure of trial counsel to subpoena the records was deficient conduct. Strickland, 466 U.S. at 687. Additionally, appellant has not shown that the alleged ineffective assistance by trial counsel was of the nature as to undermine the confidence of this court in the jury's verdict. Id. at 694. Inasmuch as we cannot presume ineffective assistance of counsel for failure to subpoena the referenced medical records, we also cannot find counsel ineffective for failing to request a continuance to subpoena those same medical records.
Search Warrant
Next, appellant contends he was denied effective assistance of counsel because trial counsel did not attack the search warrant and did not make the search warrant and accompanying affidavit part of the appellate record. Appellant admits that trial counsel filed fourteen pre-trial motions but contends that counsel did not contest the validity of the search warrant. This admission is an indicia that trial counsel had prepared his case for trial. Further, the record indicates, through the cross-examination conducted by trial counsel and the final arguments of counsel, that the defensive theory of the case was that the sexual contact was consensual. The record further supports this defensive theory by including a stipulation by appellant and his counsel wherein the results of the DNA testing were admitted into evidence. In this situation, we cannot presume ineffectiveness absent a showing that voluntary consent was not the defensive theory or that voluntary consent was not a valid tactical or strategic decision. See Bone, 77 S.W.3d at 833. We defer to the decisions of the trial counsel and will indulge in the presumption that counsel's actions fell within the wide range of reasonable and professional assistance. Id. As the Texas Court of Criminal Appeals noted in Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999), "[T]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record." Such is the case here; accordingly a petition for writ of habeas corpus is the more appropriate way to explore this issue. Id. Based on the record before us, we cannot and will not presume counsel ineffective for failing to contest the search warrant and not including the same in the appellate record.
Failure to preserve voir dire error
Appellant further contends that trial counsel was ineffective for his failure to take the necessary steps to preserve error committed by the trial court in denying challenges for cause as to three prospective jurors. To support his position, appellant correctly sets forth the steps required to preserve error in the denial of challenges for cause. Martinez v. State, 17 S.W.3d 677, 682 (Tex.Crim.App. 2000). Appellant concludes his argument by stating that there can be no possible trial strategy for trial counsel's failure to take the steps set forth in Martinez.
In reviewing allegations of ineffective assistance during voir dire, the Texas Court of Criminal Appeals has consistently held that counsel should be afforded the opportunity to explain his actions. See Goodspeed v. State, 187 S.W.3d 390, 394 (Tex.Crim.App. 2005) (counsel addressed jury panel but asked no questions and exercised two preemptory challenges on jurors previously excused by the trial court); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (record silent as to why prospective juror was not challenged). Yet today, we are asked to speculate why trial counsel did not appeal the denial of the challenges for cause. As stated earlier, any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone, 77S.W.3d at 835. The record before us does not affirmatively demonstrate trial counsel's deficient performance or that there is a reasonable probability that the result of the proceeding would have been different. Tong, 25 S.W.3d at 712. We decline to speculate as to counsel's reasons for not pursuing the denial of the challenges for cause.
Cumulative effect of ineffective assistance of counsel
Appellant next contends that the cumulative effect of the various allegations of ineffective assistance of counsel has resulted in no assistance of counsel. Unlike the Burdine case referenced by appellant, trial counsel was active in representation of appellant throughout the trial of the case. Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir. 2001) (counsel who slept during portions of the guilt-innocence phase of the trial is equal to no counsel at all). The record clearly shows the attempts of counsel to represent appellant. Appellant has failed in his burden to overcome the presumption that trial counsel provided reasonable and professional assistance. Bone, 77 S.W.3d at 833.
We have previously discussed the individual allegations of ineffective counsel and appellant's failure to demonstrate trial counsel's ineffectiveness. Accordingly, we find that appellant has failed to prove by a preponderance of the evidence that there was no plausible professional reason for any of the complained of acts or omissions. See id. at 836. Therefore, we overrule appellant's issue on ineffective assistance of counsel.
Denial of pro se motion for continuance
Appellant's final contention is that the trial court committed error when it denied his oral pro se motion for continuance. Initially it is noted that motions for continuance must be sworn to by persons having personal knowledge of the facts relied upon for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 1989). An unsworn oral motion for continuance preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999). Accordingly, we overrule appellant's issue.
Conclusion
Having overruled appellant's issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
1. During the trial, appellant's counsel joined by appellant signed a stipulation of evidence regarding the various DNA tests done on samples collected from the victim and appellant. The stipulation included a statement that the DNA collected from the oral swab taken from the victim matched the DNA profile of appellant. The stipulation further provided that the penile swab taken from appellant contained DNA that matched that of the victim. Finally, the stipulation concluded that the DNA taken from blood traces found on appellant's hand matched the DNA of the victim.
2. Appellant also alleges that counsel was ineffective for failure to object to the State's comment on appellant's failure to testify. Inasmuch as we have determined that the State's argument was not a comment on the failure of appellant to testify, we need not address appellant's contention that trial counsel was ineffective for failure to object to the State's argument. Tex. R. App. P. 47.1