IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 9, 2002
______________________________
DERRICK L. SALTER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 209TH DISTRICT COURT OF HARRIS COUNTY;
NOS. 815665, 815666, 815667; HONORABLE MICHAEL MCSPADDEN, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In this consolidated appeal, appellant Derrick L. Salter challenges three convictions asserting a single point of error. He argues he was denied reasonably effective assistance of counsel in violation of his Sixth Amendment constitutional right to such assistance. His argument is based on his trial attorney's failure to object to the trial court's statements to the jury panel regarding whether any sentences would run concurrently or consecutively. We affirm.
A brief recitation of the facts of the underlying offenses is helpful to understand the issue presented. In the early evening of December 31, 1998, David Bodden (Bodden) and Beatriz Casas (Casas), coworkers at Ace Cash Express, were just leaving work when they were approached by two masked and armed men. The men forced both employees into Casas's car, drove away from the store and said they intended to rob the store. They obtained a store key and safe combination from the victims and returned to the store. The men threatened both employees with injury.
Bodden suggested that he enter the store and open the safe. Once inside, Bodden locked the door and called the police. The men left with Casas, taking Bodden's car, which contained his wallet and mobile phone. Casas was transferred to a station wagon, where she was raped by one of the men while the other drove the car. She was released naked in a field and made her way to a nearby house. Using telephone records for calls made from Bodden's mobile phone that night and DNA evidence obtained from Casas, police identified appellant, arrested him and charged him with aggravated robbery, aggravated kidnapping, and aggravated sexual assault.
Appellant pled not guilty in each case and all three cases were tried jointly to a jury in May 2001. The jury rejected the testimony of appellant's alibi witnesses and convicted him of all three offenses. The jury assessed punishment at confinement for 40 years for the sexual assault, 25 years for kidnapping, and 25 years for the robbery. The judgment in each case recites that the sentence is to be served concurrently with any other sentence. Appellant filed a timely notice of appeal and now asserts a single point of error in challenge of each conviction.
Appellant's complaint is based on trial counsel's failure to object to the trial court's response to a question from a member of the venire inquiring whether the sentences imposed in each case would be cumulative or not. He argues this single error amounted to ineffective assistance of counsel.
The standard by which we are to review claims of ineffectiveness of trial counsel is that set out in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). In order to show that trial counsel was ineffective, a claimant must establish two elements: 1) his counsel's performance was deficient, and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
The first component is met by showing that trial counsel made errors so significant that he was not functioning as the counsel guaranteed by the Sixth Amendment to the United States Constitution. Id. The second component necessitates a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. A claimant must show that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. When reviewing a claim of ineffective assistance, we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. The defendant asserting ineffective assistance must present a record with evidence of the reason/reasons that the alleged ineffective assistance actions or omissions were not trial strategy. The defendant must prove that counsel's errors, judged by the totality of the representation and not by isolated instances of error or by only a portion of trial, denied him a fair trial. Strickland, 466 U.S. at 695.
As noted above, during voir dire, a venire member asked whether any sentences would be served consecutively or not. The prosecutor responded that it was not an issue for the jury's consideration and should not be considered. The court also stated it was not a factor to be considered by the jury and the issue would be decided by the court. No objection was made to the response of the prosecutor or the court. During deliberations, the jury sent out a note posing the same question. The court responded that it would make that decision.
Appellant now contends the responses provided during voir dire misstated the applicable law set out in section 3.03 of the Penal Code, which requires sentences imposed in joint trials to be served concurrently subject to specific exceptions. In support he cites Haliburton v. State, 578 S.W.2d 726 (Tex.Crim.App. 1979), which held it was not an abuse of discretion for a court to instruct a jury that sentences in a joint trial would be served concurrently. Id. at 729. We do not agree this holding supports appellant's conclusion that the failure to give such an instruction is error. A footnote by Judge Clinton in Gordon v. State, 633 S.W.2d 872 (Tex.Crim.App. 1982), offers support for withholding such an instruction on the rationale that it is not a proper issue for the jury to consider. Id. at 879, n.16. Under the applicable case law, we cannot agree that the failure to object was deficient performance.
Moreover, appellant has failed to overcome the presumption that counsel's decision not to object was sound trial strategy. By allowing the jury to believe the sentences may be served sequentially, rather than concurrently, trial counsel may have felt that the jury would be less likely to impose punishment near the maximum for each offense. While we may not speculate as to the jury's mental process in reaching its verdict, trial counsel may, and it is appellant's burden to show the decision could not be the result of sound trial strategy. Appellant has failed to establish that trial counsel's performance was deficient. We need not consider the second prong of the test set out in Strickland. We overrule appellant's sole issue and affirm the judgments of the trial court.
John T. Boyd
Chief Justice
Do not publish.
60; In July 2005, appellant, with the assistance of counsel, entered into a plea agreement with the State by which appellant plead guilty to the offense of theft, and was placed on deferred adjudication community supervision. In January 2007, the State filed a motion to proceed with adjudication of guilt. Appellant was arrested on February 9 for driving with a suspended license. On March 12, the State filed an amended motion to proceed with adjudication of guilt, setting forth several violations by appellant of the terms of his community supervision. The violations alleged included the February 9 offense and use of cocaine and alcohol in February 2006, and included allegations appellant failed to report, failed to pay restitution and fees and failed to complete community service. The record contains a February 22 “order to appear” requiring appellant to appear on March 5 to “report on his attorney.” There is no reporter’s record of the March 5 appearance, but the court’s docket sheet contains an entry stating that appellant appeared on that date, and “states he does not want an attorney and wants to represent himself.”
A hearing on the amended motion to adjudicate guilt was conducted on March 26. At the outset of the hearing, the following exchange occurred:
Q. (By the Court) Now, Mr. Castaneda, you wish to represent yourself in the hearing on this matter. Is that correct?
A. (Appellant) Yes, Your Honor.
Q. Do you understand that you will be bound by the same rules that a lawyer would be bound by?
A. Yes, Your Honor.
Q. And you still wish to proceed?
A. Yes, Your Honor.
Appellant then pled true to each of the allegations in the State’s motion and the court proceeded to punishment, adjudicating appellant guilty and sentencing him to two years in the State Jail Division of the Texas Department of Criminal Justice. This appeal followed.
Analysis
Via two points of error, appellant contends: (1) that he did not knowingly and intelligently waive his right to counsel and thus, was denied his constitutional right to the effective assistance of counsel; and (2) appellant was not made aware of the dangers and disadvantages of representing himself to establish that his choice to represent himself was made with “eyes open.”
The right to be represented by counsel at a criminal trial is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI, XIV; see Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also Williams v. State, 252 S.W.3d 353, 355-56 (Tex.Crim.App.2008). The right to counsel applies at a probation revocation hearing. Hatten v. State, 71 S.W.3d 332, 333 n.1 (Tex.Crim.App. 2002), citing Ruedas v. State, 586 S.W.2d 520 (Tex.Crim.App. 1979). The same right attaches in a hearing on a motion to proceed to final adjudication following a deferred adjudication. Thompson v. State, 626 S.W.2d 750, 753 (Tex.Crim.App. 1981).
The Sixth Amendment also contains the reciprocal right to self-representation, but that right does not attach until it is clearly and unequivocably invoked by the defendant. Faretta, 422 U.S. at 818-20; Williams, 252 S.W.3d at 356. When a defendant asserts the right to represent himself, the trial court must admonish the defendant about the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835 (upon invocation of the right of self-representation, a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with his eyes open’”); see Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp.2008) (stating that the court “shall advise the defendant of the nature of the charges against [him] and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation”). That a defendant represents to the trial court he is informed of his right to counsel, and desires to waive it, does not end the court's responsibility. Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984). Although there is no formula for the required inquiry, the Court of Criminal Appeals has been explicit that proper admonishments concerning pro se representation must appear on the record. See Goffney v. State, 843 S.W.2d 583, 584-85 (Tex.Crim.App.1992) (citing Blankenship, 673 S.W.2d at 583); see also Hatten, 71 S.W.3d at 334 (discussing Goffney).
The Court of Criminal Appeals has stated the trial judge must inform a defendant desiring to represent himself “that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights.” Williams, 252 S.W.3d at 356 (quoting Johnson v. State, 760 S.W.2d 277, 279 (Tex.Crim.App.1988)). Here, the trial court’s inquiry concerning appellant’s self-representation at the revocation hearing included that admonition. But it is the only admonition that appears on the record.
As noted, the trial court brought appellant to the courtroom some three weeks before the revocation hearing for the express purpose of inquiring into his representation by counsel. It is clear to us from the record of the March 26 revocation hearing that the trial court by then was familiar with appellant’s decision to represent himself. We are confident the court conducted on March 5 the kind of “penetrating and comprehensive inquiry” into appellant’s decision to represent himself that case law requires. Blankenship, 673 S.W.2d at 583; Fulbright v. State, 41 S.W.3d 228, 234 (Tex.App.–Fort Worth 2001, pet. ref’d). Unfortunately, we do not have a record of that hearing beyond the court’s docket sheet entry.
The State relies on the holding of Hatten, 71 S.W.3d at 334, distinguishing between defendants who contest their guilt and those who appear without an attorney to plead guilty or nolo contendere. But the Court of Criminal Appeals limited that holding to misdemeanor defendants. Id. (“The requirements of Faretta are not invoked by a misdemeanor defendant who waives his right to representation by counsel and does not contest his guilt”). We are unable to find an instance in which the distinction has been applied to a felony conviction, and we decline to extend the holding to appellant.
Finding the record does not contain a showing appellant was admonished about the dangers and disadvantages of self-representation before he undertook to represent himself at the hearing on revocation and punishment, we sustain his second issue. Our disposition of the second issue makes unnecessary our consideration of appellant’s first issue. We reverse the trial court’s judgment as to punishment and remand for punishment proceedings consistent with this opinion.
James T. Campbell
Justice
Do not publish.