COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RAYMOND PAUL SMITH, )
) No. 08-04-00224-CR
Appellant, )
) Appeal from the
v. )
) 176th District Court
THE STATE OF TEXAS, )
) of Harris County, Texas
Appellee. )
) (TC# 989,352)
)
O P I N I O N
Appellant Raymond Paul Smith appeals his conviction for the offense of aggravated sexual assault with an affirmative deadly weapon finding. Appellant waived his right to a trial by jury and elected a bench trial. Over Appellant=s not guilty plea, the trial court found Appellant guilty of the offense. The trial court found the enhancement paragraph, alleging a prior conviction for the felony offense of aggravated assault to be true. The trial court assessed punishment at 60 years= confinement in the Institutional Division of the Texas Department of Criminal Justice.[1] On appeal, Appellant contends that he received ineffective assistance of counsel at trial. We affirm.
FACTS
On the evening of November 1, 2002, Appellant and two other men, all brandishing guns and wearing stocking masks, confronted N.D. as she parked her car outside her home. They ordered her out of the car and forced her into her house. Once inside, they ordered the occupants to lay down on the floor and tied them up. At gunpoint, N.D., her husband, her daughter, and her daughter=s boyfriend were ordered upstairs. Over the course of more than an hour, the gunmen sexually assaulted N.D. twice, sexually assaulted N.D.=s daughter twice, and ransacked the family=s home before leaving with televisions, clothes, jewelry, and cash, in addition to the family=s minivan. The family=s minivan was recovered by police in the morning hours of November 2, burned and abandoned.
At trial, N.D.=s daughter stated that she identified Appellant as one of her assailants from photographs shown to her at the District Attorney=s office. N.D.=s daughter stated that she was able to see Appellant=s face when he briefly removed his mask. She identified Appellant in the courtroom as one of the assailants.
The police investigation of the crimes led to some suspects, two juveniles, Marqua Sauls and Demarcus Collins. Both juveniles named Appellant as an accomplice. The police obtained a pocket warrant and arrested Appellant in the parking lot of his apartment complex. The police recovered several stolen items from Appellant=s girlfriend, the girlfriend=s apartment, and from Appellant=s apartment.
State witness Gerrori Jones, an incarcerated drug dealer, testified that one night in November 2002, Appellant asked Jones to follow him while Appellant drove a van to the Fifth Ward. Appellant was accompanied by Sauls and Collins. Jones waited as they drove down a dead-end street and burned the van. They got into Jones= car and he dropped them off at his apartment complex. They gave Jones sixty dollars and told him that they had robbed some Chinese people. According to Jones, Appellant, Sauls, and Collins had left the property that was in the van, two televisions and some jackets, by the side of Jones= apartment complex in an alleyway. Jones denied having sold the televisions to Appellant.
Marqua Sauls testified at trial. Sauls admitted that he committed the aggravated robbery and aggravated sexual assault and had pled guilty to those charges. Sauls named Appellant and Collins as his accomplices and stated that the robbery was Appellant=s idea. According to Sauls, only he and Appellant had guns when they went inside the family=s home. Sauls stated that he was on drugs that night and could not remember everything that happened, but he did remember sexually assaulting the younger woman and stealing some property. Sauls remembered that Appellant drove the minivan after it was stolen and that Appellant gave AVonny@ fifty or sixty dollars to drive behind them. Sauls remembered that Collins and Appellant set the van on fire while he sat in Vonny=s car. Sauls also remembered putting all the stolen property in Appellant=s apartment. According to Sauls, Vonny was present when they unloaded the televisions at Appellant=s apartment.
Appellant testified at trial and denied having any involvement in the home invasion, robbery, and rapes that occurred on November 1, 2002. According to Appellant, one evening between November 5 and November 10, he was at a barber shop when Collins, Sauls, and Jones pulled up and said they had some merchandise. Appellant knew the merchandise had been stolen. Appellant purchased the merchandise, which was in the back of Jones= car, from Jones. Appellant gave the televisions and a watch to his girlfriend. Appellant testified that Jones had lied about being paid to help burn the victims= van. Appellant believed that Sauls and Collins implicated him because they thought he was Asnitching@ on them.
DISCUSSION
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant argues that he received ineffective assistance of counsel because his trial attorney was not appointed to represent him on the aggravated sexual assault charges until the day of trial and therefore, did not have adequate time to prepare. Specifically, Appellant asserts that his trial counsel was ineffective because he waived his ten-day preparation time after being appointed to represent Appellant on the additional charges of aggravated sexual assault and then proceeded to trial without any independent investigation or preparation for the two additional charges.
Standard of Review
We review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To carry his burden under the first prong, the appellant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. The appellant must next show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.
In reviewing claims of ineffective assistance, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. When faced with a silent record as to counsel=s strategy, this Court will not speculate as to the reasons for counsel=s actions. See Jackson, 877 S.W.2d at 771. The defendant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.
In this case, Appellant did not file a motion for new trial to challenge the alleged ineffectiveness of his counsel. The record before this Court does not contain trial counsel=s explanations of the reasons for his actions, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.
Waiver of Ten-Day Preparation Time
An appointed counsel is entitled to ten days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court. See Tex.Code Crim.Proc.Ann. art. 1.051(e)(Vernon 2005). Appellant=s counsel was appointed counsel in cause number 930579, in which Appellant was charged with aggravated robbery. Before trial, the State informed the court that there was an agreement that there were three crimes out of the same criminal episode which were to be tried together. The other charges were aggravated sexual assault charges under cause numbers 989351 and 989352. The trial court noted that Appellant=s counsel had just been appointed to represent Appellant on the two additional charges of aggravated sexual assault and asked whether he wished to proceed with the trial. Appellant=s counsel conferred with his client and after a recess the following exchange occurred in open court:
The Court: Back on the record.
Mr. Smith, it appears that there have been two new cause numbers that were indicted by the Grand Jury on May 28, 2004. And Mr. Scott who has been representing you on your other case for a number of months was appointed to represent you on these two new cases.
Is that your understanding of what=s happened this morning?
Defendant: Yes, sir.
The Court: You understand you have a right to have up to ten days to prepare for trial in these two new cases?
Defendant: Yes, sir.
The Court: It=s my understanding you=re willing to waive that time period and proceed on these two cases at this point in time; is that correct?
Defendant: Yes, sir.
The Court: Is that correct?
Defendant: Yes, sir.
The Court: And, Mr. Scott, is it your understanding Mr. Smith is willing to waive indictment--excuse me, waive the ten day period and proceed on these cases today?
[Defense counsel]: Yes, Your Honor, it is.
Based on the exchange above, it is clear that Appellant affirmatively consented to waiving the ten-day preparation time for the new two cases for aggravated sexual assault. There is nothing in the record to indicate that Appellant was coerced or otherwise misled by his trial counsel.
Appellant asserts on appeal that by agreeing to the waiver, his trial counsel failed to make a reasonable or independent investigation into the cases. The record, however, is silent as to trial counsel=s reasons for agreeing to the waiver. Further, there is nothing to indicate that trial counsel was unfamiliar with the nature of the cases, the expected testimony, or facts related to the additional charges, which undisputedly arose from the same criminal episode as the aggravated robbery charge. To the contrary, the trial court observed that Appellant=s counsel had been representing Appellant on the related aggravated robbery charge for a number of months.
In reviewing this record, we conclude that Appellant has failed to overcome the presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance. Consequently, Appellant has failed to met his burden in showing that his trial counsel rendered ineffective assistance on the ground asserted in his brief. Appellant=s sole issue is overruled.
The judgment of the trial court is affirmed.
August 11, 2005
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] Appellant was also indicted on another charge of aggravated sexual assault in cause numbers 989,351 and on a charge of aggravated robbery in cause 930,579. Appellant has also appealed the judgments rendered in those cases, which are affirmed by opinions issued this same day in cause numbers 08-04-00219-CR and 08-04-00218-CR, respectively.