NO. 12-05-00188-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANNY RAY SESSION, § APPEAL FROM THE SECOND
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
Danny Ray Session appeals his conviction for delivery of a controlled substance, for which he was sentenced to imprisonment for twenty years. Appellant raises four issues on appeal. We affirm.
Background
Appellant was charged by indictment with delivery of a controlled substance and pleaded “not guilty.” The matter proceeded to jury trial. On February 22, 2005, prior to conducting voir dire, Appellant’s appointed counsel informed the court that Appellant had expressed a desire to retain new counsel. Appellant informed the court that he had not yet retained his new attorney, but had spoken to him, and that his family was going to hire the attorney either that day or the next day. Thereafter, Appellant’s appointed counsel made an oral motion for continuance on Appellant’s behalf so that Appellant could retain counsel of his choice. The State opposed Appellant’s oral motion arguing that it had brought in testifying witnesses from outside the county and would be prejudiced by the delay. The trial court acknowledged that it was advised nearly one week prior to the trial date that Appellant’s family was trying to hire the attorney in question. Appellant added that his family had planned to meet with the attorney the previous day, but that the attorney had a trial in Smith County. Noting that Appellant had his current attorney appointed one year and five months previously and had waited until the day of trial to seek a continuance, the trial court overruled Appellant’s motion,1 and trial proceeded.
Ultimately, the jury found Appellant guilty as charged. Following a trial on punishment, the jury assessed Appellant’s punishment at imprisonment for twenty years. The trial court sentenced Appellant accordingly. This appeal followed.
Denial of Motion for Continuance to Retain Counsel of Choice
In his first and second issues, Appellant argues that the trial court erred in overruling his motion for continuance to retain counsel of his choice. The State first argues that Appellant waived the issue by making an oral motion for continuance in violation of Texas Code of Criminal Procedure, articles 29.03 and 29.08. We disagree.
Structural Error
Generally, a defendant’s failure to properly object to an alleged error waives any complaint on appeal. See Tex. R. App. P. 33.1(a), (b). However, some error is of such a magnitude as to constitute a “structural defect affecting the framework within which trial proceeds.” See Rey v. State, 897 S.W.2d 333, 344-45 (Tex. Crim. App. 1995). Structural error occurs only when the error strips a defendant of basic protections without which a criminal trial cannot reliably determine guilt or innocence. Id. at 345. A trial court’s erroneous deprivation of a defendant’s right to counsel of his choice, which has consequences that are necessarily unquantifiable and indeterminate, “unquestionably qualifies as structural error.” United States v. Gonzales-Lopez, __U.S.__, 126 S. Ct. 2557, 2564, 165 L. Ed. 2d 409, 419 (2006). The right to a reasonable opportunity to select and be represented by chosen counsel is but one variation on the right to counsel theme of the due process clause. See Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978) (The right to counsel theme of the due process clause has at least four important variations: the right to have counsel, the right to a minimal quality of counsel, the right to a reasonable opportunity to select and be represented by chosen counsel, and the right to a preparation period sufficient to assure at least a minimal quality of counsel.). Inasmuch as the right to reasonable opportunity to select and choose counsel is a closely related variation of the right to be represented by chosen counsel, it follows that improper denial of a reasonable opportunity to select chosen counsel also qualifies as structural error. As such, we may consider the issue despite the fact that Appellant’s motion for continuance was oral. See, e.g., Brown v. State, 630 S.W.2d 876, 880 (Tex. App.–Fort Worth 1982, no pet.) (court considered issue regarding deprivation of right to counsel of choice where the appellant made only an oral motion for continuance to retain counsel).
Propriety of Denial of Continuance to Retain Chosen Counsel
The right to counsel of one’s choice is not absolute, and may under some circumstances be forced to bow to the general interest in the prompt and efficient administration of justice. Greene v. State, 124 S.W.3d 789, 793 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d). We review the trial court’s denial of a motion for continuance to retain chosen counsel for abuse of discretion. Id. In deciding whether to grant a continuance because of the absence of the defendant's choice of counsel, the trial court should weigh the following factors: (1) the length of delay requested; (2) whether other continuances were requested and whether they were denied or granted; (3) the length of time in which the accused's counsel had to prepare for trial; (4) whether another competent attorney was prepared to try the case; (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court; (6) whether the delay is for legitimate or contrived reasons; (7) whether the case was complex or simple; (8) whether the denial of the motion resulted in some identifiable harm to the defendant; and (9) the quality of legal representation actually provided. Id. at 793-94.
Considering the aforementioned factors in light of the facts of the instant case, we make the following observations: (1) Appellant’s motion for continuance did not specify the length of the delay requested; (2) the record does not indicate that Appellant had previously asked the trial court for a continuance; (3) the record further reflects that (a) Appellant’s appointed counsel represented Appellant on other matters prior to Appellant’s being charged in the instant case; (b) despite the fact that Appellant’s appointed counsel was not technically appointed to represent Appellant in the instant matter, he sent Appellant a letter advising him that he had been appointed counsel for Appellant on November 23, 2004; and (c) Appellant’s appointed counsel had represented Appellant in pretrial matters without objection on Appellant’s part; (4) Appellant did not formally take steps to replace his appointed counsel until the morning of trial, although the trial court noted that it had been made aware of Appellant’s desire to seek another attorney a week before, and Appellant stated that his family had sought unsuccessfully to meet with another attorney the day before trial; (5) Appellant’s proposed new attorney was not yet retained and presumably, given that he had not been retained as of the date of trial, was not familiar enough with Appellant’s case to be prepared to try it; (6) the State was ready for trial and objected to the continuance arguing that it had brought in testifying witnesses from outside the county and would be prejudiced by the delay; (7) the trial was a serious matter, but does not appear from the bare record to be particularly complex; (8) the record does not indicate any particular prejudice to Appellant apart from the denial of his qualified right to retain counsel of his choice; and (9) despite Appellant’s allegations of ineffective assistance of counsel, which are addressed herein, Appellant’s appointed counsel had adequate time to prepare for trial and presented and cross examined witnesses on Appellant’s behalf.
Although some of the factors may favor the granting of the requested continuance, under an abuse of discretion standard, it is not our role to reweigh the factors, but to determine whether the trial court could reasonably have balanced them and concluded that the facts weighed more heavily in favor of fair and efficient administration of justice than in favor of Appellant’s right to counsel of his choice. Id. at 794. We conclude that the trial court could have considered these factors and reasonably concluded that they weighed more heavily in support of the fair administration of justice. Thus, we hold that the trial court did not abuse its discretion in overruling Appellant’s motion for continuance to retain counsel of his choice. Appellant’s first and second issues are overruled.
Ineffective Assistance of Counsel
In his third and fourth issues, Appellant argues that he received ineffective assistance of counsel during the punishment phase of trial. Specifically, Appellant contends that his counsel was ineffective for the following reasons: (1) he had admitted evidence concerning two offenses with which Appellant was charged, but which were later dismissed; (2) he elicited testimony from Appellant’s community supervision supervisor that Appellant committed various violations of the terms of his supervision beginning in 2002, but that no violation was reported to the district attorney’s office until December 2004; and (3) he stated during jury argument that the State’s failure to timely prosecute Appellant for the two offenses sent the message that there would be no consequences, which amounted to an explanation or excuse for the numerous extraneous offenses.
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
A “reasonable probability” was defined by the Supreme Court as a “probability sufficient to undermine confidence in the outcome.” Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.
After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney’s errors, the outcome would have been different. See id.
In the case at hand, Appellant argues at length as to why his trial counsel’s actions fell below the professional norm. However, even assuming arguendo that the actions of Appellant’s trial counsel, as urged by Appellant in his brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.
Appellant cites Brown v. State, 974 S.W.2d 289, 295 (Tex. App.–San Antonio 1998, pet. ref’d) in support of the proposition that when a jury hears damaging evidence concerning prejudicial extraneous offenses, it should undermine a court’s confidence in the result because it is impossible to know whether it based its verdict upon such inadmissible evidence. However, we note that Appellant makes no argument that such offenses were inadmissible. Moreover, as Appellant states in his brief, the State admitted evidence of at least three other extraneous offenses for which Appellant was convicted.
We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. Apart from his reference to Brown v. State, Appellant has not offered further cogent argument as to why, but for his trial counsel’s alleged deficiencies, he would have received a lesser sentence. Having considered the evidence of which Appellant complains in conjunction with evidence of record introduced by the State that supports Appellant’s punishment, we cannot conclude that, but for the admission of such evidence, Appellant’s sentence would have been less. Thus, we hold that Appellant has not satisfied his burden under the second prong of the Strickland test. Appellant’s third and fourth issues are overruled.
Disposition
Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial court’s judgment.
SAM GRIFFITH
Justice
Opinion delivered September 29, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 After the trial court overruled Appellant’s motion, Appellant stated to the trial court that his appointed counsel had been appointed on a previous matter and that he had been confused as to whether the same counsel had been appointed in the instant cause. Following further discussion on the matter, Appellant’s appointed counsel stated that he was appointed to defend Appellant in the instant case on November 23, 2004 before Appellant was indicted and by letter dated that same day advised Appellant of his appointment. The trial court expressly recognized the confusion with multiple indicted offenses and multiple appointments of counsel, noting specifically that it did not appear that Appellant’s counsel was, in fact, appointed to represent Appellant in the instant cause. Nonetheless, the court further noted that all parties had apparently proceeded with the understanding that Appellant’s appointed counsel was representing him in the matter at hand inasmuch as counsel had represented Appellant during pretrial proceedings without objection. The trial court further stated that Appellant had failed to make a formal motion concerning the matter until 9:15 a.m. on the date of trial when jury selection had been scheduled to begin at 9:00 a.m. Appellant’s counsel thereafter reurged his oral motion for continuance, which the trial court denied.