Coble, Justin Robert v. The State of Texas--Appeal from Co Crim Ct at Law No 1 of Harris County

Affirmed and Opinion filed  October 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-01502-CR

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JUSTIN ROBERT COBLE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 0984701

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O P I N I O N

Appellant entered a plea of not guilty to the offense of possession of marijuana. He was convicted and the trial court assessed punishment at 180 days in the Harris County jail, probated for one year. In a single issue, appellant complains of ineffective assistance of counsel. We affirm.

Factual Background

On the date of the offense, Deputy David Wilson of the Harris County Sheriff s Department was investigating a theft case at an apartment complex. He knocked on the front door of an apartment, but there was no answer. He walked around to the back of the complex and saw appellant and his co-defendant running from the apartment. When Wilson asked the men to stop, they failed to obey his command. Deputy Wilson circled the complex and found the men walking back to the apartment. As he approached, he saw one of the men drop a small plastic bag. Deputy Wilson asked them about the bag and asked for identification. Both men denied possession of the bag and appellant provided identification. At that moment, three juveniles approached Wilson and told him four other juveniles had pulled a gun on someone. Because Wilson needed to further detain appellant and his co-defendant before he investigated the other matter, he patted them down and placed them in his patrol car. While patting down appellant, Wilson noticed a hard object in appellant s front pants pocket. Because the object could have been a weapon or contraband, Wilson retrieved it from appellant s pocket. The object was a marijuana pipe, which contained a small amount of marijuana. After investigating the matter with the juveniles, Deputy Wilson arrested appellant for possession of marijuana and transported him to the Harris County jail. During the booking process, appellant asked Wilson if he could smoke the rest of the marijuana before going to jail as it appeared he would be going to jail for possession.

Prior to trial, appellant filed a motion to suppress alleging Deputy Wilson did not have probable cause to stop and search him. The trial judge carried the motion to suppress with the trial of the possession charge. At trial, appellant stipulated that the substance in the pipe was marijuana. The trial court denied appellant s motion, found him guilty of possession, and asked the attorneys for argument on punishment. The prosecutor recommended jail time and the defense attorney asked for a fine. The defense attorney also asked the court to consider deferred adjudication. The trial court informed defense counsel that his client was not eligible for deferred adjudication because he had pleaded not guilty and been found guilty. At that time, the following exchange occurred:

MR. BRESTON [Defense counsel]: Well, Judge, I mean, I thought the only I thought you know it was my opinion, Judge, that what we were doing is just doing a Motion To Suppress The Evidence. And, that we feel that deferred adjudication is an option. And, because you know we did not have an agreement because they weren t agreeing to offer him anything. My agreement was to plead guilty you know if he lost his Motion To Suppress. That s what you know we understood.

THE COURT: But, we ve already had a court trial on this, Mr. Breston.

MR. BRESTON: Well, the only issue was the Motion To Suppress, Judge.

MR. ROADY [prosecutor]: Judge, the case reset form that was signed by Mr. Briston, [sic] and by the Defendant, shows that it was set for a court trial.

MR. BRESTON: Well, that s because I mean, that s because Karen indicated to me that that s the way you do your Motions To Suppress.

THE COURT: Well, I m sorry that you were confused on this. But, it still doesn t do away with the fact that we ve already conducted the court trial on this.

MR. BRESTON: I mean, Judge, my only issue was the Motion To Suppress. And, that s why I m asking you to give him deferred adjudication.

MR. DEXTER [prosecutor]: Your Honor, they signed a jury waiver. And, it s clearly the intent of all parties to have a court trial. We did the waiver here in open court.

MR BRESTON: Well, I mean, I was told that the only way that I could do a a a Motion To Suppress was to do a waiver.

MR. DEXTER: In addition to that, your Honor, he was arraigned. You don t do that on a Motion To Suppress.

THE COURT: Well, there s some confusion here. We could have had a Motion To Suppress on this matter. My only rule is that you have a plea already arranged beforehand. If there s no plea agreement beforehand, then I would just carry the Motion To Suppress with the trial. Why have two separate hearings when it s not dispositive of the case.

MR. BRESTON: Well, I mean, I asked for a Motion To Suppress, Judge.

* * * * *

THE COURT: Well, I ll tell you what we ll do. I ll accept this. And, then, let me think about this. And, we ll reset this for sentencing, then, next week.

Once week later, at the conclusion of the sentencing hearing, the following occurred:

MR. BRESTON: And, Judge, at this time, I would like to make an argument about asking for deferred, your Honor.

It was my intention to try the Motion To Suppress. And, then, if we lost, plead to you, your Honor. And, I realize you know that I made a mistake your [sic] know if I wasn t sufficiently clear on that. But, that was my intention. To try the Motion To Suppress. And, then, to to and that s why I thought the Motion would be dispositive in the sense that it would take care of the case. If we lost the Motion, then you know we would plead guilty. That s why we re asking for deferred.

THE COURT: Un[like] most Judges, I did consider the issue of clemency, and since the trial. But, that s denied.

Standard of Review

In a single point of error, appellant claims he received ineffective assistance of counsel because his counsel was confused and not prepared for trial. To prevail on a claim of ineffective assistance of counsel, the appellant must establish: (1) that his lawyer s performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability the result of the proceeding would have been different but for counsel s deficient performance.

Mallett v. State, 65 S.W.3d 59, 62 63 (Tex. Crim. App. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The review presumes defense counsel s actions were reasonable. Id. at 63. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)

Discussion

Appellant claims his counsel s performance was deficient in that he demonstrated confusion and a lack of basic knowledge concerning eligibility for deferred adjudication. Generally, the appellate record is not sufficient to rebut Strickland s presumption that the challenged action of trial counsel was the result of sound trial strategy. Strickland, 466 U.S.at 689. In light of this presumption, a substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When presented with such a record, appellate courts will not indulge in speculation to find counsel s performance deficient. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In this case, however, we have the benefit of counsel s colloquy with the trial judge at the conclusion of the trial. The record reflects that counsel s trial strategy was to seek deferred adjudication probation in the event the motion to suppress was denied.

Because appellant has failed to show there is a reasonable probability the result of the proceeding would have been different but for counsel s alleged deficient performance we need not determine whether counsel s performance was ineffective. Appellant claims if his counsel had represented him effectively, the trial court could have deferred a finding of appellant s guilt and sentenced him to deferred adjudication probation. The record reflects, however, that the trial judge considered defense counsel s apparent confusion and postponed sentencing for one week. The trial judge was within his discretionary authority to consider allowing withdrawal of appellant s plea prior to sentencing. See Reeves v. State, 68 S.W.3d 828, 830 (Tex. App. Eastland 2002, pet ref d) (noting that trial court has the authority to permit defendant to withdraw his not guilty plea); Scott v. State, 860 S.W.2d 645, 646 (Tex. App. Dallas 1993, no pet.) (finding that the same principles that apply to the withdrawal of guilty pleas likewise apply to the withdrawal of not guilty pleas); State v. Sosa, 830 S.W.2d 204, 205 (Tex. App. San Antonio 1992, pet ref d) (finding no statutory or caselaw authority which circumscribes the trial judge s discretion to allow defendant to withdraw not guilty plea).

When the parties reconvened for sentencing, defense counsel re-urged his plea for deferred adjudication, restating his strategy to recommend that appellant plead guilty if the motion to suppress was denied. The trial judge stated he had considered the issue of clemency and that it was denied. Although the trial court s statement that he considered the issue of clemency was not precise, a reading of the entire record reflects that the trial court did consider defense counsel s confusion and his desire that appellant receive deferred adjudication, but denied the requested relief. Therefore, appellant received all the relief he would have received had his counsel done that which appellant alleges he failed to do. Even if the trial court had allowed appellant to withdraw his plea and plead guilty or nolo contendere, there was no guarantee he would receive deferred adjudication probation. The only relief appellant could have received was that the trial court consider deferred adjudication probation, which it did. Thus, appellant has failed to show the result of the proceeding would have been different but for his counsel s alleged ineffective assistance. Because appellant failed to meet the second prong of Strickland, we overrule his sole issue.

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed October 31, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).