Paul Wiseman v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-03-00432-CR & 04-03-00433-CR
Paul WISEMAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2002-CR-4744 & 2002-CR-4745
Honorable Raymond Angelini, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

Paul Wiseman ("Wiseman") was convicted by a jury of two counts of aggravated kidnapping and two counts of aggravated assault of a police officer. Wiseman's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeal has no merit. Counsel provided Wiseman with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.). Wiseman filed a pro se brief asserting that: (1) his constitutional rights were violated when his jail cell was searched; (2) the trial court erred in denying his request to dismiss his attorney and in failing to inform him of his right to self-representation; (3) trial counsel was ineffective in failing to consult with the defense's mental health expert prior to the competency hearing; and (4) one of the jurors was biased.

In her Anders brief, Wiseman's counsel explains the reason Wiseman's first issue regarding the search of his jail cell is without merit. "The United States Supreme Court has held 'that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell[.]'" State v. Scheineman, 77 S.W.3d 810, 812 (Tex. Crim. App. 2002) (quoting Hudson v. Palmer, 468 U.S. 517, 525-26 (1984)). Society accepts that "'[l]oss of freedom of choice and privacy are inherent incidents of confinement.'" Id. (quoting Hudson, 468 U.S. at 528). In this case, the law books that Wiseman was reviewing were introduced into evidence to demonstrate that he was competent to assist in his defense. Because Wiseman did not have a legitimate expectation of privacy in his cell, his constitutional rights were not violated by the actions taken or the introduction of the evidence.

In his second issue, Wiseman contends that the trial court erred in denying his request to dismiss his attorney on the day trial was to begin and in failing to inform him of his right to self-representation. A trial court has essentially three options when confronted with an accused who makes an eleventh hour request for change of counsel. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991); Halliburton v. State, 928 S.W.2d 650, 652 (Tex. App.--San Antonio 1996, pet. ref'd). First, at its discretion the court can appoint, or allow the accused to retain, new counsel. Burgess, 816 S.W.2d at 428; Halliburton, 928 S.W.2d at 652. Second, if the trial court denies new counsel, and the accused unequivocally asserts his right to self-representation, persisting in that assertion after proper admonishment, the court must allow the accused to represent himself. Burgess, 816 S.W.2d at 428-29; Halliburton, 928 S.W.2d at 652. Third, unless the trial court allows new counsel, it must compel an accused who will not waive counsel and does not assert his right to self-representation to proceed to trial with the lawyer he has, whether he wants to or not. Burgess, 816 S.W.2d at 429; Halliburton, 928 S.W.2d at 652. The right to self-representation does not attach, however, until it has been clearly and unequivocably asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). In this case, Wiseman never asserted the right to self-representation, and the case law does not require the trial court to admonish him until the right is asserted. Before trial, Wiseman informed the trial court that he wanted to dismiss his counsel because his counsel had not provided Wiseman with the evidence to be presented at trial and had not proceeded with motions Wiseman had requested. Wiseman never asserted the right to self-representation. In fact, after the lunch break on the first day of trial, Wiseman informed the trial court that he did not "want to fire" his attorney and agreed that his attorney was doing a "great job." Wiseman's second issue is without merit.

In his third issue, Wiseman complains that his trial counsel was ineffective in failing to contact the mental health expert testifying for the defense prior to the competency hearing. To prevail on a claim for ineffective assistance of counsel, Wiseman must first show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). In addition, Wiseman must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Moreover, "[t]here is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. In this case, the record is silent as to the reason trial counsel allegedly did not meet with the expert prior to the hearing. Since the record is silent, Wiseman cannot overcome the presumption that trial counsel's decision fell within the wide range of reasonable professional assistance; therefore, a complaint that trial counsel was ineffective in failing to meet with the expert is not an arguable issue requiring further briefing on direct appeal.

Wiseman's final complaint is that one of the jurors was biased and should not have been seated on the jury. Since trial counsel did not challenge the juror for cause, Wiseman's complaint for purposes of appeal must be that trial counsel was ineffective in failing to challenge the juror for cause based on her bias. As with Wiseman's third issue, the record is silent as to the reason trial counsel elected not to challenge the juror for cause. Accordingly, Wiseman's fourth complaint is not an arguable issue requiring further briefing on direct appeal. Id.; Knight v. State, 91 S.W.3d 418, 424 (Tex. App.--Waco 2002, no pet.).

We have reviewed the record, counsel's brief, and Wiseman's pro se brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. L pez, Chief Justice

DO NOT PUBLISH