John David Sickles v. The State of Texas--Appeal from 128th District Court of Orange County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00258-CR

John David Sickles,

Appellant

v.

The State of Texas,

Appellee

From the 128th District Court

Orange County, Texas

Trial Court No. A-030589-R

MEMORANDUM Opinion

A jury convicted John David Sickles of murder and assessed his punishment at ninety-nine years imprisonment and a $10,000 fine. Sickles contends in two points that: (1) he received ineffective assistance of counsel because trial counsel failed to seek a hearing on a defense motion for the appointment of an expert witness and failed to obtain a ruling on that motion; and (2) this Court has denied him the right to self-representation on appeal under the Texas Constitution. We will affirm.

Ineffective Assistance of Counsel

Sickles contends in his first point that he received ineffective assistance of counsel because trial counsel failed to seek a hearing on a defense motion for appointment of an expert witness and failed to obtain a ruling on that motion.

To prevail on an ineffective assistance claim, the familiar Strickland v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003) (citing Strickland, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005) (same). Under Strickland, an ineffective assistance claim will be sustained if it is determined that: (1) counsel s performance was deficient, and (2) the defense was prejudiced by counsel s deficient performance. Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Andrews, 159 S.W.3d at 101.

Generally, the record on direct appeal will not be adequate for analysis of an ineffective assistance complaint, particularly when, as here, the issue was not addressed in a hearing on a motion for new trial. See Andrews, 159 S.W.3d at 102. In this situation, an appellate court will usually reject the complaint in a summary fashion. See, e.g., Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004).

In a case involving an ineffective assistance claim premised on counsel s failure to obtain a medical expert for the defense, the Court of Criminal Appeals held that the appellant had failed to establish that counsel s performance was deficient because the trial record did not indicate why appellant s trial counsel took or failed to take the actions of which the appellant complained. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); accord Pieringer v. State, 139 S.W.3d 713, 719-20 (Tex. App. Fort Worth 2004, no pet.) (record did not support ineffective assistance claim based in part on failure to seek appointment of expert witness where no indication in record of why appointment not requested); see also Mincey v. State, 112 S.W.3d 748, 752-53 (Tex. App. Beaumont 2003, no pet.) (record did not support ineffective assistance claim where court granted motion for independent testing of DNA specimen but results of that testing not in record and no indication of record of why results not offered at trial).

Some courts have rejected a complaint like Sickles s because the defendant failed to offer evidence that a particular expert would have testified for the defense and the expert s testimony would have been favorable. See Cate v. State, 124 S.W.3d 922, 927 (Tex. App. Amarillo 2004, pet. ref d); Teixeira v. State, 89 S.W.3d 190, 193-94 (Tex. App. Texarkana 2002, pet. ref d); see also Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005) (defendant cannot show prejudice from counsel s failure to call witnesses absent evidence that witnesses were available to testify at trial and their testimony would have been favorable).

Here, Sickles did not raise the issue of ineffective assistance of counsel in his motion for new trial. Thus, his trial counsel was not afforded an opportunity to explain why she failed to seek a hearing on the motion for appointment of an expert witness or failed to obtain a ruling on that motion. There is nothing in the record to indicate that a particular expert witness was available to testify at Sickles s trial and would have offered favorable testimony. Accordingly, we overrule Sickles s first point.

Constitutional Right to Self-Representation on Appeal

Sickles contends in his second point that this Court has denied him the right to self-representation under the Texas Constitution. However, the Court of Criminal Appeals, this Court, and other intermediate courts of appeals have all concluded that the Texas Constitution does not confer a right of self-representation. See Landers v. State, 550 S.W.2d 272, 277 (Tex. Crim. App. 1977); Fewins v. State, 170 S.W.3d 293, 295 (Tex. App. Waco 2005, order) (per curiam); Hadnot v. State, 14 S.W.3d 348, 350 (Tex. App. Houston [14th Dist.] 2000, order); Cain v. State, 976 S.W.2d 228, 235 (Tex. App. San Antonio 1998, no pet.). Accordingly, we overrule Sickles s second point.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the result without a separate opinion)

Affirmed

Opinion delivered and filed April 5, 2006

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