Kennedy, James Robert v. The State of Texas--Appeal from 344th District Court of Chambers County

Affirmed and Opinion filed May 23, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00559-CR

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JAMES ROBERT KENNEDY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers  County, Texas

Trial Court Cause No. 9551

O P I N I O N

Appellant, James Robert Kennedy, was charged with unauthorized use of a motor vehicle. He pleaded guilty without a recommendation, and punishment was assessed at two years=imprisonment and a $500 fine. Imposition of sentence was suspended and appellant was placed on community supervision for five years. The State filed a motion to revoke probation. The trial court granted the motion and sentenced appellant to two years= confinement in State jail, and gave him credit for 510 days already served.

ISSUES ON APPEAL

Appellant asserts that he was denied (1) assistance of counsel, and (2) effective assistance of counsel at the punishment hearing in violation of the United States Constitution. Facts will be recited herein as necessary for resolution of these points of error.

STANDARD OF REVIEW

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel=s performance was deficient and not reasonably effective. Id. at 688B92. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693. Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.

Appellant was charged with unauthorized use of a motor vehicle. He pleaded guilty and was sentenced to two years= confinement on February 5, 1997. On August 11, 1999, the State filed a motion to revoke his probation. At that time, the trial court amended the conditions of appellant=s probation and ordered him to serve six months in the Intermediate Sanctions Facility. On July 12, 2000, the trial court determined that appellant violated the conditions of his probation and again ordered that he serve six months in the Intermediate Sanctions Facility. On August 4, 2000, the State filed another motion to revoke probation, alleging appellant was guilty of possession of an alcoholic beverage by a minor, evading arrest in July 1999 and June 2000, and driving while intoxicated. This time, the trial court granted the motion, finding the allegations to be true, and held a punishment hearing. No witnesses were presented by either the State or appellant. Appellant argues that his counsel was ineffective because he did not argue anything favorable to him, and instead emphasized all of appellant=s bad conduct.

NO ASSISTANCE

Appellant contends he is not required to demonstrate harm because he received no meaningful assistance from his attorney. In support of his contention, appellant cites United States v. Cronic, 466 U.S. 648, 659 n.25 (1984). Cronic holds that when there is a complete denial of counsel at a critical stage in a criminal proceeding, there has been a denial of Sixth Amendment rights and the defendant is not required to show prejudice. 466 U.S. at 659. A complete denial, for example, occurs when a trial court denies a defendant the right to effectively cross-examine a witness, or in other circumstances when even a fully competent lawyer could not provide effective assistance of counsel. Id. at 659B60 (citations omitted). The circumstances which rise to the magnitude contemplated by Cronic are not present here. Appellant=s attorney was present at all relevant times, and appellant does not argue that under the circumstances it was unlikely that even a fully competent lawyer could have rendered effective assistance. Therefore, we overrule appellant=s first point of error.

INEFFECTIVE ASSISTANCE

In the alternative, appellant asserts he did not receive effective assistance of counsel. Specifically, appellant claims that his attorney=s performance was deficient, and if his attorney had acted in an effective manner, there is a reasonable probability the trial court would have assessed punishment at less than two years= confinement.

In support of his assertion that he was prejudiced, appellant states that the trial court Arepeatedly tried to help him, and might have been inclined to help him again.@ Appellant, however, fails to proffer any reasons why the trial court Amight have been inclined to help him again@when appellant had already demonstrated that he could not abide by the conditions of his probation, or the laws of the State of Texas. In reviewing an ineffective assistance of counsel claim, a court need not determine whether counsel=s performance was deficient if it is easier to dispose of the challenge based on lack of prejudice. Strickland, 466 U.S. at 697. Appellant has not satisfied his burden of proving that his trial counsel=s performance was prejudiced his defense. Accordingly, we dispose of appellant=s claim based on the second prong of Strickland, prejudice. See id.

CONCLUSION

We overrule both of appellant=s points of error, and affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed May 23, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

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