Ex Parte Ken R. Sluis--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Memorandum Opinion filed October 11, 2005

Affirmed and Memorandum Opinion filed October 11, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01098-CR

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EX PARTE KEN R. SLUIS

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1256592

M E M O R A N D U M O P I N I O N

Appellant, Ken R. Sluis, appeals from an order denying habeas corpus relief from his conviction for misdemeanor assault. In three issues, appellant contends (1) this appeal should be abated to afford the trial court clerk an opportunity to prepare and forward the entire transcript from the misdemeanor assault trial to the court of appeals, (2) the county court erred in denying habeas relief because appellant was denied his constitutional right to a jury, and (3) the county court erred in denying habeas relief because appellant was denied effective assistance of counsel. We affirm.

I. Background

Appellant was charged with the misdemeanor offense of assault. The trial court found appellant guilty and assessed punishment at 60 days= confinement, probated for one year, and a $300 fine. Appellant=s conviction was ultimately affirmed on direct appeal.[1]

Appellant subsequently filed an application for writ of habeas corpus, requesting that his misdemeanor assault conviction be set aside on the grounds that (1) he was deprived of his constitutional right to a jury at his misdemeanor assault trial, and (2) he was denied effective assistance of counsel at his misdemeanor assault trial. Following a writ hearing, the county court[2] denied the relief requested, and appellant filed a timely notice of appeal.

II. Appellate Jurisdiction

As a preliminary matter, we address the State=s argument that we should dismiss this appeal for lack of jurisdiction. The State contends this court lacks jurisdiction because appellant is no longer Aconfined@ or Arestrained in his liberty@ as required for habeas corpus relief under Chapter 11 of the Texas Code of Criminal Procedure.

To be entitled to relief, a habeas corpus applicant must establish that he was either Aconfined@ or Arestrained@ unlawfully at the time the writ application was filed. See Rodriguez v. Court of Appeals, 769 S.W.2d 554, 558 (Tex. Crim. App. 1989). AConfinement@ or Aconfined@ refers Anot only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces, or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits.@ Tex. Code Crim. Proc. Ann. Art. 11.21 (Vernon 2005). A person is Arestrained@ if he is under Athe kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.@ Tex. Code Crim. Proc. Ann. art. 11.22 (Vernon 2005). The concepts of Aconfinement@ and Arestraint@ encompass incarceration, release on bail or bond, release on probation or parole, or any other restraint on personal liberty. See Rodriguez, 769 S.W.2d at 558; Ex Parte Davis, 748 S.W.2d 555, 557 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d).

The record reflects that appellant=s one-year term of probation, if successfully completed, ended on February 9, 2005. The State contends appellant is no longer Aconfined@ or Arestrained in his liberty,@ after successfully completing his one-year term of probation on February 9, 2005. However, appellant was on probation at the time he filed his writ in the county court; therefore, he was Arestrained in his liberty,@ sufficient to invoke the writ powers of the county court. When a county court has jurisdiction to issue a writ of habeas corpus, the denial of relief may be appealed. See Ex Parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998). Accordingly, we have jurisdiction to review denial of the requested relief.[3]

III. Abatement of Appeal

In his first issue, appellant contends that this court should abate this appeal in order to facilitate supplementation of the appellate record. However, the district clerk has already supplemented the record. Accordingly, we overrule appellant=s first issue as moot.

IV. Habeas Corpus Relief

In his second and third issues, appellant contends the county court erred in denying his application for writ of habeas corpus because (1) he was denied the constitutional right to a jury, and (2) he was denied effective assistance of counsel.

A. Standard of Review

An applicant for habeas corpus relief has the burden of proving his allegations by a preponderance of the evidence. Ex Parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003). In reviewing the trial court=s ruling on an application for writ of habeas corpus, we view the facts in the light most favorable to the ruling. See id. at 819. We afford almost total deference to the judge=s determination of historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the judge=s rulings on Aapplication of law to fact questions,@ if the resolution to those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, if resolution of those ultimate questions turns on an application of legal standards, we review the determination de novo. Id.

B. Waiver of Jury Trial

In his second issue, appellant contends that the county court erred in denying habeas relief because appellant was deprived of his constitutional right to a jury at his misdemeanor assault trial. The State responds that the issue of whether appellant waived his constitutional right to a jury trial is governed by the Alaw of the case@ doctrine.

Under the Alaw of the case@ doctrine, once a question of law in a particular case has been finally resolved, that question will not be reconsidered in subsequent proceedings of the same case. Ex Parte Schuessler, 846 S.W.2d 850, 852 n.7 (Tex. Crim. App. 1993). The Alaw of the case@ is a court-made doctrine designed to promote judicial consistency and efficiency by eliminating the need for appellate courts to prepare opinions discussing previously resolved matters. Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999).

On direct appeal from appellant=s conviction, the First Court of Appeals addressed appellant=s contention that the trial court violated Article 1.13(a) of the Texas Code of Criminal Procedure. Sluis, 2003 WL 124873, at *1. Article 1.13(a) provides, in part, that the defendant Ashall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State.@ Tex. Code Crim. Proc. Ann. Art. 1.13(a) (Vernon Supp. 2004B05). The court held that Article 1.13(a) had been violated, but determined appellant was not harmed by the violation because Athe record reflect[ed] that he was aware of his right to a jury trial and opted for bench trial.@ Sluis, 2003 WL 124873, at *1. Although the First Court of Appeals did observe that there was evidence in the record to reflect that appellant Aopted@ for a bench trial, the court did not address the issue that is squarely presented to this court: whether appellant proved by a preponderance of the evidence that he did not waive his constitutional right to a jury trial. Therefore, we conclude that the issue before this court has not been previously decided and the Alaw of the case@ doctrine is not applicable. See Reed v. State, 112 S.W.3d 706, 710 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (declining to apply the Alaw of the case@ doctrine when the issue addressed in a previous opinion was a Adifferent issue,@ and thus the issue before the court had not been Apreviously resolved@). Accordingly, we will address the merits of appellant=s argument.

The United States Constitution and the Texas Constitution guarantee an accused the right to a jury trial. U.s. Const. amend. VI; Tex. Const. art. I, ' 10. The rule regarding waiver of the constitutional right to a jury trial is that there must be an express waiver on the part of the defendant. Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983 ). To constitute an express waiver, there must be an Aintentional relinquishment or abandonment of a known right or privilege.@ Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (en banc), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (en banc). A defendant=s mere acquiescence in proceeding to trial without a jury does not constitute an express waiver. See Ex Parte Lyles, 891 S.W.2d 960, 961 (Tex. Crim. App. 1995).

The record in this case does not contain a written waiver of a jury trial. Further, the trial transcript is devoid of any discussion between the trial court and appellant concerning his waiver of a jury trial. Nonetheless, the judgment of conviction recites that appellant Awaived his right of trial by jury.@ The use of the term Awaive@ presumes knowledge because to Awaive@ a right one must do it knowinglyBwith knowledge of the relevant facts. Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002). Furthermore, Awaiver@ is defined as the Aact of waiving or intentionally relinquishing or abandoning a known right, claim, or privilege.@ Id. Absent direct proof to the contrary, a recitation in the judgment that appellant waived his right to a jury trial is binding. Id. Accordingly, we must determine whether direct evidence was produced at the writ hearing which supports appellant=s contention that the statement in the judgment is false.

The only evidence from the writ hearing that directly contradicts the recitation in the judgment is appellant=s own testimony that he did not waive his right to a jury trial. However, the testimony of a defendant alone is insufficient to rebut the presumption of regularity in the judgment. See Reeves v. State, 500 S.W.2d 648, 649 (Tex. Crim. App. 1973).

Nevertheless, appellant argues that he satisfied his burden to prove that he did not waive his right to a jury trial. Appellant relies on Ex Parte Lyles, in which the Court of Criminal Appeals found that the presumption of regularity in the judgment=s recital concerning jury waiver had been overcome. 891 S.W.2d at 961. In Lyles, the applicant for writ of habeas corpus asserted that he was denied the right to a jury trial. Id. The applicant submitted an affidavit averring that neither the trial court nor counsel asked the applicant if he wanted to waive a jury trial. Id. The applicant=s trial counsel also submitted an affidavit averring that counsel told applicant they would try the case to the judge and that the applicant voiced no objection. Id. Further, the trial court made findings of fact, including that there was no written waiver in the record, there was no oral waiver in the statement of facts, and the trial court did not expressly ask the applicant if he waived his right to a jury trial. Id. Under these facts, the court concluded that the applicant did not expressly waive, in any form to the trial court, his right to a jury trial. Id. at 962.

Similar to Lyles, the record in this case does not contain a written waiver of a jury trial, and the trial transcript is devoid of any discussion between the trial court and appellant concerning waiver of a jury trial. Further, like Lyles, there is evidence in this case from trial counsel that appellant was not asked if he wanted to waive his right to a jury trial. However, Lyles is distinguishable from the present case. In Lyles, the trial court expressly found that the trial court did not ask the applicant if he waived his right to a jury trial. Id. at 961. This finding was critical to the court=s decision. Without such an inquiry by the trial court, there could be no express waiver of the right to a jury trial. Conversely, there is no such finding in the present case. Moreover, the county court in this case expressly found that appellant waived his right to a jury trial.

Accordingly, we find that appellant has failed to overcome the presumption of regularity in the judgment=s recital that he waived his right to a jury trial. We overrule appellant=s second issue.

C. Assistance of Counsel

In his third issue, appellant contends that the trial court erred by denying habeas relief because he was denied effective assistance of counsel at his misdemeanor assault trial. To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) counsel=s representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A Areasonable probability@ is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In reviewing counsel=s performance, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

Appellant contends that his trial counsel was ineffective because he failed to advise him regarding his right to a jury trial. In trial counsel=s affidavit, he averred that he did not Arecall@ discussing with appellant whether to try the case to the court or to a jury. However, at the writ hearing, counsel definitively testified that he never informed appellant that he had a right to a jury trial. Counsel asserted that after he had Athought about it,@ he decided that he, in fact, did not discuss with appellant his right to a jury trial. However, the county court disbelieved counsel=s testimony, finding that A[i]t is not believable that a competent, qualified attorney as [appellant=s trial counsel] is, would not discuss [appellant=s] right to a jury trial . . . in the criminal court case.@

The trial court, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, may choose to disbelieve the testimony of any witness, even when the testimony is uncontroverted. Peterson, 117 S.W.3d at 819 n.68. Therefore, the county court acted within its discretion when it concluded that the testimony of appellant and his trial counsel concerning appellant=s waiver of a jury trial, was not credible. Deferring to the county court=s finding that such testimony is not credible, we determine that appellant has failed to demonstrate that counsel=s performance fell below an objective standard of reasonableness. Therefore, appellant has failed to satisfy the first prong of Strickland.

Furthermore, even assuming that trial counsel=s representation fell below an objective standard of reasonableness, appellant has failed to satisfy the second prong of Strickland. To satisfy the second prong of Strickland, an appellant must show a Areasonable probability@ exists that, but for the error, the result of the trial would have been different. Thompson, 9 S.W.3d at 812. Here, as previously discussed, appellant has failed to overcome the presumption of regularity in the judgment=s recital that appellant Awaived his right of trial by jury.@ Therefore, appellant has not established that counsel=s failure to consult with appellant regarding his right to a jury trial deprived appellant of his constitutional right to a jury trial.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 11, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman. (Edelman, J., concurs in result only.)

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] In a published opinion, the First Court of Appeals initially reversed appellant=s conviction. Sluis v. State, 11 S.W.3d 410 (Tex. App.CHouston [1st Dist.] 2000). However, the Court of Criminal Appeals vacated the court of appeals=s judgment and remanded the cause to the court of appeals. On remand, the court of appeals affirmed appellant=s conviction. Sluis v. State, No. 01-98-00359-CR, 2003 WL 124873 (Tex. App.CHouston [1st Dist.] November 19, 2003) (not designated for publication).

[2] Although appellant filed his application for writ of habeas corpus in Harris County Court at Law No. 8, the trial court in appellant=s misdemeanor assault case, the cause was transferred to Harris County Court at Law No. 2. Thus, we refer to Harris County Court at Law No. 2 as the Acounty court@ rather than the Atrial court.@

[3] To support its contention that we do not have jurisdiction over this appeal, the State relies on our opinion in Dahesh v. State. 51 S.W.3d 300 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). However, Dahesh is distinguishable because in that case the applicant for writ of habeas corpus completed his probation and paid his fine nineteen years before filing his application. Id. at 300.