Joseph Lee Bean v. The State of Texas--Appeal from 182nd District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00114-CR
Joseph Lee BEAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 182nd Judicial District Court, Harris County, Texas
Trial Court No. 902631
Honorable Joe Ned Dean, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 31, 2003

AFFIRMED

Joseph Lee Bean ("Bean") appeals his conviction for possession of 4 to 200 grams of cocaine with intent to deliver. Bean asserts two issues on appeal: 1) trial counsel was ineffective when he failed to inform Bean that he was entitled to testify at the punishment phase of trial; and 2) the trial court failed to fulfill an affirmative duty to sua sponte question defense counsel regarding whether Bean knowingly waived his right to testify at the punishment phase of trial. We affirm the trial court's judgment.

Ineffective Assistance of Counsel

In his first issue on appeal, Bean contends that defense counsel was ineffective when he failed to inform Bean that he was entitled to testify during the punishment phase of the trial. To prevail on a claim of ineffective assistance of counsel, Bean has the burden showing that (1) counsel's performance was deficient, such that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced Bean, such that counsel's errors were so serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Bean's failure to make either of the required showings of deficient performance and sufficient prejudice will defeat his claim of ineffective assistance. Rylander v. State, 101 S.W.3d at 110; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). This standard of proof applies to the punishment phase as well as the trial stage of criminal proceedings. Wiggins v. Smith, - U.S. -, 123 S. Ct. 2527, 2535 (2003).

The review of trial counsel's representation is highly deferential and indulges a strong presumption that counsel's actions or omissions fell within a wide range of reasonable professional assistance. Rylander v. State, 101 S.W.3d at 110. Although a single egregious error by trial counsel may be sufficient to constitute ineffective assistance, such an error must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814.

The record in this case is insufficient to establish the deficient performance prong of the Strickland analysis. See Freeman v. State, 2003 WL 22510582, at *1 (Tex. Crim. App. 2003). Although the record reveals that Bean did not testify in the punishment phase of the trial, the record does not affirmatively demonstrate that defense counsel failed to advise Bean that he was entitled to testify in the punishment phase of trial. See Thompson, 9 S.W.3d at 814.

In support of his claim, Bean emphasizes the following exchange, which occurred before the jury returned with its verdict:

THE DEFENDANT: Your Honor, can I make a statement on the record before the jury comes in real quick?

THE COURT: Okay, hold it just a second.

THE DEFENDANT: I want to make a record. My counsel did not advise me that I had a right to speak, to testify during the punishment stage, and he refused to call my character witnesses.

THE COURT: Okay, Mr. McDonald, is there anything you want to put on the record?

MR. MCDONALD: I think the record is clear about the character witnesses. We had that discussion before, and I didn't call any character witnesses.

THE COURT: Are you telling us you didn't know you had a right to testify?

THE DEFENDANT: No, sir. When you said that - when you said that I chose not to testify, I didn't make that agreement. The only reason I didn't testify during the innocent and guilty verdict was because of my priors. If they would have convicted, I would have testified, I would have said something. I also have character witnesses, my job references, my mother and my sister. They didn't get a chance to testify. I don't think that's fair.

THE COURT: Okay, Mr. McDonald, did you advise him of his right to testify at the punishment proceeding?

MR. MCDONALD: We had discussions early on about how the trial process works. I think I advised him he had the right to testify anytime he wanted to.

THE DEFENDANT: You did not.

THE COURT: Bring in the jury. This exchange demonstrates that Bean had knowledge of his right to testify during the guilt/innocence phase of the trial and that he made an informed decision not to testify. Bean does not dispute that he was informed of his right to testify during the guilt/innocence phase of the trial, but instead Bean contends that he was not informed of his right to testify during the punishment phase of trial. In response, defense counsel stated that he had discussions with Bean "about how the trial process works," and that he believed that Bean was advised "he had the right to testify anytime he wanted to." The fact that trial counsel used the term "think" is not sufficient to undermine counsel's assertion that he informed Bean of his right to testify during the punishment phase. In order to affirmatively demonstrate the alleged ineffectiveness, Bean counters that trial counsel's assertion that he "thinks" he informed Bean he had a right to testify during punishment proceedings is sufficiently undermined by Bean's assertion that he had no knowledge of this right. However, the contradictory statements in this case do not affirmatively demonstrate which account is true and accurate. Furthermore, the trial judge decided to move forward based on his assessment of the credibility of both trial counsel and the defendant. Without more, we cannot conclude that counsel's performance fell below an objective standard of reasonableness.

Because this case is before us on direct appeal, the record is not developed for the purpose of establishing an ineffective assistance claim and does not adequately reflect the alleged failings of trial counsel. See Freeman, 2003 WL 22510582, at *1. The Court of Criminal Appeals has noted that "[r]arely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation." See Thompson, 9 S.W.3d at 813. An application for writ of habeas corpus would provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind the actions taken by counsel in advising Bean of his right to testify. See id. at 814-15.

Where contradictory statements in the record do not affirmatively demonstrate trial counsel's alleged act or omission, the record is insufficient to overcome the presumption that trial counsel acted reasonably. Bean failed to make the required showing of deficient performance; therefore, we need not address the prejudice prong of the Strickland analysis. Strickland, 466 U.S. at 697. Bean's first issue is overruled.

Sua Sponte Inquiry into Waiver of Right to Testify

In his second issue on appeal, Bean contends that the trial court had an affirmative duty to sua sponte question defense counsel regarding whether Bean knowingly waived his right to testify at the punishment phase. Bean contends that the trial court erred in failing to further investigate defense counsel's noncommital response to the trial court's initial inquiry.

Bean cites no authority, nor is this court aware of any authority, requiring a Texas trial court to engage in a sua sponte inquiry of the defendant or defense counsel regarding whether the defendant has knowingly and intelligently waived his right to testify. Furthermore, even if such a duty were imposed on the courts, the record reflects that the trial court did engage in a sua sponte inquiry of both the defendant and defense counsel. Bean's second issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

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