Charles Cooper v. The State of Texas--Appeal from 123rd District Court of Shelby County

NOS. 12-03-00043-CR
12-03-00044-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

CHARLES COOPER,

 
APPEAL FROM THE 123RD

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
SHELBY COUNTY, TEXASMEMORANDUM OPINION

Charles Lee Cooper ("Appellant") appeals the trial court's orders revoking his probation in separate causes, following which Appellant was sentenced to imprisonment for seven years in each cause. Appellant raises two issues on appeal in each cause. We affirm.

 

Background

Appellant pleaded guilty to two separate counts of aggravated assault against a public servant. The trial court adjudicated Appellant guilty and sentenced him to imprisonment for ten years, but suspended the sentence and placed Appellant on probation for ten years in each cause. In separate motions filed on June 2 and 8, 2000, the State sought to revoke Appellant's probation, alleging that Appellant, in violation of the conditions of his probation, (1) tested positive for cocaine use, (2) failed to report to his supervision officer, and (3) failed to make certain payments associated with his probation. (1)

At the hearing on the State's motion, Appellant's attorney, in an address to the court, stated, "Mr. Cooper has asked that I re-urge the request that he be able to use a law library himself to look up cases and that I be permitted to withdraw as counsel." The trial court then spoke with Appellant, who expressed dissatisfaction with his attorney's manner of representation. Nonetheless, the trial court did not permit Appellant's attorney to withdraw.

Appellant initially pleaded "true" to the State's allegations, but the trial court refused to accept Appellant's plea and entered a plea of "not true" on Appellant's behalf. Following a hearing on the merits, the trial court found the allegations in the State's motions to be "true," revoked Appellant's probation, and sentenced Appellant to imprisonment for seven years in each cause.

 

Ineffective Assistance of Counsel

In his issues one and two, Appellant argues that his trial counsel was ineffective in that he failed to put on mitigating evidence that would have supported the imposition of a lesser sentence. Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel's representation, but will judge the claim based on the totality of the representation. See Strickland,466 U.S. at 695, 104 S. Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App. -Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).

In the case at hand, the record is completely silent as to the reasons Appellant's trial counsel chose the course he did. Although Appellant argued to the trial court that his attorney was unprepared, Appellant's attorney informed the court that he had adequately researched the issues involved at Appellant's revocation hearing. The record is silent as to the reasoning underlying Appellant's attorney's decisions concerning who to call as a witness. As such, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant's trial counsel's reasons for choosing the course he did. As such, we cannot conclude that Appellant's trial counsel was ineffective. Appellant's issues one and two, as they relate to Appellant's claim of ineffective assistance of counsel, are overruled.

 

Admonishment of Self-Representation

As part of his first issue, Appellant argues that the court failed to admonish him regarding his right to represent himself. In support of his contention, Appellant cites Renfro v. State, 586 S.W.2d 496, 500 (Tex. Crim. App. 1979) and Burgess v. State, 816 S.W.2d 424, 428-29 (Tex. Crim. App. 1991), in which the court of criminal appeals recognized that a defendant shall not be permitted to represent himself unless the defendant has made a knowing and voluntary waiver of counsel. However, our review of the record does not indicate that Appellant sought to represent himself. The record neither contains a written motion to withdraw as counsel, nor a motion to proceed pro se. However, Appellant's attorney did discuss the matter of his withdrawal briefly with the trial court prior to the hearing. Appellant's attorney explained, "Mr. Cooper has asked that I re-urge the request that he be able to use a law library himself to look up cases and that I be permitted to withdraw as counsel." The trial court discussed the matter further with Appellant. Although Appellant made complaints to the trial court concerning what he considered to be inadequate representation by his trial counsel, he did not suggest to the trial court that he wished to represent himself. The trial court denied Appellant's request and Appellant was represented by counsel at the hearing.

Although not stated in the Sixth Amendment, the right to self-representation--to make one's own defense personally--is necessarily implied by the structure of the Amendment. See Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975). To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. Id. 522 U.S. at 820, 95 S. Ct. at 2533. However, it is a prerequisite to the requirement that the trial court admonish the appellant that the appellant make an unequivocal assertion of the right to self-representation. See, e.g., Burgess, 816 S.W.2d at 428-29; Freeman v. State, 970 S.W.2d 55, 57 (Tex. App.-Tyler 1998, no pet.) (should the accused unequivocally assert his right to self-representation under Faretta, persisting in that assertion after proper admonishment, the court must allow the accused to represent himself). Here, Appellant's request through his attorney that he be allowed to use the law library to look up cases, even when made in conjunction with his attorney's request to withdraw, does not amount to an unequivocal request to proceed pro se. In its conversation with Appellant, the trial court explained, "[Y]our attorney was appointed to do any research applicable to your case. I mean, he is your law library at this time." Although Appellant further persisted that he was dissatisfied with his attorney's performance, he never stated that he wished to represent himself. As such, we hold that the trial court did not err in failing to admonish Appellant regarding his right to represent himself because Appellant never expressed an unequivocal desire to do so. The remainder of Appellant's issue one in each cause is overruled.

 

Conclusion

Having overruled Appellant's issues one and two, we affirm the judgment of the trial court in each cause.

 

 

SAM GRIFFITH

Justice

 

Opinion delivered September 10, 2003.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

 
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 10, 2003
NOS. 12-03-00043-CR
12-03-00044-CR
CHARLES COOPER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 123rd Judicial District Court
of Shelby County, Texas. (Tr.Ct.Nos. 1996-C-074; 1996-C-075)

THESE CAUSES came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there were no errors in the judgments.

It is therefore ORDERED, ADJUDGED and DECREED that the judgments of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., DeVasto, J.

 
THE STATE OF TEXAS
M A N D A T E
*********************************************

TO THE 123RD DISTRICT COURT of SHELBY COUNTY, GREETING:

 

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 10th day of September, 2003, the cause upon appeal to revise or reverse your judgment between

 
CHARLES COOPER, Appellant
NO. 12-03-00043; Trial Court No. 1996-C-074
12-03-00044-CR; Trial Court No. 1996-C-075
Opinion by Sam Griffith, Justice.
THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

 

"THESE CAUSES came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there were no errors in the judgments.

 

It is therefore ORDERED, ADJUDGED and DECREED that the judgments of the court below be in all things affirmed, and that this decision be certified to the court below for observance."

 

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

 

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200____.

 

CATHY S. LUSK, CLERK

 

By:_______________________________

Deputy Clerk

1. At the hearing on the State's motion to revoke, the prosecuting attorney informed the court that the State was not pursuing allegations that Appellant failed to make payments pursuant to his probation agreement.