Aaron Wayne Waller v. The State of Texas--Appeal from 273rd District Court of Shelby County

NO. 12-03-00186-CR

IN THE COURT OF APPEALS

 

TWELFTH COURT OF APPEALS DISTRICT

 

TYLER, TEXAS

 

AARON WAYNE WALLER, APPEAL FROM THE 273RD

APPELLANT

 

V. JUDICIAL DISTRICT COURT OF

 

THE STATE OF TEXAS,

APPELLEE SHELBY COUNTY, TEXAS

 

MEMORANDUM OPINION

Aaron Wayne Waller appeals his conviction for aggravated sexual assault of a child, for which he was sentenced to imprisonment for life. Appellant raises one issue on appeal. We affirm.

 

Background

Appellant was indicted for aggravated sexual assault of a child. Prior to the trial of the case, Appellant s attorney filed a motion to withdraw as counsel for Appellant contending that she was unable to effectively communicate with Appellant so as to be able to adequately represent him. More specifically, the motion urged that (1) Appellant questioned his counsel s judgment on legal issues and the evidentiary weight of the evidence that would be potentially offered against Appellant, (2) Appellant lacked confidence in his attorney s willingness to zealously defend him despite the work already undertaken on his behalf, (3) Appellant believed and expressed to his attorney that he viewed her as part of the prosecution in his case due to her past experience as a prosecutor, and (4) Appellant had issues generally with females, which hindered his attorney s ability to effectively represent him.

The trial court denied Appellant s counsel s motion to withdraw. When, subsequently, Appellant s counsel reurged her motion, the trial court agreed to reconsider it and conducted a hearing thereon. At that hearing, Appellant testified, in pertinent part, as follows:

Q. Mr. Waller, on I believe on April 23rd or thereabout, you sent a letter to Judge Griffin indicating you were having problems with me representing you; is that right?

A. Yes, I did.

Q. And subsequent to that time I filed a motion to withdraw as your lawyer. You re aware of that?

A. That s right.

....

Q. Mr. Waller, isn t it true that you are accusing me on an ongoing basis of lying to you?

A. Yes, I did.

Q. And you don t see that as something that s going to change, do you?

A. Well, I guess eventually it will when all this is over. But I don t think it will until then. Ms. Price, you made some statements to me, I know for a fact. You told me you had a semen sample from [the victim]. You told me several times, not just one time, Ms. Price, but you told me several times you did. Then I said something about it, and you said, no, you lied, it s in Florida.

Q. Mr. Waller, as I ve explained to you before, if you heard those words

A. I heard it.

Q. it did not come from me. I don t think this Judge is interested in hearing a diatribe between you and me at this time. It s your belief that I have lied to you and I continue to do so; correct?

A. I believe you have in the past. Yes, I do.

Q. Didn t you accuse me of lying to you as late as this morning when we had our meeting before the Judge called the case?

A. About what?

Q. About a number of issues that I attempted to discuss with you, Mr. Waller.

A. No, ma am, I didn t accuse you of lying.

Q. Did you, in fact, accuse me of acting in collusion with the State?

A. No, ma am, I did not.

Q. Did you say that I was working for them, and I quote?

A. No, ma am, I did not.

Q. Did you refuse to look at the motions that I filed in your case?

A. I asked you I don t even know what a motion is. Ma am, I asked you.

Q. Did you refuse to look at the Notice of Extraneous Offenses and Unadjudicated Offenses?

A. I looked at them. I looked at them.

Q. Did you refuse to completely look at those with me?

A. You didn t ask me to look at them with you. You handed them to me and let me look at them and I looked at them.

Q. Did I specifically ask you to read each of those with me?

A. No, ma am.

Q. Mr. Waller, have I given you some legal advice with regard to the trial of this case in front of the jury which you have indicated to me you will refuse to follow? Specifically, have you indicated to me that despite my advice you intend to take the witness stand?

A. I told you this morning, that was my Constitutional right.

Q. And you intend to exercise it?

A. I didn t say that. I said that was my Constitutional right.

The trial court again overruled Appellant s counsel s motion to withdraw.

The matter proceeded to trial. Ultimately, the jury found Appellant guilty as charged and assessed his punishment at imprisonment for life. The trial court sentenced Appellant accordingly, and this appeal followed.

Denial of Motion to Withdraw as Counsel

Appellant s sole issue is multifarious. Appellant initially argues that the trial court erred in overruling his trial counsel s motion to withdraw. We review a trial court s ruling on a trial counsel s motion to withdraw for abuse of discretion. See Brewer v. State, 649 S.W.2d 628, 631 (Tex. Crim. App. 1983).

Conflicts of personality and disagreements between counsel and client are not automatic grounds for withdrawal. Solis v. State, 902 S.W.2d 95, 100 (Tex. Crim. App. 1990). The trial court is under no duty to search for counsel until an attorney is found who is agreeable to the accused. Id. In the case at hand, the evidence supports little more than a conflict of personality between Appellant and his trial counsel. Although Appellant testified that he believed his trial counsel had lied to him in the past, there is no specific allegation raised in Appellant s testimony that might have provided the trial court insight as to whether the rift between the two amounted to more than a mere disagreement. A level of animosity between Appellant and his trial counsel is apparent from the record. However, we cannot conclude from the record before us that the situation between Appellant and his trial counsel amounted to more than a conflict in personalities or a series of disagreements. We hold that the trial court did not abuse its discretion in overruling Appellant s counsel s motion to withdraw.

Ineffective Assistance of Counsel

Appellant further argues that he received ineffective assistance of counsel. 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, Appellant chronicles, in great detail, his attorney s allegedly poor performance at trial. Yet, Appellant acknowledges that his claim had a slim chance of prevailing on direct appeal because the undeveloped record on appeal generally is too insufficient to allow a Defendant to satisfy the two prongs of ... [the Strickland test]. Indeed, the record is silent as to the reasons underlying Appellant s counsel s alleged ineffective acts and omissions during the trial of the case at hand. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectively. Therefore, 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 she did. Thus, we cannot conclude that Appellant's trial counsel was ineffective. Appellant s sole issue is overruled.

Conclusion

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered October 29, 2004.

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

OCTOBER 29, 2004

NO. 12-03-00186-CR

AARON WAYNE WALLER,

Appellant

V.

THE STATE OF TEXAS,

Appellee

 

Appeal from the 273rd Judicial District Court

of Shelby County, Texas. (Tr.Ct.No. 03CR-15,851)

THIS CAUSE 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 was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that this decision be certified to the court below for observance.

James T. Worthen, Chief Justice.

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

 

 

THE STATE OF TEXAS

M A N D A T E

TO THE 273RD JUDICIAL DISTRICT COURT OF SHELBY COUNTY, GREETINGS:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 29th day of October, 2004, the cause upon appeal to revise or reverse your judgment between

AARON WAYNE WALLER, Appellant

NO. 12-03-00186-CR and Tr. Ct. Case Number 03CR-15,851

Opinion by Chief Justice James T. Worthen.

THE STATE OF TEXAS, Appellee

 

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

THIS CAUSE 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 was no error in the judgment.

 

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that this decision be certified to the court below for observance.

 

WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of 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 said 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