Opinion
NO. 09-11-00353-CR
03-28-2012
ERICK ALLEN a/k/a ERIC ALLEN a/k/a NUFF ALLEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 79485
MEMORANDUM OPINION
In carrying out a plea bargain agreement, Erick Allen a/k/a Eric Allen a/k/a Nuff Allen pled guilty to an indictment alleging that on or about June 6, 1999, he burglarized a building. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011). The trial court found Allen guilty of burglarizing a building, assessed a ten year sentence, and fined Allen $750; then, the trial court suspended the imposition of Allen's sentence, placed him on community supervision for ten years, and ordered that he pay the fine.
We cite to the current version of the statute because the 1999 amendment does not affect the outcome of this appeal.
Subsequently, while Allen was still subject to the terms established by the community supervision order, the State requested that the trial court revoke the community supervision order. At the hearing on the State's motion to revoke, Allen pled "true" to violating one of the conditions of the trial court's community supervision order. After hearing evidence addressing another alleged violation of the order, the trial court found Allen guilty of violating two of the conditions of the community supervision order, revoked the order placing Allen on community supervision, and sentenced Allen to four years in prison.
Allen, appearing pro se at this stage of his appeal, appealed from the trial court's judgment which revoked the community supervision order. In his first issue, Allen notes that the judgment the trial court entered in this case, Cause Number 79485, requires his sentence to run concurrently with his sentence in Cause Number 49691, another burglary case. In his brief, Allen claims that he successfully completed his sentence in Cause Number 49691 in 1988. Because the judgment in the present case allows Allen to serve his sentence in this case concurrently with a sentence in a case he alleges he had completed, Allen contends the State should not have prosecuted him in Cause Number 79485.
After filing a notice of appeal, Allen filed a motion to dismiss his appointed counsel and asked for permission to proceed pro se. We abated the appeal and remanded the matter to the trial court for a hearing. After the hearing, the trial court granted Allen's request and gave him permission to proceed pro se, relieving Allen's appointed counsel of any obligation to represent Allen further in this case.
In response, the State contends that nothing in the record shows that Allen's prosecution in Cause Number 49691 bars it from prosecuting him in this case, Cause Number 79485. We conclude that Allen, with respect to the judgment's reference to Cause Number 49691, has misinterpreted the judgment. We note that the language of the judgment in Cause Number 79485, which indicates that Cause Number 79485 is to run concurrently with Cause Number 49691, refers to the original sentence imposed on Allen when he was placed on community supervision. At the revocation hearing, after revoking Allen's community supervision in Cause Number 79485, the trial court sentenced Allen to four years in prison. Nevertheless, with respect to how Allen was to serve his four year sentence in this case, the judgment generally states that his sentence is to run concurrently with other sentences: the judgment does not state that Allen's sentence is to run concurrent with his sentence in any other specific cause number. We conclude that the reference in the judgment before us to Cause Number 49691 was intended only as an historical reference to Allen's serving community supervision; assuming Allen has completed serving his sentence in Cause Number 49691, the historic reference to serving community supervision concurrently is of no importance with respect to how he is to serve his four year sentence. We overrule issue one.
In issue two, Allen complains that the State's motion to revoke was filed after he had completed serving his court-ordered term of community supervision. The record before us reflects that the ten-year period provided for Allen's serving community supervision ended on October 30, 2010, and reflects that the State's motion to revoke was filed on October 25, 2010, which was before Allen's community supervision period ended. Also, on October 26, 2010, the trial court authorized a capias to be issued, and on October 28, a capias issued authorizing Allen's arrest. The hearing on the State's motion to revoke occurred on April 17, 2011.
The Texas Code of Criminal Procedure provides that a court retains jurisdiction to hold a hearing and to revoke community supervision regardless of whether the period of community supervision imposed on the defendant has expired "if[,] before the expiration [of the period of community supervision,] the attorney representing the state files a motion to revoke . . . and a capias is issued for the arrest of the defendant." Tex. Code Crim. Proc. Ann. art. 42.12 § 21(e) (West Supp. 2011). Because the State's motion to revoke was filed before Allen's term of community supervision ended, and a capias issued, the trial court's power to revoke its community supervision order still existed when the trial court heard the State's motion to revoke. See id.
We cite to the current version of the statute, because although section 21 was amended in 2011, the amendment does not affect the outcome of this appeal.
Allen also argues that because he was unable to pay the fees assessed in the community supervision order, the trial court erred in revoking its community supervision order. See id. § 21(c) (West Supp. 2011) (requiring State to prove defendant able to pay when failure to pay is the sole ground of the motion to revoke). However, in Allen's case, his failure to pay fees was not the sole basis on which the trial court revoked its community supervision order. The State's motion to revoke also alleged that Allen had failed to report to his community supervision officer. While Allen pled "untrue" to that allegation, his community supervision officer testified during the hearing that since April 29, 2009, Allen had not reported. At the conclusion of the hearing, the trial court found Allen failed to report to his community supervision officer as directed, one of the two grounds alleged in the State's motion to revoke. Because the trial court's decision to revoke the community supervision order is supported by one ground sufficient to sustain the trial court's decision, Allen's argument regarding whether the trial court could revoke its order despite his defense claiming an inability to pay is moot. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (stating that one sufficient ground for revocation will support the trial court's order to revoke probation). We overrule issue two.
In issue three, Allen complains the trial court erred in appointing an attorney pro tem to represent the State in his case. Allen argues that the trial court's appointment of the attorney pro tem was unauthorized, illegal, and violates his rights to due process. A trial court is authorized by statute to appoint an attorney pro tem to represent the State whenever an attorney for the State is disqualified to act in any case. See Tex. Code Crim. Proc. Ann. art. 2.07 (West 2005). The State asserts that the appointment of an attorney pro tem was authorized under the circumstances of this case, and that Allen waived his complaint by failing to object to the attorney pro tem's appointment. Because the appointment of an attorney pro tem is not illegal and is authorized, and he failed to object to the decision in the trial court, Allen has not preserved his complaint for our review. See Hartsfield v. State, 200 S.W.3d 813, 816 (Tex. App.—Texarkana 2006, pet. ref'd) (concluding appellant forfeited any claim of error where there was no objection to attorney pro tem's authority before appeal); Stephens v. State, 978 S.W.2d 728, 730 (Tex. App.—Austin 1998, pet. ref'd) (holding that the error, if any, was waived because appellant failed to object to authority of attorney pro tem during trial); see also Tex. R. App. P. 33.1.
Additionally, Allen raised a due process complaint, and he concludes that the trial court's appointment of the attorney pro tem was unnecessary. Allen also argues that the trial court's appointment shows that the judge and the attorney pro tem had an inappropriate relationship. Because there is no record of any objection to support Allen's claims, and because Allen did not object at trial to the attorney pro tem's appointment, he has also not preserved these arguments for our review. See Tex. R. App. P. 33.1. We overrule issue three.
In his fourth issue, Allen argues that he received ineffective assistance of counsel at his original trial, at revocation, and on appeal. According to Allen, his appointed counsel never challenged the prosecutor's case.
Courts apply a two-pronged test to resolve ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To succeed on a claim alleging ineffective assistance of counsel, Allen must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms; he must also show there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687; Garza, 213 S.W.3d at 347-48; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is "highly deferential" to trial counsel, as we presume "that counsel's actions fell within the wide range of reasonable and professional assistance." 213 S.W.3d at 348.
Allen complains that his trial counsel failed to file pre-trial motions. However, the record does not support Allen's claim. The record shows that before the trial court conducted the hearing on Allen's guilty plea, Allen's trial counsel filed several pre-trial motions. With respect to Allen's representation at the revocation hearing, we note that the attorney representing Allen cross-examined Allen's probation officer about Allen's alleged failure to report.
When reviewing complaints about trial counsel's alleged deficiencies, an appellate court must "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Trial counsel's decisions are viewed with great deference when trial counsel's reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Faced with a record that includes no explanation by any of the attorneys who represented Allen in the trial court, appellate courts are not at liberty to find trial counsel's conduct ineffective, unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 813 (declining to speculate on counsel's failure to object to hearsay in light of a silent record)).
Having reviewed the record, we conclude that Allen's complaints regarding the attorney who represented him at his guilty plea and revocation proceedings are the types of complaints that require a more developed record-one that would allow his attorney to explain his strategy. See Goodspeed, 187 S.W.3d at 392 (evaluating whether challenged conduct was "'so outrageous that no competent attorney would have engaged in it'") (quoting Garcia, 57 S.W.3d at 440); see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) ("[A] reasonably competent counsel need not perform a useless or futile act[.]").
Finally, with respect to Allen's complaints about the representation he received on his appeal, we note the trial court conducted a hearing on Allen's request to represent himself. During that hearing, Allen was admonished of the disadvantages of representing himself. After determining that Allen was aware of the disadvantages of self-representation, the trial court granted Allen's request and allowed him to represent himself on appeal. Subsequently, Allen filed a pro se brief raising several issues on appeal. Because Allen knowingly and voluntarily chose to represent himself on appeal, he has waived his complaints relating to the attorney who was appointed but who was then dismissed at Allen's request.
Because Allen's ineffective assistance claims are either not the product of a timely appeal, not firmly founded in the record, or have been waived, we overrule issue four. Having overruled all of Allen's issues, we affirm the trial court's judgment.
AFFIRMED.
HOLLIS HORTON
Justice
Do Not Publish Before Gaultney, Kreger, and Horton, JJ.