No. 05-08-01269-CR
Opinion Filed January 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-54575-P.
Before Justices BRIDGES, LANG, LANG-MIERS.
Opinion By Justice LANG.
Following a plea of not guilty, appellant Toney Antoney Jackson was convicted by a jury of theft of property of a value of less than $1,500. Punishment was assessed by the jury at eighteen months' confinement. On appeal, appellant raises two issues: (1) the trial court erred when it did not give appellant's appointed counsel ten days to prepare for trial, and (2) appellant did not receive effective assistance of counsel. We decide appellant's issues against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The indictment in this case charged in relevant part that appellant unlawfully, intentionally or knowingly exercised control over fifteen houseware items with a value of less than $1,500 without the consent of the owner of the items. The appellant was found to be indigent. David Woodruff of the Public Defender's Office was appointed to represent him on behalf of the Chief Public Defender. On May 15, 2008, Woodruff represented appellant in an examining trial. On August 27, 2008, three working days prior to the beginning of trial, Woodruff filed an "Election and Omnibus Pretrial Motion" and a "Request for Notice Pursuant to Tex. R. Evid. 404(b)" on behalf of appellant. On September 2, 2008, the day of trial, Mary Jo Earle, also from the Public Defender's Office, filed "Defendant's Election of Punishment in Jury Trial" on behalf of appellant. When trial commenced, the record reflected that appellant was present in trial court "with his attorney, Mr. Greg Neugebauer; also, Ms. Mary Jo Earl[e] with the Public Defender's Office." Neugebauer represented appellant during the pre-trial hearing, jury selection, and at trial during both the guilt/innocence and punishment phases. Altogether the trial lasted two days. During the guilt/innocence phase of trial, Andrea Root, a loss-prevention officer, testified that on April 24, 2008, she encountered appellant while she was working at Tom Thumb near U.S. Highway 75 and Meadow Road in Dallas. Root saw appellant pick up a package of batteries from a battery display, put the batteries in his pocket, and walk out of the store without paying for them. Root and her partner stopped appellant and told him he needed to come back inside the store. Appellant had in his possession fifteen packages of batteries, altogether worth approximately $100. The grocery director of Tom Thumb, Scott Yocum, testified appellant did not have permission to remove any items from the store without paying for them. Subsequently, appellant was arrested by Dallas police officers. Sheriff's Deputy Richard Hamb testified appellant's fingerprints matched the fingerprints in State's Exhibits 2 and 3, which are certified copies of judgments when sentences were previously imposed against appellant for prior thefts. The jury found appellant guilty. During the punishment phase of trial, Deputy Hamb testified appellant had twelve prior convictions for theft. Appellant testified he was diagnosed as bipolar while he was in the military, and his diagnosis developed into paranoid schizophrenia when he grew older. Appellant testified he spoke with his attorney, Woodruff, on the Friday before trial and then he met Neugebauer on the following Tuesday (the day his trial began). He stated he believes it was a "violation" to only know his attorney on the day of trial. Following the jury's assessment of punishment at eighteen months' confinement and appellant's sentencing, appellant filed this appeal. II. TEN-DAY TIME PERIOD TO PREPARE FOR TRIAL
In his first issue, appellant contends his appointed counsel did not receive the required ten days of preparation time for trial. The State responds that no error occurred because the record does not support appellant's claim that trial counsel had less than ten days to prepare for trial. The code of criminal procedure provides, "an appointed counsel is entitled to 10 days to prepare for a proceeding . . ." Tex. Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp. 2009). The ten-day preparation time is a mandatory provision that may be waived only with written consent of the defendant or on the record in open court. Id. art. 1.051(e). The purpose of the provision is to protect an indigent defendant's right to have appointed counsel who has adequate time to prepare a defense for trial. Marin v. State, 891 S.W.2d 267, 272 (Tex. Crim. App. 1994); Moore v. State, 493 S.W.2d 844, 845 (Tex. Crim. App. 1973) (referring to article 26.04, now article 1.051) . The case law makes clear that the only relevant time period for purposes of the ten-day requirement is the period between the initial appointment of counsel and the proceeding at issue. Marin, 891 S.W.2d at 268-69 (violation of article 1.051(e) occurred when appointed attorney replaced the first appointed attorney six days prior to trial); Ashcraft v. State, 900 S.W.2d 817, 829 (Tex. App.-Corpus Christi 1995, pet. ref'd) (discussing whether trial court violated article 1.051(e) where initially retained attorney, who sought to withdraw when appellant could no longer pay for legal services, was appointed within ten days of trial); Rojas v. State, 943 S .W.2d 507, 510 (Tex. App.-Dallas 1997, no pet.) (violation of article 1.051(e) occurred where the trial court appointed counsel on May 10 or 11 and then revoked the appellant's petition and imposed sentence on May 11, not giving his counsel ten days to prepare). "If the defendant was represented by more than one attorney, we found compliance where at least one of the defendant's attorneys was afforded the statutory preparation time." Marin, 891 S.W.2d at 272. A defendant may raise the failure to comply with the ten-day rule for the first time on appeal. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). A violation of the ten-day preparation time requirement must be apparent from the record. See Wages v. State, 573 S.W.2d 804, 806 (Tex. Crim. App. 1978) (Court overruled appellant's complaint of a violation of the ten-day rule by reasoning "the record does not reflect the date on which trial counsel was appointed, nor indeed, if trial counsel was appointed"); Griffin v. State, 489 S.W.2d 290, 292 (Tex. Crim. App. 1973); Steward v. State, 422 S.W.2d 733, 737 (Tex. Crim. App. 1968) ("In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse" for failure of record to contain waiver of ten-day preparation time); Rojas, 943 S .W.2d at 511 (because the record contained evidence that Rojas's attorney did not have ten days to prepare, there was violation of 1.051(e)). Thus, if the record does not show the date the trial court appointed trial counsel, appellant cannot show that the trial court violated article 1.051(e). Wages, 578 S.W.2d 806; Shaw v. State, No. 05-93-01603-CR, 1994 WL 523353 (Tex. App.-Dallas Sept. 22, 1994, no pet.). In addition, the ten-day preparation time requirement applies only to appointed counsel, and not to substitute counsel if counsel is not officially appointed. Roberson v. State, 879 S.W.2d 250, 251 (Tex. App.-Dallas 1994, no pet.). In Roberson, this court held that the ten-day period enumerated in article 1.051(e) does not apply to counsel who substitutes for a court-appointed counsel who has not been replaced. Id. In Roberson, the trial court appointed Philip Wetherbee, an Assistant Public Defender, to represent the appellant. Id. About three months later, in a proceeding where appellant gave his guilty plea, the magistrate stated that Catherine Bernhard, also from the Public Defender's office, was substituting for Wetherbee. Wetherbee represented the appellant during the guilt/innocence and punishment stage of trial. In a complaint on appeal that the magistrate erred in taking appellant's guilty plea without giving Bernhard ten days to prepare for trial, this Court held, "where additional counsel is appointed, the new counsel is not entitled to the ten-day preparation period . . . Bernhard did not replace Wetherbee. She merely aided in appellant's defense by sitting for Wetherbee." Id. at 253. Citing Roberson, the State argues that the ten-day preparation period does not apply to Neugebauer because he was substitute counsel for Woodruff, not newly appointed counsel. Moreover, the State contends, even if article 1.051(e) applies to Neugebauer, there was no violation because the record does not show how many days of preparation time Neugebauer had in this case. We agree. Woodruff was appointed to the case about four months before trial. The record does not show Woodruff was removed from the case or that Neugebauer replaced him as substitute counsel. The record shows Woodruff represented appellant in an examining trial and filed various pre-trial motions on behalf of appellant three working days prior to trial. Appellant testified he met with Neugebauer the day of trial. When trial commenced, the record reflects appellant was present in the trial court "with his attorney, Mr. Greg Neugebauer; also, Ms. Mary Jo Earl[e] with the Public Defender's Office." Neugebauer represented appellant during the pre-trial hearing, jury selection, and at trial during both the guilt/innocence and punishment phases. In view of the fact that both Neugebauer and Woodruff were assistant public defenders, we cannot conclude that Neugebauer "replaced" Woodruff, but it appears he "aided in the appellant's defense by sitting for" Woodruff. See Roberson, 879 S.W.2d at 253. However, even assuming Neugebauer replaced Woodruff as appointed counsel, the record does not show how much time Neugebauer spent preparing for trial. The fact that Neugebauer met with the appellant on the day of trial does not demonstrate the total amount of time Neugebauer spent preparing for trial. Meeting with the client is one of many facets of trial preparation. Therefore, it is not apparent from the record whether Neugebauer had less than ten days to prepare for trial. See Wages, 573 S.W.2d at 806. Issue one is decided against appellant. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, appellant contends he received ineffective assistance of counsel from both attorneys that represented him in this case. The State responds there was no reversible error or prejudice because the record does not support his claim of ineffective assistance. A. Standard of Review and Applicable Law
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. The Sixth Amendment guarantees not just the right to counsel, but the right to the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). To prevail on a claim of ineffective assistance of counsel, the appellant must show the following: (1) counsel's performance fell well below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88; Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The Strickland standard applies in both guilt/innocence and punishment phases of a trial. Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex. Crim. App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). With regard to allegations of deficient performance, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Id. (citing Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. An appellate court should not try to second-guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex. Crim App. 1999) (en banc). 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. When the record is silent on the motivations underlying counsel's tactical decisions, appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). B. Application of Law to Facts
Appellant claims he received ineffective assistance from both of his attorneys. Appellant contends his first attorney, David Woodruff, was ineffective for failing to appear at trial and assist appellant through the trial of his case. We conclude Woodruff's lack of performance did not fall below an objective standard of reasonableness to satisfy the first prong of Strickland because another attorney at the public defender's office, Greg Neugebauer, represented appellant at trial. See Strickland, 466 U.S. at 687-88. As to his second attorney, Neugebauer, appellant contends he was ineffective because he did not adequately investigate appellant's prior convictions and mental history. The record is silent regarding Neugebauer's reasons for the challenged inaction. Appellant filed a motion for new trial, but did not allege ineffective assistance of counsel. No hearing on the motion for new trial was held. Thus, counsel was never given an opportunity to explain his trial strategy or reasoning for his conduct and decisions in the trial of this case. Ineffective assistance of counsel claims cannot "be built on retrospective speculation" but must be firmly rooted in the record, with the record itself affirmatively demonstrating the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 824 (Tex. Crim. App. 2002). We defer to the strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. See Mallett, 65 S.W.3d 63. Because the record is silent on the motivations underlying counsel's tactical decisions, appellant cannot overcome the strong presumption that counsel's conduct was reasonable. We resolve his second issue against him. IV. CONCLUSION
We decide appellant's two issues against him. The trial court's judgment is affirmed.