Rooks v. State

Full title: SHERRIL LEE ROOKS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Oct 29, 2009

No. 01-09-00213-CR (Tex. App. Oct. 29, 2009)

Opinion

No. 01-09-00213-CR

Opinion issued October 29, 2009. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).

On Appeal from the 2nd District Court Cherokee County, ¹Texas, Trial Court Cause No. 16,660.

1 This appeal was originally filed in the Twelfth Court of Appeals under Docket No. 12-09-00044-CR but was transferred to the Houston First Court of Appeals. Tex. Gov't Code Ann. § 73.001 (Vernon 2005) (giving Texas Supreme Court authority to transfer cases from one court of appeals to another on good cause).

Panel consists of Justices JENNINGS, HIGLEY, and SHARP.

MEMORANDUM OPINION

TERRY JENNINGS, Justice.

Appellant, Sherril Lee Rooks, pursuant to a plea agreement with the State, pleaded guilty to the felony offense of driving while intoxicated.² The trial court sentenced appellant to ten years confinement, suspended the sentence, placed him on community supervision for eight years, and assessed a $500 fine. The State subsequently moved to revoke community supervision, the terms of which required appellant to "commit no offense against the laws of this or any State," avoid "injurious or vicious habits," and "abstain from the use of narcotic or habit forming drugs without a doctor's prescription." In its motion, the State alleged that appellant had violated several conditions of community supervision by inhaling volatile chemicals.³ In two points of error, appellant contends that the trial court violated the Fifth Amendment by compelling him to be a witness against himself and his trial counsel provided ineffective assistance by neither objecting to the trial court's questioning that compelled appellant to be a witness against himself nor advising appellant to remain silent. We affirm.

2 See Tex. Penal Code Ann. §§ 49.04, 49.09 (Vernon 2006).

3 See Tex. Health Safety Code Ann. § 485.031(a) (Vernon 2003) (prohibiting individual from inhaling, ingesting, applying, using, or possessing "an abusable volatile chemical with intent to inhale, ingest, apply, or use the chemical in a manner" contrary to directions for use in order to create "a condition of intoxication, hallucination, or elation").

Background

On November 6, 2008, the trial court held a hearing on the State's motion to revoke appellant's community supervision. The State alleged that appellant violated the conditions of community supervision requiring that appellant "avoid injurious or vicious habits" and "abstain from the use of narcotic or habit forming drugs without a doctor's prescription." At the beginning of the hearing, the trial court informed appellant of his privilege against self-incrimination. Appellant's Probation Officer Ouida Woodroof then testified that appellant had incurred "three new . . . inhalants charges" after appellant was placed on community supervision on April 13, 2007. Jacksonville Police Officer James Hogg testified that he arrested appellant on two occasions after appellant's ex-wife had called to report that he was "huffing paint." After appellant's trial counsel presented his closing argument, the following exchange occurred between the trial court, trial counsel, and appellant: [The trial court]: Well, I differ with you, [trial counsel]. [Throwing Mr. Rooks in the penitentiary] is not the easy thing and it's not the thing that has been tried. And unfortunately here we are today and he's been to three different rehab places and now he's sniffing paint. Now, I'm no expert, but when a man is down to sniffing paint, he's desperate. I mean that's beyond the [pale]. That's beyond comprehension, that a man wants to get high so bad he just inhales paint. I mean that's the lowest form of-I mean just to cover yourself in paint. I mean everything they've done has seemed to make it worse. It's one thing to get on pain pills. It's another thing to be sniffing paint. He's digressing with treatment. He's not progressing. I don't know how many brain cells he has-You know, it's amazing he's even with us. Mr. Rooks, I don't know [that I] have any solutions for you. And you say, well, society has tried.

[Appellant]: Sir, I was hurting real bad at that time.

[The trial court]: I understand.

[Appellant]: I hadn't messed up but that once since I had come home from that clinic. And I done all my probation, I paid my money, I done the DWI classes. I've been going to NA before I had messed up that once. I'm only asking for just this one time.

[The trial court]: Where do I send you? I can't get you off the pain killers. When you don't get pain killers you sniff paint. You pled guilty to three DWIs. Who are you going to run over and kill? The last time they went out there to arrest you, you were sitting in the driver's seat of a car.

[Appellant]: That car didn't run, sir. It was left at my house because it didn't run. I just went out and sat in the car to get away from my house.

[The trial court]: So you could sniff paint?

[Appellant]: At that time I was hurting real bad and I just come home from that clinic. The reason that I come home from that clinic at that time is I had to be at court the next day. So, instead of staying in the clinic I had to check out and they gave me like five prescriptions and sent me home. And I was hurting sitting there and I had to be in court the next morning. I didn't know what else to do.

[The trial court]: So you sniffed paint?

[Appellant]: Really, I was gonna spray some stuff that you spray on vinyl and I was in a car with no ventilation and I begin to spray it and I wind up, evidently, I guess that's what I done. To tell you the truth, I don't really know what happened at that time in that car. Outside of what the police officer says, I did not have the intent of inhaling anything.

[The trial court]: Mr. Rooks, I'd prefer you take the witness stand than to sit there and argue with me. But that's not the first time they'd been out there and you were sniffing paint. I'm not fussing at you. Well, maybe I am. You act like this was an individual, unique experience. It had happened before.

[Appellant]: But I'm saying I am trying to hold together and I was doing good for this last time and doing everything that was on my probation, and I believe I can do right. I believe this is the only opportunity that I'll have before somebody does send me away to prison for my full time and this is probably my last chance.

[The trial court]: You tell me what the alternative is.

[Appellant]: Sir, I've been in jail for 150 days which is longer than I've been in any program, longer than I've ever been anywhere away from my family in twenty-six years. That jail does make a difference. You realize that even though you've lost because of injuries, you lose your house, you lose your cars, you lose different things, but you have a family. When you go to jail that's taken away from you. And I've realized that sitting in that jail for five months now that the most important thing in life is my family.

The trial court then granted the State's motion to revoke appellant's community supervision and assessed his punishment.

Right Against Self Incrimination

In his first point of error, appellant argues that the trial court "violated [his] Fifth Amendment right against self-incrimination by compelling him to be a witness against himself." Every individual has the right to avoid self-incrimination by exercising the privilege provided by the Fifth Amendment of the United States Constitution. See U.S. Const. amend. V ("No person . . . shall be compelled in any criminal case to be a witness against himself. . . ."); see Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003). However, the Fifth Amendment speaks of compulsion; it does not preclude a defendant from testifying voluntarily in matters which may incriminate him. Minnesota v. Murphy, 465 U.S. 420, 427, 104 S. Ct. 1136, 1142 (1984) (citing United States v. Monia, 317 U.S. 424, 427, 135 S. Ct. 409, 410 (1943)). Further, the privilege against compelled self-incrimination is not ordinarily self-executing. Chapman, 115 S.W.3d at 6. A defendant who desires the protection of the privilege must assert it or he will not be considered to have been "compelled" within the meaning of the Fifth Amendment. Murphy, 465 U.S. at 427-28, 104 S. Ct. at 1142-43. A defendant must also timely assert his privilege. Chapman, 115 S.W.3d at 6; see Murphy, 465 U.S. at 427-28, 104 S. Ct. at 1142-43. A defendant may waive the privilege by voluntarily becoming a witness. Chavez v. State, 508 S.W.2d 384, 385 (Tex. Crim. App. 1974). The Texas Code of Criminal Procedure allows the admission into evidence of such a voluntarily offered statement "made by the accused in open court." Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Here, the undisputed testimony of Parole Officer Woodruff and Officer Hogg established that appellant had been arrested twice for "huffing" or sniffing paint since he was placed on community supervision. Appellant's sniffing of paint violated the condition of his community supervision that he abstain from the use of narcotic or habit forming drugs without a prescription. Appellant was not called to testify as a witness. However, after trial counsel made his closing argument and the trial court began making statements in preparation for its ruling, appellant initiated a dialogue with the trial court. In attempting to explain why he had been sniffing paint and asking the court to sympathize with him, appellant made an unsolicited plea for mercy. Nothing in the record indicates that appellant's statements during this dialogue were involuntary. The trial court had informed appellant of his privilege against self-incrimination and made no threats should appellant choose to assert that privilege. Appellant did not choose to assert his privilege at any point during the exchange. Appellant had the burden to assert his privilege. Instead, he chose to speak to the court and ask for mercy. Under these facts, we cannot conclude that the trial court compelled appellant to become a witness against himself within the meaning of the Fifth Amendment. Accordingly, we hold that the trial court did not violate appellant's Fifth Amendment right against compelled self-incrimination. We overrule appellant's first point of error.

Ineffective Assistance of Counsel

In his second point of error, appellant argues that his trial counsel provided ineffective assistance because he "failed to object to the [trial court's] questioning" of appellant and "made no effort to attempt to explain to [appellant] the possible repercussions . . . for making such admissions in response to the [trial court's] questions." The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland requires a two-step analysis whereby an appellant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Id. at 687-94, 104 S. Ct. at 2064-2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. The record must affirmatively support the alleged ineffectiveness. Id. When the record is silent, we may not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). Appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Gamble, 916 S.W.2d at 93. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Here, appellant asserts that his trial counsel did not object during the exchange between the trial court and appellant and "made no effort to attempt to explain to his client the possible repercussions to his client for making such admissions in response to the judge's questions." The record here is silent as to what advice, if any, trial counsel may have provided to appellant before the hearing regarding appellant's right not to testify or to make any statements to the court. Further, the State had already met its burden to prove by a preponderance that appellant had violated at least one condition of his community supervision by showing that he had been twice arrested by Officer Hogg for sniffing paint. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). In light of this evidence, appellant's admissions were not, as appellant contends, "likely a substantial factor in the judge's decision" to revoke his community supervision. In any case, the record is silent as to trial counsel's strategy. To find that trial counsel was ineffective in this case would call for speculation, which we will not engage in. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93. Accordingly, we hold that appellant has not satisfied the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.