Opinion
No. 05-16-00169-CR
03-09-2017
DENNIS FRANCIS WOLEVER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F-1322426-L
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Schenck
Appellant Dennis Francis Wolever appeals the adjudication of his guilt and conviction for the offense of assault of a public servant. Appellant waived a jury trial and entered a negotiated guilty plea before the court. Pursuant to that plea agreement, the trial court deferred adjudication of guilt and placed appellant on community supervision for three years. Subsequently, the State moved to adjudicate appellant's guilt, claiming appellant had violated conditions of community supervision. Appellant entered an open plea of true to the alleged violations. The trial court granted the State's motion to proceed with adjudication of guilt and sentenced him to five years' confinement. In two issues, appellant argues he was denied due process by not having a record of the plea proceeding, and his trial counsel rendered ineffective assistance by allowing his plea to go forward without the benefit of a court reporter. We affirm the trial court's judgment. Because all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On September 24, 2013, appellant was charged by indictment with assault of a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2016). On October 22, 2013, the trial court found appellant incompetent to stand trial and committed him to a mental health facility for a period not greater than 120 days. On March 17, 2014, the trial court extended its commitment order for a further 60 days. On May 9, 2014, the mental health facility reported to the trial court that appellant was competent to stand trial at that time. On May 29, 2014, the trial court entered a judgment that appellant's competency had been restored. On May 12, 2015, appellant entered into a plea agreement with the State regarding the disposition of his case. Pursuant to the terms of the agreement, the trial court deferred a finding of guilt and placed appellant on deferred adjudication community supervision for a term of three years.
On January 28, 2016, the State filed a motion to proceed with an adjudication of guilt, alleging violations of seven conditions of appellant's community supervision. On February 10, 2016, appellant entered an open plea of true to all of the allegations in the State's motion to adjudicate. In his open plea, appellant acknowledged that his attorney had explained to him, and he had read and he understood, all of the admonitions and warnings regarding his rights and his plea, and that his statements and waivers were knowingly, freely, and voluntarily made with full understanding of the consequences. The trial court granted the State's motion to proceed with an adjudication of guilt and sentenced appellant to five years' confinement in the Texas Department of Criminal Justice. Thereafter, appellant filed a motion for new trial arguing the judgment is contrary to the law and evidence. The trial court overruled the motion and this appeal followed.
DISCUSSION
I. Court Reporter's Record
In his first issue, appellant claims the trial court denied him due process of law by failing to have a court reporter make a record of the plea proceeding. Texas Rule of Appellate Procedure 13.1(a) requires the official court reporter to attend court sessions and make a full record of the proceedings unless excused by agreement of the parties. TEX. R. APP. P. 13.1(a). In order to preserve any error on appeal that maybe caused by the absence of the court reporter, the complaining party must make a record showing error in the trial court by objecting to the lack of a court reporter. Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011). The right to a court reporter is a right that may be forfeited by the defendant if he or she fails to request a reporter or object to the absence of one. Satterfield v. State, 367 S.W.3d 868, 870 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd).
There is no indication in the record that appellant objected to the court reporter's failure to record his plea proceeding, either before the trial court during the proceeding or in his post-judgment motion. Because the record does not indicate either that appellant requested that a court reporter record his plea or that appellant objected to the court reporter's absence from or failure to record the proceeding, we follow the Court of Criminal Appeals' holding in Davis, and conclude appellant has failed to preserve for appellate review his complaint that the trial court denied him due process by failing to require the court reporter to record the proceeding. See Davis, 345 S.W.3d at 77; Satterfield, 367 S.W.3d at 871; see also Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) ("[O]ur prior decisions make clear that numerous constitutional rights, including those that implicate a defendant's due process rights, may be forfeited for purposes of appellate review unless properly preserved."). While appellant asserts because of his history of mental illness a recording should have been made to assure he knowingly and voluntarily entered his plea, the record reflects the trial court adjudicated appellant competent to stand trial as of May 29, 2014, and appellant does not challenge that judgment. Accordingly, we overrule appellant's first issue.
II. Ineffective Assistance of Counsel
In his second issue, appellant claims his counsel rendered ineffective assistance by allowing his plea proceeding to go forward without a court reporter. Texas courts apply the two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland two-prong test). Under this two-part test, appellant must establish that: (1) counsel's performance was deficient and that his assistance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not find counsel's representation ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
To satisfy the first prong, appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To prove the second prong, appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Lopez, 343 S.W.3d at 142.
We 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). Without evidence of the strategy employed, we will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).
The rules of appellate procedure provide that a court reporter is required to attend court sessions and make a full record of the proceedings unless excused by agreement of the parties. TEX. R. APP. P. 13.1(a). A failure to request that a court reporter record trial proceedings, however, is not per se ineffective assistance of counsel. Green v. State, No. 05-15-00453-CR, 2016 WL 335677, at *2 (Tex. App.—Dallas Jan. 27, 2016, no pet.) (citing Young v. State, 425 S.W.3d 469, 473 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd)). As a result, any deficient performance in this case must be established on the record.
While appellant filed a motion for new trial, he did not raise ineffective assistance of counsel as a ground for new trial and there was no evidentiary hearing conducted in connection with that motion. Therefore, the record was not developed as to the reasons underlying counsel's conduct. See Thompson, 9 S.W.3d at 813. Thus, appellant has failed to overcome the strong presumption that counsel rendered effective assistance and satisfy the first prong of Strickland. See Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012); Kelley v. State, Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 WL 363751, at *2 (Tex. App.—Dallas Jan. 31, 2013, pet. ref'd) (mem. op.). In addition, appellant does not demonstrate how the outcome of his case would have been different had his plea proceeding been recorded; and thus, has failed to satisfy the second prong of Strickland. For all of these reasons, we resolve appellant's second issue against him.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 160169F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F-1322426-L.
Opinion delivered by Justice Schenck. Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 9th day of March, 2017.