ACCEPTED 05-15-00453-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 8/14/2015 2:21:35 PM LISA MATZ CLERK
5th Court of Appeals FILED: 08/17/2015 Lisa Matz, Clerk NO. 05-15-00453-CR
10:18:57 IN THE COURT OF APPEALS RECEIVED IN 5th COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXASDALLAS, TEXAS AT DALLAS 8/14/2015 2:21:35 PM LISA MATZ Clerk
TILWEN JOSEPH GREEN, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
On appeal from the Criminal District Court No. 5 of Dallas County In Cause Number F09-30331-L
STATE’S BRIEF
Counsel of Record: Susan Hawk Johanna H. Kubalak Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24014297 Frank Crowley Courts Bldg. 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3639 (214) 653-3643 fax Anna.Kubalak@dallascounty.org
ATTORNEYS FOR THE STATE OF TEXAS TABLE OF CONTENTS
INDEX OF AUTHORITIES ....................................................................... ii
STATEMENT OF THE CASE .................................................................... 1
STATEMENT OF FACTS .......................................................................... 1
SUMMARY OF ARGUMENT ................................................................... 3
ARGUMENT ............................................................................................. 4
RESPONSE TO APPELLANT’S SOLE ISSUE:
The record does not support appellant’s claim that trial counsel was ineffective for failing to request that a court reporter transcribe the adjudication hearing. .............................................................................. 4
A. To establish ineffective assistance of counsel, appellant must show both deficient performance and prejudice. ............................ 4 B. Appellant has failed to defeat the presumption that counsel provided reasonable professional assistance. .................................. 6
C. Appellant has failed to establish that counsel’s performance, assuming it was deficient, prejudiced his defense. .......................... 8
PRAYER .................................................................................................. 10
CERTIFICATE OF COMPLIANCE ......................................................... 10
CERTIFICATE OF SERVICE .................................................................. 11
i INDEX OF AUTHORITIES
Cases
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ..................................................... 5
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) .................................................... 6
Kelley v. State, Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 Tex. App. LEXIS 985 (Tex. App.—Dallas Jan. 31, 2013, pet. ref’d) (not designated for publication) ...... 7
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) ......................................... 4, 5, 6, 7
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) ................................................ 5, 7
Rivera v. State, 981 S.W.2d 336 (Tex. App.—Houston [14th Dist.] 1998, no pet.)............... 8
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) .................................................... 7
Satterfield v. State, 367 S.W.3d 868 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)........ 8, 9
Strickland v. Washington, 466 U.S. 668 (1984) ..................................................................... 4, 5, 7, 10
Tapia v. State, 462 S.W.3d 29 (Tex. Crim. App. 2015) ..................................................... 9
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ................................................5, 6, 7
Young v. State, 425 S.W.3d 469 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) .............. 8
ii Statutes
Tex. Penal Code Ann. § 12.33 (West 2011) ................................................... 9
Tex. Penal Code Ann. § 22.02 (West 2011) ................................................... 1
Rule
Tex. R. App. P. 13.1 .................................................................................... 6
iii TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in response to the brief of appellant,
Tilwen Joseph Green.
STATEMENT OF THE CASE
Appellant waived his right to a jury trial and entered a non-negotiated
plea of guilty to the second-degree-felony offense of aggravated assault with a
deadly weapon. (C.R.: 9, 23; R.R.: 5). See Tex. Penal Code Ann. § 22.02(a)(2),
(b) (West 2011). The trial court accepted appellant’s plea but deferred further
proceedings without entering an adjudication of guilt and placed appellant on
six years’ community supervision. (C.R.: 30; R.R.: 6, 18).
The State later moved to proceed with an adjudication of guilt, alleging
that appellant had violated certain conditions of his community supervision.
(C.R.: 44-45). Appellant entered non-negotiated pleas of true to the alleged
violations. (C.R.: 56-57). The trial court found the violations to be true, found
appellant guilty of the charged offense, and assessed his punishment at six
years’ imprisonment. (C.R.: 51).
STATEMENT OF FACTS
The indictment alleged that appellant caused bodily injury to the
complainant, Alfred Royal, by cutting and stabbing him with a knife. (C.R.: 9).
Appellant pleaded guilty to the indictment at a hearing on May 17, 2010.
1 (R.R.: 5). The State offered into evidence appellant’s signed judicial
confession, which tracked the language of the indictment, and it was admitted
without objection. (C.R.: 26; R.R.: 5-6). The trial court accepted appellant’s
plea and then passed the case for sentencing at a later date. (R.R.: 6).
The proceedings resumed on September 21, 2010. (R.R.: 7). The State
called Royal, who testified to the physical and financial hardships he had
suffered as a result of the assault and to his desire that appellant receive prison
time. (R.R.: 7-11). Testifying on his own behalf, appellant spoke about his own
recent medical problems and expressed regret for what he had done to Royal.
(R.R.: 13-14). He asked the trial court to grant him deferred-adjudication
probation. (R.R.: 15). After hearing closing arguments, the trial court ruled
that it was not going to find appellant guilty at that time but would place him
on six years’ deferred-adjudication probation. (R.R.: 18).
The State filed its motion to proceed with an adjudication of guilt on
May 6, 2014, alleging that appellant had violated four conditions of his
community supervision. (C.R.: 44-45). On March 13, 2015, appellant signed
an open plea agreement, in which he pleaded true and judicially confessed to
all four violations. (C.R.: 56-57). The docket sheet reflects that a hearing on the
motion to adjudicate was held on that same date. (C.R.: 8). Also on that same
2 date, the trial court entered its judgment adjudicating appellant’s guilt and
sentencing him to six years’ imprisonment. (C.R.: 51).
The reporter’s record filed in this case does not include a transcription of
the March 13, 2015 adjudication hearing. It does, however, include the
following note: “The Motion to Proceed held March 13, 2015, the reporter’s
appearance was waived by Counsel for Defendant . . . . Therefore, no
reporter’s record is available for filing with the Court in that matter.” (R.R.:
19).
SUMMARY OF ARGUMENT
The record does not support appellant’s claim that his trial counsel was
ineffective for failing to ensure that a record was made of the adjudication
hearing. The record before this Court is silent as to the reasoning behind
counsel’s decision not to have a court reporter transcribe the hearing.
Accordingly, this Court must presume that counsel’s performance fell within
the wide range of reasonable professional assistance. Additionally, appellant
does not point to any specific error that a transcript of the adjudication hearing
would have revealed. Thus, he has failed to show that the lack of a record has
prejudiced his defense.
3 ARGUMENT
RESPONSE TO APPELLANT’S SOLE ISSUE
The record does not support appellant’s claim that trial counsel was ineffective for failing to request that a court reporter transcribe the adjudication hearing. In his sole issue, appellant contends that his trial counsel rendered
ineffective assistance by failing to have a court reporter transcribe the hearing
on the State’s motion to proceed with an adjudication of guilt. He argues that
the lack of a record makes it impossible to determine whether any error
occurred at the adjudication hearing.
A. To establish ineffective assistance of counsel, appellant must show both deficient performance and prejudice.
To prevail on his ineffective-assistance claim, appellant must first show
that counsel’s performance was deficient. See Strickland v. Washington, 466 U.S.
668, 687 (1984). Specifically, appellant must prove by a preponderance of the
evidence that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. See Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). Next, appellant must show that
counsel’s deficient performance prejudiced his defense. See Strickland, 466 U.S.
at 687. To prove prejudice, appellant must show that there is a reasonable
probability — meaning a probability sufficient to undermine confidence in the
4 outcome — that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. See Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999).
Judicial scrutiny of counsel’s performance is highly deferential, and an
appellate court must indulge a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance. See Strickland, 466
U.S. at 689; Lopez, 343 S.W.3d at 142. To defeat this presumption, a defendant
alleging ineffective assistance of counsel must prove, by a preponderance of the
evidence, that there was, in fact, no plausible professional reason for the
challenged act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.
App. 2002).
The Court of Criminal Appeals has repeatedly stated that ineffective-
assistance claims are generally not successful on direct appeal and are more
appropriately urged in a hearing on an application for a writ of habeas corpus.
Lopez, 343 S.W.3d at 143. The record on direct appeal is usually undeveloped
and inadequately reflective of the reasons for defense counsel’s actions or
inactions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
For an ineffective-assistance claim to prevail on direct appeal, the record must
demonstrate that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could
5 have justified counsel’s acts or omissions, regardless of his or her subjective
reasoning. Lopez, 343 S.W.3d at 143.
B. Appellant has failed to defeat the presumption that counsel provided reasonable professional assistance.
A court reporter is generally required to attend and record all court
proceedings unless excused by agreement of the parties. See Tex. R. App. P.
13.1(a). The reporter’s record in this case contains a note indicating that trial
counsel waived the appearance of the court reporter at the adjudication
hearing. (R.R.: 19). Appellant, however, argues that nothing in the plea papers
or the docket sheet reflects that he knowingly and voluntarily agreed to waive
his right to a court reporter. He also contends that “[w]ithout a record, it
cannot be determined whether counsel objected to the lack of a reporter at the
sentencing hearing.” (Appellant’s Brief, p. 7).
This uncertainty regarding exactly what counsel did or did not do at trial
and the reasoning behind counsel’s apparent decision not to have a record
made of the adjudication hearing illustrates why direct appeal is usually an
inadequate vehicle for raising an ineffective-assistance claim. See Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An allegation of
ineffectiveness must be “firmly founded in the record,” and “the record must
affirmatively demonstrate” the meritorious nature of the claim. Id. (quoting
Thompson, 9 S.W.3d at 814). It is not appropriate for an appellate court to 6 simply infer ineffective assistance based upon unclear portions of the record.
Mata, 226 S.W.3d at 432. Moreover, trial counsel “should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Here, the record is silent as to counsel’s reasons for either waiving the
court reporter’s attendance or otherwise failing to ensure that a transcription
was made of the adjudication hearing. Appellant did not file a motion for new
trial or attempt in some other way to develop a record explaining counsel’s
reasons for not insisting upon a court reporter’s presence. Under these
circumstances, appellant has failed to rebut the strong presumption that
counsel’s conduct fell within the wide range of reasonable professional
assistance. See Lopez, 343 S.W.3d at 143-44; Thompson, 9 S.W.3d at 814; see
also, e.g., Kelley v. State, Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 Tex.
App. LEXIS 985, at *5 (Tex. App.—Dallas Jan. 31, 2013, pet. ref’d) (not
designated for publication) (holding that the defendant failed to satisfy the
deficient-performance prong of Strickland where the record was silent as to
counsel’s reasoning or rationale for not requesting a court reporter at the open-
plea hearing). Because he has failed to meet his burden of showing deficient
performance, appellant’s ineffective-assistance claim should be overruled. See
Strickland, 466 U.S. at 700; Lopez, 343 S.W.3d at 144.
7 C. Appellant has failed to establish that counsel’s performance, assuming it was deficient, prejudiced his defense.
The failure to request that a court reporter transcribe a plea hearing does
not per se constitute ineffective assistance of counsel. See Young v. State, 425
S.W.3d 469, 473 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). When
counsel did not request a transcription, an appellate court will not speculate as
to what actually occurred at the hearing. Id. The defendant must point to some
specific injury resulting from the failure to request a recording of the
proceeding. Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th
Dist.] 1998, no pet.).
Appellant does not allege that any specific error occurred at the
adjudication hearing. Instead, he argues that the lack of a record prevents him
from searching for potential error. This is not a sufficient showing of prejudice.
See Young, 425 S.W.3d at 473; Satterfield v. State, 367 S.W.3d 868, 871 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d). Appellant does not elaborate on
what type of error might have occurred; he merely points out that “[t]his was
an open plea of true which required the trial court to determine whether to
adjudicate guilt.” (Appellant’s Brief, p. 6). But the likelihood of a successful
appeal of the trial court’s decision to adjudicate guilt in this case is small, at
best. See Rivera, 981 S.W.2d at 339 (“Where the prospect of a successful appeal
is slight, the value of a court reporter is diminished.”). Appellant does not 8 dispute that he pleaded true to the allegations in the State’s motion to
adjudicate. A plea of true, standing alone, is sufficient to support a trial court’s
decision to revoke community supervision and adjudicate guilt. Tapia v. State,
462 S.W.3d 29, 29 n.2 (Tex. Crim. App. 2015). When, as in this case, a
defendant enters a plea of true at an adjudication hearing, the proceeding
becomes a unitary one to determine the remaining issue of punishment. Id.
Appellant does not contend that his punishment in this case was somehow
unfair. Indeed, the six-year sentence was at the low end of the two-to-twenty-
year punishment range for a second-degree felony and corresponded to the
original term of community supervision. See Tex. Penal Code Ann. § 12.33(a)
(West 2011).
Without an allegation of a specific error to which a transcription of the
adjudication hearing would be relevant, appellant cannot show that, but for
counsel’s failure to request a record, a reasonable probability exists that the
result of the proceeding would have been different. See, e.g., Satterfield, 367
S.W.3d at 871-72 (holding that the defendant failed to show he was prejudiced
by counsel’s failure to request a recording of the punishment hearing that
followed his entry of a guilty plea before the court where the defendant did not
allege that any error occurred during the punishment hearing, and the chances
of a successful appeal were remote). Appellant has therefore failed to establish
9 the prejudice component of his ineffective-assistance claim, and his sole issue
should be overruled. See Strickland, 466 U.S. at 687.
PRAYER
The State prays that this Honorable Court affirm the trial court’s
judgment.
Respectfully submitted,
/s/ Johanna H. Kubalak Susan Hawk Johanna H. Kubalak Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24014297 Frank Crowley Courts Bldg. 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3639 (214) 653-3643 fax Anna.Kubalak@dallascounty.org
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief, inclusive of all contents, is 2,557
words in length according to Microsoft Word 2010, which was used to prepare
the brief, and complies with the word-count limit in the Texas Rules of
Appellate Procedure. See Tex. R. App. P. 9.4(i).
/s/ Johanna H. Kubalak Johanna H. Kubalak
10 CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing State’s brief was served
on Dianne Jones McVay, attorney for appellant, via electronic delivery to
dianne@jonesmcvay.com on August 14, 2015.