Charles Layman Cox v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-378-CR
CHARLES LAYMAN COX APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Charles Layman Cox appeals the sixty-five-year sentence
imposed after the trial court adjudicated him guilty of violating conditions of his
community supervision. In two issues, Cox argues that he was denied effective
assistance of counsel during the revocation proceeding and that the judgment
1
… See Tex. R. App. P. 47.4.
should be reformed to reflect a fifty-five-year sentence instead of a sixty-five-
year sentence because the reporter’s record shows that the trial judge imposed
a fifty-five-year sentence. We will affirm.
II. P ROCEDURAL B ACKGROUND
On November 1, 1996, a grand jury indicted Cox for the offense of
aggravated sexual assault of a child under fourteen. On April 27, 1998, Cox
entered a guilty plea, and the trial court placed him on deferred adjudication for
seven years pursuant to a plea bargain agreement. That same day, Cox signed
“Conditions of Community Supervision,” which included the conditions that Cox
avoid injurious or vicious habits and abstain from the illegal use of controlled
substances, marijuana, and cannabinoids or the excessive consumption of
alcoholic beverages, report to the community supervision and corrections
department of Tarrant County, and attend and participate in sex offender
treatment.
On December 15, 1999, the State filed its petition to proceed to
adjudication, and on April 12, 2005, the State filed its first amended petition
to proceed to adjudication. The State alleged that Cox did not attend sex
offender counseling sessions because he was discharged from treatment for
failing to attend the counseling sessions, he consumed alcohol in violation of
2
his terms of community supervision, and he did not report to his supervision
officer for sixty-five consecutive months.
On October 4, 2007, the trial court held a hearing on the State’s motion
to proceed to adjudication. Cox pleaded true to the three violations. After both
sides presented evidence, the trial court found that Cox did not complete sex
offender counseling/treatment, used alcohol in violation of his deferred
adjudication conditions, and failed to report to community supervision. The trial
court then found Cox guilty of the offense of aggravated sexual assault of a
child under fourteen and sentenced him to sixty-five-years’ imprisonment. This
appeal followed.
III. INEFFECTIVE A SSISTANCE OF C OUNSEL
In his first issue, Cox argues that he was denied effective assistance of
counsel because at the revocation hearing, his attorney allowed evidence to be
admitted which was hearsay, violated the Confrontation Clause, or both.
A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
3
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
4
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In
other words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
B. Analysis
Although a defendant cannot appeal the trial court’s decision to
adjudicate guilt, he can appeal aspects of the “second phase to determine
punishment.” Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001); see
also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008). Here,
Cox is not appealing the decision to adjudicate guilt; rather, he is complaining
only about punishment issues.
5
Cox argues that he was denied effective assistance of counsel because
his attorney did not object during the testimony of Sally Smith, Officer Mitchell
Maestes, and Marie Mollett on the basis of hearsay and violation of the
Confrontation Clause. However, the record does not reflect Cox’s attorney’s
reasoning and strategy for not objecting to the alleged hearsay and
Confrontation Clause violations. See Hernandez v. State, No. 02-05-00243-CR,
2006 WL 563247, at *2 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem.
op., not designated for publication); see also Garza v. State, 213 S.W.3d 338,
348 (Tex. Crim. App. 2007) (holding that counsel’s failure to object to hearsay
testimony that allegedly violated the Confrontation Clause could have been
reasonable trial strategy); Darby v. State, 922 S.W.2d 614, 623–24 (Tex.
App.—Fort Worth 1996, pet. ref’d) (holding failure to object to inadmissible
hearsay could have been trial strategy). Accordingly, the record before us is
insufficient to show that Cox’s attorney’s action were unreasonable or fell
below the standard of prevailing professional norms. Strickland, 466 U.S. at
694, 104 S. Ct. at 2052; Garza, 213 S.W.3d at 348. Because Cox cannot
show that his attorney was deficient, he cannot demonstrate that his attorney
was ineffective under Strickland. Thus, we overrule Cox’s first issue.
IV. C ORRECTION TO R EPORTER’S R ECORD
6
In his second issue, Cox argues that the judgment should be reformed to
match the reporter’s record, which shows that the trial judge sentenced Cox to
fifty-five years rather than the sixty-five years reflected on the judgment.
However, after abating the appeal to the trial court, the trial court found that
“the reporter’s record mistakenly sets out the trial court’s oral pronouncement
of sentence as fifty-five years[] in the Institutional Division of the Texas
Department of Criminal Justice, rather than the sixty-five[-]year sentence
actually pronounced.” The trial court also found that the corrected reporter’s
record accurately reflects the proceedings of the trial court and adopted the
corrected reporter’s record. Because the corrected reporter’s record matches
the judgment, the sentence reflected in the judgment need not be reformed.
We therefore overrule Cox’s second as moot.
V. C ONCLUSION
Having overruled both of Cox’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: WALKER, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
7
DELIVERED: September 25, 2008
8