Easily v. State , 248 S.W.3d 272 ( 2008 )

OPINION

SHERRY RADACK, Chief Justice.

The first trial of appellant, Randy Darnell Easily, ended in a mistrial when the jury became deadlocked. In his second trial, a jury convicted appellant of felony possession of over 400 grams of the controlled substance, dihydrocodeinone (Vico-din). Appellant’s conviction was enhanced by allegations of two prior felony offenses, to which appellant pleaded true. One pri- or offense involved possession of a controlled substance; the second involved possession and delivery of a controlled substance. Out of a possible range of 25 years to life in prison as a habitual offender, the jury assessed punishment at 99 years’ incarceration. In two points of error, appellant contends that (1) his retained trial counsel was ineffective because he did not provide affidavit support for his motion requesting a free reporter’s record from the first trial and (2) the trial court committed constitutional error by denying appellant a free reporter’s record of his first trial. We affirm.

Background

Appellant was arrested as the result of an undercover sting operation. Two of the undercover officers testified for the State at trial. A third officer had been wounded in an unrelated incident and was unavailable to testify. One of the officers who testified conceded that he never saw appellant with the container of dihydrocodein-one later seized by the officers.

Appellant retained Peter Justin to represent him in his first trial, which ended in a mistrial declared on July 22, 2005. Justin moved to withdraw on September 20, 2005, on the grounds that appellant was “without funds to pay for another trial.” On the same day, Justin filed an unverified motion in which he asserted that two police officers testified at appellant’s trial and requested a “record of that prior testimony to prepare for trial” on the grounds that appellant was “without funds or resources to pay for a record.” The trial court granted Justin’s motion to withdraw that same day, but did not rule on the motion he filed to request the free record.¹

On September 28, 2005, the trial court signed an order stating that appellant had “executed an affidavit stating that [he] is without counsel and is financially unable to hire an attorney” and appointing Danny Easterling as counsel to represent appellant. About a month later, on October 26, 2005, the trial court granted a request filed by Easterling for appointment of an investigator, also on grounds of indigency, at a cost not to exceed $750.

Five days later, however, on November 1, 2005, the trial court granted a motion in which appellant requested that counsel appointed on September 28, 2005 be permitted to withdraw and that newly retained counsel, Steven Goins, be substituted. Goins became appellant’s trial counsel as of that date.

On November 29, 2005, Goins filed a motion asking that the trial court “provide the record of previous testimony” from the first trial. Despite having been retained, Goins stated in the motion that appellant “is indigent” and that counsel sought to review the testimony from the first trial. The trial court’s order denying the motion reflects two handwritten notations by the trial court. The first notation states, “No evidence presented.” The second notation was, “Mr. Easily has retained counsel & previously had retained counsel.” Goins represented appellant through the end of trial.

Appellant filed a notice of appeal on the day the judgment was signed, and requested and obtained appointment of appellate counsel on the grounds that he was indigent. Appellant also obtained an order for a free record of his second trial for use on appeal. Newly appointed counsel for appeal, Leah Borg, filed a motion for new trial, claiming that Goins was ineffective in several respects, including the reason presented in this appeal. No hearing on the motion was held. The trial court denied the motion for new trial on June 23, 2006. Borg was permitted to withdraw after a hearing ordered by this Court, and a second counsel for appeal was appointed on September 13, 2006 and continues to represent appellant.

The record thus demonstrates that the trial court found that appellant was indigent on September 28, 2005, after the first trial and before retained counsel Goins substituted for appointed counsel, and was indigent again after the second trial. It is undisputed, however, that appellant was represented by retained counsel Justin at his first trial and by retained counsel Goins at his second trial.

Indigent Defendant’s Right to Free Record of First Trial

Both of appellant’s points of error concern claims that he was entitled to a free record of his first trial.

Equal protection demands that the State provide an indigent criminal defendant a transcription of testimony from a previous proceeding if it is needed for an effective appeal or an effective defense. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). The interest protected ensures that the trial a person obtains is not determined by “the amount of money he has.” Id., 404 U.S. at 231, 92 S.Ct. at 435 (Douglas, J., dissenting) (quoting Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956)). Britt, like this case, involved a request for a free record after a mistrial. See id. The Supreme Court ruled that the following two factors are relevant to determining a defendant’s need: the value of the transcription in connection with the defense and the availability of alternative devices that would fulfill the same functions as a transcription. See id., 404 U.S. at 227, 92 S.Ct. at 433-34. Transcription of a prior proceeding is presumptively valuable to a defendant without a particularized showing of need. Id., 404 U.S. at 228, 92 S.Ct. at 434.² If an adequate alternative to a transcription is available to the defendant, however, then the trial court does not err in refusing to order the State to provide a free transcription to an indigent defendant. See id., 404 U.S. at 228-30, 92 S.Ct. at 434-35.

An adequate alternative was available in Britt, in which the defendant conceded that his counsel could have asked the court reporter to read back the notes of the prior proceeding “well in advance of the second trial.” Id., 404 U.S. at 229, 92 S.Ct. at 435. Because an “informal alternative” that appeared “substantially equivalent to a transcript” was available, the Supreme Court ruled that the trial court did not err by denying the defendant’s request for a free copy of the transcript. Id., 404 U.S. at 230, 92 S.Ct. at 435.

In White v. State, the Court of Criminal Appeals applied, but also distinguished, Bñtt when the court held that denying a continuance to allow an indigent defendant to obtain a transcript of a prior proceeding was reversible error. 828 S.W.2d 296, 300 (Tex.Crim.App.1992). The White court presumed that the defendant was harmed in the absence of a showing, by the State, that the defendant did not need the transcription from the earlier proceeding. Id. at 299-300. In reaching this conclusion, the White court recognized a critical difference from the circumstances of the Bñtt case. Id. at 299.

Specifically, in contrast to Bñtt, White did not have access to the court reporter “well in advance of the second trial” Id. (quoting Britt, 404 U.S. at 229, 92 S.Ct. at 435) (emphasis in White). To the contrary, if a conflict in testimony arose at the second proceeding in White, the trial court expected defense counsel “to resort to the more cumbersome method of stopping his cross-examination and pausing while the court reporter [found] the relevant notes and read[ ] back the inconsistent testimony to the jury.” Id. In White, therefore, the defendant had no access to the exact testimony of the State’s witnesses until trial. See id. Moreover, the process of requesting that the court reporter read back the earlier testimony would apply only if the defense independently recalled the testimony from the first trial and believed that it conflicted with the testimony just presented. See id. Because of these cumbersome realities and narrow time frame, the White court concluded that court-reporter “readbacks” are not a sufficient alternative to a transcription of the actual proceedings. Id. at 300.³

It is axiomatic, however, that a criminal defendant must be indigent in order to be entitled to a free record of any testimony, whether of a trial that ended in a mistrial or of a full trial for appeal. See Whitehead v. State, 130 S.W.3d 866, 873-74 (Tex.Crim.App.2004) (noting that rule authorizing a free record for appeal contains oath requirement; holding that “only sworn allegations are to be considered in determining whether a defendant is entitled to a free record”) (citing Tex.R.App. P. 20.2);⁴ see also Abdnor v. State, 712 S.W.2d 136, 141-43 (Tex.Crim.App.1986) (citing settled law imposing duty on appellant claiming indigency as basis for obtaining free record to exercise due diligence in asserting indigency; holding that due diligence includes timely filing of affidavit and sustaining indigency claims in affidavit, but does not require that defendant testify).

Indigency is determined when the issue is raised and not based on a prior or future point in time. See Tuck v. State, 215 S.W.3d 411, 414-415 (Tex.Crim.App. 2007) (holding that time period for purposes of free record on appeal is determined at time of appeal, rather than when defendant was tried); Abdnor, 712 S.W.2d at 142 (same).

Article 26.04 of the Code of Criminal Procedure, which governs procedures for appointing counsel, includes procedures for determining indigency at trial. Tex.Code Crim. PROC. AnN. art. 26.04(m) (Vernon 2006). For purposes of trial, as opposed to appeal, article 1.051(b) of the Code of Criminal Procedure defines an “indigent” person as “a person who is not financially able to employ counsel.” Tex.Code Crim. Proc. Ann. art. 1.051(b) (Vernon 2005). A defendant whom the trial court has determined to be indigent “is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in [his] financial circumstances occurs.” Tex.Code Crim. Proo. ANN. art. 26.04(p).

Ineffectiveness of Counsel

In his first point of error, appellant contends that his trial counsel was ineffective because he did not provide an affidavit to support his motion requesting a free transcription of the testimony from appellant’s first trial. We disagree.

A. Standard of Review

To prevail on his claim of ineffective assistance of counsel, appellant must show that his counsel’s performance was deficient, and that there is a “reasonable probability” — one sufficient to undermine confidence in the result — that the outcome would have been different but for his counsel’s deficient performance. Ex parte Chandler, 182 S.W.3d 350, 353-54 (Tex. Crim.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). The purpose of the constitutional requirement of effective counsel is to ensure a fair trial. Id. at 353 (citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2064). The “benchmark” for evaluating a claim of ineffectiveness, therefore, is whether counsel’s conduct “so undermined the proper functioning of the adversarial process” that one cannot rely on the trial “as having produced a just result.” Id. at 353 (citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2064). In that relatively rare instance, only, may a criminal defendant obtain a new trial on the grounds that his attorney provided constitutionally deficient assistance. Id. at 354. The constitutional right to counsel ensures the right to reasonably effective counsel, but not “errorless” counsel whose competency or accuracy of representation we may judge by hindsight. See Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991); Ex parte Cruz, 739 S.W.2d 53, 58 (Tex.Crim.App.1987).

To meet his burden to show that his counsel was constitutionally deficient, appellant must establish, by a preponderance of the evidence, that his trial counsel was not acting as “a reasonably competent attorney,” and that his advice was not “within the range of competence demanded of attorneys in criminal cases.” See Chandler, 182 S.W.3d at 354 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). Appellant must also show that counsel’s constitutionally deficient performance prejudiced his defense by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

Under this two-pronged analytical framework, appellant must also overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See id.; Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003). In evaluating counsel’s representation under a Strickland analysis, our review is “highly deferential” because we presume that counsel’s actions “fell within the wide range of reasonable and professional assistance.” Chandler, 182 S.W.3d at 354 (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002)). Under normal circumstances, the record on direct appeal will not be sufficient to demonstrate that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d at 833. A Strickland claim must, therefore, be “firmly founded” in a record that “affirmatively demonstrate^” the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005). When the record on direct appeal is sufficient to prove that counsel’s performance was deficient, therefore, an appellate court “should obviously address the claim.” Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App.2000).

But, when counsel’s reasons for failing to do what the defendant contends should have been done do not appear in the record, as, for example, when trial counsel has not been afforded an opportunity to explain his actions, we should not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)). Unless claims of ineffective assistance are clearly demonstrated of record, Goodspeed, 187 S.W.3d at 392, therefore, we normally will not speculate to find trial counsel ineffective when the record is silent on his reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex.App.-Houston [1st Dist.] 2000, pet. refd); Gamble v. State, 916 S.W.2d 92, 93 (TexApp.-Houston [1st Dist.] 1996, no pet.).

B. Discussion

The record of this case lacks any explanation by trial counsel as to why he did not support his request for the free transcription of the first trial with an affidavit demonstrating that appellant was entitled to the free transcription. Though Borg, the first counsel appointed to represent appellant on appeal, filed a motion for new trial contending that trial counsel was ineffective in this regard, no hearing on the motion for new trial was held. The record reflects that the trial court considered the motion for new trial by submission and then denied it. The record further reflects that Borg did not obtain an affidavit from trial counsel in which he might have explained why he did not support the request for the free transcription with the requisite sworn proof. Similarly, Borg did not submit an affidavit by appellant, from which a determination could be made that he was indigent at that time. Because appellant was represented by retained counsel Justin at the first trial and had also retained Goins for this trial, with an intervening period of indigency of just over a month, it is possible that Goins realized that appellant would not be able to meet the eviden-tiary showing required to establish that he was indigent. See Tex.Code Crim. Proo. Ann. art. 1.051(b) (defining “indigent” person as one “not financially able to employ counsel”) (emphasis added).

Because we lack any explanation by counsel, we decline to conclude that he performed deficiently by not supporting his request for a free record with the required affidavit. To conclude that counsel was ineffective under the record presented would require impermissible speculation concerning his reasoning or strategy. See Henderson, 29 S.W.3d at 624; Gamble, 916 S.W.2d at 93.

We conclude, moreover, that the record shows that appellant has failed the first element of the Strickland test because he has not demonstrated his trial counsel’s deficiency based solely on his not attaching an affidavit to the motion requesting a free record from appellant’s first trial. As appellant acknowledges, his counsel cross-examined both police officers whose testimony linked appellant to the offense of possession with intent to deliver. Counsel announced to the trial court that he intended to cross-examine the officers with their earlier testimony. In response, the trial court instructed counsel to refer to that testimony as obtained in an earlier “hearing,” as opposed to his “first trial.” As the record further demonstrates, trial counsel stated that he had obtained the substance of each officer’s testimony from the notes taken by appellant during his first trial.

As in Britt, therefore, an alternative to obtaining a transcription was available, specifically, the notes made by appellant on which trial counsel relied to cross-examine the officers. See Britt, 404 U.S. at 228-30, 92 S.Ct. at 434-35. As the record demonstrates, trial counsel utilized that alternative and probed the testimony of the officers in the first trial. However unsuccessful appellant deems his trial counsel’s cross-examination and impeachment of the officers, the record reflects that meaningful cross-examination to impeach their testimony occurred. Accordingly, the purpose behind obtaining the record of the first trial was attained, albeit from appellant’s notes. See Billie, 605 S.W.2d at 565 (on motion for reh’g) (noting that obtaining record of State’s witnesses from prior trial serves purposes of discovery and impeachment).

Though the State prevailed on some of its objections to portions of trial counsel’s cross-examination and impeachment, what appellant deems his trial counsel’s lack of success, in the face of the State’s objections, fails to demonstrate a reasonable probability, “sufficient to undermine confidence in the result,” that the outcome of appellant’s trial would have been different, had he obtained the transcription. See Chandler, 182 S.W.3d at 354; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Stafford, 813 S.W.2d at 506; Cruz, 739 S.W.2d at 58 (noting that right to effective representation by counsel does not require that counsel be “errorless” or permit reviewing court to judge counsel’s performance by hindsight). Accordingly, appellant has also failed to demonstrate that trial counsel’s lack of an affidavit to support and demonstrate appellant’s indigency prejudiced appellant’s defense to the degree that a reasonable probability existed that the result of his trial would have been different. See Chandler, 182 S.W.3d at 354; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

We therefore hold that appellant has not satisfied either prong of the Strickland test and overrule his first point of error.

Denial of Free Transcription of First Trial

In his second point of error, appellant contends that the trial judge committed state and federal constitutional error by denying him a free reporter’s record of his first trial. Under the settled law addressed above, entitlement to a free record is contingent on demonstrated indigency. See Whitehead, 130 S.W.3d at 874; Abdnor, 712 S.W.2d at 140; cf. Tex.R.App. P. 20.2 (referring to affidavit requirement to support indigency claimed to support free record on appeal). The trial court determines indigency in the exercise of its discretion and on a case-by-case basis. See Newman v. State, 987 S.W.2d 1, 3 (Tex.Crim. App.1996); Gray v. Robinson, 744 S.W.2d 604, 607 (Tex.Crim.App.1988) (orig.proceeding); Abdnor, 712 S.W.2d at 142; Hornsby v. State, 65 S.W.3d 801, 802 (Tex.App.-Houston [1st Dist.] 2001, no pet.).

Indigency is further determined when the issue is raised, as opposed to a prior or future point in time. Tuck, 215 S.W.3d at 415; Gray, 744 S.W.2d at 607. Indigency demonstrated at trial, therefore, does not establish indigency on appeal. Abdnor, 712 S.W.2d at 142; Hornsby, 65 S.W.3d at 802; see also Ramadan v. State, 89 S.W.3d 744, 746 (TexApp.-Houston [1st Dist.] 2002, no pet.) (order of abatement) (rejecting appellant’s having retained counsel at trial as dispositive of claim of indigency on appeal).

The issue of appellant’s indigency was raised in this case on September 20, 2005, when retained counsel Justin filed a motion to withdraw based on appellant’s financially inability to pay for another trial, which the trial court granted, whereupon appointed counsel Easterling assumed representation of appellant. On the same day, Justin also filed an unsworn motion requesting a copy of the testimony from the first trial, on the grounds that appellant was “without funds or resources to pay for a record.” A September 20, 2005 notation on Justin’s latter motion reflects that the trial court did not rule on Justin’s motion. Approximately one month after appointed counsel Easterling began to represent appellant, appellant moved the trial court to permit Easterling to withdraw and to permit retained counsel Goins to appear and represent appellant. Pursuant to the statutory presumption stated in article 26.04(p) of the Code of Criminal Procedure, we may presume that appellant remained indigent from September 28, 2005, when Easterling was appointed to represent appellant, until November 1, when the trial court granted appellant’s motion to permit Easterling to withdraw and to permit retained counsel Goins to substitute as appellant’s counsel. See Tex.Code Crim. Proo. Ann. art. 26.04(p). That presumption disappeared, however, when Goins began to represent appellant as retained counsel. See id. (stating that defendant determined to be indigent by the court “is presumed to remain indigent ... unless a material change” occurs in his “financial circumstances”).

Indigency at trial is defined in terms of a person’s financial ability to employ counsel. See Tex.Code Crim. ProC. Ann. art. 1.051(b) (defining “indigent” as “a person financially unable to employ counsel”). A trial court has no duty to appoint counsel when an indigent defendant has “managed to retain counsel” or “has made no showing of indigency.” Gray, 744 S.W.2d at 607. As the trial court’s handwritten notes denying retained counsel Goins’s motion for a record of the first trial indicate, in addition to being represented by retained counsel (Justin) during the first trial, appellant was also represented by retained counsel (Goins) who filed the motion.

When the issue of indigency was raised, therefore, see Tuck, 215 S.W.3d at 415, appellant was not “financially unable” to retain counsel and, therefore, by definition, not indigent. See Tex. Code CRiM. PROC. ANN. art. 1.051(b). As the trial court’s “no evidence” notation further demonstrated, the motion lacked the requisite evidentiary showing to support a finding that appellant was indigent. See Whitehead, 130 S.W.3d at 874; Abdnor, 712 S.W.2d at 141-42.⁵

Based on the record and the foregoing principles, we lack any basis on which to conclude that the trial court acted irrationally or without regard for the controlling legal principles by denying appellant’s request for a free transcription of his first trial. See Newman, 937 S.W.2d at 3-4; Hornsby, 65 S.W.3d at 804. We therefore conclude that the trial court did not abuse its discretion.

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Justice KEYES, dissenting.

1 . A September 20, 2005 notation by the trial court on Justin’s motion states, “Ct did not rule[;] atty Justin w/drew.”

2 . In contrast, an indigent defendant must show a particularized need to be entitled to a transcription of a codefendant’s trial. McKibbon v. State, 749 S.W.2d 83, 85 (Tex.Crim. App.1988).

3 . The Court of Criminal Appeals had ruled earlier, in Billie v. State, 605 S.W.2d 558, 565 (Tex.Crim.App.1980) (on motion for reh’g), that an indigent defendant’s right to a free record following a mistrial extends only to the State’s witnesses, because "it is usually only that testimony that could be used for discovery and impeachment,” unless the defendant demonstrates a particular need for transcription of other portions of the trial. The Court of Criminal Appeals called into question this aspect of Billie in a footnote to Cook v. State, 611 S.W.2d 83, 87 n. 3 (Tex.Crim.App. [Panel Op.] 1981) ("The holding in [Billie] on rehearing is suspect in light of ... [Bnff]” and other cases that negate any requirement that the defendant establish a "particularized need”).

4 . Rule 20.2. pertains to "Criminal Cases” and states,

Within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge. If after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings. When the court certifies that the appellate record has been furnished to the appellant, the reporter must be paid from the general funds of the county in which the offense was committed, in the amount set by the trial court.

Tex.R.App. P. 20.2.

5 . We distinguish Abdnor v. State, 712 S.W.2d 136, 142 (Tex.Crim.App.1986), in which the Court of Criminal Appeals concluded that a defendant’s having retained counsel is not dispositive of a claim of indigency. See also Ramadan v. State, 89 S.W.3d 744, 746 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (per curiam) (same). Both cases concern the right of a defendant to a free record on appeal, based on demonstrated indigency at that point in time, despite having retained counsel at trial. Abdnor, 712 S.W.2d at 138-39; Ramadan, 89 S.W.3d at 746.