Marlon Van Hook v. State ( 2015 )

NUMBER 13-13-00198-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARLON VAN HOOK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 4
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Chief Justice Valdez
Following a bench trial, appellant Marlon Van Hook was convicted of assault family
violence with a previous conviction, a third degree felony. See TEX. PENAL CODE ANN. §
22.01(b)(2) (West, Westlaw through Ch. 46 2015 R.S.). By three issues, appellant
contends: (1) the trial court erred in denying his oral motion to dismiss on speedy-trial
grounds; (2) the trial court erred in not granting his motion for a new trial alleging
ineffective assistance of counsel; and (3) he was deprived of his constitutional and
statutory right to a trial by jury. We affirm.
I. BACKGROUND
In April 2009, appellant's ex-girlfriend (“complainant”) went to appellant’s
apartment in Austin, Texas to collect some of her personal belongings. An argument
ensued and appellant spit in the complainant’s face. As the complainant picked up a
piece of clothing to wipe the spit from her face, appellant punched her in her right eye,
causing swelling and bruising. The complainant testified to these facts at trial and
identified appellant in the courtroom as the person who committed the assault.
After the State rested, Appellant testified in his defense. Appellant testified that at
the time of the assault, he was physically in Missouri accompanied by an alibi witness
and therefore could not have been the person who assaulted the complainant. On cross-
examination, appellant testified as follows:
Q. So your testimony is that [the complainant is] lying?
A. Yes, sir.
Q. And you have a convenient alibi?
A. Yes, sir.
Q. But no witness to corroborate that; right?
A. Well I wanted to but we didn't prepare for this day.
After both sides rested, appellant made an oral motion to dismiss on the basis that
the bench trial had been held in violation of his constitutional right to a speedy trial. The
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trial court denied appellant’s oral motion, found him guilty of the charged offense, and
assessed punishment at four years’ imprisonment.
Thereafter, appellant filed a motion for new trial alleging ineffective assistance of
counsel. In his motion, appellant asserted that “he was not afforded a meaningful
opportunity to consult with trial counsel and discuss his alternatives or to develop a
defense.” Only appellant and his trial counsel testified at the hearing on appellant’s
motion for new trial. Appellant testified that he visited with trial counsel only two times
prior to trial—one time on the day he was appointed on the case, and another time on the
day of trial—and that he did not have an opportunity to give trial counsel the name of his
alibi witness because trial counsel never came back to visit him while he awaited trial in
jail. At the new-trial hearing, trial counsel admitted that he visited appellant two times
prior to trial but testified that he had an adequate time to prepare a defense because the
case was not “complicated.” By the time of the new-trial hearing, appellant had not
produced the alleged alibi witness, and he offered no explanation for the witness’
absence; nor did he make an offer of proof that the witness was available at the time of
trial or would have offered credible exculpatory evidence. After hearing all the evidence,
the trial court denied appellant’s motion for new trial, concluding, in relevant part, that
there was no showing that “but for [trial counsel’s] preparation this trial would have
changed.” This appeal followed.
II. RIGHT TO SPEEDY TRIAL CLAIM
By his first issue, appellant contends that the trial court erred in denying his oral
motion to dismiss on speedy-trial grounds, which he raised after the start of trial. An
accused has a constitutional right to a speedy trial guaranteed under the Sixth
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Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 227 (1967). To determine if
a violation of the right to a speedy trial has occurred, reviewing courts weigh and then
balance the following four factors—known as the Baker factors: (1) the length of the trial
delay; (2) the reason for the trial delay; (3) the accused's assertion of the right to a speedy
trial; and (4) any prejudice to the accused as a result of the delay. See Barker v. Wingo,
407 U.S. 514, 530–32 (1972).
Recently, in Henson v. State, the court of criminal appeals held that an appellant
must properly raise a speedy-trial claim in the trial court in order to preserve the issue for
appellate review. See 407 S.W.3d 764 (Tex. Crim. App. 2013). The Court reasoned that
“[i]f the appellant brings his complaint to the trial court first, the trial court can grant the
appropriate remedy before the expense and other burdens of a trial (and an appeal) have
been incurred.” Id. at 769. The Court further reasoned that this preservation requirement
is necessary because it
allows the trial court to develop the record sufficiently for a Barker analysis.
At least two of the Barker factors (the reason for delay and the prejudice to
the accused) are fact-specific inquiries and may not be readily apparent
from the trial record. A requirement that the appellant assert his complaint
at the trial level enables the court to hold a hearing and develop this record
so that the appellate courts may more accurately assess the claim.
Id. The Henson court cited Grimaldo v. State, 130 S.W.3d 450 (Tex. App.—Corpus Christi
2004, no pet.) as further support for its holding that speedy-trial claims must first be
properly presented to the trial court for decision. Id. at 769 n.22 (citing Grimaldo). In
Grimaldo, we held that an appellant waives a speedy trial issue either: (1) by not raising
the claim before trial begins; (2) by not presenting evidence of the claim to the trial court;
or (3) by not obtaining a ruling after presentation of evidence of the claim. Grimaldo, 130
S.W.3d at 454.
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Here, although appellant raised his oral motion to dismiss on speedy-trial grounds
in the trial court, he did not raise the issue until well after trial had begun;1 and, when
appellant did raise the issue at trial, he did not request a hearing or present any evidence
on the matter before the trial court denied his oral motion.2 Under these circumstances,
as in Grimaldo and Henson, we conclude that appellant has failed to develop a sufficient
evidentiary record from which we could accurately apply, analyze, and balance the Barker
factors to assess his speedy-trial claim. See Henson, 407 S.W.3d at 769; Grimaldo, 130
S.W.3d at 454; see also Guajardo v. State, 109 S.W.3d 456, 462 (Tex. Crim. App. 2003)
(noting that it is “the appealing party's burden to ensure that the record on appeal is
sufficient to resolve the issue he presents”). Consequently, appellant’s speedy-trial claim
has not been properly preserved for our review, and we overrule his first issue on that
basis. See TEX. R. APP. P. 33.1.
1Appellant claims that he raised an issue as to his right to a speedy trial at a pretrial setting, during
which his trial counsel made the following statement in open court:
I want to put on the record that this gentleman has been in jail for 405 days, more than a
year, so obviously—and the case was set for trial, when a defense attorney sets a case for
trial with a prosecutor that means it's going to trial, and I understand the prosecutor doesn't
want to spend money, but I think the D.A's office has plenty of funds from what I've seen
when they have to a handle a case.
However, the context of this statement reveals that it was made in direct response to the State’s previous
comment concerning the logistics of securing the out-of-state complainant’s testimony at trial in the event
that appellant did not accept the State’s plea offer. At no point during this pretrial hearing did appellant
request that the trial court dismiss the case on speedy-trial grounds; nor did he request an evidentiary
hearing on the matter or obtain a ruling from the trial court. See Grimaldo v. State, 130 S.W.3d 450 (Tex.
App.—Corpus Christi 2004, no pet.). Considering the context in which appellant’s trial counsel made this
statement and the complete absence of any evidentiary hearing or pretrial ruling by the trial court, we cannot
agree with appellant that he properly presented his speedy-trial issue before trial. Id.
2 The record reflects that after the trial court denied appellant’s oral motion to dismiss on speedy-
trial grounds, his trial counsel sought to introduce an exhibit purporting to show the date on which the Travis
County Sherriff’s Office arrested appellant and booked him into jail. However, appellant did not obtain a
ruling from the trial court after introducing this exhibit and therefore did not preserve the issue for our review.
Grimaldo, 130 S.W.3d at 454 (concluding that appellant did not preserve his speedy-trial claim where he
presented evidence on the claim after the trial court denied his motion and then failed to seek
reconsideration of the trial court’s previous ruling).
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III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
By his second issue, appellant contends that the trial court erred in not granting
his motion for a new trial alleging ineffective assistance of counsel.
A. STANDARDS OF REVIEW
We review a trial court's ruling on a motion for new trial for an abuse of discretion.
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). When, as here, the motion
for new trial alleges ineffective assistance of counsel, “we must determine whether the
trial court's determination of the ineffective assistance claim and denial of the motion for
new trial were clearly wrong and outside the zone of reasonable disagreement.” Freeman
v. State, 167 S.W.3d 114, 117 (Tex. App.—Waco 2005, no pet.).
Strickland v. Washington sets forth a two-prong test for reviewing a claim of
ineffective assistance of counsel. 466 U.S. 668, 687 (1984). Under Strickland, we must
determine whether: (1) counsel's performance was deficient, and if so, (2) whether the
appellant was prejudiced by counsel's deficient performance. Id.
Concerning Strickland’s first prong—counsel’s performance—appellant must
prove that counsel's representation “fell below an objective standard of reasonableness.”
Id. at 690–94. Counsel's representation falls below an objective standard of
reasonableness when counsel fails to conduct an adequate investigation into the facts of
the case. See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (observing that “counsel has
a duty to make reasonable investigations”).
Concerning Strickland’s second prong—prejudice—appellant must prove that
there is a reasonable probability that, but for counsel's deficient performance, the result
of the proceeding would have been different. Strickland, 466 U.S. at 692. “Failure to
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make the required showing of either deficient performance [prong one] or sufficient
prejudice [prong two] defeats the ineffectiveness claim.” Dewberry v. State, 4 S.W.3d
735, 757–58 (Tex. Crim. App. 1999).
B. DISCUSSION
Concerning Strickland’s first prong, appellant alleges that his trial counsel failed to
adequately investigate the facts of the case, as evidenced by the fact that he consulted
with appellant only two times prior to trial and never contacted his alleged alibi witness.
Concerning Strickland’s second prong, appellant generally alleges that his counsel’s
“inadequate pretrial investigation created ‘ripple effects throughout the trial’ that are
difficult to accurately gauge.” We need not determine whether the alleged brevity of
counsel’s client consultation and pretrial investigation amounted to deficient performance
under Strickland’s first prong because, as the trial court expressly found in this case,
appellant failed to carry his burden of proving prejudice under Strickland’s second prong.
Id.
First, “mere brevity of [client] consultation” does not by itself establish a claim of
ineffective assistance of counsel, see Ex parte Duffy, 607 S.W.2d 507, 518 (Tex. Crim.
App. 1980), and appellant has failed to explain how more than two visits with his attorney
would have yielded a different result at trial. Second, to the extent that trial counsel could
have discovered appellant’s alleged alibi witness through additional consultation and
investigation, appellant presented no evidence at the hearing on his motion for new trial
to establish that this alibi witness—who did not appear or testify at the new-trial hearing—
would have been available to testify at the time of trial or would have otherwise provided
credible exculpatory information. See Melancon v. State, 66 S.W.3d 375, 381 (Tex.
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App.—Houston [14th Dist.] 2001, pet. ref'd) (holding that appellant failed to carry his
burden of demonstrating prejudice where the record contained no evidence of what
testimony the alleged exculpatory witnesses would have provided had they testified);
Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(observing that a “claim for ineffective assistance based on trial counsel's failure to
interview a witness cannot succeed absent a showing of what the interview would have
revealed that reasonably could have changed the result of the case”); cf. Butler v. State,
716 S.W.2d 48, 56 (Tex. Crim. App. 1986) (holding that defendant carried his burden of
proving prejudice where alibi witnesses actually testified at the motion for new trial
hearing, setting forth exculpatory evidence they could have offered had counsel called
them to testify); In re I.R., 124 S.W.3d 294, 300 (Tex. App.—El Paso 2003, no pet.) (citing
Butler and finding Strickland’s prejudice prong met where the alibi witness’ testimony at
the new-trial hearing established that he was available and that his testimony would have
been beneficial). It was appellant’s burden to make this showing. See Melancon, 66
S.W.3d at 381; Stokes, 298 S.W.3d at 432; Butler, 716 S.W.2d at 56; In re I.R., 124
S.W.3d at 300.
Without evidence that trial counsel’s allegedly inadequate investigation prejudiced
appellant’s case, we cannot conclude that the trial court abused its discretion in rejecting
appellant’s ineffective assistance claim. See Freeman, 167 S.W.3d at 117. We therefore
overrule appellant’s second issue.
IV. WAIVER OF RIGHT TO JURY TRIAL
By his third issue, appellant contends that he was deprived of his constitutional
and statutory right to a trial by jury because the record contains no evidence that he
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expressly waived his right to a jury—either in open court or in writing—or that he otherwise
understood his right to a jury before his bench trial began.3 Upon appellant’s request, we
abated this appeal and remanded the case to the trial court with instruction to hold a
hearing to determine whether appellant waived his right to a jury in accordance with the
law. After holding a hearing on the matter, the trial court made the following relevant
findings based on the existing record:
10. The clerk's record does not contain the written jury waiver required
by [Texas code of criminal procedure article 1.13(a)].4
11. A written waiver is not constitutionally required.
12. The reporter's record in this cause likewise does not contain an
explicit Jury waiver.
13. The judgment of conviction, however, recites that the appellant
waived trial by jury.
14. This recitation is binding in the absence of direct proof of its falsity.
...
22. [T]he Court finds that the appellant knew and understood his right to
trial by jury, and that he knowingly and voluntarily waived it.
(citations omitted). Where, as here, there is no express jury waiver in the record but the
judgment recites that appellant waived a trial by jury, there is a rebuttable presumption
that appellant understood and properly waived his right to a jury unless appellant presents
direct proof that the recitation in the judgment is false. See Breazeale v. State, 683
S.W.2d 446, 451 (Tex. Crim. App. 1984). In this case, appellant presented no evidence
3
See U.S. CONST. AMEND. VI (“In all criminal prosecutions, the accused shall enjoy the right to a
[trial] by an impartial jury”); TEX. CONST. ART. I, § 10 (same); see also TEX. CODE CRIM. PROC. ANN. art. 1.12
(West, Westlaw through Ch. 46 2015 R.S.) (providing that the “right of trial by jury shall remain inviolate”).
4 Texas code of criminal procedure article 1.13(a) states that the defendant's waiver of his right to
a jury trial must be made in person, in writing, in open court with the consent and approval of the court and
the attorney representing the State. See TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West, Westlaw through
Ch. 46 2015 R.S.).
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at the abatement hearing on this issue and instead relied solely on the argument of his
counsel based on the existing record. Additionally, the trial court made no finding at the
abatement hearing that the recitation in the judgment is false. Nevertheless, appellant
makes two arguments on appeal that the recitation in the judgment is false.
First, appellant argues that the recitation is false because “no written [jury] waiver
is on file [.]” That may be true. However, the court of criminal appeals rejected this
argument in Breazeale when it held that the absence of a written jury waiver in the record
“is insufficient to overcome the presumption that [a contrary] recital in a formal judgment
. . . is true [.]” Id. at 450.
Second, appellant argues that the recitation is false because “the proceedings
recorded in open court do not show that an express [jury] waiver was ever made.” That
may also be true. However, it is not direct proof that the recitation concerning jury waiver
is actually false. See id.; see also Hill v. State, No. 03-04-00551-CR, 2006 WL 952383,
at *2 (Tex. App.—Austin Apr. 13, 2006, no pet.) (mem. op., not designated for publication)
(holding that judgment recital is not directly proven false even where the reporter’s record
is silent on the issue of jury waiver); Ratcliff v. State, No. 05-02-01124-CR, 2003 WL
21512631, at *1 (Tex. App.—Dallas July 3, 2003, pet. ref'd) (mem. op., not designated for
publication) (holding that “although appellant contends that he was ‘not asked’ and ‘did
not indicate any approval to this waiver,’ appellant has not presented any evidence
asserting [that] the recitation concerning jury waiver is actually false.”). In any event, our
review of the reporter’s record indicates that, although appellant never used the words
“jury” and “waive” in the same sentence in open court, he did expressly request a “bench
trial” through counsel in open court when the trial court asked him to decide whether he
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wanted a bench trial or a jury trial,5 and his trial counsel testified at the new-trial hearing
that he informs all of his criminal clients about the right to a jury trial—appellant being no
exception.
We conclude that appellant failed to carry his burden of presenting direct proof that
the recital in the judgment that appellant “waived the right of trial by jury” is false. Being
bound by that statement, see Breazeale, 683 S.W.2d at 451, we observe that the use of
the term “waive” in the judgment presumes knowledge of the right to a jury because to
“waive” a right, one must do it knowingly—with knowledge of the relevant facts. See
Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing BLACK'S LAW
DICTIONARY 1276 (7th ed. abridged 2000)). On this record, we therefore hold that
appellant knew and understood his right to a trial by jury, and that he knowingly waived
it. See id.; Jackson v. State, 76 S.W.3d 798, 803 (Tex. App.—Corpus Christi 2002, no
pet.). We overrule appellant’s third issue.
V. CONCLUSION
We affirm the judgment of the trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do Not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
27th day of August, 2015.
5At the January 23, 2013 pretrial setting, trial counsel stated: “Judge, can we—we're willing to do
what we asked for which is a bench trial [.]”
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