                                  NO. 07-03-0193-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   AUGUST 16, 2004

                          ______________________________


                        DARRELL LEON LAWLER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                 NO. 13,604-B; HONORABLE JOHN BOARD, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      On April 7, 2003, appellant Darrell Leon Lawler, having waived his right to a trial by

jury, pleaded guilty to the court without the benefit of a plea bargain to the first degree

felony offense of aggravated robbery. The trial court then assessed a sentence of twenty-

five years confinement and entered an affirmative deadly weapon finding. With two points
of error, appellant claims: (1) his trial counsel was ineffective; and (2) the trial court erred

in failing to secure a written jury trial waiver before he entered his guilty plea. We affirm.


       On the afternoon of November 29, 1999, appellant and a co-defendant shoplifted

some merchandise from Hobby Lobby and left the store. As they drove out of the parking

lot, their car, which was driven by the co-defendant, hit two store employees who were

attempting to detain them. Appellant and his co-defendant were arrested a short time later

and charged with aggravated robbery.


       Before the commencement of testimony at trial, the court engaged in the following

discussion with appellant:


              Court:         And, Mr. Lawler, something that’s come up this morning
                             that I just need to discuss with you is the fact that we
                             have determined that Ms. Lopez [appellant’s trial
                             counsel] was actually on the grand jury that indicted you
                             in this case. That could be something that you could
                             complain about later and certainly would want – we
                             would want to take care of that now. You can waive any
                             conflict that there would be with regard to that, or – but
                             you don’t have to waive that. And I just need to
                             understand if you are willing to waive that and we can
                             proceed today.
              Defendant:     Yeah, I’ll waive it.
              Court:         We’ll go ahead and waive it. And you’ve had the
                             opportunity to visit with Maria [Lopez] and your family
                             about that, and --
              Defendant:     Yes.
              Court:         You feel like you are making that determination
                             knowingly and of your own free will?


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              Defendant:    Yes, sir.
              Court:        Is anyone forcing you to waive that?
              Defendant:    No, sir.
              Court:        And you just want to go ahead and get this on the road
                            and have your trial today then?
              Defendant:    Yes. It’s been a long time.


The court then accepted appellant’s waiver and proceeded to trial.


      During appellant’s case in chief, Lopez further questioned appellant about the

potential conflict between her representation of him and her status as one of the grand

jurors who returned a true bill of indictment against him. Lopez confirmed that she and

appellant had spoken about “the fact that [she] was on the grand jury that indicted [him].”

And, in response to her query whether he was “still comfortable with [her] representing

[him],” appellant said “Yes, ma’am.”


       By his first point of error, appellant maintains “[t]he trial court committed reversible

error in that appellant was denied the effective assistance of counsel since he was

represented by a court-appointed attorney who had been a member of the grand jury which

indicted him.” We disagree. Initially, we note that ineffective assistance claims that are

premised on a conflict of interest are subject to two different standards. Most claims

alleging ineffective assistance fall within the well-known Strickland standard.           See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also

Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App. 1986).               To prove ineffective


                                              3
assistance of counsel under this standard, the defendant must demonstrate: (1) counsel’s

representation fell below objective standards of reasonableness; and (2) the result of the

proceeding would have been different but for trial counsel’s deficient performance.

Strickland, 466 U.S. at 688-92. The defendant bears the burden of proving his claims by

a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Cr.App.

1998). Under the standard of review announced in Cuyler v. Sullivan, a defendant

demonstrates a violation of his rights to reasonably effective assistance based upon a

conflict of interest when: (1) counsel was burdened by an actual conflict of interest; and (2)

the conflict had an adverse effect on specific instances of counsel’s performance.

Thompson v. State, 94 S.W.3d 11, 15-6 (Tex.App.–Houston [14th Dist.] 2002, pet. ref’d)

(citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). The main

difference between the Strickland and Cuyler tests is that there is a lesser burden of proof

when the claim of ineffective assistance of counsel involves a conflict of interest than when

a claim is based on attorney error. Monreal v. State, 923 S.W.2d 61, 64 (Tex.App.–San

Antonio 1996), aff’d, 947 S.W.2d 559 (Tex.Cr.App. 1997).


       Appellant has not favored us with the benefit of his position regarding which

standard applies in this case. We conclude, however, that because appellant has not

shown that his counsel actively represented conflicting interests, he has not established the

constitutional predicate for his claim of ineffective assistance under Cuyler. Thompson, 94




                                              4
S.W.3d at 16. Thus, we will utilize the Strickland standard.1 In applying that standard we

are mindful that failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. Rylander v. State, 101 S.W.3d 107,

110 (Tex.Cr.App. 2003). Moreover, an allegation of ineffective assistance of counsel must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.    McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App. 1996).

Furthermore, defense counsel should ordinarily be accorded an opportunity to explain his

or her actions before being labeled as unprofessional, incompetent, or ineffective. See

Bone v. State, 77 S.W.3d 828, 836 (Tex.Cr.App. 2002).              Indeed, there is a strong

presumption that counsel's conduct fell within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 690.


       Appellant suggests his trial counsel’s representation was deficient because of the

“inherent conflict of interest” that arose by virtue of her participation on the grand jury that

indicted him. Apart from that bald assertion, however, appellant has failed to demonstrate

how his attorney could have represented him more effectively had she not been impaired

by the alleged conflict. Thompson, 94 S.W.3d at 19. Appellant’s contention that “such an

inherent conflict of interest existed here that [his] trial counsel could not properly advise him



       1
        We concur with the decision of the 14th Court of Appeals that the Strickland test
adequately protects a criminal defendant’s Sixth Amendment right to conflict-free counsel
under these circumstances, and that the Cuyler standard is best reserved for those
situations involving a defense attorney’s multiple or joint representation. See Thompson
v. State, 94 S.W.3d 11, 19 (Tex.App.–Houston [14th Dist.] 2002, pet. ref’d).

                                               5
concerning how to proceed,” absent any support in the record, does nothing to advance the

argument that his attorney’s performance was deficient. Thus, appellant has failed to

overcome the strong presumption that trial counsel's conduct falls within a wide range of

reasonable representation.2 Strickland, 466 U.S. at 690; Dewberry v. State, 4 S.W.3d 735,

757 (Tex.Cr.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958

(2000). What is more, appellant has presented no evidence to establish that counsel’s

alleged deficient performance actually prejudiced him. That is to say, he has failed to

demonstrate how his attorney’s service on the grand jury harmed him in any way. The

record on direct appeal is simply devoid of any evidence affirmatively proving either prong

of the Strickland test. Thus, appellant’s ineffectiveness claim is, of necessity, defeated.

See Rylander, 101 S.W.3d at 110. His first point of error is overruled.


       By his second point of error, appellant claims “the trial court committed reversible

error in that there was no written waiver of jury trial prior to [his] plea of guilty.” We

disagree. The first time that the court addressed appellant’s right to a trial by jury was

during the direct examination of appellant by Lopez during his case in chief. At that time,

the trial court interrupted Lopez and queried:




       2
        While Lopez’s actions may fall within the “wide range of reasonable representation,”
the better practice would have been to avoid the appearance of such impropriety altogether
by withdrawing from the representation of a criminal defendant against whom she
participated in returning an indictment.

                                             6
              Mr. Lawler, you do understand and I think you’ve probably
              discussed it with counsel, probably both counsels,3 that you
              could have proceeded with a jury today, and by pleading guilty
              you are waiving your right to a jury on that – on that issue, but
              also by coming to me for punishment you were waiving a jury
              with regard to punishment. And you understand that, don’t
              you?


Appellant responded affirmatively. His attorney then asked him whether she had discussed

with him his option “to go in front of a jury,” and, again, appellant responded in the

affirmative. During cross-examination, the prosecutor asked whether appellant was willing

to sign a written jury waiver, and he said that he would. The record, in fact, contains a

document entitled “Waiver of Jury,” purportedly signed by appellant, his attorney, the

prosecutor, and the judge.


       Article 1.13(a) of the Texas Code of Criminal Procedure provides that a criminal

defendant may waive the right to a trial by jury upon entering a plea, but requires that the

waiver be made in person by the defendant in writing in open court with the consent and

approval of the court and the approval of the attorney representing the State. (Vernon

Supp. 2004). The article further provides that the trial court’s consent and approval of the

waiver must be entered of record on the minutes of the court, and that the approval of the




       3
       The record reveals Kent Birdsong represented appellant until he filed a motion to
withdraw based upon his wife’s “serious health problems” in February of 2003. At the time
Birdsong was allowed to withdraw, Maria Lopez had already agreed to take over appellant’s
representation.

                                             7
State’s attorney must be in writing, signed by him, and filed in the papers of the cause

before the defendant enters his plea. Id. (Emphasis added).


       Here, the record reflects that it was only after appellant entered his plea, the State

put on its case in chief, and appellant began presenting his own punishment evidence that

the trial court inquired of appellant’s desire to waive a jury trial. In failing to obtain the

waiver before appellant entered his plea, the trial court did not observe the mandatory

requirements of article 1.13, and, thus, erred. A violation of the mandatory terms of article

1.13(a) is not jurisdictional, constitutional, or fundamental error, however. Ex parte McCain,

67 S.W.3d 204, 209-10 (Tex.Cr.App. 2002). Rather, such error is nonconstitutional, or

statutory, error subject to a rule 44.2(b) harm analysis. See Johnson v. State, 72 S.W.3d

346, 348 (Tex.Cr.App. 2002). Therefore, we must disregard the error if it did not affect

appellant’s substantial rights. Tex. R. App. P. 44.2(b). To determine whether an error

affected substantial rights in the context of the violation of one of the mandatory

requirements of article 1.13, we must ascertain whether appellant understood his right to

trial by jury before his bench trial began. Cf. Johnson, 72 S.W.3d at 348 (considering

whether appellant was harmed by the failure to execute a written jury trial waiver).


       Here, when the trial court suggested to appellant that he had “probably discussed

it with counsel, probably both counsels, that you could have proceeded with a jury today,”

appellant responded, “Yes, sir.” Furthermore, Lopez confirmed that she and appellant “did

discuss that, [his] option to go in front of the jury.” We conclude appellant knew he had the


                                              8
right to a jury trial and expressly, knowingly, and voluntarily relinquished that right in open

court on the record.4 In short, appellant was not harmed by the violation of article 1.13(a)

because the record reflects that he was aware of his right to a jury trial and opted for a

bench trial. Id.


       Furthermore, to preserve a complaint for appellate review, a defendant must object

timely to the trial court. Tex. R. App. P. 33.1. The record shows that appellant never asked

to withdraw his plea of guilty to the aggravated robbery charge. Keller v. State, 125 S.W.3d

600, 603 (Tex.App.–Houston [14th Dist.] 2003, pet. granted). Likewise, he did not file a

motion for new trial complaining of the trial court’s untimely admonitions. Therefore, no

error was preserved for review. Appellant’s second point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                            Don H. Reavis
                                              Justice

Do not publish.




       4
        By this decision, we do not suggest that the trial court make a practice of delaying
its inquiry into a criminal defendant’s waiver of his right to a trial by jury until after it has
accepted the defendant’s guilty plea and proceeded to the punishment phase of the trial.
We simply conclude that on this record, appellant was aware of that right and intelligently
waived it.

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