                        NOS. 07-11-00034-CR; 07-11-00035-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  OCTOBER 31, 2011


                        CEDRICK LAMONT SMITH, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY;

                       NOS. D-1-DC-10-200961, D-1-DC-10-907273;

                       HONORABLE WILFORD FLOWERS, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Cedrick Lamont Smith, was convicted of possession of a controlled

substance, cocaine, in an amount of one gram or more but less than four grams.1 (Trial

cause number D-1-DC-10-200961, appellate cause No. 07-11-0034-CR) Appellant was

also convicted of evading arrest with a prior conviction for evading arrest.2 (Trial cause

number D-1-DC-10-907273, appellate cause No. 07-11-0035-CR) Each indictment was

      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
      2
          See TEX. PENAL CODE ANN. § 38.04(a),(b)(1)(A) (West 2011).
enhanced by allegations of prior felony convictions.3 After convicting appellant of the

offenses, the jury found the enhancement allegations true and assessed punishment at

confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-

TDCJ) for a term of 90 years on the possession conviction and 20 years on the evading

arrest conviction. Appellant appeals the judgments of the trial court contending his trial

counsel was ineffective, that the trial court erred denying appellant’s request for a

mistrial, and that the judgment of conviction should be reformed to reflect conviction for

the correct level of felony offense. We will affirm the judgment as modified.


                           Factual and Procedural Background


       Appellant does not contest the sufficiency of the evidence to support the jury’s

verdict; therefore, only as much of the factual background as is necessary for the

opinion will be recited. Appellant was stopped by an Austin police officer for driving with

an expired registration. Initially, appellant did not stop but continued to drive slowly with

the police cruiser following with its emergency lights on. When appellant stopped, he

opened the door of his car to talk to the officer. Appellant eventually bolted from the

officer, and a foot pursuit ensued.       While pursuing appellant, the officer noticed

appellant apparently discarding items. After appellant was caught and detained, the

arresting officer retraced the path appellant had taken and found two packages of

suspected cocaine. During a search of appellant’s vehicle, an additional package of

suspected cocaine was located in the driver’s side door. Appellant was then indicted for

possession of a controlled substance, cocaine, in an amount of four grams or more but


       3
           See TEX. PENAL CODE ANN. § 12.42(d) (West 2011).
                                             2
less than 200 grams and evading arrest with a prior conviction for evading arrest. Each

indictment was accompanied by an enhancement paragraph alleging appellant was a

habitual offender.


       On November 1, 2010, appellant was arraigned on the indictments that had been

returned against him. During the arraignment, appellant entered pleas of not guilty and

answered the questions propounded to him by the trial court without any incident. The

record reflects that, during the arraignment, appellant acknowledged he was aware of

the State’s plea bargain offer and that he declined to accept it.


       The trial commenced on November 29, 2010.              Prior to voir dire, appellant

answered affirmatively to the trial judge’s question about whether it was appellant’s

desire to have the jury assess punishment.         Voir dire was then conducted without

incident.


       The following day, November 30, the trial court began the evidence portion of the

guilt-innocence stage of the trial. It was at this time that appellant began his disruptive

behavior. Initially, while the jury was still out of the courtroom, appellant began arguing

with the court about his plea to the evading arrest charge. Appellant kept insisting that

he had entered a plea of guilty to that charge. As appellant continued trying to discuss

the issue of his plea to the evading arrest indictment, he was admonished that if he

continued interrupting the court he would be gagged. During this exchange, appellant

first announced to the court that he desired to fire his attorney and get someone else to

represent him. The trial court denied his request. Appellant continued to argue with the

court, and it was at this time that the record first reflects that the jury was present in the

                                              3
courtroom during one of appellant’s outbursts. The appellant continued to argue with

the trial court, and the trial judge ordered the jury to be removed from the courtroom. As

the jury exited the courtroom, appellant stated, “If the jury is going to get me—no, man, I

am not going to sit here and let y’all give me some time because that’s what is going on

right now. He is telling me just be quiet and go with you. No. I see what’s going on,

man.” The record reflects that the jury was out of the courtroom at the time appellant

finished his statement. Appellant continued to argue for a new lawyer, and the trial

court continued to deny the request. All during this portion of the record, appellant had

two themes in his outburst. First, he insisted he had already entered a plea of guilty to

the evading arrest indictment.      The record affirmatively disproves this proposition;

appellant entered a plea of not guilty during the arraignment.            Second, appellant

continued to demand another attorney, which the trial court denied.


       At the conclusion of this episode, the trial court inquired of the bailiff if there were

restraints available as the trial court opined that appellant was going to continue to act

out during the trial. At the conclusion of this part of the trial, the court ordered appellant

to be placed in restraints and then be brought back into the courtroom.


       As the deputy sheriff began trying to place restraints on appellant, appellant

began using profanity toward the deputy. The deputy kept requesting appellant to calm

down; however, appellant only continued to argue with him. Eventually, the trial court

noted on the record that the time was 9:24 and that they had begun at 9:00, and

appellant continued to be disruptive. As the trial court tried to return to the pre-trial

matters that the court had originally been discussing with counsel, appellant again

                                              4
interrupted the proceedings. When the trial court denied another request to appoint

another attorney, appellant stated, “Okay. Well, send the jury in here. I am going to tell

them the same thing. The outcome is going to be whatever it’s going to be anyway. I

can’t change that, but I am going to speak up for myself. I’m going to speak up for

myself.” This theme continued for approximately eight pages in the record. Eventually,

the trial court noted that appellant’s behavior was escalating.


       At this point in time, appellant began lacing his outbursts with a significant

amount of profanity. The trial court then asked the Sheriff’s representative to arrange

for a gag for appellant. Appellant responded with a challenge for the court to “[g]o

ahead and call the jury in here.” The jury was eventually brought in, according to the

record, at 9:28.


       Upon the jury returning to the courtroom, appellant again began his profanity-

laced outbursts. This continued until the record reflected 9:48, at which time the trial

court again questioned the sheriff’s representative about whether they had found a gag.

When asked if he would follow the rules, appellant answered with more profanity. The

trial judge then ordered appellant taken from the courtroom into a holding cell. The

court then offered an explanation to the jury that the difficulty had been going on for “the

last 40 minutes.” The court further stated that steps would be taken to see if they could

proceed without further interruption. The jury was then taken from the courtroom.


       While both the jury and appellant were out of the courtroom, the trial court made

arrangements for the appellant to listen to the proceedings in the holding cell. However,

the court stated that he was going to give appellant another opportunity to be present in

                                             5
the courtroom. The trial judge opined on the record that he believed appellant was

being manipulative and disruptive deliberately to attempt to manipulate the proceedings

in order to obtain a more favorable outcome. The jury was returned to the courtroom,

and appellant was also brought back into the courtroom.           Appellant immediately

launched into another outburst filled with profanity. The trial judge ordered appellant

removed from the courtroom.        The court explained to the jury that, because of

appellant’s behavior, appellant had been removed and would be listening to the

proceedings electronically. Further, the court explained that frequent breaks would be

taken to allow appellant’s counsel an opportunity to visit with appellant about the trial

and the testimony. The trial court then took announcements, and the trial commenced.


      The testimony was received, and after the State rested its case, appellant’s

counsel was instructed to visit with appellant during the lunch break about whether he

desired to testify. When the court reassembled after the lunch break, the trial judge

advised he was going to have appellant brought back to the courtroom to see if he

would participate without disrupting the proceedings. When appellant was brought back

to the court, he once again began berating his counsel and the court with profanity. The

trial judge ordered appellant be taken back to the holding cell to listen to the remainder

of the proceedings electronically. At this time, appellant’s counsel requested a mistrial

based upon the “deteriorating condition” of appellant and counsel’s not being able to

consult with appellant. The trial court stated on the record that appellant had been

examined for purposes of competency and found to be competent. The clerk’s record

contains an order ordering appellant to be examined. There is nothing further in the

clerk’s record that would indicate appellant was found incompetent, nor is there any
                                            6
record of a proceeding before the trial court on that issue. The trial judge overruled the

motion for mistrial, and the trial proceeded.


       The trial court prepared a charge to the jury on both indicted offenses.             In

connection with the possession of a controlled substance case, the trial court charged

the jury on the indicted offense, possession of an amount of four grams or more but less

than 200 grams, and the lesser-included offense of possession of a controlled

substance of an amount of one gram or more but less than four grams.


       During final arguments, the matter of appellant’s outbursts was not mentioned by

the State, either in the opening or closing portions. Trial counsel mentioned the matter

only once and that was to apologize for the language that the jury had heard earlier in

the day.    The jury returned a verdict of guilty on the lesser-included charge of

possession of one gram or more but less than four grams. The jury also returned a

verdict of guilty on the charge of evading arrest after having been previously convicted

of evading arrest.


       The next day, the trial court began the punishment phase of the trial. Before the

trial court brought the jury in, the trial judge inquired of appellant’s counsel and appellant

about whether he wished to participate in the punishment portion of the trial. Appellant

answered affirmatively and, when asked if he would abide by the rules, he also

answered affirmatively. However, appellant declined to wear anything except his jail

clothes while appearing before the jury. The trial court specifically inquired if appellant

had been given the opportunity to appear in “street clothes,” and appellant answered

affirmatively.

                                                7
       During the State’s portion of the evidence on punishment, Roger Dean, an

investigator for the Travis County District Attorney’s Office testified about his training in

fingerprint comparison. Dean testified that appellant was the same person convicted in

the exhibits introduced to prove the habitual enhancement allegtions of the indictments.

The State also called Deputy Mark Smith of the Travis County Sheriff’s Office who

testified about his contact with appellant while transporting him from detention to the

courtroom. Smith testified that appellant was cooperative until he got to the holding cell

adjacent to the courtroom. While Smith was putting a leg restraint on appellant prior to

bringing appellant into the courtroom, appellant began yelling at the deputy. This then

escalated into the yelling and obscenities of the previous day. Smith then testified that

appellant was cooperative when being transported back to court for the punishment

portion of the trial. The State rested and appellant rested without calling any witnesses.


       After hearing the evidence, the jury found the habitual enhancement allegations

to be true and assessed a term of confinement of 90 years in the ID-TDCJ for the

possession conviction and 20 years in the ID-TDCJ for the evading arrest convicton.

Appellant now appeals the judgments of the trial court by three issues.


       Appellant contends that his trial counsel was ineffective by failing to object to the

trial court bringing the jury into the courtroom during appellant’s outbursts and by failing

to move for a mistrial after the jury observed appellant’s behavior. In his second issue,

appellant contends the trial court erred when it denied trial counsel’s motion for a

mistrial after the State rested its case. Finally, appellant contends that the judgment

entered by the trial court incorrectly notes that he was convicted of a second-degree

                                             8
felony when in fact he was convicted of a third-degree felony. We will affirm the trial

court’s judgment as reformed.


                           Ineffective Assistance of Counsel


Standard of Review


      In determining whether counsel’s representation was so inadequate as to violate

a defendant’s Sixth Amendment right to counsel, Texas courts apply the two-pronged

test enunciated in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986).

Judicial review of an ineffective assistance of counsel claim must be highly deferential,

and there is a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689. An appellant bears

the burden of proving by a preponderance of the evidence that (1) counsel’s

representation fell below an objective standard of reasonableness and (2) the deficient

performance prejudiced the appellant.      Freeman v. State, 125 S.W.3d 505, 511

(Tex.Crim.App. 2003).     Failure to make the required showing of either deficient

performance or sufficient prejudice is fatal to an ineffectiveness claim.        See id.

Reviewing courts “commonly assume a strategic motive if any can be imagined” and will

conclude that counsel’s performance was “deficient only if the conduct was so

outrageous that no competent attorney would have engaged in it.” Andrews v. State,

159 S.W.3d 98, 101 (Tex.Crim.App. 2005).




                                           9
Analysis


       Appellant contends that his trial counsel was ineffective in two particulars. First,

counsel was allegedly ineffective when he did not object to the trial court bringing the

jury into the courtroom when appellant was making one of his outbursts.           Second,

appellant contends his counsel was ineffective for failure to move for a mistrial after the

jury witnessed appellant’s outburst.


       If we assume, arguendo, that the trial court erred by bringing the jury into the

courtroom while appellant was making one of his outbursts, we must review the entire

record of the event to see if we can ascertain any reason for trial counsel’s decision not

to object. See Strickland, 466 U.S. at 690. A review of the record before us does not

assist us in this endeavor.       There is nothing in the record of the trial proceeding

indicating what counsel’s motive for not objecting might have been. And, although a

motion for new trial was filed in this matter, it was overruled by operation of law and no

hearing was conducted. At the end of the day, we are left to speculate as to the

reasons for counsel’s inaction.


       As we review these facts for determination of whether counsel’s actions fell

below an objective standard of reasonableness, as required by Freeman, 125 S.W.3d at

511, we are mindful that the burden on this issue rests on appellant by a preponderance

of the evidence. Id. The record is devoid on the issue counsel’s motives, strategy, or

tactical plans. This is fatal to appellant’s issue, for we must remember that we are to

review counsel’s action in a deferential manner.       See Strickland, 466 U.S. at 689.

Further, we commonly assume a strategic reason for an action, if any can be imagined.

                                             10
Andrews, 159 S.W.3d at 101. The State suggests that counsel was faced with a choice

of shackling and gagging appellant throughout the trial and letting the jury possibly think

appellant was a violent person or letting them hear a rant. We likewise conclude that

trial counsel’s reason for his inaction are critical to this issue and without more

development of the record, we overrule appellant’s contention that trial counsel’s failure

to object to the jury being present was an act of an ineffective counsel.


       However, we note that the record does not support the proposition that trial

counsel’s failure to object to the presence of the jury was prejudicial to appellant. A

review of the record leads to the following conclusions. First, there was a significant

amount of evidence that compelled the jury to find appellant guilty of the evading arrest

charge. Second, the jury listened closely to the evidence regarding the possession of a

controlled substance charge. In fact, the jury found appellant guilty of only the lesser-

included charge of possession of a controlled substance of more than one gram but less

than four grams. This was the amount of contraband found in the door of the vehicle

appellant abandoned when he attempted to evade the officers. Additionally, we note

that the incident of appellant’s outburst was mentioned only one time in the final

arguments in the guilt-innocence phase of the trial. That was a one line apology by trial

counsel for the jury having to listen to bad language.       As we view the record, the

outbursts of appellant had no prejudicial effect on appellant in the guilt-innocence phase

of the trial. See Freeman, 125 S.W.3d at 511.


       As to the punishment phase of the trial, appellant contends that the length of the

sentences handed down by the jury prove prejudice. However, such a position ignores

                                            11
the substantial amount of evidence the State produced during the punishment phase.

The record demonstrates that the State was able to prove all three of the prior felony

convictions of appellant that were part of the habitual offender allegations in the

indictments. Additionally, the State proved two other misdemeanor convictions and a

family assault conviction. The applicable range of punishment for appellant on each of

the possession of a controlled substance offense was for a term of confinement from 25

years to 99 years or life. See TEX. PENAL CODE ANN. § 12.42(d). The applicable range

of punishment for appellant on the evading arrest charge was for a term of confinement

of not less than two nor more than 20 years. Id. §§ 12.33, 12.42(a)(2). Additionally, the

punishment range on the evading indictment included a fine not to exceed $10,000.

The jury did not give the maximum sentence on the possession charge and did not

include a fine on the evading arrest charge.         Finally, a review of the State’s final

argument on punishment did not unduly emphasize appellant’s courtroom conduct;

rather, it was focused on appellant’s criminal history. In light of that criminal history, the

verdicts do not singularly show appellant was prejudiced by the failure of trial counsel to

object. See Freeman, 125 S.W.3d at 511. Therefore, appellant’s contention regarding

ineffective assistance of counsel for failure to object to the trial court bringing in the jury

during his appellant’s outburst is overruled.


       As to appellant’s contention that trial counsel was ineffective because he failed to

ask for a mistrial after the jury observed appellant’s outburst, that issue also suffers from

the same deficiencies noted above and is also overruled.




                                              12
                                       Mistrial Request


       After the State had rested its case-in-chief during the guilt-innocence phase of

the trial, appellant was brought back into the courtroom for the purposes of inquiring

about whether he desired to testify. When asked by trial counsel if he desired to testify,

appellant launched into another profanity-laced tirade at the court and his attorney.

After the trial court instructed that appellant be taken back to the holding cell to monitor

the proceedings electronically, trial counsel requested a mistrial “based on [appellant’s]

deteriorating condition.” The trial court overruled the motion. Appellant contends that

the trial court’s action in overruling his request for mistrial is reversible error.


Standard of Review


       A mistrial is an extreme remedy that is reserved for a very narrow classification of

circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284

S.W.3d 880, 884 (Tex.Crim.App. 2009). A mistrial is used to halt proceedings when the

error involved makes the expenditure of further time and expense wasteful and futile.

Id. The decision to grant a mistrial is governed by the particular facts of the case. Id. A

trial court’s decision to deny a motion for mistrial is reviewed under an abuse of

discretion standard. Id. The denial of the motion for mistrial must be upheld if it was

within the zone of reasonable disagreement. Id.


Analysis


       From the terms used in defense counsel’s trial objection, it would appear that

appellant’s mistrial contention is rooted in the assumption that he was suffering from a

                                               13
deteriorating mental condition that made it impossible for him to communicate with his

attorney effectively.   This, according to appellant’s analysis, denied him his Sixth

Amendment right to effective assistance of counsel. See U.S. CONST. amend. VI.


       In reviewing the actions of the trial court in denying the motion for mistrial, we

must consider the context in which this motion was made. The record reflects that at

his arraignment appellant was cooperative and entered the pleas without difficulty. At

the next stage of the proceeding, voir dire, there is nothing in the record to suggest that

appellant was having any trouble communicating with his attorney or otherwise suffering

from any type of deteriorating condition. It was only when faced with the certainty of

trial on the merits that appellant’s conduct became disruptive. A part of that conduct

was appellant’s continued insistence through the first day testimony that he wanted to

fire his attorney, which the trial court consistently denied. This was the state of affairs

when appellant was brought back into the court to discuss whether he would testify.

After the outburst at issue and the trial court’s denial of the motion for mistrial, the trial

court stated that appellant had been examined for competency. The clerk’s record

indicates a motion to have appellant examined was filed and that the trial court ordered

the exam. After that, the record is silent, which leads us to infer that the examining

doctor found appellant competent as there were no further proceedings on the issue.

See TEX. CODE CRIM. PROC. ANN. art. 46B.005 (West 2007).


       Rather than an inability to confer with his counsel due to a deteriorating

condition, the record suggests that appellant’s inability to confer was due to his own

willful conduct in attempting to disrupt the proceedings. Such a conclusion becomes

                                             14
even stronger when the proceedings the following day are considered. After a day of

confrontation and outbursts, the next day appellant appeared in court without incident.

Rather, he chose to express his disregard by refusing to wear street clothes and,

instead, appearing in his jail clothes.


       The record supports the proposition that appellant’s inability to communicate with

his counsel was due solely to the decisions that appellant made regarding his own

conduct. As such, we will not sanction appellant’s actions nor can we allow him to

benefit from them. See Kelly v. State, 60 S.W.3d 299, 304 (Tex.App.—Dallas 2001, no

pet.) As stated in Chamberlain v. State, 453 S.W.2d 490, 493 (Tex.Crim.App. 1970),

“[t]o allow the appellant to take advantage of his own misconduct, the attempted

administration of justice would become a mockery.” Because the trial court’s decision to

overrule the motion for mistrial is supported by the facts and the law, the court could not

have abused his discretion. See Ocon, 284 S.W.3d at 884. Accordingly, appellant’s

second contention is overruled.


                                          Judgment


       Appellant’s final contention is that the trial court judgment for the possession of a

controlled substance is erroneous, in that it refers to appellant being convicted of a

second-degree felony when, in fact, appellant was convicted of a third-degree felony.

The State has conceded that appellant is correct. Accordingly, we order the judgment

reformed to reflect that appellant was convicted of a third-degree felony.


       Additionally, we note that the judgment for the evading arrest with a prior evading

conviction indicates a conviction for a second-degree felony offense.         As the State
                                             15
indicates in its brief, the proper degree of felony for this conviction is a state-jail felony.

Accordingly, we reform that judgment to reflect a conviction for a state-jail felony

offense.4


                                         Conclusion


       Having ordered the judgment to be modified and having overruled appellant’s

other issues, we affirm the trial court’s judgments as reformed.




                                                          Mackey K. Hancock
                                                               Justice

Do not publish.




       4
        The offense was punished as a felony of the second-degree due to the habitual
enhancements contained in the indictment. See TEX. PENAL CODE ANN. §§ 12.33,
12.42(a)(2).
                                              16
