                            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



                                              6
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.



                                               7
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



                                             8
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.).

                                                      9
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



                                              10
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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