Opinion filed June 25, 2015




                                          In The


          Eleventh Court of Appeals
                                       __________

                                 No. 11-13-00257-CR
                                     __________

              CORNELL ANTHONY PERKINS, Appellant
                             V.
                 THE STATE OF TEXAS, Appellee


                      On Appeal from the 42nd District Court
                              Taylor County, Texas
                          Trial Court Cause No. 24702A


                       MEMORANDUM OPINION
      The jury found Cornell Anthony Perkins guilty of the offenses of burglary of
a habitation and aggravated assault.1 The trial court assessed punishment and
sentenced Appellant to confinement for thirty-five years for the burglary of a
habitation and confinement for twenty years for the aggravated assault, to run
concurrently. Appellant appeals on two grounds. We affirm.



      1
       See TEX. PENAL CODE ANN. §§ 22.02(a), 30.02(a) (West 2011).
                        I. Background Facts and Procedural History
        Appellant does not challenge the sufficiency of the evidence, so we will only
give a brief recitation of the facts. Appellant and A.W. both lived at the same
apartment complex. A.W. headed back to her apartment from the pool one morning.
As she unlocked her door, she heard a man’s voice from behind her tell her to “go
in.” The man forced A.W. into the apartment, grabbed A.W. by her ponytail, and
hit her head on a closet door. The struggle continued into the living room where the
man cut and ripped A.W.’s clothes off. The man tried to choke A.W. with a laptop
computer cord, but A.W. escaped down the hallway to her bedroom, where she
closed and locked the door. She grabbed a shotgun from the closet while the man
kicked the door. Without loading the shotgun, A.W. opened the door and pointed
the barrel of the shotgun at the man’s face. The man ran away. A.W. called the
police, and the police came to her apartment and interviewed her. The police
subsequently met with Appellant at his apartment.
        Detective John Wilson asked Appellant if he would go to the police station,
and Appellant voluntarily went.               At the station, Detective Wilson informed
Appellant of his Miranda2 rights before Detective Wilson interviewed him.
Appellant waived his rights and spoke to Detective Wilson, and Appellant stated he
was in his apartment all morning.                       After an unsuccessful photo lineup,3
Detective Wilson arranged a live lineup, which Appellant agreed to, and A.W.
identified Appellant as her assailant.              Detective Wilson subsequently arrested
Appellant. Detective Wilson testified that Appellant requested a follow-up meeting.



        2
         Miranda v. Arizona, 384 U.S. 436 (1966).

        Detective Wilson explained that photo lineups are produced from a suspect’s driver’s license
        3

photo. Appellant did not have a driver’s license, so Detective Wilson attempted to create a similar photo
of Appellant. When shown the photo lineup, A.W. pointed at Appellant’s picture but did not verbally
choose Appellant from the photo lineup.


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      At Appellant’s Article 15.174 magistrate hearing, Appellant requested that an
attorney be appointed to represent him. A few days later, Jerry Lesikar, an agent
with the Texas Department of Public Safety, met with Appellant. Agent Lesikar did
not determine whether Appellant had an attorney representing him, but Agent
Lesikar informed Appellant of his Miranda rights. Appellant waived his rights and
spoke with Agent Lesikar. Later in the interview with Agent Lesikar, Appellant
signed a statement, which outlined that Appellant went into A.W.’s apartment at her
request; that A.W. undressed and asked Appellant to tie her up with a cord; and that,
when Appellant felt like he would hurt A.W., he refused to continue. At that point,
A.W. pointed a shotgun at Appellant, and Appellant left the apartment. Appellant
objected to the admission of his statement on the ground that he did not give it
voluntarily, but the trial court overruled the objection and admitted the statement.
      Appellant’s trial counsel filed a motion for a competency examination. An
affidavit in support of the motion stated that Appellant’s family had told his trial
counsel about Appellant’s mental health issues and that trial counsel “was advised
that [Appellant] had previously had an I.Q. test administ[ered] in 2008 tha[t] showed
an I.Q. of 53.” Appellant’s trial counsel withdrew the motion a few days later based
on “consultation with [Appellant] and his family.”
                                    II. Issues Presented
      Appellant contends in his first issue that Agent Lesikar violated his Fifth,
Sixth, and Fourteenth Amendment rights when he interviewed Appellant after
Appellant had received an Article 15.17 hearing and had requested appointment of
counsel. In his second issue, Appellant asserts that he received ineffective assistance
of counsel.




      4
       See TEX. CODE CRIM. PROC. ANN. art. 15.17 (West 2015).

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                              III. Standard of Review
      For Appellant’s contention that the State violated his Fifth and Sixth
Amendment rights, we conduct a bifurcated review as articulated in Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to the trial court’s rulings on
questions of historical fact and on application of law to fact questions that turn on
credibility and demeanor. Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App.
2012). We review, under a de novo standard, the trial court’s rulings on application
of law to fact questions that do not turn on credibility and demeanor. Id. at 79. We
review the totality of the circumstances from the viewpoint of an objectively
reasonable police officer to determine whether an accused invoked his right to
counsel. Id. For Appellant’s ineffective-assistance-of-counsel claim, we apply the
well-recognized standard of review from Strickland v. Washington, 466 U.S. 668,
686 (1984).
                                    IV. Analysis
      A. Issue One: Right to Counsel
      Appellant contends that Agent Lesikar violated his federal constitutional
rights when he interviewed Appellant without Appellant’s attorney being present.
Appellant argues this violation resulted in his written statement, which made the
statement inadmissible.
      The Fifth Amendment right to counsel protects a criminal suspect against self-
incrimination in custodial interrogations. Pecina, 361 S.W.3d at 74–75. The State
must give the suspect Miranda warnings, and the suspect must voluntarily and
intelligently waive his Miranda rights before questioning. Id. at 75. If a suspect
invokes his right to have counsel present during custodial interrogations, he must
initiate any further communication with the State and again voluntarily and
intelligently waive his Miranda rights before any questioning in the absence of
counsel. Cross v. State, 144 S.W.3d 521, 526–27 (Tex. Crim. App. 2004).

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      The Sixth Amendment right to counsel guarantees “a defendant the right to
have counsel present at all ‘critical’ stages of the criminal proceedings.” Pecina,
361 S.W.3d at 77 (quoting Montejo v. Louisiana, 556 U.S. 778, 786 (2009)) (internal
quotation marks omitted). A request for an attorney at an Article 15.17 hearing is a
request for representation at all judicial criminal proceedings; it is not an anticipatory
request for counsel at all future police-initiated custodial interrogations. Id. at 78.
If a defendant wishes to invoke his Sixth Amendment right to counsel “during the
‘critical stage’ of post-arraignment custodial interrogation,” he may do so under
Miranda when the State begins the custodial interrogation, as he would waive his
Fifth Amendment right to counsel. Id. Furthermore, a defendant may unilaterally
waive his right to counsel, after the attorney-client relationship has been formed, by
initiating the communication himself. State v. Maldonado, 259 S.W.3d 184, 188–
89 (Tex. Crim. App. 2008).
      Detective Wilson testified that, after Appellant’s arrest, Appellant asked to
speak to the police. Before the second interview with police, Appellant had an
Article 15.17 hearing and requested appointment of counsel. Agent Lesikar testified
that he later met Appellant and read Appellant his Miranda rights; Appellant then
waived his rights, signed a statement that he waived his rights, and spoke to Agent
Lesikar. No evidence exists in the record that Appellant invoked his Fifth or Sixth
Amendment right to counsel during his interrogations.
      Although Appellant asked to be appointed counsel at his Article 15.17
hearing, that request did not extend to any future custodial interrogations. See
Pecina, 361 S.W.3d at 77–78. Appellant also did not invoke his right to have counsel
present during any of his interviews, including his interview with Agent Lesikar.
Instead, Appellant requested the meeting and waived his Miranda rights before
Agent Lesikar took his statement. See id. Agent Lesikar’s interview did not violate
Appellant’s Fifth or Sixth Amendment right to counsel because the evidence shows

                                            5
that Appellant initiated this communication and validly waived his Miranda rights
before the interview. See Maldonado, 259 S.W.3d at 188–89; Cross, 144 S.W.3d at
526–27.
      Even if the State had initiated the interview that produced Appellant’s written
statement, Appellant did not invoke his right to have counsel present and had not
invoked his right previously, so the State did not violate Appellant’s right to counsel.
See Pecina, 361 S.W.3d at 77; Cross, 144 S.W.3d at 526–27. We defer to the trial
court’s ruling that Appellant voluntarily and intelligently waived his rights because
that ruling turns on the credibility and demeanor of the witnesses. See Pecina, 361
S.W.3d at 78–79. The trial court did not err when it admitted Appellant’s written
statement.
      In addition, Appellant has presented no arguments or briefing on his
Fourteenth Amendment rights; therefore, he has waived those arguments. See
TEX. R. APP. P. 38.1(i); Knight v. State, 406 S.W.3d 578, 590 (Tex. App.—Eastland
2013, pet. ref’d) (holding that, because the appellant had not adequately briefed his
position, he waived any argument). We overrule Appellant’s first issue.
      B. Issue Two: Ineffective Assistance of Counsel
      Appellant asserts that his trial attorney’s performance was ineffective because
it fell below a reasonable standard when trial counsel withdrew the motion for a
competency examination. Appellant further asserts that his trial counsel prejudiced
his defense because, had Appellant been examined, the results of the competency
examination would have shown that Appellant could not intelligently waive his right
to counsel, which would have rendered his confession involuntary and inadmissible
and would have produced a different outcome.
      The benchmark for evaluating an ineffective-assistance-of-counsel claim is
whether the conduct of counsel “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”

                                           6
Strickland, 466 U.S. at 686. The Strickland test comprises two prongs: (1) a
performance standard and (2) a prejudice standard. Id. at 687. For the performance
standard, we must determine whether Appellant has shown that counsel’s
representation fell below an objective standard of reasonableness. Id. If so, we then
determine whether a reasonable probability exists that the outcome would have
differed but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 534 (2003);
Strickland, 466 U.S. at 686; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
2005). A failure to make a showing under either prong of the Strickland test defeats
a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 893
(Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101. A reviewing court need not
consider both prongs of the Strickland test and can dispose of an ineffectiveness
claim on either prong. Walker v. State, 406 S.W.3d 590, 594 (Tex. App.—Eastland
2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012));
see Strickland, 466 U.S. at 697.
      The first prong of Strickland requires Appellant to establish that trial counsel
provided deficient assistance of counsel. A strong presumption exists that trial
counsel’s conduct fell within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689; Isham v. State, 258 S.W.3d 244, 250 (Tex. App.—
Eastland 2008, pet. ref’d). To overcome this deferential presumption, an allegation
of ineffective assistance must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d
808, 814 (Tex. Crim. App. 1999).
      Usually, a silent record that does not explain counsel’s actions will not
overcome the strong presumption of reasonable assistance. Id. Appellant must
overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.—

                                          7
Eastland 2005, pet. ref’d). The record on direct appeal will not normally show that
trial counsel’s representation was so lacking as to overcome the presumption of
reasonable conduct. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
      We do not inquire into the wisdom of a trial strategy unless no plausible basis
exists for trial counsel’s actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim.
App. [Panel Op.] 1981). When the record contains no evidence of the reasoning
behind trial counsel’s actions, we cannot conclude that counsel’s performance was
deficient unless his actions were so outrageous that no competent attorney would
have engaged in them. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
      Appellant’s trial counsel stated, without a detailed explanation, that he
withdrew his motion for a competency examination based on his consultation with
Appellant and Appellant’s family. We cannot conclude, without more in the record,
that counsel’s withdrawal of the motion constituted deficient performance, and we
cannot conclude that it was so outrageous that no competent attorney would have
done so. See Goodspeed, 187 S.W.3d at 392; Jackson, 877 S.W.2d at 771. We do
not reach the prejudice prong of Strickland because Appellant has failed to satisfy
the deficient-performance prong. See Perez, 310 S.W.3d at 893. We overrule
Appellant’s second issue.
                               V. This Court’s Ruling
      We affirm the judgments of the trial court.




June 25, 2015                                       MIKE WILLSON
Do not publish. See TEX. R. APP. P. 47.2(b).        JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.


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