      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00644-CR



                                     Floyd Clark, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-09-201351, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Floyd Clark of the felony offense of assault family

violence. See Tex. Penal Code Ann. § 22.01(b)(2) (West Supp. 2010). Punishment, enhanced by

a prior conviction for the felony offense of aggravated assault, was assessed at seventeen years’

imprisonment. In six issues on appeal, Clark asserts that he was denied his Sixth Amendment

right to counsel; that his sentence was improperly enhanced by the same prior conviction that was

used as an essential element of the charged offense; that the evidence against him was unlawfully

obtained when officers entered his residence without a warrant and without knocking and

announcing their presence; that the State committed “numerous acts” of prosecutorial misconduct

during trial; that his appointed counsel was ineffective due to “a very serious personality conflict”

between counsel and himself; and that the evidence was insufficient to sustain his conviction. We

will affirm the judgment.
                                         BACKGROUND

               Clark was charged with assaulting his girlfriend, Lisa Champ, on or about March 9,

2009. The couple lived together. The evidence at trial showed that on the night in question,

police officers responded to a 911 call from a neighbor, Janie Govea. Govea testified at trial and

recalled that she “heard a lot of yelling and screaming” and a “female crying out for help,” saying,

“Stop, stop.” Govea also heard a male voice saying, “I’m tired of your shit. I’m just tired of your

doping ass.” Govea added that the male was “really just yelling at [the female] real bad” and that

the yelling lasted for “about five minutes.”

               Three or four police officers arrived at the apartment complex in response to the

domestic-disturbance call, including Officers Shana Howell and Brian Huckabee of the Austin Police

Department. Officer Howell testified that as she and Huckabee approached the apartment, she could

hear yelling and screaming coming from inside. Howell also testified that the door to the apartment

was “slightly ajar.” Howell “rattled on the door with [her] flashlight,” identified herself “as an

Austin police officer,” and entered the apartment. Howell recalled that it was “very dark inside” the

apartment. Howell instructed the individuals inside the apartment to “show us their hands,” shined

her flashlight throughout the apartment to locate the people inside, and saw a female on the couch

and a “little boy” nearby. Also found inside the apartment were two adult males, later identified as

Clark and his father.

               Howell noticed that the female, later identified as Champ, was sobbing and appeared

injured. Howell testified, “She had swollen lips. She had [what] looked like dried, scabby blood

on her right ear. And then above her right temple, right here, she had more blood. She just looked



                                                 2
like she had been badly beaten up.” Also, Champ “kept looking at [Clark] like she was scared of

him.” As Clark was being taken out of the apartment by Huckabee, Howell recalled that he began

repeatedly yelling, “Lisa, Lisa.” According to Howell, Clark was “bellowing” Champ’s name, and

every time he did so, Champ “would just shudder.” Howell added, “You could tell it really startled

her just for him to bellow her name like that.”

               Howell questioned Champ about the preceding events. According to Howell, Champ

told her that it was Clark’s birthday and that Clark and his father had gone to a pool hall, where they

had been drinking. Champ also told Howell that when they returned to the apartment, Clark’s father

began calling Champ derogatory names, Clark agreed with his father, and “basically began to beat

her up.” Howell asked Champ how many times Clark had hit her, and Champ told her, “I lost count,

but I think it was at least eight times.” After Champ explained to Howell what had happened to her,

Howell took her to a mirror and showed Champ her injuries. At some point during her conversation

with Howell, Champ requested an ambulance.

               Howell characterized Clark’s temperament at the apartment as “very uncooperative”

and “very aggressive.” Howell observed “blood crusted along his fingernails and on his fingertips”

and attempted to photograph the blood on Clark’s hands, but she was unable to do so because

“he clenched up his fists . . . and just kind of balled them at his sides.” Huckabee provided similar

testimony regarding Clark’s appearance and demeanor. Huckabee explained that Clark was

“agitated” and kept yelling Champ’s name, “so much so” that “it was obvious that . . . he wasn’t

listening to me, any questions that I was asking. And I was beginning to fear that he was maybe

trying to influence or intimidate someone in there. So I walked him to where my patrol car was and



                                                  3
away from the apartment, where it was parked outside.” Huckabee also noticed “dried blood on the

palm of [Clark’s] hands.”

               When the ambulance arrived at the apartment, Brian Parch, a field paramedic,

proceeded to evaluate Champ’s injuries. Parch testified that Champ told him that “she was

assaulted,” “struck with an open hand,” and “choked almost to the point of passing out.” Parch

observed a hematoma on the left side of Champ’s head and visible abrasions on her upper lip,

right scapula, left flank, and right bicep. Parch testified that these injuries were consistent with

Champ’s reported history of having been assaulted. Champ was taken to the emergency room

of Brackenridge Hospital. The registered nurse who had treated Champ, Erin Hunter, testified that

Champ told her that “she was assaulted by [her] boyfriend,” that she was “hit in the face by an open

fist,” and that she was “strangled to the point of where she nearly passed out.” Amy Gangloff, an

emergency room social worker, also observed Champ that night and testified regarding her

observations. Gangloff testified, “I observed bruising to her face, swelling of her lips, and bruising

and red marks to her neck.” Champ was photographed at the hospital and the photographs, which

showed visible injuries, were admitted into evidence.

               Champ also testified at trial. She recounted how on the night in question she had

gotten into an argument with Clark and his father. After Clark’s father had briefly left the apartment,

Champ explained, Clark accused her of being “disrespectful” to him and began strangling her throat

using both of his hands. Champ testified, “He was squeezing to the point to where he wanted me

to pass out . . . . He was screaming in my face, ‘Pass out, bitch. Just pass out.’” Champ continued,

“I was seeing stars, and it was black. There was blackness going across my eyes, until he finally let



                                                  4
go. That’s when he proceeded to bang my head up against the wall.” When asked how many times

her head struck the wall, Champ testified, “Multiple. I lost count after the third time.” After that,

Clark proceeded to strangle Champ a second time. This time, Champ fell to the floor, and Clark then

banged her head against the floor. Champ recalled, “He was telling me the whole time that I’m too

disrespectful. I don’t know how to keep my mouth shut. I need to only . . . talk when I am spoken

to.” At some point during the beating, Clark’s father returned to the apartment, told his son to stop,

and Clark stopped beating Champ. However, Clark continued screaming at Champ and telling her

to “never disrespect anybody ever again.” Clark then walked away from Champ, returned with what

appeared to Champ to be a “sawed-off shotgun,” “sat it down on the table,” and “said something

about having to clean it before it could be used.” Champ was afraid that Clark intended to “use” the

shotgun on her. Shortly thereafter, the police arrived.

               During Champ’s testimony, the State offered into evidence a letter that Clark

had allegedly written to Champ while he was in jail. Clark had apparently given the letter to his

grandmother, who in turn had mailed it to Champ. In the letter, which was admitted over an

objection by defense counsel to its authenticity, Clark tells Champ that he loves her and asks her to

“stay away from the prosecutor,” “don’t call nobody,” and “stay hidden.” Clark also advises Champ

to “write the judge . . . a good character letter,” claim that she “had words with [the] girl upstairs

before (a cursing argument),” and “tell the judge” that the police continued asking questions of him

after he had exercised his right to remain silent. Clark further asks Champ to “get [an] affidavit of

non-prosecution,” “plead the Fifth Amendment,” and refuse to testify.




                                                  5
               Clark’s mother and father testified in their son’s defense. Clark’s mother testified

that she had gotten into a disagreement with Champ several days prior to the alleged assault. Clark’s

mother claimed that during the argument, she had struck Champ in the neck with a broom and

had injured her, thus implying that it was she who was responsible for Champ’s injuries. Clark’s

father testified that on the night of the alleged assault, Champ had “started screaming and cussing”

at Clark and that Clark was only “trying to calm her down.” Clark’s father denied seeing his son

assault Champ.

               The jury found Clark guilty as charged, and the case proceeded to punishment. The

jury found the State’s enhancement allegation to be true, and assessed punishment as noted above.

The district court sentenced Clark in accordance with the jury’s verdict. Shortly after trial, defense

counsel moved to withdraw, and the district court granted the motion. New counsel was appointed

on appeal. This appeal followed.


                                            ANALYSIS

Delay in appointment of counsel

               In his first issue, Clark asserts that his Sixth Amendment right to counsel was violated

“when he was not appointed an attorney within a reasonable period of his request.”1 Clark claims


       1
          We note that in the heading of this and other issues on appeal, Clark claims violations
of both the United States and Texas Constitutions. However, he makes no separate substantive
arguments relating to the Texas Constitution. When an appellant provides no explanation
for construing the Texas Constitution as conferring greater protection in an area of law than
the United States Constitution, the state constitutional claims are waived. See Muniz v. State,
851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993) (holding that failing to provide rationale for
interpreting state constitution more broadly than federal constitution will forfeit error on
state ground).

                                                  6
that during the time he was without counsel, he “may have made some ill advised decisions that

counsel may have been able to prevent.”

                 The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.” U.S. Const. amend. VI. The right to counsel guaranteed by the Sixth Amendment applies

at the first appearance before a judicial officer at which a defendant is told of the formal accusation

against him and restrictions are imposed on his liberty. See Brewer v. Williams, 430 U.S. 387,

398-99 (1977). Once the adversarial judicial process has been initiated, the Sixth Amendment

right to counsel guarantees an accused the right to have counsel present at all “critical stages” of

the criminal proceeding, including during police interrogation after charges have been filed. See

United States v. Wade, 388 U.S. 218, 227-28 (1967); Massiah v. United States, 377 U.S. 201, 204-05

(1964); Hughen v. State, 297 S.W.3d 330, 334 (Tex. Crim. App. 2009). In 2008, the Supreme Court

held that the Sixth Amendment right to counsel attaches at a hearing pursuant to Article 15.17 of the

Texas Code of Criminal Procedure, when the accused is first brought before the magistrate, informed

of the accusations against him, and sent to jail until bail is posted. See Rothgery v. Gillespie County,

554 U.S. 191,199 (2008). At that point, “counsel must be appointed within a reasonable time after

attachment to allow for adequate representation at any critical stage before trial, as well as at trial

itself.” Id. at 212.2


        2
          The Supreme Court did not decide in Rothgery what constitutes a reasonable time to
appoint counsel after attachment. It explained:

        Our holding is narrow. We do not decide whether the 6-month delay in appointment
        of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have

                                                   7
                The record in this case is unclear as to when counsel was appointed to represent

Clark. The record reflects that Clark was brought before the magistrate for his Article 15.17 hearing

on March 12, 2009, at 1:54 a.m., that he requested counsel at that time, and that he was financially

eligible for court-appointed counsel. There is an “order appointing attorney” attached to Clark’s

indigence form in the record, but the order is blank—undated, unsigned, and without the name of

the appointed attorney. On April 20, while confined in jail, Clark filed a pro se application for

writ of habeas corpus in which he claimed, among other things, that he was without counsel. On

May 8, Clark filed a motion to dismiss appointed counsel. In the motion, Clark stated that counsel

had been appointed on April 20. Assuming Clark’s statement is correct (and the State does

not contend otherwise), counsel was appointed approximately five weeks after Clark’s right to

counsel had attached.

                However, even assuming that this is the length of time that it took for counsel to be

appointed, we cannot conclude from this record that Clark’s Sixth Amendment right to counsel was

violated. This right is designed to ensure that a defendant has the assistance of counsel at all “critical

stages” of the criminal proceedings. The Supreme Court has explained the nature of this right: “[I]n

addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against



        no occasion to consider what standards should apply in deciding this. We merely
        reaffirm what we have held before and what an overwhelming majority of American
        jurisdictions understand in practice: a criminal defendant’s initial appearance before
        a judicial officer, where he learns the charge against him and his liberty is subject to
        restriction, marks the start of adversary judicial proceedings that trigger attachment
        of the Sixth Amendment right to counsel.

Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008).


                                                    8
the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence

might derogate from the accused’s right to a fair trial. . . . The presence of counsel at such critical

confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected

consistently with our adversary theory of criminal prosecution.” United States v. Wade, 388 U.S.

218, 226-27 (1967). Here, Clark was indicted for the offense on April 16, four days before counsel

was apparently appointed. The record does not reflect that there were any court proceedings in the

case during the weeks between Clark’s initial appearance and his indictment, nor does the record

reflect that Clark was subject to any interrogation by the police or other agents of the State while he

was without counsel. And Clark’s trial did not begin until October 19, 2009, which gave counsel

approximately six months after he was appointed to consult with his client, investigate the case,

and prepare for trial. The record does not demonstrate that Clark was deprived of counsel during

any “critical stage” of the proceedings. See Rothgery, 554 U.S. at 212 n.16 (defining “critical stages”

as “proceedings between an individual and agents of the State . . . that amount to ‘trial-like

confrontations,’ at which counsel would help the accused ‘in coping with legal problems or . . .

meeting his adversary’”) (citing United States v. Ash, 413 U.S. 300, 312-13 (1973); Wade,

388 U.S. at 226).

                Moreover, even if Clark had been deprived of his right to counsel in the weeks

following his initial appearance, Clark would not be entitled to a reversal of his conviction on this

ground unless the record demonstrated harm resulting from the delay. See Satterwhite v. Texas,

486 U.S. 249, 257-58 (1988); Sterling v. State, 830 S.W.2d 114, 121 (Tex. Crim. App. 1992);

see also Chambers v. Maroney, 399 U.S. 42, 54 (1970) (“[W]e are not disposed to fashion a per se



                                                   9
rule requiring reversal of every conviction following tardy appointment of counsel . . . .”); Thomas

v. State, 530 S.W.2d 834, 836 (Tex. Crim. App. 1975) (“Belated appointment of counsel, standing

alone, does not require reversal.”).

               Clark claims that he was prejudiced by the delayed appointment of counsel in the

following ways. First, he argues that the letter he wrote to Champ—which was apparently written

prior to the appointment of counsel—“should have never been written.” Clark asserts that if he had

received appointed counsel in a reasonable time, he would have been advised not to write the letter

and would have followed that advice. Clark adds that he “made some phone calls that were hurtful

to his case” and asserts that counsel would have advised him “to refrain from discussing his

case on the phone.”3 On this record, such claims are entirely speculative. There is no affidavit or

other evidence in the record tending to show what counsel would have advised Clark or whether

Clark would have refrained from writing the letter or making the phone calls even if he

had been so advised. See Sterling, 830 S.W.2d at 121 (“We are not at liberty to presume

the existence of facts not shown by the record.”). Moreover, this argument misconstrues the

nature of the Sixth Amendment right to counsel. The right is not violated “whenever—by luck or

happenstance—the State obtains incriminating statements from the accused after the right to counsel

has attached.” Maine v. Moulton, 474 U.S. 159, 176 (1985). Rather, “the Sixth Amendment is

violated when the State obtains incriminating statements by knowingly circumventing the accused’s

right to have counsel present in a confrontation between the accused and a state agent.” Id. There




       3
         Clark does not specify in his brief the phone calls to which he is referring or explain how
they were harmful to his case.

                                                10
is no indication in the record that the letter or phone calls were obtained by the State in such a

manner. See Hall v. State, 67 S.W.3d 870, 874-75 (Tex. Crim. App. 2002), vacated and remanded

on other grounds, 537 U.S. 802 (2002) (admission into evidence of defendant’s videotaped statement

to reporters made after right to counsel had attached did not violate Sixth Amendment right to

counsel because there was “no evidence that the authorities prompted the interview” or that reporters

were acting as state agents when they conducted interview).

                Next, Clark claims that he was “clearly prejudiced during the pre-indictment and

pretrial postures of his criminal case” because he had to “resort[] to filing his own habeas application

and motion in limine.” These documents, he claims, “were damaging to his case because they were

incomplete and inappropriately addressed irrelevant issues.” We have reviewed the documents in

question, and neither document appears harmful to Clark’s case in any way. The district court never

ruled on either the pro se motion in limine or the habeas application, and Clark filed a subsequent

motion in limine with the assistance of counsel. If Clark had similarly wanted to file a habeas

application with the assistance of counsel, he could have done so at any time after counsel was

appointed. Other pretrial documents that Clark filed in this case were prepared and filed with the

assistance of counsel.

                Clark also claims that if he had been appointed counsel in a timely manner, “he would

have been informed of the potential legal issue that could have been raised . . . regarding the length

of time he was detained and magistrated.” “This issue could have been raised,” Clark continues,

“and could have possibly resulted in Mr. Clark’s release.” But Clark does not identify the “potential

legal issue” regarding the length of Clark’s detention, and our review of the record does not reveal



                                                  11
any such issue that could have been raised. Thus, there is nothing in the record to indicate that if

only counsel had been appointed earlier, Clark might have been released from custody.

               We cannot conclude on this record that Clark was deprived of his right to counsel

during any “critical stage” of the proceedings or that he suffered any harm resulting from the

apparent delay in the appointment of counsel. We overrule Clark’s first issue.


Punishment

               In his second issue, Clark claims that his sentence was improperly enhanced by

the same prior conviction that was used as an essential element of the charged offense. See Wisdom

v. State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986) (“The use of a prior conviction to prove an

essential element of an offense bars the subsequent use of that prior conviction in the same

indictment for enhancement purposes.”). The record, however, does not support this assertion.

               Clark was charged with the third-degree felony offense of assault family violence.

The elements of this offense are: (1) an assault; (2) committed against a member of the defendant’s

family or household or with whom the defendant has had a dating relationship; and (3) the defendant

has been previously convicted of an offense against a member of the defendant’s family or household

or with whom the defendant has had a dating relationship. See Tex. Penal Code Ann. § 22.01(a), (b).

Thus, an essential element of the offense is a prior conviction. The conviction that the State used

for this purpose was Clark’s 2006 misdemeanor conviction for assault family violence in trial court

cause number 3061736. Clark stipulated to this conviction during trial, and a certified copy of the

judgment of conviction was admitted into evidence without objection.




                                                12
               This was not the same offense that was used for enhancement purposes. To enhance

Clark’s punishment range to that of a second-degree felony, the State alleged that Clark had

been convicted on March 19, 1999, of the felony offense of aggravated assault, in trial court

cause number 0990616. Clark pleaded not true to this allegation. During punishment, the judgment

of conviction for this offense was admitted into evidence, and the jury found that Clark had

been convicted of this offense as alleged. Thus, the record reveals that Clark’s sentence was

enhanced by a different prior conviction than the one that was used as an essential element of

the charged offense.

               We overrule Clark’s second issue.


Motion to suppress

               In Clark’s third issue, he asserts that the evidence against him was obtained following

an illegal entry into his residence by the police. Clark claims that the police entered his apartment

without first knocking and announcing their presence and that all evidence obtained as a result of

that entry should therefore be suppressed. See Wilson v. Arkansas, 514 U.S. 927 (1995) (holding that

Fourth Amendment incorporates common-law requirement that police knock on door of residence

and announce identity and purpose before attempting forcible entry).

               In response, the State first argues that Clark failed to preserve error on this issue. We

agree. To preserve error on the admission of illegally seized evidence, a defendant must either file

a motion to suppress and obtain a ruling on the motion or timely object when the State offers the

evidence at trial. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Ross v. State, 678 S.W.2d

491, 493 (Tex. Crim. App. 1984); Ratliff v. State, 320 S.W.3d 857, 860-61 (Tex. App.—Fort Worth

                                                  13
2010, pet. ref’d). When a motion to suppress is not ruled on prior to trial but is instead carried

to trial, the defendant is obligated to make a timely objection when the evidence is offered, renew

his motion to suppress, and obtain a ruling from the trial court. See Garza v. State, 126 S.W.3d

79, 84-85 (Tex. Crim. App. 2004); Thomas v. State, 884 S.W.2d 215, 216-17 (Tex. App.—El Paso

1994, pet. ref’d).

                Here, Clark filed a motion to suppress prior to trial. At the beginning of trial, prior

to voir dire, the district court commented, “You have a motion to suppress illegally seized evidence.

I am certain we have carried it to time of trial.” The case then proceeded. When the State later

presented the testimony of the officers who had entered Clark’s apartment, counsel did not object

or re-urge his motion to suppress. Thus, the district court never ruled on the motion, and there

is nothing for us to review. See Coleman v. State, 113 S.W.3d 496, 499 (Tex. App.—Houston

[1st Dist.] 2003), aff’d on other grounds, 145 S.W.3d 649 (Tex. Crim. App. 2004) (“The mere filing

of a motion to suppress does not preserve error.”).

                Moreover, Officer Howell testified that prior to entering the apartment, she “rattled

on the door with [her] flashlight” and identified herself “as an Austin police officer.” Howell also

explained the circumstances surrounding the entry, which included the door being “slightly ajar,”

the apartment being “very dark inside,” the yelling and screaming that she heard coming from inside

the apartment, and her concern for the safety of herself and her fellow officers while responding to

a domestic disturbance call. Based on this and other evidence, even if the district court had denied

the motion to suppress, we would not be able to conclude on this record that it was an abuse of

discretion to do so. See Wilson, 514 U.S. at 936 (explaining that there are exceptions to knock-and-



                                                  14
announce rule, including “circumstances presenting a threat of physical violence”); Layton v. State,

280 S.W.3d 235, 240 (Tex. Crim. App. 2009) (reviewing court must uphold trial court’s decision

to admit evidence “as long as the result is not outside the zone of reasonable disagreement”).

                We overrule Clark’s third issue.


Prosecutorial misconduct

                In his fourth issue, Clark asserts that the State committed “numerous acts” of

prosecutorial misconduct. Clark complains of the State: (1) introducing hospital records that

were, he claims, irrelevant and misleading; (2) eliciting testimony that a gun was present in the

apartment even though “there was no gun found” in Clark’s apartment; (3) during voir dire,

at one point misstating the punishment range for the offense and, while one of the panel members

was using the restroom, continuing to question the panel; (4) making various “improper remarks”

and misstatements during closing argument; and (5) committing “various instances of sidebar and

leading questions during the State’s direct examination of their witnesses.” Clark claims that these

actions, individually and collectively, denied him due process.

                Clark’s briefing merely summarizes the actions that he claims were improper

without providing analysis as to why each action constitutes “prosecutorial misconduct” and

how each action, either individually or collectively, rises to the level of a due process violation. See

Tex. R. App. P. 38.1(i). More importantly, the record reflects that Clark did not object to any of the

above alleged acts of misconduct. Accordingly, Clark has failed to preserve error. See Tex. R. App.

P. 33.1; Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Urtado v. State, 333 S.W.3d

418, 426 (Tex. App.—Austin 2011, no pet. h.). Finally, having reviewed the record and the specific

                                                   15
instances of conduct alleged to be improper, we cannot conclude that any of the allegations,

either individually or collectively, would constitute misconduct so severe that Clark was denied

due process and a fair trial. See Berry v. State, 233 S.W.3d 847, 858-59 (Tex. Crim. App. 2007);

Urtado, 333 S.W.3d at 426; Jimenez v. State, 240 S.W.3d 384, 402, 411-12 (Tex. App.—Austin

2007, pet. ref’d); see also United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (“Improper

prosecutorial comments constitute reversible error only where the defendant’s right to a fair trial

is substantially affected. A criminal conviction is not to be lightly overturned on the basis of a

prosecutor’s comments standing alone. The determinative question is whether the prosecutor’s

remarks cast serious doubt on the correctness of the jury’s verdict.”) (quoting United States

v. Holmes, 406 F.3d 337, 356 (5th Cir. 2005)).

               We overrule Clark’s fourth issue.


Ineffective assistance of counsel

               In Clark’s fifth issue, he asserts that his right to counsel was violated when he

“requested and was denied new counsel and communications had so clearly broken down between

Mr. Clark and his trial counsel as to deny Mr. Clark’s right to effective representation.” Clark

attributes the breakdown to the apparent delay in appointing counsel and claims that once

the appointment was made, “a very serious personality conflict” emerged between himself and

trial counsel. Citing to Strickland v. Washington, 466 U.S. 668 (1984), Clark contends that “the

breakdown of their attorney-client relationship and conflict between their interests was tantamount

to errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.”

                                                 16
                To prevail on a Strickland claim, Clark must prove by a preponderance of the

evidence that counsel was ineffective. Perez v. State, 310 S.W.3d 890, 892 (Tex. Crim. App. 2010).

There are two required components of an ineffectiveness claim: performance and prejudice. Id.

First, Clark must prove that counsel’s performance was deficient. Strickland, 466 U.S. at 687;

Perez, 310 S.W.3d at 892. To satisfy this prong of the analysis, Clark “must show that counsel’s

representation fell below an objective standard of reasonableness” based upon “prevailing

professional norms.” Strickland, 466 U.S. at 688; Perez, 310 S.W.3d at 893. For this performance

inquiry we consider all of the circumstances, with “a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89;

Perez, 310 S.W.3d at 893.

                “Second, the defendant must show that the deficient performance prejudiced

the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To succeed under

the prejudice component, Clark “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.

“It is not enough for the defendant to show that the errors had some conceivable effect on the

outcome of the proceeding.” Id. at 693. Rather, he must show that “there is a reasonable probability

that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

“In making this determination, a court hearing an ineffectiveness claim must consider the totality

of the evidence before the judge or jury.” Id. “[A] verdict or conclusion only weakly supported by



                                                  17
the record is more likely to have been affected by errors than one with overwhelming record

support.” Id. at 696.

                On this record, we cannot conclude that Clark satisfied his burden to prove that

counsel’s performance was deficient. Although Clark filed a motion to dismiss appointed counsel

shortly after counsel had been appointed, the district court never ruled or held a hearing on the

motion. Nor did Clark allege ineffective assistance in his motion for new trial. Thus, our review

of counsel’s performance is limited to the record of the proceedings during Clark’s trial.

                At the conclusion of the State’s case, the district court held a hearing outside

the presence of the jury in which Clark and trial counsel placed matters on the record relating to

their attorney-client relationship. Immediately prior to the hearing, Clark and counsel had a private

conversation regarding whether it was in Clark’s best interest to testify. After the conversation

concluded and the hearing commenced, Clark began by accusing counsel of not providing him with

“the advice I need to ascertain [] whether it’s in my best interests” to testify. Counsel disputed this:

“I believe I told you in there what I thought. . . . Would you like me to tell you in here what I told

you there?” Clark answered in the affirmative. The following exchange then occurred:


        [Counsel]:      I told you that I have not known you to be truthful before. I told you
                        that you have made false statements—

        [Clark]:        I didn’t make a false statement to you.

        [Counsel]:      May I continue? I told you that you wrote a completely lie-filled
                        letter to the Court about our interactions. Number two—

        [Clark]:        Judge, I have a bump on my forehead. I was not born with this.




                                                  18
       [Counsel]:      Number two, I told you that I thought the fact that if you testify
                       they’re going to catch you in a number of lies, which I don’t think
                       is—

       [Clark]:        You didn’t tell me that in that room.

       [Counsel]:      Number three, I told you, you have these prior convictions that they
                       will ask you about. Number four, I told you, you wrote a ridiculous,
                       asinine letter to the purported victim in this case.

       [Clark]:        I was supposed to come down here, tell what had happened.

       [Counsel]:      And if you take the stand now—

       [Clark]:        She sat down here, told a bunch of lies.

       [Counsel]:      May I continue? Remember, I told you about the letter you’re going
                       to have to explain that you wrote to the purported victim in this case?
                       Remember all that stuff?

       [Clark]:        Yes.

       [Counsel]:      All right. Do you need me to clarify my—

       [Clark]:        The first part of the—

       [Counsel]:      May I continue? Do you need me to clarify any further what my
                       thoughts are about whether you should testify or not? Because I don’t
                       think you should. Now, do you have any other questions?

       [Clark]:        You didn’t tell the part about where you told me you thought I was an
                       asshole.

       [Counsel]:      Well, I did say that, too. Did you have any other questions?


               Clark then proceeded to argue to the district court that it should have appointed him

a different attorney, that he was innocent of the charges against him, and that the State’s witnesses

had lied. The district court then returned to the issue of whether Clark wanted to testify. The



                                                 19
district court informed Clark that counsel was a “very knowledgeable” and “excellent” lawyer but

that it was Clark’s decision as to whether to testify. The district court also reminded Clark that the

State’s indictment alleged “four assault family violence cases” and that counsel “has protected your

right by stipulating to one, so the jury wouldn’t hear about the other three.” Counsel then asked

Clark, “Do you wish to testify or not?” Clark replied, “No. I don’t think it’s to my best interests to

testify because of the weight of all my past convictions.” The district court then concluded the

hearing, and the trial continued.

               At the close of the defense case, outside the presence of the jury, Clark again

argued to the district court that there were numerous “problems” with the State’s case and that there

were “some things [he] tried to get [counsel] to do during the trial that he was not willing to do.”

Clark also expressed concern that his “past” would “outweigh everything here” and that the jury

would convict him based on his prior convictions. The district court disagreed, noting that counsel

“has done an excellent job of excluding your past so that there is just one they know of.” The trial

then continued. Later, prior to the punishment hearing, counsel asked Clark if he understood that he

had “the absolute right to decide whether you’re going to testify. It’s your choice.” Counsel testified

that he understood that right and that he had chosen not to testify during punishment.

               The above exchanges do not indicate that counsel’s performance was deficient. To

the contrary, they indicate that counsel provided Clark with accurate advice concerning the risks of

testifying, that counsel informed Clark of why he had advised against testifying, and that, by advising

Clark to stipulate to one prior conviction, counsel was able to preclude the State from admitting

evidence pertaining to other prior convictions. Although the above exchanges also tend to show that



                                                  20
Clark may have had disagreements and conflicts with his counsel concerning trial strategy,

Clark makes no showing that such disagreements and conflicts rendered counsel’s performance

“deficient” as that term is defined in Strickland. See id. at 687 (defining deficient performance

as “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment”). Having reviewed the entire record, we find no actions or inactions

by counsel that rise to such a level. Nor does Clark identify any specific instances of deficient

performance in the record.

               We also cannot conclude on this record that Clark proved prejudice. Whatever

disagreements and conflicts that Clark and trial counsel may have had with each other, the record

fails to show a reasonable probability that, but for those disagreements and conflicts, the result of

the proceeding would have been different. See id. at 693-96.

               We overrule Clark’s fifth issue.


Sufficiency of the evidence

               In Clark’s sixth issue, he claims that the evidence is legally and factually insufficient

to support his conviction. Specifically, he argues that the State’s case is “purely conjectural” and

that Champ’s injuries “could have easily been sustained when Champ had a physical altercation with

Mr. Clark’s mother.”

               We no longer employ distinct legal and factual sufficiency standards when reviewing

the sufficiency of the evidence to sustain a criminal conviction. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). Instead, the only standard for determining whether the evidence

proves the defendant’s guilt beyond a reasonable doubt is the Jackson due process standard. Id.;

                                                  21
see Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Jackson, the question presented is

whether, after viewing all the evidence in the light most favorable to the verdict, a rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. 443 U.S.

at 319. We assume the trier of fact resolved conflicts in the testimony, weighed the evidence,

and drew reasonable inferences in a manner that supports the verdict. Id. at 318. The reviewing

court may impinge on the trier of fact’s discretion only to the extent necessary to guarantee the

fundamental protection of due process of law. Id. at 319.

               This was not a close case. The victim testified in detail concerning the assault

and identified Clark as the person who had assaulted her. A neighbor testified that she heard the

altercation and that a male was screaming at a female who was pleading with the male to “stop.”

Police officers who arrived at the scene testified that Champ appeared upset, scared, and injured,

while Clark appeared “agitated,” “aggressive,” “uncooperative,” and literally had “blood on his

hands.” Other witnesses testified to the nature and extent of Champ’s injuries and described the

injuries as being consistent with an assault. Photographs of Champ’s injuries were admitted into

evidence. Although Clark’s father denied seeing his son assault Champ, and Clark’s mother implied

that it was she who had injured Champ, the jury could have reasonably discounted the testimony of

Clark’s parents and instead credited the testimony of the victim, the police officers, and the other

witnesses called by the State. Viewing the above evidence in the light most favorable to the verdict,

we conclude that the evidence is legally sufficient to sustain Clark’s conviction.

               We overrule Clark’s sixth issue.




                                                  22
                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: July 8, 2011

Do Not Publish




                                              23
