









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-00-00106-CR
______________________________


THOMAS CLEMENT, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,401





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	Thomas Clement was convicted of sexual performance by a child pursuant to Tex. Pen.
Code Ann. § 43.25 (Vernon Supp. 2002).  The offense involved a twelve-year-old girl.  The jury
sentenced Clement to twelve years' confinement.  Clement does not challenge the sufficiency of the
evidence, but in three points of error, he contends that he received ineffective assistance of counsel,
that he was improperly admonished of the dangers of self-representation, and that the trial court
erroneously denied his motion to suppress evidence.  For the reasons stated below, we overrule all
of Clement's points of error and affirm the judgment of the trial court.
	We first address Clement's point contending that the trial court erroneously denied his motion
to suppress evidence.  Clement argues that the search warrant was based on a probable cause
affidavit that contained a deliberate and material misrepresentation by the affiant.  He further argues
that once the allegedly false material is disregarded, the affidavit lacks sufficient allegations showing
probable cause to support the issuance of the search warrant.  Because Clement has failed to show
that the alleged representation was intentionally or recklessly misleading, and because the alleged
misrepresentation was immaterial to the determination of probable cause, we overrule this
contention.
	Whether the trial court erred in denying a motion to suppress depends on whether the court
abused its discretion.  Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  Whether the
court abused its discretion depends on whether its decision falls outside the zone of reasonable
disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). 
 We review the trial court's interpretation of law or application of law to fact de novo, and in making
our determination, we defer to the trial court's findings of the historical facts.  Guzman v. State, 955
S.W.2d at 89. 
	An affidavit in support of a search warrant must allege facts establishing probable cause for
the affiant to believe that the suspected items will be found at the identified place.  See Massey v.
State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).  A search warrant may not be issued unless
sufficient facts are presented to a magistrate that permit him to conclude that probable cause exists 
to issue the warrant.  Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2002).  These facts
must be contained in a sworn affidavit accompanying the application for the warrant, and they must
illustrate:  1) that a specific offense was committed, 2) that the specifically described property or 

items to be sought and seized constitute evidence of that offense or evidence that a particular person 

committed the offense, and 3) that the property or items in question are located at or on the particular 

person, place or thing to be searched.  Tex. Code Crim. Proc. Ann. art.  18.01(b), (c) (Vernon
Supp. 2002).  Whether the facts mentioned in an affidavit are adequate to establish probable cause
depends on the totality of the circumstances.  Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim.
App. 1996).  The facts are sufficient when the circumstances justify a conclusion that the object of
the search is probably on the described premises.  Ramos v. State, 934 S.W.2d at 363.  In other
words, the magistrate must have before him sufficient facts from which he may conclude that "there
is a fair probability that contraband or evidence of a crime will be found in a particular place." 
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).  In reaching his
decision, the magistrate may draw reasonable inferences from facts and circumstances alleged in the
affidavit before him.  Ramos v. State, 934 S.W.2d at 363.  It is our duty to ensure that the magistrate
had a substantial basis for finding probable cause.  Id., 462 U.S. at 238-39.  Clement's argument is
based on the fifth of six paragraphs in the affidavit submitted by Officer Jon Warren in support of
the search warrant.  In his affidavit Warren said in relevant part that: 
			2.  	I am personally involved in the investigation of child pornography at First  
Techworld, also known as Cyber Café, located at 914 W[.] Tyler[,] Gilmer,
TX.

	3. 	On 6-25-99, I interviewed two employees of First Techworld, also known as
Cyber Café, in reference to this offense.  They provided me with written
statements and a computer disk with details to support the offense of child
pornography.

	4. 	The computer disk provided by employees depicts photographs of a child
under the age of 18 years of age at the time the image of the child was made
who is engaging in sexual conduct.  Both employees stated that, on 6-23-99,
they discovered photos while attempting to download a game to a disk from
a computer located at the place of business.  Downloading was unsuccessful
due to the disk being full with files already.  Employees recognized the child
depicted on the disk to be that of one present at the business the night before.
 
	5. 	I received a written statement from an accomplice in this offense that the
owner of First Techworld, also known as Cyber Café, has stored disk
containing pornography in a safe located inside the business.

	The trial court held a pretrial hearing on Clement's motion to suppress.  Evidence at the
hearing showed that the warrant was issued at 10:25 p.m. on June 25, 1999, and the statement of the
accomplice referred to in paragraph five, Michelle Scott, was not signed until after 11:15 p.m. that
evening.  The record shows that Scott began giving her written statement at 9:50 p.m. and that 
Warren had been told what Scott would be including in her written statement, but did not have the
final written statement in hand at the time the affidavit was submitted to the magistrate.  The
evidence conflicts as to whether Warren had received some type of preliminary written statement
before filing the affidavit. (1)  Clement argues that this shows there was an untrue statement in the
affidavit, that it was made deliberately or with reckless disregard for the truth, and that the search
warrant should therefore be invalidated under the holding in Franks v. Delaware, 438 U.S. 154, 98
S.Ct. 2674, 57 L.Ed.2d 667 (1978). 
	In Franks, the Supreme Court held that if a defendant established by a preponderance of the
evidence that a false statement made knowingly, intentionally, or with reckless disregard for the truth
was included in a probable-cause affidavit, and if it was material to establish probable cause, the
false information must be excised from the affidavit.  Id., 438 U.S. at 156.  If the abridged affidavit
is insufficient to establish probable cause, the warrant must be voided and its fruits excluded from
evidence.  Truthful in this context does not mean letter-perfect, but rather that the information put
forth in the affidavit is believed or appropriately accepted by the affiant as true.  Id. at 164-65.
	In Janecka v. State, the defendant argued for suppression because the affiant had fabricated
the existence of a male confidential informant and attributed  information to him.  Janecka v. State,
937 S.W.2d 456, 463 (Tex. Crim. App. 1996).  The affiant testified that he had obscured the female
informant's identity and gender because she had received death threats.  The court held that a
fabrication intended solely to obscure the identity of an informant for his or her protection is not the
type of misrepresentation that offends the Fourth Amendment.  The court further explained that the
substantive information necessary to establish probable cause was unaffected by the misstatement
about the source of that information.  
	In this case, Clement did not meet his burden to establish by a preponderance of the evidence
that there was an intentional, knowing, or reckless misrepresentation of fact in the affidavit.  See
Franks v. Delaware, 438 U.S. at 156.  There was conflicting evidence on exactly what information
Warren had before him when making the probable-cause affidavit.  At a suppression hearing, the
trial court is the exclusive trier of fact and judge of the credibility of the witnesses.  Guzman v. State,
955 S.W.2d at 89.  The trial court was free to believe or reject any or all conflicting evidence.  That
determination must be given appropriate deference.  See id.; Janecka v. State, 937 S.W.2d at 463. 
The trial court made no specific findings of fact, but simply denied Clement's motion to suppress. 
There is sufficient evidence in the record to support the decision of the trial court.  Without more,
we cannot say that the trial judge abused her discretion. 
	Even if he had met his burden on the misrepresentation prong, Clement could not prevail on
this issue.  The veracity of the information crucial to establish probable cause in this case was not
affected by the alleged false statement.  Whether Warren received the statement in written or verbal
form is immaterial.  The information attributed to the informant-that the owner of First Techworld,
also known as Cyber Café, had stored disk containing pornography in a safe located inside the
business-was unaltered, as was borne out by the written statement Scott provided.  Furthermore, the
statement was explicitly attributed to an accomplice, so any issue of source reliability was before the
magistrate when making the probable cause determination.  Because the crucial information was in
fact true, and because the alleged fabrication complained of was not material to establishing probable
cause, there was no Franks violation.  See Janecka v. State, 937 S.W.2d at 463.  We note further that
even if paragraph five was completely excluded, probable cause would still be sufficiently shown
on the basis of the remaining paragraphs of the affidavit. 
	Clement also contends that the trial court failed to properly warn him of the dangers of self-representation and that as a result, he failed to adequately appreciate those dangers.  From a review
of the record, we find that Clement was frequently, adequately, and sufficiently warned of the risks
involved in proceeding pro se, and that he knowingly and intelligently chose to represent himself. 
	The Sixth Amendment to the United States Constitution and Article I, § 10 of the Texas
Constitution guarantee a defendant in a criminal trial the right to assistance of counsel.  U.S. Const.
amend. VI; Tex. Const.  art.  I, § 10.  Although the right to counsel may not be forfeited, it may be
waived as long as an affirmative waiver is made knowingly and intelligently.  Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Oliver v. State, 872 S.W.2d 713, 715 (Tex.
Crim. App. 1994).  In order for this decision to be made knowingly and intelligently, the defendant
must be given a full understanding of the right to counsel, and he must be admonished about the
dangers and disadvantages of self-representation.  Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim.
App. 1997) (citing Faretta v. California, 422 U.S. at 834-36).  The admonishment must be on the
record.  Henderson v. State, 13 S.W.3d 107, 109 (Tex. App.-Texarkana 2000, no pet.).
	Clement initially retained David B. Griffith as his counsel.  Griffith filed a detailed discovery
motion and a motion electing to have the jury set punishment.  On March 17, after a hearing, the trial
court granted Griffith's motion to withdraw as attorney of record. (2)  On the morning of March 31,
Clement filed a motion to suppress and his own waiver of right to counsel.  A pretrial hearing had
also been scheduled for March 31.  Clement attempted to argue his suppression motion, but because
a copy had not been served on the State, the court decided to reschedule the hearing on that issue and
requested that both parties return on April 3.  Before dismissing him on March 31, the court
admonished Clement as follows:
			The Court:	. . . over the weekend I want you to be thinking very
very seriously about your choice to represent yourself. 
You're going to be severely handicapped because you
won't know the rules and you've got to follow the
rules. . . in introducing evidence. . . or objecting to
evidence. . . without training in evidence and that sort
of thing it would leave anybody at a disadvantage.
 
			Mr. Clement:	Yes, ma'am.

			The Court:	There are plenty of good lawyers and there's good
lawyers in Upshur County.  I read your motion
desiring -
 
			Mr. Clement:	I'm aware of that.  I'm just a little gun-shy based on
some things and I would be happy to discuss those
things with you.

			The Court:	Well, what I would rather you do is some serious soul
searching this weekend because if you come back here
on Monday and tell me that, you know, you've thought
about it and you would like to hire a lawyer, then I
would encourage you to go do that that day and we
could work at setting your case at the time when
they've had time to prepare.  I don't want to see you go
through a trial representing yourself especially based
on the reasons that you stated in your motion.  I'm
afraid that it would work seriously to your
disadvantage and I want you to really think about it
this weekend before we have a formal hearing and we
discuss this matter and go over your rights on Monday
afternoon.
 
			Mr. Clement:	I will, Your Honor.

	On Monday, April 3, Clement appeared at the hearing pro se.  The court reiterated the
discussion that had occurred at the previous hearing.
			The Court:	. . . March 31st, 2000 you informed the Court of your
intentions to waive your right to counsel -
 
			Mr. Clement:	Yes, ma'am.

			The Court:	- and your desire to represent yourself pro se, correct?

			Mr. Clement:	Yes, ma'am.
 
			The Court:	At that time, I strongly encouraged you to reconsider
that decision over the weekend.
 
			Mr. Clement:	Yes, ma'am
 
			The Court:	And to come back here this afternoon with an
attorney.
 
			Mr. Clement:	Yes, ma'am.

		. . . .

			The Court:	. . . you're not telling the Court that you're indigent
and cannot afford an attorney.
 
			Mr. Clement:	No, ma'am, I'm not telling the court that I'm indigent
and cannot afford an attorney.
 
			The Court:	. . . you are not indigent.
 
			Mr. Clement:	No, ma'am.

	The court then explained which charge was going to trial on April 17 (there were two
indictments pending against Clement at the time).  Clement explained that he would try to hire
counsel, but continued to express reservations.  The court then decided to fully admonish Clement:
	You also must be aware in the event that you do end up representing yourself of the
extreme disadvantages which might face you if you were to choose to do that.  There
are many technical rules of evidence and procedure that you would need to follow
and you would not be granted any special considerations because you've asserted to
represent yourself pro se.  You would be under the same rules and guidelines that an
attorney in your position would be, okay?  There are rules regarding evidence and
you must know how to introduce the evidence and what evidence is appropriate and
proper, how to get that - those matters into evidence as well as if you had any
objections to any evidence that the state was entering or offering, you would need to
know how to make those objections and with regard to objections you would need
to know what a legal objection is, how to make that and the grounds for that
objection.  You would also need to know how to respond to the objections made by
the state, okay?  There are certain motions, and you need to be aware of this, that are
required to be made or else they are waived and you would lose certain rights if
motions are not made.  You must have an understanding of the voir dire process and
procedure and what that involves and what is proper and appropriate in a voir dire
examination of a jury panel.  You would need to know how to examine a witness,
both the witness that you call as well as cross-examining witnesses if you choose to
do that . . .

	Obviously if you're representing yourself, no one will be allowed to assist you . . .
[m]eaning that you would be in that seat all alone, with no co-counsel . . .  There are
certain rights that a non-lawyer might not be able to accomplish . . . [these are] some
but not necessarily all of the disadvantages of representing yourself pro se.  You have
no right to stand by counsel.  As a result of everything that I've just gone over with
you, you might be disadvantaged both at trial and also with regard to any appeal that
might follow your jury trial.

	At this point, the court made an inquiry into Clement's background, including his age (thirty-nine), education level (college graduate), lack of any history of mental or psychological problems
(none), and work history (no legal training, worked since 1994 as a computer systems product
developer/engineer/designer).  The court then read the statutory waiver to Clement, and he responded
that he understood.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2002).  On April
17, the day trial began, Clement signed the waiver of representation of counsel form and the court
read the form into the record.
	Clement's argument essentially posits that despite his knowing and intelligent waiver of
counsel, and despite his own insistence on proceeding pro se in the face of repeated warnings against
doing so, the trial court erred because it did not discern that Clement subjectively "failed to fully
appreciate the dangers of self-representation."  Clement cites no authority for this position and makes
no argument for what "fully appreciating the dangers of self-representation" means, nor does he
argue for an expansion of the current requirements.  The trial court's admonishments exceeded both
in scope and frequency the requirements of Article 1.051.  The law does not require more. 
	Clement also asserts that he received ineffective assistance of counsel because his counsel
did not file a timely application for probation (now community supervision).  Clement argues that
the failure to file such a motion amounts to per se ineffective assistance of counsel.  Texas
recognizes no such per se rule of ineffective assistance under the circumstances presented.  Because
the attorney alleged to have committed ineffective assistance withdrew with the court's approval one
month before trial, and because the application for community supervision may be filed at any time
before trial, Clement has failed to demonstrate ineffective assistance of counsel.
	To prevail on his claim of ineffective assistance, Clement must demonstrate that his
attorney's representation fell below a reasonable standard of effectiveness and that the deficient
performance was so serious that it prejudiced his defense.  Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App.
1992).  Any allegation of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.  Burruss v. State, 20 S.W.3d 179, 186 (Tex.
App.-Texarkana 2000, pet. ref'd).  Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.  
	Clement's retained counsel filed various pretrial motions, including a discovery motion and
an election for the jury to assess punishment.  The record shows that Clement's relationship with his
counsel deteriorated to the point that Clement dismissed him sometime in February 2000.  Counsel
filed a motion to withdraw and served a copy on Clement on March 10.  The  trial court granted the
motion on March 17, one full month before trial.  
	Clement  filed  and  argued  his  own  motion  to  proceed  pro  se  before  the  trial  court on
March 31.  The same day, Clement also filed a motion to suppress that was heard before jury
selection on April 17.   A defendant is eligible for jury-recommended community supervision
provided he files a written sworn motion stating his eligibility with the trial court before the trial
begins.  Tex. Code Crim. Proc. Ann. art. 42.12 § 4(e) (Vernon Supp. 2002).  There is no
requirement that this motion be filed any earlier than the day of trial.  Clement did not file a sworn
motion of eligibility for community supervision.  
	Clement had ample opportunity to file his motion of eligibility for community supervision,
and he could have done so any time after March 17, up to and including the morning trial began.  He
did not do so.  Indeed, the record indicates that Clement did not want to apply for community
supervision and made a deliberate decision not to do so.  At the voir dire of the jury, the court and
the prosecutor stated that no application for community supervision had been filed.  The prosecutor
then asked Clement if he filed an application for community supervision, and Clement answered
"no."  Before being permitted to proceed pro se, the trial court sternly admonished Clement that his
rights could be restricted by the failure to file motions that were required before trial began.  Clement
has failed to demonstrate any error, because the lawyer he dismissed in February withdrew as
attorney of record a full month before trial, well before an application for community supervision
was necessary.  Any subsequent counsel would have been in a position to file the application,
including Clement, acting pro se.  There is no error in not filing a motion in the trial court a month
before it is due.  Clement has thus failed to make the requisite showing of deficient performance. 
See Burruss v. State, 20 S.W.3d at 186.  
	Under Strickland, Clement is required to show that there is a reasonable probability that, but
for his counsel's unprofessional errors, the result of the proceeding would have been different. 
Strickland v. Washington, 466 U.S. at 694.  A reasonable probability is a probability sufficient to
undermine confidence in the outcome.  Once again, this burden is on the defendant.  Clement offers
no argument in his brief that the failure to file an application for community supervision in February
or March might have adversely affected his sentence. (3)  He has therefore also failed to make a showing
of prejudice.  See Burruss v. State, 20 S.W.3d at 186. 
	Because we have overruled all of Clement's points of error, we affirm the trial court's
judgment.

							William J. Cornelius
							Chief Justice

Date Submitted:	October 24, 2001
Date Decided:		December 12, 2001

Publish
1. At the hearing on the motion to suppress, Warren testified that he had received a written
statement, but that it was incomplete.  He later testified that the incomplete statement referred to was
the same one Scott completed at 11:15 p.m., and that he had received an oral statement from another
officer attesting to Scott's written statement.  
2. The record does not contain a copy of the motion to withdraw, but does indicate that
Clement fired Griffith and refused to accept the appointment of any lawyer from the Gilmer area. 
3.  We further note that, because he was sentenced to twelve years' imprisonment, Clement was
ineligible for community supervision.  See Tex. Code Crim. Proc. Ann art 42.12 § 4(d)(1) (Vernon
Supp. 2002).  Thus, even if he had been represented by counsel, it is not clear that he could have
shown the requisite harm to successfully argue ineffective assistance of counsel.
