Cannon v. State

• Decision Date: 16 January 2008
• Docket Number: No. PD-1084-05.,PD-1084-05.
• Citation: 252 S.W.3d 342
• Parties: Darrell Dewayne CANNON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

252 S.W.3d 342

Darrell Dewayne CANNON, Appellant, v. The STATE of Texas.

No. PD-1084-05.

Court of Criminal Appeals of Texas.

January 16, 2008.

John G. Tatum, Richardson, for Appellant.

Andrea L. Westerfeld, Asst. Criminal District Atty., McKinney, Jeffrey Van Horn, State's Atty., Austin, for State.

HOLCOMB, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

We grant the State's motion for rehearing, withdraw our opinion of October 17, 2007, and substitute the following:

We granted appellant's petition for discretionary review in order to determine whether he was denied his Sixth Amendment right to the effective assistance of counsel. We now hold that he was denied that right.

On December 12, 2003, the criminal district attorney of Collin County filed an information in the trial court charging appellant with misdemeanor driving while intoxicated. See Tex. Pen.Code § 49.04(a). On September 20, 2004, after several prior settings, the State brought appellant to trial, with the Honorable John O. Barry presiding. The trial, including jury selection, lasted two days.

On the morning of the first day, shortly before jury selection began, defense counsel, Christopher N. Hoover, presented the trial court with an oral motion for continuance and a written motion to recuse. The oral motion for continuance was apparently based on appellant's alleged need for an expert to assist in the preparation of his defense.¹ The written motion to recuse alleged, in pertinent part:

"About four weeks ago, counsel tried State of Texas v. Jason Dixon before Judge Barry. During that trial Judge Barry appeared to personally attack the undersigned and was not fair and impartial. Events that occurred during that trial are the subject of a complaint with the Judicial Conduct Commission being drafted by Mr. Hoover."

The trial court, without hearing argument, denied the motion to recuse. Defense counsel then moved that the motion to recuse "be heard by a neutral judge," but the trial court denied that motion, too. Defense counsel then announced that he was "not ready for this trial," that he would "be unable to effectively represent [his] client," and that he could, therefore, "not participate" in the trial. The trial court then denied the previously made oral motion for continuance, and jury selection began. Defense counsel, true to his word, declined to participate in jury selection, explaining once again that he was "not ready for this ... trial," that he was "unable to effectively represent" his client, and that he was "unable to proceed."

On the afternoon of the first day, the guilt stage of the trial began. At the beginning of the guilt stage, defense counsel presented the trial court with an amended written motion to recuse. The amended motion, like the earlier motion, alleged that Judge Barry's fairness and impartiality were in question and that they were, in fact, the subjects of a complaint that defense counsel was preparing to lodge with the Judicial Conduct Commission. Defense counsel did not ask for a ruling on the amended motion to recuse, however, and, so far as the record shows, the trial court did not make one.²

After the State read the information to the jury, the trial court asked appellant how he pled, and defense counsel responded that the defense was "not ready for trial" and could "not enter a plea at [that] particular time." The trial court then entered, on appellant's behalf, a plea of "not guilty." The State then made its opening statement. Defense counsel, although given the opportunity to make an opening statement, declined to do so, explaining once again that he was "not ready" and was "unable to render effective counsel."

The State proceeded with its case-in-chief, which consisted of the testimony of four witnesses—three police officers and an intoxilyzer technician—and some exhibits. The State's evidence, which included incriminating hearsay testimony,³ was to the effect that, on the early morning of October 3, 2003, in Collin County, appellant, while intoxicated with alcohol, operated a van that was involved in a one-vehicle accident. Defense counsel, although given the opportunity, declined to cross-examine any of the State's witnesses or make any objections. When the State rested, defense counsel declined to offer any defense. The trial court then announced, on appellant's behalf, that "[t]he defendant rests." The State then closed. The trial court then asked the State whether it had any objections or requests regarding the jury charge. The State responded with the request that the trial court "instruct the jury as to the [statutory definition] of [per se] intoxication with regards to an alcohol concentration of 0.08 or higher." See Tex. Pen.Code § 49.01(2)(B). The trial court, after a lengthy discussion with counsel, deferred a ruling on the State's request. Shortly thereafter, the trial court announced to all that the court would be in recess until 1:00 p.m. the following day.

When the trial court reconvened the next day, it heard more argument from the State regarding the State's request for a jury instruction on per se intoxication, and then the court denied the State's request. Defense counsel then presented the court with a written motion for continuance and an oral motion for instructed verdict. The written motion for continuance alleged, in pertinent part:

"This is an accident DWI case in which the defendant submitted to the taking of a sample of his breath after arrest. The result exceeded the legal limit of 0.080.

"In the accident, the air bag deployed in the defendant's vehicle. This introduces the unique issue of whether or not the air bag effected [sic] the breath test results as found in the `Tindall Effect.'⁴ This issue is one that requires testimony from an expert with particular knowledge and training in forensic breath testing.

* * *

"The testimony of this expert witness is critical to the defense in this case and such an expert is not available on this date to appear for trial."

Defense counsel did not ask for a ruling on the written motion for continuance, however, and, so far as the record shows, the trial court did not make one.⁵

With respect to defense counsel's oral motion for instructed verdict, the record reflects the following:

Defense Counsel: Your Honor, although I was not ready for this trial when it began yesterday, I did have the opportunity to sit here and listen to the entire State's case-in-chief. And I'm going to point out to the State the cases of Ballard v. State, 757 S.W.2d 389; McCafferty v. State, 748 [S.W.2d] 489; Johnson v. State, 517 S.W.2d 536; and Weaver v. State, 721 S.W.2d 495, and ask that the court grant an instructed verdict of "not guilty" in this case in that, as a matter of law, the State's proof is insufficient to prove either that Darrell Cannon drove or operated the van or that he was intoxicated at that time, because I believe there's been no evidence elicited as to the time differential between the accident and the police officer's arrival that performed the field sobriety exercise.

The Court: Now, one moment, please.

Defense Counsel: And let the record reflect that I have provided the court with copies of those court cases.

* * *

The Court: Now, motion for instructed verdict denied.

After the jury returned to the courtroom and the trial court confirmed that all of the witnesses were still present, the following occurred:

The Court: Mr. Hoover, even now, if you wish to reopen and recall any of the witnesses who previously testified, you may do so.

Defense Counsel: I understand, Your Honor. Again, I'm inadequately prepared to render effective legal assistance to Mr. Cannon and again persist in my announcement of not ready.

The trial court then read the charge to the jury, and the State made its closing argument. Defense counsel, though given the opportunity to make a closing argument, declined to do so, explaining once again that he was "not ready" and was "unable ... to assist Mr. Cannon in his defense."

The jury retired to deliberate. Fifteen minutes later, the jury returned a verdict of "guilty." The following then occurred:

The Court: Now, Mr. Hoover, I see no written election on file. I see no written application for community supervision on file. If, however, you contend that the defendant has elected that the jury assess the penalty in this case, I respectfully ask that you call my attention now to your position. If you have elected the jury assess punishment in this case.

Defense Counsel: Your Honor, as a matter of law, the court assesses punishment in these circumstances.

The Court: And, therefore, there's no reason why the jury should not now be discharged, correct?

Defense counsel: None that I know of, Your Honor.

The trial court then discharged the jury. Both the State and defense counsel indicated that they would offer no evidence on the question of punishment. The State then presented argument on punishment, followed by defense counsel's "argument," which, in its entirety, was as follows: "Your Honor, indeed you did hear the facts of this case. And you've heard several hundred pleas, probably. We believe that you can adequately assess the punishment well within the range provided by law." The trial court assessed appellant's punishment at confinement for ninety days, probated, and a fine of $1,000. The following then occurred:

Defense Counsel: Your Honor, I have one question.

The Court: Go ahead, Mr. Hoover.

Defense Counsel: At one time you pronounced the sentence at ninety days confinement, probated for two years. And then you said ninety days, probated for eighteen months.

The Court: I thank you for calling my attention to the error. Is [sic] the judge's intention that the period of [community] supervision be for eighteen months, not twenty-four months or two years. And to the extent that it was described orally differently, it is not to be regarded....