Ross v. State

• Decision Date: 26 November 1990
• Docket Number: No. 05-89-01352-CR,05-89-01352-CR
• Citation: 802 S.W.2d 308
• Parties: 65 Ed. Law Rep. 646 Mari Lou ROSS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 308

802 S.W.2d 308

65 Ed. Law Rep. 646

Mari Lou ROSS, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-01352-CR.

Court of Appeals of Texas Dallas.

Nov. 26, 1990.

Mari Lou Ross, pro se.

Teresa Tolle, Dallas, for appellee.

Before STEWART, OVARD and BURNETT, JJ.

OPINION

BURNETT, Justice.

Mari Lou Ross appeals her conviction of disorderly conduct. After a trial before the municipal court, the court assessed a fine of $150. Ross appealed the decision to the Dallas County Criminal Court of Appeals No. 1, which affirmed the trial court decision. In three points of error, Ross claims that her trial counsel rendered ineffective assistance, that the municipal court should have quashed her complaint, that the statute under which the State charged her is unconstitutionally vague, that the words she used were not fighting words or of such a nature as to incite the addressee to immediate violence, and that a fatal variance existed between the pleadings and the proof. We overrule Ross's three points of error and affirm the trial court's judgment.

FACTS

Ross attends El Centro College. On February 17, 1988, at approximately 12:00 noon, Ross and two classmates went to room 156B to meet with their instructor and attend a lecture. Curtis L. Ivory, then vice-president of instruction at the college, testified at trial that one of the lecture panel participants stopped the lecture because of the noise level outside the open doorway. In an attempt to remedy the situation, Ivory asked Ross, who stood outside the doorway, to either come in or go out and close the door. Ross refused. She responded to Ivory in a belligerent manner, using extremely loud, abusive, and profane language. The more Ivory talked with Ross, the louder she got, and the more verbally abusive she became. Finally, Ivory called campus security. Campus Security Officer Joy Mills responded to Ivory's call concerning the disturbance. After Ivory identified Ross as the person causing the disturbance, Officer Mills approached her and told her that she would like to talk with her. Officer Mills testified that Ross was very upset and was directing profane and abusive language at Ivory. Officer Mills testified that the words and phrases Ross used toward Ivory included mother fucker, asshole, and fuck you.

Ross voluntarily accompanied Officer Mills back to the security office, which was located within the business office. Once they reached the business office, Officer Mills asked Ross to step into the inner security office. Ross refused and became more disruptive. At that point, the chief of security for the college, Thurman Randall, came out to ask what was happening. Ross began to fight, yell, and curse, using very profane and abusive language similar to that used earlier. Officer Mills and Chief Randall each took one of Ross's arms, escorted her into the security office, handcuffed her hands behind her back, and then called the Dallas police. The Dallas police placed Ross under arrest, placed their handcuffs on her, and escorted her to jail. Ivory and Chief Randall testified that room 156B was a place accessible to a substantial group of the public. The campus security officers also stated that the business office was accessible to the public.

At trial, Ross testified that, at 11:40 a.m., when she and two classmates, Ruby Collins and Roger Courtney, attempted to enter room 156B to attend a lecture, Ivory barred their way. He only reluctantly stepped aside to let them in after they explained that they had come to hear the lecture. When the students saw that the lecture had not yet begun, they stepped back out into the hall to wait for their instructor. Ross stated that Ivory hostilely told her to enter the room or leave because she was being disruptive. When Ross failed to respond, she stated Ivory repeated himself in a meaner tone. Finally, Ross left but returned about ten minutes later. At that time Ivory had Officer Mills with him. Ross stated that, after she told Officer Mills her name, Officer Mills called her a "goddam lying bitch." Ross then voluntarily accompanied Officer Mills to the security office where Officer Mills again asked Ross her name and again called her a "bitch." Ross stated no one ever asked her to go into the back room. Instead, Chief Randall, "who was hiding in the backroom," came out, picked her up, and threw her into the room, after which the two officers beat her with their fists in her stomach, where she had recently undergone surgery, and then handcuffed her. Ross alleged that they both took turns choking her and that Officer Mills broke her left arm. She also alleges that Officer Mills scratched her face and grabbed her ponytail and yanked her head back as hard as she could. When the Dallas police arrived, Ross stated the security officers told them to charge her with whatever they wanted to and that they would back them 100 percent. Ross denied the use of any profanity during this entire episode. Ross agreed that room 156B was a place readily accessible to a substantial group of the public.

INEFFECTIVE ASSISTANCE OF COUNSEL

In her first two points of error, Ross contends that her trial counsel rendered her ineffective assistance. Ross identifies four instances of alleged ineffective assistance of counsel. She alleges that (1) her counsel waived the jury trial she had requested without her consent, (2) her counsel referred to the hearing as "the ancient legal doctrine of the CYA," (3) material witnesses for Ross were prevented from attending the trial "by force and fraud," and (4) her counsel did not enter her plea until after the first State's witness had begun her testimony.

A defendant's right to effective assistance of counsel merely ensures her the right to reasonably effective assistance. The right does not mean errorless counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984). To establish ineffective assistance of counsel, the defendant must show (1) a deficiency in his counsel's performance and (2) that the deficiency prejudiced his defense. Hernandez v. State 726 S.W.2d 53, 57 (Tex.Crim.App.1986) (adopting test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). First, the court must determine whether defense counsel's acts or omissions were outside the range of professional competent assistance. Washington v. State, 771 S.W.2d 537, 545 (Tex.Crim.App.1989). Second, the court must determine whether, but for counsel's unprofessional errors, a different outcome to the proceeding would have occurred. A reasonable probability of a different outcome means a probability sufficient to undermine confidence in the outcome. Moore v. State, 700 S.W.2d 193, 205 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986). To determine whether a defendant has received adequate assistance, this Court must look at the totality of the representation rather than isolated acts or omissions of the trial counsel. We apply the test as of the time of trial and not through hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986). The defendant must prove ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985).

Waiver of Jury Trial

In her first claim of ineffective assistance, Ross alleges that her counsel waived without her consent the jury she had requested. The defendant in a misdemeanor case has the same right to a trial by jury as a defendant charged with a felony. Franklin v. State, 576 S.W.2d 621, 623 (Tex.Crim.App.1978). However, unlike in felony cases, no requirement exists that the defendant submit a written waiver of jury trial. Lamb v. State, 409 S.W.2d 418, 420 (Tex.Crim.App.1966). A recitation in the judgment that the defendant appeared in person and waived his right to trial by jury sufficiently establishes a presumption of regularity and truthfulness, which the court should not set aside lightly. Only an affirmative showing that the defendant executed no waiver will overcome this presumption of regularity and truth. Lopez v. State, 708 S.W.2d 446, 447-48 (Tex.Crim.App.1986).

A review of the record shows that Ross waived her right to a jury trial. Prior to trial, Ross completed a plea form requesting a trial by jury. However, at trial Ross twice informed the court that she waived her right to a jury trial. Further, the judgment recites that the trial took place before the court because Ross waived her right to a jury trial. The record fails to show affirmatively that Ross did not execute a waiver of her right to a jury trial. Therefore, she failed to rebut the presumption of regularity and truthfulness in the judgment. Ross not only fails to show a deficiency in her counsel's actions in this instance, she also fails to show how the alleged deficiency prejudiced her defense.

Trial Strategy

Ross's second claim of ineffective assistance centers upon a comment made by her attorney during his closing argument. His argument in pertinent part proceeded as follows:

THE COURT: [defense counsel], anything further?

[DEFENSE COUNSEL]: Yeah, Judge, two things: One, I think the reason we're here is because of the ancient legal document [sic] of the CYA. There's a possibility of a civil suit. And I think some of the principals involve [sic] realize that. And that remains to be seen what happens.

(Emphasis added.) We interpret this argument as impugning the State's motives in bringing this action. It was clearly trial strategy for defense counsel to question the State's motives. This court will not inquire into matters of trial strategy unless from all appearances there still is no plausible basis in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). We are not in a position to "second guess," through appellate hindsight, the strategy adopted by counsel at trial. Faz v. State, 510 S.W.2d...