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Click here for the full text of this decision FACTS:On Dec. 12, 2003, authorities filed an information in the trial court charging Darrell DeWayne Cannon with misdemeanor driving while intoxicated. On Sept. 20, 2004, after several previous settings, the state brought Cannon to trial, with Judge 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 attorney 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 Cannon’s alleged need for an expert to assist in the preparation of his defense. The written motion to recuse alleged, in pertinent part, that during a previous trial Barry “appeared to personally attack [Hoover] and was not fair and impartial.” The trial court denied the motion to recuse. Hoover then moved that the motion to recuse “be heard by a neutral judge,” but the trial court also denied that motion. Next, Hoover announced that he was not ready for this trial, that he would “be unable to effectively represent his client and that he could not participate in the trial.” The trial court then denied the previously made oral motion for continuance, and jury selection began. Hoover 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, Hoover presented the trial court with an amended written motion to recuse. After the state read the information to the jury, the trial court asked Cannon how he would plead, and Hoover responded that the defense was not ready for trial and could not enter a plea. The trial court then entered on Cannon’s behalf a plea of not guilty. The state then made its opening statement. Hoover, though 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, was to the effect that, on the early morning of Oct. 3, 2003, in Collin County, Cannon, while intoxicated with alcohol, operated a van that was involved in a one-vehicle accident. Hoover, though given the opportunity, declined to cross-examine any of the state’s witnesses or make any objections. Once the state rested, Hoover declined to offer any defense. The trial court then announced, on Cannon’s behalf, that “[t]he defendant rests.” The state then closed. Shortly thereafter, the trial court announced to all that the court would be in recess until 1 p.m. the following day. When the trial court reconvened the next day, Hoover 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, that Hoover needed testimony of an expert to present a defense for Cannon. Hoover did not ask for a ruling on the written motion for continuance, however, and the record showed that the trial court did not make one. Hoover also made an oral motion for instructed verdict, on the ground that the state’s proof was insufficient to prove “either that Darrell Cannon drove or operated the van or that he was intoxicated at that time,” because there was no evidence elicited as to the time differential between the accident and the arrival of the police officer who performed the field sobriety exercise. The court denied the motion. After the jury returned to the courtroom and the trial court confirmed that all of the witnesses were still present, the court informed Hoover that he could recall any of the witnesses who previously testified. But Hoover replied, “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. Hoover declined to make a closing argument. The jury retired to deliberate. Fifteen minutes later, the jury returned a verdict of guilty. Because Hoover did not apply for community supervision nor file an election for the jury to determine punishment, the court discharged the jury and determined Cannon’s punishment. The state and Hoover 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 Cannon’s punishment at confinement for 90 days, probated the sentence for 18 months and assessed a fine of $1,000. On direct appeal, Cannon argued for the first time that he was denied his Sixth Amendment right to the effective assistance of counsel, because the refusal of Hoover to participate in the trial resulted in no adversarial testing of the prosecution’s case. Cannon argued that, “[i]n these circumstances,” prejudice to the defense “is irrefutably presumed.” The 5th Court of Appeals, in an unpublished opinion, rejected Cannon’s arguments and affirmed the judgment of the trial court. The 5th Court found that Hoover may have made a calculated decision to not cross-examine witnesses. The court also noted that Hoover presented case law when he motioned for a directed verdict and pointed out to the trial court an error in its sentence. “In light of the evidence against his client for which he may have had no defense, notwithstanding his comments, defense counsel’s actions could have been the product of a reasonable tactical judgment,” the court stated. Cannon filed a petition for discretionary review with the Court of Criminal Appeals. In his petition and accompanying brief, Cannon argued that the 5th Court erred in failing to recognize that “the total lack of participation by defense counsel constitute[d] ineffective assistance” under the U.S. Supreme Court’s opinions in United States v. Cronic and Strickland v. Washington, both issued in 1984. HOLDING:Reversed and remanded. The CCA stated that an appellant, in order to obtain a reversal of his conviction on the ground of ineffective assistance of counsel, usually must demonstrate deficient performance and prejudice. That is, he must demonstrate that defense counsel’s performance fell below an objective standard of reasonableness and there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. If, however, an appellant can demonstrate that defense counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” so that there was a constructive denial of the assistance of counsel altogether, then prejudice, because it is “so likely,” is legally presumed. The CCA stated that under Cronic, “if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” The CCA noted that throughout Cannon’s trial, Hoover repeatedly stated the reason for his behavior: he was simply unprepared to go forward. The CCA stated: “We take counsel at his word and will not speculate that he may have had some other motive for his behavior.” The CCA also noted that the record contained no suggestion that Cannon directed, agreed with or acquiesced in defense counsel’s behavior. Thus, the CCA held that Hoover’s behavior, considered as a whole, constructively denied Cannon his Sixth Amendment right to the effective assistance of counsel. Hoover, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution’s case to meaningful adversarial testing, the CCA stated. By his refusal to participate, the CCA stated that Hoover abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to Cannon is legally presumed, the CCA stated. The CCA stated that it was not persuaded by the state’s argument that its holding would encourage other defense counsel to effectively boycott proceedings. The Disciplinary Rules of Professional Conduct and possible malpractice claims would prevent attorneys from doing so, the CCA stated. OPINION:Holcomb, J., delivered the opinion of the court, in which Price, Womack, Johnson and Cochran, JJ., joined. DISSENT:Keller, P.J., and Meyers, Keasler and Hervey, JJ., dissented without a written opinion.

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