Eli Edwards v. State
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Opinion
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Eli Edwards (appellant) appeals his criminal convictions. Per two extensions of the deadline previously granted him, his appellate briefs were due by February 8, 2007, with the admonition that no further extensions would be granted. Yet, instead of filing the appellate brief in each cause, counsel has again filed another motion for extension of time. This court informed appellant that failure to comply with the February 8th deadline would result in the appeals being abated and remanded to the trial court.
Consequently, we abate the appeals and remand the causes to the 31st District Court of Wheeler County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant is indigent;
2. whether appellant desires to prosecute the appeals; and
3. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file an appellate brief in each cause. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed.2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).
We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue the appeals, is indigent, and has been denied effective assistance of counsel, we further direct it to appoint new counsel to assist in the prosecution of the appeals. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before March 16, 2007. Should additional time be needed to perform these tasks, the trial court may request same on or before March 16, 2007.
It is so ordered.
Per Curiam
Do not publish.
ects below. Thus, given that the objection uttered below does not comport with the issue asserted on appeal, the purported error was and is waived. Massey v. State, 933 S.W.2d 141, 157 (Tex. Crim. App. 1996).
In his second issue, appellant contends his trial counsel was ineffective since he failed to object to the identification of him as one of the robbers by Blackmoore and Nash. We overrule the issue.
The standard by which we review ineffective assistance of counsel claims is well established. Thus, we will not repeat it, but cite the parties to Strickland v. Washington, 466 U. S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), cert. denied, 532 U. S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) for an explanation of same. Further, claims of ineffective assistance must be firmly founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.-Amarillo 1999, no pet.).
With regard to the in-court identification by Blackmoore, appellant fails to explain why the testimony was inadmissible. He simply states that it "was so objectionable the . . . Court felt it necessary to attempt to clarify" it. Furthermore, the specific objection that counsel was purportedly required to make goes unmentioned, as does any authority supporting the conclusion that the evidence was inadmissible. Thus, we are left to guess at the reasoning underlying appellant's claim and at the legitimacy of that reasoning, if any. And, because of that, the complaint was waived due to insufficient briefing. See Garcia v. State, 887 S.W.2d 862, 880-81 (Tex. Crim. App. 1994), overruled in part on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) (overruling the claim that counsel was ineffective due to his failure to object since the appellant failed to explain "how counsel might have kept the statement out"); Melonson v. State, 942 S.W.2d 777, 782 (Tex. App.-Beaumont 1997, no pet.) (holding that an appellant must not only specifically identify the deficiencies in counsel's performance but also identify the specific objection that should have been made and provide authority in support of his argument that the objection would have been meritorious).
As to the out-of-court identification by Nash, we also find it to be insufficiently briefed. Appellant had the burden to prove not only that counsel's performance was deficient but also that the deficiency prejudiced him. Tong v. State, 25 S.W.3d at 712. While the former element is addressed at bar, the latter is not. Nowhere does appellant endeavor to explain how trial counsel's perceived failure to attempt to suppress Nash's testimony created a reasonable probability that but for the supposed error the result would have been different.
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