in Re Michael Lou Garrett

Opinion

NO. 07-06-0427-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

NOVEMBER 6, 2006

______________________________

IN RE MICHAEL LOU GARRETT, RELATOR _________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Relator, Michael Lou Garrett, has filed a Petition for Writ of Mandamus with this court seeking this court to order the Honorable John Board to "immediately perform his legal duty of providing consideration, decision and ruling in the matter of 'Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction' . . . ." The motion, which was allegedly "filed" on September 19, 2006, requests the trial court restrain prison officials from "depriving plaintiff of indigent supplies needed and necessary for processing this lawsuit to trial . . . ." Garrett contends that he is entitled to relief because the trial court has "refused to act" on his motion. We deny the petition.

A trial court has a ministerial duty to consider and rule on motions properly filed and pending before the court and mandamus may issue to compel the judge to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding) (citing O'Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex.App.-Tyler 1993, orig. proceeding). However, the trial court is afforded a reasonable time in which to perform this ministerial duty. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1^st Dist.] 1992, orig. proceeding). Whether the trial court has failed to act within a reasonable time is dependent upon the circumstances of the case. Id. To establish entitlement to mandamus relief, the relator must establish that the trial court had a legal duty to perform a non-discretionary act, relator made demand for performance, and the court refused to perform. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).

Further, the party seeking mandamus relief has the burden to provide a record sufficient to establish his entitlement to such relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). The relator in a mandamus proceeding must file, with his petition, a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding. Tex. R. App. P. 52.3(j)(1)(A), 52.7(a)(1). Thus, Garrett must provide a record showing that he properly filed his motion for temporary restraining order and preliminary injunction, made demand on the trial court to rule on the motion, and the trial court's refusal.

Attached to Garrett's petition are typed documents which purportedly duplicate documents contained in the file for the underlying litigation. However, this "record" is not certified or sworn. Consequently, Garrett has failed to meet his burden of providing a record sufficient to establish his entitlement to mandamus relief. Walker, 827 S.W.2d at 837.

Accordingly, we deny the petition for mandamus.

Mackey K. Hancock

Justice

olved with anyone else. Although Ojeda did not visually observe the transfer of cocaine which occurred in the CI's car, he heard the transaction on the audio recording. Appellant and the CI spoke in Spanish and Ojeda testified to being fluent in Spanish. Specifically, he heard appellant ask the CI how much "soda," which is slang for cocaine, he wished to purchase. He was also able to identify the CI's voice on the audio recording and discern the difference between his voice and appellant's voice. After the transfer, Ojeda observed appellant exit the CI's car. The CI then drove away from appellant's driveway to a predetermined location to hand over the cocaine and audio recording to the officer. Considering the low threshold for meeting the "tends-to-connect" standard, we conclude the evidence presents sufficient corroboration that appellant committed the offense. Issue one is overruled.

By his second issue, appellant raises ineffective assistance of counsel. Specifically, he alleges trial counsel was ineffective for failing to file a motion to disclose the identity of the confidential informant, obtain a ruling on a motion to suppress, and improper investigation of the facts.

A claim of ineffectiveness is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Cr.App. 1999), citing Strickland, 466 U.S. at 700.

The adequacy of defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissions of trial counsel. Id. Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Cr.App. 2005). See also Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). Where the alleged derelictions are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which to develop a detailed record of the alleged ineffectiveness. See Freeman v. State, 125 S.W.2d 505, 506-07 (Tex.Cr.App. 2003). See generally Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694 155 L.Ed.2d 714 (2003) (stating that when a claim of ineffectiveness is raised on direct appeal, a trial record is usually not developed for establishing such a claim).

Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Where the record is silent, we may not speculate on counsel's performance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App. 1994); Gibbs v. State, 7 S.W.3d 175, 179 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Generally, the record on direct appeal will not be sufficient to show that counsel's conduct was so deficient as to meet the first prong of the Strickland standard as the reasonableness of counsel's choices often involves facts that do not appear in the record. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Where, as here, appellant complains of errors of omission and only a partial reporter's record is presented, we are unable to determine whether counsel's performance was deficient. Issue two is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Appellant filed a partial reporter's record containing excerpts of testimony from Officer Alex Ojeda, the confidential informant, a chemist, and a victim's assistant coordinator. A sufficiency challenge cannot be raised with a partial record. See generally Greenwood v. State, 823 S.W.2d 660, 661 (Tex.Cr.App. 1992) (interpreting former Rule 53(d), now 34.6(c)(5) of the Texas Rules of Appellate Procedure). Also, appellant did not include a statement of issues to be presented on appeal as required by Rule 34.6(c)(1).

Although appellant's challenge is to the sufficiency of corroboration, a review of all testimony is still necessary. By order dated June 23, 2005, this Court ordered appellant to make arrangements for preparation of the entire reporter's record on or before July 15, 2005. On August 15, 2005, the court reporter filed a motion for extension of time indicating appellant had not yet made arrangements for the supplemental reporter's record. The motion was denied and the appeal proceeded on course. Although appellant's failure to provide the entire record constitutes waiver of his sufficiency complaint, we nevertheless will review the excerpts of Officer Ojeda's testimony to determine whether there is sufficient corroboration of the CI's testimony.