James Monroe Lang v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2010
• Docket: 10-08-00412-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00412-CR

JAMES MONROE LANG, Appellant v.

THE STATE OF TEXAS, Appellee

From the 85th District Court Brazos County, Texas Trial Court No. 05-06031-CRF-85

MEMORANDUM OPINION

A jury convicted James Monroe Lang of driving while intoxicated, with a child

passenger under the age of fifteen. The trial court sentenced Lang to two years in State

jail. Lang’s appellate counsel filed an Anders brief presenting one potential issue. See

Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Although

informed of his right to do so, Lang did not file a pro se brief. Nor did the State file a

brief. We affirm. In one potential issue, appellate counsel addresses whether Lang received

ineffective assistance of counsel, identifying several instances when counsel acted or

failed to act which Lang now contends were improper.

To prove ineffective assistance, an appellant must show that: (1) counsel’s

performance was deficient; and (2) the defense was prejudiced by counsel’s deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.

Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L.

Ed. 2d 471 (2003). The record is silent as to any reasons explaining trial counsel’s

actions and we will not so speculate. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.

Crim. App. 1999). Absent a record revealing trial counsel’s strategy or motivation, Lang

cannot defeat the strong presumption that trial counsel’s actions fell within the wide

range of reasonable professional assistance. Id. An ineffective assistance claim is better

raised through an application for a writ of habeas corpus. See Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003).

INDEPENDENT REVIEW

Having conducted an independent review of the record, we find this appeal to be

wholly frivolous. We affirm the judgment. Pursuant to Rule of Appellate Procedure

48.4, counsel must send Lang a copy of our decision by certified mail, return receipt

requested, at Lang’s last known address. TEX. R. APP. P. 48.4. Counsel must also notify

Lang of his right to file a pro se petition for discretionary review. Id.; see also Ex parte

Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva v. State, 209 S.W.3d

239, 249 (Tex. App.—Waco 2006, no pet.). We grant counsel’s motion to withdraw,

Lang v. State Page 2 effective upon counsel’s compliance with the aforementioned notification requirement

as evidenced by “a letter [to this Court] certifying his compliance.” See TEX. R. APP. P.

48.4.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring with note)* Affirmed Opinion delivered and filed March 31, 2010 Do not publish [CR25]

* (Chief Justice Gray concurs in the judgment to the extent it affirms the trial court judgment. A separate opinion will not issue.)

Lang v. State Page 3