Michael Anthony Whitesell v. State

Opinion

NO. 07-08-0001-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 20, 2008

______________________________

MICHAEL ANTHONY WHITESELL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B17345-0709; HONORABLE ED SELF, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, Michael Anthony Whitesell, appeals the denial of his application for writ of habeas corpus challenging his arrest pursuant to a governor’s warrant. We affirm.

          Appellant’s attorney has filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be arguably predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Appellant has in fact filed a response and further filed a document he denominates as an application for writ of habeas corpus.

          We have made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such grounds.

          Additionally, we have reviewed appellant’s pro se response and other documents appellant has filed in connection with this case. All of the purported arguable grounds put forth by appellant would have this court go behind the governor’s warrant. The record before us contains no irregularities and, as such, is prima facie proof to the allegations contained therein. Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978). There was no contest at the writ hearing about the identity of appellant as the person named in the governor’s warrant. Appellant alleges that he was not timely brought before the trial court, alleging that more than 90 days transpired before the hearing on the writ was conducted. See Tex. Code Crim. Proc. Ann. art. 51.07 (Vernon 2006). However, appellant failed to take into consideration the provision that allows a person, once released on bond under provisions of article 51.07, to be subsequently arrested upon the issuance of a governor’s warrant. See Tex. Code Crim. Proc. Ann. art. 51.08 (Vernon 2006). The record affirmatively reflects that the above procedure was followed. Accordingly, we agree with counsel that the appeal is frivolous.

          Therefore, we grant counsel’s motion to withdraw and affirm the order of the trial court.

 

                                                                           Mackey K. Hancock

                                                                                      Justice

  

Do not publish.

 

by interviewing and presenting witnesses and failed to keep him informed on the status of his case. He also contends counsel failed to disclose potential conflicts in time for him to seek other counsel. From the record before us, we determine these contentions do not relate distinctly to the punishment phase, and we have no jurisdiction to consider them.

Appealable matters

Appellant argues ineffective assistance of counsel during the punishment phase as it relates to the trial court's decision not to hold an evidentiary hearing on his motion for new trial. He also faults counsel for (1) failing to present punishment evidence, (2) deciding not to cross-examine Cage, and (3) failing to request a presentence investigation report (PSI).

A trial court's decision not to hold an evidentiary hearing on a motion for new trial is reviewed for abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). A defendant is entitled to an evidentiary hearing when the motion and supporting affidavits raise matters that are not determinable from the record without a hearing, and the record prior to the hearing demonstrates that the defendant could be entitled to relief. Id. The motion and accompanying affidavits need not establish a prima facie case; rather they need only reflect that reasonable grounds exist for granting a new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). An affidavit that is conclusory in nature and unsupported by facts is insufficient to put the trial court on notice that reasonable grounds for relief exist. Id.

The only affidavit in support of the motion for new trial is from appellate counsel. He avers in relevant part:

The allegations contained within the Motion for New Trial are true and correct based on my investigation of this case and based on the written statements made to me by Rolando Flores.

Neither the motion nor affidavit provide facts which if found true would entitle appellant to relief. Potential witnesses, if any, that could have testified during punishment are not named. Nor does appellant provide what further investigation regarding sentencing would have revealed. We conclude the motion for new trial and supporting affidavit were insufficient to put the trial court on notice that reasonable grounds existed to believe counsel's representation during the punishment phase may have been ineffective. We hold the trial court did not abuse its discretion in failing to conduct an evidentiary hearing on appellant's motion for new trial. Issue one is overruled.

We review appellant's second issue that he received ineffective assistance during the punishment phase under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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.Crim.App. 2003). See also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). The defendant must overcome the presumption that counsel's conduct might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). 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.Crim.App. 1999) (citing Strickland, 466 U.S. at 700).

Appellant argues that counsel was ineffective during punishment by failing to present evidence. We do not agree. The failure to present evidence does not constitute ineffective assistance unless the record demonstrates what the evidence was and how it would have been beneficial to the defendant. Butler v.State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986). See also Cate v. State, 124 S.W.3d 922, 927 (Tex.App.-Amarillo 2004, pet. ref'd). Appellant does not indicate what evidence, if any, was available that would have benefitted him during the punishment phase.

Appellant also complains that counsel was ineffective during punishment by failing to cross-examine Cage. Again, we disagree. "Often, the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial." Miniel v. State, 831 S.W.2d 310, 324 (Tex.Crim.App. 1992) (quoting Coble v. State, 501 S.W.2d 344, 346 (Tex.Crim.App. 1973)). Counsel had already effectively cross-examined Cage during the adjudication phase without eliciting any favorable testimony. Appellant has not shown that counsel's decision to forego cross-examining Cage during punishment was not sound trial strategy.

Appellant's final complaint relating to punishment is that although not required to do so, counsel should have requested a PSI report prior to sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2006). Although appellant concedes counsel was not required to request preparation of a PSI report, he urges counsel should have because of issues regarding his alcohol abuse which may have contributed to commission of the charged offense. See Art. 42.12, § 9(h). A PSI report advises the trial court on the circumstances of the charged offense, the amount of restitution necessary to compensate the victim, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge. Art. 42.12, § 9(a). Appellant has not overcome the presumption that counsel's failure to press for preparation of a PSI might be considered sound trial strategy. Moreover, even assuming that counsel's failure to request preparation of a PSI report was a deficiency in his performance, appellant has not demonstrated that there is a reasonable probability that but for the alleged deficiency, the result of the proceeding would have been different.

Appellant has not established that he received ineffective assistance of counsel with respect to the punishment phase. Issue two is overruled.

Having concluded we have no jurisdiction to address the merits of appellant's complaints relating to the adjudication phase, that portion of the appeal is dismissed; in all other respects, the trial court's judgment is affirmed.

James T. Campbell

Justice

Do not publish.