Mulvihill, James Lee

• Court: Court of Criminal Appeals of Texas
• Decided: September 14, 2011
• Docket: WR-74,850-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-74,850-01 EX PARTE JAMES LEE MULVIHILL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 963455-A IN THE 262ND JUDICIAL DISTRICT COURT

FROM HARRIS COUNTY

Per curiam. Alcala, J., not participating.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of Aggravated Sexual Assault of a Child and sentenced to twenty years' imprisonment. The conviction and sentence were affirmed on direct appeal. Mulvihill v. State, 177 S.W.3d 409 (Tex. App.--Houston [1st Dist.] 2005).

Applicant contends in his application that he is actually innocent of the offense, that he was denied his right to effective assistance of counsel during both the guilt/innocence and punishment phases of his trial, and that the State failed to disclose favorable and material evidence in accordance with Brady v. Maryland, 373 U.S. 83, 87-88 (1963). The trial court has entered findings of fact and conclusions of law and recommends that relief be denied.

After an independent review of the record provided to this Court, we agree with the trial court's recommendation. Relief on Applicant's claims should be denied. The trial court's findings of fact are supported by the record and are adopted by this Court as our own except for Finding Numbers 38 and 76, which this Court does not adopt. Further, although this Court does not explicitly adopt a trial court's conclusions of law, we note that we disagree with Conclusion Numbers 4 and 5, but conclude, as does the trial court, that Applicant fails to demonstrate that he was denied his right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Conclusion Nos. 15 and 16.

Relief is therefore denied.

Delivered: September 14, 2011

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