Richard G. O'Gorman v. State
This text of Richard G. O'Gorman v. State (Richard G. O'Gorman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NO. 07-02-0056-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 7, 2002 ______________________________
RICHARD GLENN O’GORMAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;
NO. 6109; HON. STEVEN R. EMMERT, PRESIDING _______________________________
Before BOYD, C.J., QUINN and REAVIS, JJ.
Upon a plea of not guilty, a jury convicted appellant Richard Glenn O’Gorman of
felony driving while intoxicated (DWI), and assessed punishment at life imprisonment.
Appellant timely noticed his appeal, and counsel was appointed.
Appellant’s appointed counsel has filed a motion to withdraw, together with an
Anders1 brief, wherein he certifies that, after diligently searching the record, he has
concluded that appellant’s appeal is without merit. Along with his brief, he has filed a copy
1 See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). of a letter sent to appellant informing him of counsel’s belief that there was no reversible
error and of appellant’s right to appeal pro se. By letter dated May 29, 2002, this court
notified appellant of his right to file his own brief or response by June 28, 2002, if he
wished to do so. On June 17, 2002, appellant filed a motion to extend the time to file his
brief, which resulted in the deadline being extended until July 29, 2002. On July 26, 2002,
appellant filed with this court a document alleging that 1) defense counsel was ineffective,
2) the State improperly advised the court that appellant had not filed an application for
probation and 3) the State improperly referred to statements made by appellant after his
arrest but before he received his Miranda warnings. None are meritorious for the
following reasons.
Appellant claims that trial counsel was ineffective because he 1) did not strike two
jurors who claimed to be biased and were seated on the jury, 2) was unaware that
appellant’s “application had been submitted,” 3) failed to point out discrepancies in the
testimony of one of the State’s witnesses and 4) failed to object to evidence determined
to be inadmissible by the trial court.2 We note that appellant was obligated to prove his
counsel rendered ineffective assistance. Hernandez v. State, 988 S.W2d 770, 772 (Tex.
Crim. App. 1999). However, even though appellant filed a motion for new trial and a
hearing was had, ineffective assistance of counsel was not raised nor argued below.
Thus, appellant has failed to produce evidence in the record concerning trial counsel's
2 Appellant, also, complains that a “[l]arge support pillar. . .situated in [the] center of [the] temporary courtroom made it impossible to see juror responses or establish who was responding to[] questions.” However, appellant has failed to give substantive analysis or authority regarding how the obstacle prevented him from receiving a fair and impartial trial. Thus, this argument was waived. Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.--Amarillo 2000, no pet); TEX. R. APP. P. 38.1(h).
2 reasons for not challenging or striking venire members, see Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App.1994); see also Delrio v. State, 840 S.W.2d 443 (Tex. Crim.
App.1992), objecting to purportedly inadmissible testimony, or pursuing alleged
discrepancies in witness’ testimony. See Beck v. State, 976 S.W.2d 265, 267 (Tex.
App.--Amarillo 1998, pet. ref’d). And, because the record before us does not allow us to
assess whether the presumption of competency was rebutted, we cannot hold that
appellant's trial counsel was deficient and, therefore, overrule the issue.
Next, appellant complains that the State incorrectly informed the trial court that
appellant had not filed an application for probation, thus denying appellant the opportunity
to voir dire the panel on probation. First, the record does not reflect that appellant had
filed an application for probation. Second, before he could be considered for probation,
article 42.12(e) of the Code of Criminal Procedure required him to file a verified motion
wherein he stated that he had not previously been convicted of a felony. TEX . CODE CRIM .
PROC . art. 42.12 (e). Yet, the record reflects that appellant previously had been convicted
of a felony. So too does it illustrate that the minimum sentence he could have received,
in view of the State’s attempt to enhance punishment, was 25 years. TEX . PEN . CODE
§12.42(d) (setting 25 years as the minimum sentence). Given that he had not complied
with the prerequisites of art. 42.12(e) and that the minimum sentence involved exceeded
the statutory ceiling, appellant was not eligible for probation. See TEX . CODE CRIM . PROC .
art 42.12 (d)(1) (granting the opportunity for probation to those whose sentence is 10 years
or less). So, the complaints about the opportunity, or lack thereof, to voir dire on probation
are meritless, and, we overrule appellant’s second issue.
3 In his third issue, appellant contends that the arresting officer and prosecution
witness named David O’Brian (O’Brian) referred to a statement made by appellant after his
arrest but before receiving his Miranda warnings. Specifically, once the officer told
appellant that he was under arrest for driving while intoxicated, appellant responded with
“I believe that you are right.” Appellant contends that this statement came after the trial
court had ruled that it was inadmissible. We note, however, that no objection was made
when O’Brian testified about the statement, and same was necessary to preserve error.
TEX . R. APP . P. 33.1(a); Holberg v. State, 38 S.W.3d 137, 140 (Tex. Crim. App. 2000), cert.
denied, 151 L. Ed.2d 298, 122 S. Ct. 394 (2001) (holding that by not objecting to the trial
court appellant forfeited his right to complain on appeal). Furthermore, appellant was
mistaken in saying that the trial court held the testimony inadmissible. In reviewing the
portion of the record cited by appellant, we find that the trial court was explaining the law
regarding Miranda as it understood it and was not making a ruling on this particular
statement. Thus, we overrule this issue as well.3
As to the Anders brief itself, appellate counsel raised thirteen possible arguments.
However, counsel also explained why none were meritorious. Furthermore, after
conducting an independent review of the record and legal authority to assess the accuracy
of counsel’s representation, see Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)
(requiring same), we agree with appellate counsel’s analysis and conclude that there
exists no arguable basis for appeal.
3 Because the motion for new trial and the hearing on same did not raise ineffective assistance of counsel, the state of the record before us does not allow us to assess whether any purported error regarding counsel’s performance was something other than sound trial strategy. Tong v.
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