Steven Michael Perry v. Margaret Frenk

• Court: Court of Appeals of Texas
• Decided: February 23, 2011
• Docket: 06-11-00013-CV
• Status: Published

Opinion

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00013-CV

                                 STEVEN MICHAEL PERRY, Appellant

                                                                V.

                                       MARGARET FRENK, Appellee

                                           On Appeal from the County Court at Law 2

                                                             Gregg County, Texas

                                                       Trial Court No. 2010-0343-C

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            Appellant, Steven Michael Perry, has filed with this Court a motion to dismiss the pending appeal in this matter.  Perry represents to this Court that the parties have reached an agreement regarding the substance of the appeal.  In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot.

            We grant the motion and dismiss this appeal.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          February 22, 2011

Date Decided:             February 23, 2011

/EM> A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must "be firmly founded in the record." Id.

From the information available to us, we can only speculate as to why counsel acted or failed to act as they did. Id.; Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Without more, we must presume that counsel acted pursuant to a reasonable trial strategy. Id.

Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004).

In the case now before this Court, Todd's trial counsel could have had a strategic reason for not exploring the additional potential causes of the recent trauma to Angel's hymen that Todd now raises on appeal. The record does, however, show defense counsel pursued this line of questioning to a limited extent--but did so with absolutely no success. Given that we must presume counsel had a strategic reason for discontinuing this line of questioning, we cannot sustain this claim of ineffective assistance.

V. Conclusion

The record before us does not support Todd's claims of ineffective assistance of counsel. Todd's failure to present his motion for new trial precludes appellate review of that motion being overruled by operation of law. And the record before us does not demonstrate the trial court abused its discretion regarding its decisions to admit or exclude the complained-of evidence.

We affirm the judgments.

Jack Carter

Date Submitted: November 7, 2007

Date Decided: November 16, 2007

Publish

1. In keeping with the parties' use of such on appeal, our opinion refers to the complainant using the pseudonym Angel Nicole (Angel). See Tex. Code Crim. Proc. Ann. art. 57.02 (Vernon Supp. 2007).

2. In a criminal trial, it is not necessary to present a motion for a directed verdict in order to challenge the sufficiency of the evidence on appeal. See Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) (citing Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001)).