Thomas P. Mahoney v. State

• Court: Court of Appeals of Texas
• Decided: January 29, 2004
• Docket: 13-02-00071-CR
• Status: Published

Opinion

NUMBER 13-02-071-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THOMAS P. MAHONEY,                                                             Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Garza

Opinion by Justice Yañez

          By four issues, appellant Thomas P. Mahoney proceeds pro se in order to challenge his conviction for the felony offense of driving while intoxicated (DWI) after a jury found him guilty on January 10, 2002. We affirm.

Background

          Appellant’s court appointed counsel at trial and on appeal, Keith S. Weiser, filed an Anders brief on June 27, 2002. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant subsequently filed a pro se brief on January 27, 2003. On September 8, 2003, the trial court certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2).

Analysis

          In his third issue, Mahoney contends the prosecution violated the due process clause of the Fourteenth Amendment of the United States Constitution when it failed to disclose material evidence that was favorable to him. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963). He argues that the prosecution had a duty to inform him of its difficulty in proving up his prior convictions. We disagree.

          Mahoney, apparently, believes he was entitled to information (i.e., the prosecution’s trial strategy) that was not evidence. Nevertheless, he knew of his prior convictions, had access to files relating to these convictions, had the opportunity to object to their introduction, and had the convictions confirmed by his own witness. The prosecution had no duty to give appellant information (not evidence) of which he was aware, or should have been aware. The prosecution did not withhold evidence. Appellant’s third issue is overruled.

          In issues one, two, and four, Mahoney contends he was denied effective assistance from his appointed trial counsel. He argues that counsel’s performance was deficient by failing to “conduct adequate and proper legal investigations” and “ timely move the trial court with a motion to quash the indictment and preserve the issue.” We disagree.

          Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland requires a two-part inquiry. Id. The defendant must first show that counsel’s performance was deficient, in that it fell below an objective standard of reasonableness. Id. Second, the defendant must further prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

          The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel’s effectiveness. Id.

          The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

          Mahoney’s arguments are mostly predicated on erroneous interpretations of Texas law. Otherwise, given the standard of review for ineffectiveness of counsel, he has not met his burden to prove trial counsel’s representation fell below an objective standard of reasonableness and the deficient performance prejudiced his defense. Appellant’s first, second, and fourth issues are overruled.

          Having overruled all of appellant’s issues, we affirm the judgment of the trial court.

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

Do not publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this the

29^th day of January, 2004.