Desa Wells and All Occupants v. Breton Mill Apartments ( 2002 )

WELLS V BRETON MILL APTS NO. 07-01-0320-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL D

APRIL 12, 2002 ______________________________

DESA WELLS,

Appellant

V.

BRETON MILL APARTMENTS,

Appellee _________________________________

FROM THE COUNTY CIVIL COURT AT LAW NO. 4 OF HARRIS COUNTY;

NO. 749,853; HON. CYNTHIA CROWE, PRESIDING _______________________________ ABATE AND REMAND ________________________________

Before BOYD, C.J., QUINN and REAVIS, J.J.

By motion, appellant, Desa Wells, requests that this Court correct the trial court record. For the reasons which follow, we abate and remand the cause for additional proceedings.

The appellant claims that she has "conducted a careful review of the Record of Testimonies submitted in this case . . . and discovered that the Record is tainted and bombarded with fused and incorrect testimonies." In addition to alleging that some testimony was changed or deleted, she also states that in some instances "objections, questions and answers . . . [were] fused and misplaced in the Record." This "inaccurate manner in which the Record of Testimonies [has] been recorded or reported by the Court Reporter is misleading and false as to the true testimonies that were given during the trial . . . ." This "makes it impossible for [her] to prepare an effective Brief which will properly represent the issues and facts submitted to the Trial of Facts."

Since the appellant's objections arose after the reporter's record was filed in the appellate court, Texas Rule of Appellate Procedure 34.6(e)(3) is applicable. The rule states that we "may submit the dispute to the trial court for resolution. The trial court must then ensure that the reporter's record is made to conform to what occurred in the trial court." We now abate and remand the cause to the County Civil Court at Law No. 4 of Harris County and order the court to immediately notice and conduct a hearing to determine whether the reporter's record contains errors in those areas specified by the appellant, whether the errors, if any, are substantive or consequential, and if substantive and consequential, correct same and state in findings filed with the clerk of this court on or before May 13, 2002, that it has reviewed the complained-of portions of the record, setting them out in detail. Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.-Texarkana 2001, no pet.)(finding the above procedure to be adequate in resolving a dispute regarding alleged errors in the reporter's record). Should additional time be needed to perform these tasks, the county court may request same on or before May 13, 2002.

It is so ordered.

Per Curiam

Do not publish.

ounsel may have had a sound trial strategy for not objecting; and (2) the evidence of appellant's guilt independent of that deficiency "was conclusive of the offense charged." Counsel appears to suggest that appellant would be unable to prevail upon an ineffective assistance of counsel claim on the basis of trial counsel's failure to object. We agree.

A claim of ineffective assistance of counsel is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under that standard, a defendant must establish that: (1) counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) a reasonable probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003 ). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995). Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). Generally, the record on direct appeal will not be sufficient to show that counsel's conduct was so deficient as to meet the first prong of the Strickland standard as the reasonableness of counsel's choices often involves facts that do not appear in the record. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Instead, an application for a post-conviction writ of habeas corpus is usually the appropriate manner in which to raise and develop claims based on ineffective assistance of counsel. Id.

Here, it is possible, as counsel suggests, that the lack of an objection by trial counsel to the admission of the evidence of appellant's misdemeanor conviction, is consistent with a theory of the case that "although [appellant] was a marijuana user, all the marijuana found on the date in question should not be charged to him" and that "as he has admitted to wrongs in the past, he would do the same now if one had occurred." (Emphasis in original). In any event, the record is insufficient to establish whether trial counsel's conduct was so deficient as to meet the first prong of the Strickland standard. Furthermore, because there was overwhelming evidence of appellant's guilt independent of trial counsel's failure to object, we cannot, on this record, presume appellant would prevail on the second prong of that test either.

We have also made an independent examination of the entire record to determine whether there are any other arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). We have found no non-frivolous issues and agree with counsel that the appeal is without merit. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Appellant testified that although the marijuana on his person was his, he denied having possession of the marijuana found in the sofa.

2. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

3. The record reveals that appellant was charged with a felony, but was convicted of a lesser included misdemeanor possession offense.