Ducksworth, William v. State ( 2002 )

Opinion issued on May 30, 2002

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-01-00065-CR

01-01-00066-CR

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WILLIAM DUCKSWORTH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause Nos. 853106 and 853105

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O P I N I O N  

Appellant, William Ducksworth, in two indictments was accused of burglary of a habitation with intent to commit theft and unauthorized use of a motor vehicle, each enhanced to habitual status. He chose the jury to determine guilt and assess punishment. The jury assessed 75 years confinement in the burglary case and 20 years confinement in the unauthorized use of a motor vehicle case.

Appellant's counsel has filed a brief stating that, after a thorough and complete analysis of the record, in his opinion the appeals are without merit. Although counsel's review of the record did not uncover any arguable points of reversible error, he did brief a number of potential points for review. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds of error on appeal. Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

Counsel advised appellant of his evaluation of this appeal and informed him of his right to file his own pro se brief. Subsequently and timely, appellant filed a pro se brief.

In his first pro se point of error, appellant accuses his appellate attorney of being deficient for not challenging the effectiveness of his trial counsel's assistance. Appellant argues that his appellate counsel should have briefed a point of error claiming that his trial counsel was ineffective for failing to: (1) file pretrial motions; (2) request a continuance to investigate the validity of an unsigned letter in which an unknown person exonerates appellant of all guilt; and (3) request an examining trial.

It is interesting to note that appellant criticizes his appellate counsel for failing to raise these claims on appeal when he, serving as his own appellate counsel, does not raise them himself. Under the circumstances, it would be difficult for appellant to show harm. Nevertheless, because of the unusual nature of this hybrid appeal, we will address the issues.

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under Strickland, appellant must first show that his counsel's performance was so deficient that it fell below an objective standard of reasonableness. Id., 466 U.S. at 687. Second, appellant must affirmatively prove that he was prejudiced by his counsel's conduct. In other words, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Likewise, appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).

The assessment of whether appellant can satisfy the requirements of Strickland is a fact-intensive inquiry. Thus, without a record that develops and explains his counsel's reasoning for his actions, the pursuit of an ineffectiveness claim on direct appeal is often fruitless. Robinson v. State, 16 S.W.3d 808, 811 (Tex. Crim. App. 2000). Here there is no such record.

Because there is no record, it will be impossible to assess trial counsel's performance in the claimed areas. In considering appellant's claim that his trial counsel failed to file pretrial motions, we have no way of knowing what pretrial motions appellant is referencing and what significance such would have had on the outcome of the trial.

Regarding the motion for continuance to allow for time to investigate the origin of the alleged exculpatory letter, without a record, we know nothing about the letter, except that trial counsel received it moments before trial began. We do not know how trial counsel perceived the letter or how it would fit into his representation strategy.

Concerning trial counsel's failure to request an examining trial, appellant claims it would be a good discovery tool. Examining trials traditionally are not discovery venues, but are simple hearings to determine whether or not probable cause exists to bind a case over to the grand jury. Appellant does not inform us what he anticipated could be discovered from such a hearing.

In all likelihood, appellate counsel realized that these three areas could not be addressed without a fully developed record. Appellant's pro se point of error one is overruled.

In his second pro se point of error, appellant claims his trial counsel was ineffective for failing to investigate the lawfulness of the traffic stop that resulted in discovery of the stolen vehicle and property therein. Appellant suggests the traffic stop may have been motivated by racial profiling.

Again, without a record we cannot assess trial counsel's performance from what he knew or should have known and how it affected his strategy during trial. Pro se point of error two is overruled.

In his third pro se point of error, appellant contends his constitutional rights were violated because the grand jury and petit jury did not represent a fair cross-section of the Harris County community. Apparently, appellant believes that some class of minority was underrepresented on his grand jury.

This complaint is waived because it was never presented to the trial court for a ruling. For such a complaint to be viable for appellate review, a defendant must make a timely and specific objection in the trial court. Tex. R. App. P. 33.1(a)(1)(A). Having failed to bring this to the attention of the trial court, appellant presents nothing for review. Appellant's third pro se point of error is overruled.

In addition to addressing appellant's pro se points of error, we further discharge our responsibility of researching the record for reversible error as a result of appellate counsel filing a brief alleging frivolous appeals. We have carefully read and reviewed the entire record in this matter, and we concur with appellate counsel's assessment that there are no arguable grounds of error that could be presented on appeal.

We affirm the judgments.

Appellate counsel filed a motion to withdraw from any further representation in this matter. The motion is granted. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Counsel still has a duty to inform appellant of the result of these appeals and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

All other pending motions are denied.

PER CURIAM

Panel consists of Chief Justice Schneider, and Justices Hedges and Nuchia.

Do not publish. Tex. R. App. P. 47.