White, Wilbert Bruce v. State ( 2003 )

Opinion issued October 23, 2003

  In The

Court of Appeals

For the  

First District of Texas

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NO. 01-02-00420-CR

NO. 01-02-00421-CR

____________

WILBERT BRUCE WHITE, Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause Nos. 865941, 866817

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  MEMORANDUM OPINION

           A jury found Wilbert Bruce White, appellant, guilty of the offenses of aggravated robbery and murder, both enhanced with two prior felony convictions. The jury assessed punishment in both cases at life imprisonment. In two points of error, appellant argues that (1) he was denied a fair trial because comments made by the trial court and prosecution during voir dire caused unfair prejudice, and (2) he was denied effective assistance of counsel at trial and appeal. We affirm.

           Counsel has filed an Anders brief stating that the appeal is frivolous and wholly without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and detailing why there are no arguable grounds for error to be advanced. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Appellant has filed a brief on his own behalf.  

Abuse of Discretion in Voir Dire

           In his first point of error, appellant claims he was denied a fair trial because the trial court abused its discretion in reading the indictments during voir dire. Appellant claims that this action prejudiced the jury. Additionally, appellant points to comments made by the trial court during voir dire that he claims are improper and prejudicial. Specifically, appellant asserts that (1) the trial court commented on appellant’s failure to testify; (2) the trial court discussed the effect of prior convictions and punishment with the prospective jurors; (3) the trial court commented on the heinousness of certain crimes as a reason for increased punishment; (4) the trial court commented on prior criminal record and bad reputation as reasons a defendant might not testify; (5) the trial court commented on the death penalty in relation to the crimes for which appellant was being tried; (6) the trial court discussed parole law in relation to the appellant’s crime; and (7) the trial court informed the jury that probation is not an issue, alluding to the fact that appellant had a prior criminal record. Appellant further asserts that the prosecutor made improper and prejudicial comments during voir dire, namely, (1) the prosecutor told the panel that whatever sentences they give appellant will run concurrently; (2) the prosecutor told the jury that both punishments will be the same and will run the same; (3) the prosecutor commented on appellant’s failure to testify; (4) the prosecutor alluded to the existence of appellant’s prior convictions.

           In order to preserve a complaint for appellate review, a timely request, objection, or motion stating the grounds for the ruling sought by the complaining party must be made with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a). Nowhere does the record indicate an objection to any of the alleged errors of which appellant now complains. Appellant failed to preserve these complaints for appeal and they are therefore waived. Accordingly, we overrule appellant’s first point of error.  

Ineffective Assistance of Counsel

           In his second point of error, appellant claims he was denied effective assistance of counsel at both the trial and appellate stages. Specifically, appellant claims his trial counsel was ineffective in that (1) trial counsel failed to investigate the charges made against appellant by failing to have fingerprint tests performed on shotgun shells recovered from the crime scenes, (2) trial counsel failed to move for severance of the two charges, (3) trial counsel failed to present a proper argument during a Batson hearing objecting to the State’s peremptory strikes, (4) trial counsel failed to object to the numerous comments of the trial court and prosecutor noted above, as well as comments made by the prosecutor during closing argument.

           Appellant’s assertions regarding the ineffective assistance of his appellate counsel are that his appellate counsel failed to recognize the errors that would give rise to an appeal and, further, has filed an Anders brief.

           The standard of review in ineffective assistance of counsel claims is that appellant must show that (1) counsel’s performance was deficient and (2) the deficiency of counsel’s performance caused prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). Such claims 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. Crim. App. 1999). There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

           Appellant provides us with nothing in the record to rebut the presumption of reasonable professional assistance of trial counsel. The record gives no indication of the strategy or reasons behind the decisions of appellant’s counsel. This court will not engage in speculation about counsel’s reasons or strategy. See Bone, 77 S.W.3d at 835. As appellant has failed to rebut the presumption of counsel’s reasonable professional assistance, his claim of ineffective assistance of counsel at trial likewise fails.

           Appellant’s assertion that appellate counsel was ineffective due to counsel’s failure to note the errors that appellant believes are worthy of appeal and counsel’s filing of an

Anders brief is not supported by the record. As this court has reviewed the record and found that the errors indicated by the appellant lack merit, appellant’s counsel cannot be ineffective for stating that those errors were meritless. Appellant failed to rebut the presumption of his appellate counsel’s reasonable professional assistance. We overrule appellant’s second point of error.Motion to Withdraw

           Appellant’s court-appointed counsel filed a motion to withdraw as counsel and a brief concluding that the appeal is wholly frivolous and without merit. The brief states that a copy was delivered to appellant, whom counsel advised by letter of appellant’s right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). We have carefully reviewed the record, counsel’s brief, and appellant’s brief. We find no reversible error in the record, and agree that the appeal is wholly frivolous.

           We grant counsel’s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

  CONCLUSION

           We affirm the judgment of the trial court.

                                                                  Sam Nuchia

                                                                  Justice

Panel consists of Justices Hedges, Nuchia, and Higley.

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