Steven Edward Bedford v. State ( 2005 )

NO. 07-04-0469-CR

NO. 07-04-0470-CR

NO. 07-04-0471-CR

NO. 07-04-0472-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 8, 2005 ______________________________

STEVEN EDWARD BEDFORD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NOS. 48,667-E, 48,668-E, 48,669-E and 48,670-E; HON. ABE LOPEZ, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Appellant Steven Edward Bedford appeals from his convictions for aggravated assault with a deadly weapon. The convictions were based on his guilty pleas, which pleas were entered after the trial court refused to grant him leave to voir dire the jury venire about "mental health issues and jurors' experience" with same. Counsel for the defense told the trial court that she "would like to know if jurors have any experience in their life dealing with people who suffer from depression or suicide attempts." The two issues now before us concern the trial court's decision and trial counsel's effectiveness. That is, appellant contends that the court abused its discretion when it refused to allow the voir dire and that his counsel was ineffective because she failed to preserve the matter for appellate review. We affirm the judgments.

Issue One - Leave to Voir Dire

Though appellant informed the judge of the particular topic he sought to develop, no record was made of the specific questions he proposed to ask. That is needed to preserve any complaint one may have about a trial court's restriction of voir dire. See Caldwell v. State, 818 S.W.2d 790, 793-94 (Tex. Crim. App. 1991), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995) (holding that one preserves his complaint about being unable to ask questions during voir dire by presenting the specific question to the trial court and obtaining an adverse ruling); Dhillon v. State, 138 S.W.3d 583, 589 (Tex. App.- Houston [14^th Dist.] 2004, pet. dism'd) (stating that a question that is vague or broad is not proper and fails to preserve error); Aquino v. State, 710 S.W.2d 747, 752 (Tex. App.-Houston [14th Dist.] 1986, pet. ref'd) (holding that error was waived since the defendant failed to make a bill of exceptions as to the questions he wished to pose to the prospective juror). Given that the record lacks the specific questions appellant sought to ask, issue one is waived.

Issue Two - Effective Assistance

We next address appellant's claim that his trial attorney rendered ineffective assistance. Though the gist of the issue tends to involve the failure to preserve complaint about the restriction of voir dire, he also talks about the trial court's purported decision to exclude the evidence of appellant's alleged mental problems. We, therefore, will address both topics.

The applicable standard of review is well-settled and discussed in such cases as Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) and Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). Those cases inform us that one raising the claim must establish both that his counsel was deficient and that the deficiency was prejudicial. Bone v. State, 77 S.W.3d at 833. Furthermore, it is clear that the claim must be firmly founded in the record. Ex parte Nailor, 149 S.W.3d at 130.

In applying the aforementioned standard to the question of whether appellant failed to preserve error viz the decision to exclude evidence, we note that the trial court did not rule that the evidence would be excluded. It simply granted the State's motion in limine, and in that motion, the State merely sought an order requiring the parties to approach the bench before evidence of mental illness was proffered. The trial court's decision fell far short of one holding that the evidence was inadmissible. So, because the evidence had not been ruled inadmissible, trial counsel cannot be held ineffective for failing to preserve complaint about something that never happened.

As to the matter of voir dire, we are again informed of no specific questions that appellant sought to ask the jury. This is fatal given the nature of the complaint. While certain topics may be fair game in voir dire, the manner in which they are broached may nonetheless be objectionable. See e.g., Barajas v. State, 93 S.W.3d 36, 38-39 (Tex. Crim. App. 2002) (noting that while the potential for bias is a legitimate subject for voir dire, a litigant cannot inquire into that potentiality through questions seeking commitments for the venire members). So, without a hint from appellant about what specific questions, if any, an effective attorney could and should have asked, we cannot analyze whether trial counsel actually erred. So, we overrule this issue as well.

Having overruled each issue, we affirm the judgments of the trial court.

Brian Quinn

Chief Justice

Do not publish.

e" Priority="71" SemiHidden="false" UnhideWhenUsed="false" Name="Colorful Shading"/>

NO.  07-10-0344-CV

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                     PANEL D

                                                         SEPTEMBER 30, 2010

                                            ______________________________

                                                     In re: MEGAN LEE DOZIER

                                                                                                            Relator

                                           _______________________________

                            Opinion on Original Proceeding for Writ of Mandamus

                                           _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            Megan Lee Dozier (Dozier) petitions the court for a writ of mandamus directing the Honorable William H. Heatley to vacate his order ”granting the Motion to Transfer to Childress County.”  We deny the petition.

            This dispute involved a proceeding to affect the parent-child relationship once pending in Cottle County.  The district judge who presided over that matter, i.e. William H. Heatley, signed the order transferring the cause from Cottle County to Childress County on May 11, 2010.  In response, the district judge of Childress County accepted the transfer via order signed on May 18, 2010.  Thereafter, the Childress County district clerk assigned cause number 9913 to the proceeding on June 7, 2010.  It was not until August 30, 2010, that Dozier petitioned us to direct the Cottle County district judge to vacate its transfer order.  This delay rendered problematic the granting of her request.

            While an order to transfer is interlocutory as far as the litigants are concerned, it is final viz the transferring court.  In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); Bigham v. Dempster, 901 S.W.2d 424, 429 (Tex. 1995); Seay v. Valderas, 643 S.W.2d 395, 397 (Tex. 1982).  More importantly, once the case has been placed on the transferee court’s docket, the transferor court’s jurisdiction over the matter ends.  Tex. Fam. Code Ann. §155.005(b) (Vernon 2008).  Simply put, it can no longer issue orders regarding the matter.

            Given that the Childress County district court formally accepted the transfer on May 18, 2010, and the district clerk of that same county assigned the matter a cause number on June 7, 2010, it can be said that the proceeding was placed on the transferee court’s docket no later than June 7, 2010.  This, in turn, means that whatever jurisdiction the Cottle County district court had over its order transferring venue lapsed on June 7, 2010, per §155.005(b) and Bigham v. Dempster.  So, because it cannot rescind a transfer order once its jurisdiction ends, Seay v. Valderas, supra, logic dictates that we cannot order it to do that which it has no jurisdiction to do.

            The petition is denied.

                                                                                    Per Curiam