Tracy Troy Barksdale v. State of Texas

MEMORANDUM OPINION No. 04-01-00418-CR Tracy Troy BARKSDALE, Appellant v. The STATE of Texas, Appellee From the 187th Judicial District Court of Bexar County, Texas Trial Court No. 2000-CR-2247 Honorable Raymond Angelini, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 31, 2003

AFFIRMED

Appellant Tracy Troy Barksdale was indicted by a Bexar County Grand Jury on six counts of aggravated robbery. Following a jury trial, Barksdale was convicted on all six counts and sentenced to seventy years imprisonment. Barksdale timely filed a motion for new trial which was denied by the trial court. Barksdale now appeals, alleging three issues. In his first issue, Barksdale contends he was denied effective assistance of counsel. In his second issue, he claims the evidence introduced at trial is legally insufficient to support his conviction. In his final issue, Barksdale contends the trial court abused its discretion by denying his motion for new trial. We overrule all three of Barksdale's issues and affirm the judgment of the trial court.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the convictions in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Barksdale contends he was denied effective assistance of counsel as required under the United States and Texas Constitutions. U.S. Const. am. VI; Tex. Const. art. I, §10. Specifically, Barksdale raises four reasons why he believes his attorney provided ineffective assistance: (1) the attorney failed to move for directed verdict at the close of the State's evidence; (2) the attorney failed to file a motion to suppress evidence found in a search of Barksdale's girlfriend's mother's house; (3) the attorney failed to present an opening statement; and (4) at the punishment phase of the trial, the attorney failed to object to the admission of "uncorroborated unadjudicated extraneous offense evidence."

In determining whether a criminal defendant has been denied effective assistance of counsel, this court follows the standard iterated in Strickland v. Washington. 466 U.S. 687, 688 (1984); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

The record is silent regarding any explanation for counsel's actions in all four situations complained of by Barksdale. In the absence of an explanation of the motivation behind counsel's decisions, we find that Barksdale has failed to overcome the strong presumption of reasonable assistance. Barksdale has not shown that his counsel's actions fell below an objective standard or that but for these actions the outcome of his trial would have been different. Strickland, 466 U.S. at 687. We overrule Barksdale's first issue.

2. In his second issue, Barksdale contends the evidence is legally insufficient to corroborate the testimony of the accomplice witness, Raymond Headley, and therefore, legally insufficient to sustain his convictions. A conviction can not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2003). In order to test whether corroboration is sufficient, the court must eliminate from consideration the accomplice witness' testimony, and then examine the remaining evidence to determine if it is of an incriminating character tending to link the accused to the commission of the offense. Knox v. State, 934 S.W.2d 678, 686 (Tex. Crim. App. 1996). If such evidence is in the record, the corroboration will be sufficient, if not the evidence is legally insufficient. Pinson v. State, 598 S.W.2d 299, 302 (Tex. Crim. App. 1980).

At trial, the State presented the testimony of several victims of Barksdale's alleged crimes, all of whom gave a general description of their attackers and testified as to the events on the night of the robbery. One victim was also able to tentatively identify Barksdale. The State also presented the testimony of accomplice Headley's live-in girlfriend, Barksdale's mother-in-law, an alarm company employee, a Bexar County firearms examiner, and three police officers who worked on the robbery case. This testimony, along with other circumstantial evidence produced by the State, tends to connect Barksdale with the offenses committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2003). The corroboration testimony, therefore, was legally sufficient to sustain the convictions against Barksdale. We overrule his second issue.

3. In his third issue, Barksdale contends the trial court erred in denying his motion for new trial which alleged the trial court exhibited bias against him in the presence of the jury. However, Barksdale fails to include either argument or authority for this issue in his brief as required by the rules of appellate procedure. Tex. R. App. P. 38.1. His brief fails to comply with the rules of appellate procedure and thus presents nothing for purposes of review. Tex. R. App. P. 38.1.; See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2002). Accordingly, we can not address Barksdale's third and final issue, and the judgment of the trial court is affirmed.

Paul W. Green, Justice

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