Larry MacK v. State

MARY'S OPINION HEADING

                                                NO. 12-06-00249-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY MACK,         §                      APPEAL FROM THE

APPELLANT

V.        §                      COUNTY COURT AT LAW

THE STATE OF TEXAS,

APPELLEE   §                      ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Larry Mack filed a postconviction application for writ of habeas corpus seeking relief from his misdemeanor conviction for cruelty to an animal.  The County Court at Law of Anderson County granted the writ but denied relief.  Appellant, in his first two issues, contends that his conviction should be set aside because he was denied his right under the United States Constitution and the Texas Constitution to effective assistance of counsel at trial.  In issues three and four, Appellant alternatively contends that he is entitled to an out of time appeal because he did not receive effective assistance of counsel on appeal.  We affirm.

Background

            On a routine meter reading visit to Appellant’s farm, Heath Baldwin, an electric company employee, noticed a large group of cattle so emaciated they could not stand.  Some were already dead.  When he went to Appellant’s house and informed him about the condition of the cattle, Appellant told Baldwin that he was aware of the cattle’s condition and that they would not last long.  Baldwin reported the matter to the sheriff’s department.

            Appellant was charged by information with intentionally or knowingly failing unreasonably to provide necessary food, care, or shelter for a cow in his possession.  Appellant employed an attorney on the Friday preceding the Monday when trial commenced.  Appellant pleaded not guilty.  A jury found Appellant guilty and assessed his punishment at confinement for one year and a fine of four thousand dollars.  This court affirmed his conviction.

            On June 13, 2006, after completing his sentence, Appellant filed his amended application for a writ of habeas corpus alleging he was entitled to relief from his conviction because he received ineffective assistance of counsel both at trial and on appeal.  The trial court granted the writ.  At the hearing, Appellant called two attorneys who testified that after reviewing the record, together with an Appeal Determination of the National Appeals Division of the United States Department of Agriculture, it was their opinion that Appellant had not received effective assistance of counsel.  Neither Appellant nor his counsel at trial and on appeal testified at the habeas corpus hearing.  The trial court denied relief.

Standards of Review

            A person convicted of a misdemeanor offense may attack the validity of the conviction by habeas corpus if he is confined or restrained as a result of a misdemeanor conviction, or is no longer confined, but still subject to collateral legal consequences resulting from the conviction.  See Tex. Code Crim. Proc. Ann. arts.11.09, 11.21, 11.22 (Vernon 2005); Ex parte McCullough, 966 S.W.2d 529, 531-32 (Tex. Crim. App. 1998).  An applicant for a writ of habeas corpus bears the burden of proving his allegations by a preponderance of the evidence.  Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995).

            In reviewing the trial court’s ruling, we view the facts in the light most favorable to the trial court’s ruling and should uphold the ruling absent an abuse of discretion.  Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003).  We defer to the trial court’s determination of historical facts that are supported by the record, especially when the fact findings are based on a determination of credibility.  Id.  We afford the same deference to the trial court’s ruling on “application of the law to fact questions” that involve an evaluation of  credibility.  Id.  If the resolution of those ultimate questions depends upon an application of legal standards, we review those determinations de novo.  Id.

            The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).  To prevail on his claim of ineffective assistance, an appellant must show that his attorney’s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different.  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id.  The same test is applied in weighing claims of ineffectiveness against both appointed and retained counsel.  Hurley v. State, 606 S.W.2d 887, 890 (Tex. Crim. App. [Panel Op.] 1980).

            Our review of counsel’s representation is highly deferential; we indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable representation.  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712.  This court will not second guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness.  Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including appellant’s counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance.  Harner v. State, 997 S.W.2d 695, 704 (Tex. App.–Texarkana 1999, no pet.).  Any allegation of ineffectiveness 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).

            In order to render reasonably effective assistance, an attorney must have a firm command of the facts of the case and the governing law.  Ex parte Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App. 1990); Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983).  “It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision.”  Wellborn, 785 S.W.2d at 393 (citing Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980)).

Discussion

            In his first and second issues, Appellant maintains that he did not receive effective representation at trial from his retained counsel.

            Appellant complains that his trial attorney did not offer into evidence an Appeal Determination from the Appeals Division of the U. S. Department of Agriculture that he contends contained convincing proof of his lack of culpability.  After Appellant’s arrest for animal cruelty, the cattle that remained alive were seized and sold under court order.  Appellant then petitioned the Farm Service Agency, the lien holder, to release part of the proceeds of the forced sale so that he could pay for legal representation and for the disposal of the dead animals. The agency denied Appellant’s request and Appellant appealed the agency’s decision.  The hearing officer concluded that the denial was proper.  However, among his several fact findings, the appeals hearing officer found that “[a]pproximately 300 head of cattle starved to death following the Agency’s inaction on the Appellant’s (earlier) May 2000 request for permission to sell calves so that funds could be obtained to buy feed.” Appellant argues that if it had been placed in evidence, the Appeal Determination would have shown the jury that the cattle’s condition was due to the lien holder’s inaction and occurred despite his attempts to obtain money to feed them.  This, he argued, would have had a direct bearing on the issue of his culpability, and his counsel’s failure to introduce the document into evidence was tantamount to failure to present a defense and hence ineffective assistance. One of the attorneys who testified that this omission constituted ineffective assistance also testified that he had reviewed the record of the trial and was unable to find any attempt to place the document in evidence.

            Appellant bases his claim of ineffective assistance at trial on this sole omission by his counsel. It is a rare case wherein a single act or omission of counsel can establish ineffective assistance. However, “it is possible that a single egregious error of omission or commission by appellant’s counsel constitutes ineffective assistance.”  Thompson, 9 S.W.3d at 813.

            The document in question was never introduced into evidence at the habeas corpus hearing. Appellant told the court at the hearing that he had not retained counsel until the Friday before the Monday when the trial commenced.  Neither Appellant nor his trial counsel testified at the hearing, so there is no evidence that Appellant’s attorney at trial was even aware of the document’s existence or the proceedings that produced it.  The record does not affirmatively demonstrate the alleged ineffectiveness, and we cannot conclude that counsel’s performance was so deficient as to violate Appellant’s right to counsel under the constitution of the United States or Texas.  Appellant’s first and second issues are overruled.

            In his third and fourth issues, Appellant contends his appellate counsel did not provide constitutionally effective assistance.  At the habeas corpus hearing, an attorney with extensive experience in the appeal of criminal cases testified that appellate counsel’s brief raised seven issues but cited only five cases and contained only conclusory statements and no argument on the issues raised.  Moreover, counsel improperly cited the codes and rules, confusing the rules of evidence with the code of criminal procedure, and citing a superseded harmless error rule. This court’s opinion reflects that Appellant’s brief entirely failed to discuss the law as it related to the facts, cited to parts of the record not related to the issues raised, and cited authority not bearing on the issue in question.

            We have revisited the issues raised in the brief on appeal by Appellant’s counsel.  Some border on the frivolous.  None have latent merit that might be improved by rigorous briefing by able appellate counsel.  Appellant does not contend that there were issues on appeal that his appellate counsel should have raised but did not bring forward.  Therefore, even if we assume counsel’s assistance on appeal was deficient, there remains no showing that, but for counsel’s unprofessional errors, the result on appeal would have been different.  See, e.g., Tong, 25 S.W.3d at 712. Appellant’s third and fourth issues are overruled.

Disposition

            The trial court’s judgment is affirmed.

                                                                                                    BILL BASS   

                                                                                                            Justice

Opinion delivered July 18, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)