Dwayne Louis Morning v. State

IN THE
TENTH COURT OF APPEALS
No. 10-08-00171-CR
DWAYNE LOUIS MORNING,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court No. 22361
MEMORANDUM OPINION
Dwayne Louis Morning pled guilty, without a plea bargain, to the offense of
aggravated robbery. TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2003). The issue of
punishment was tried to the court which assessed punishment at 18 years in prison.
Morning filed a motion for new trial alleging ineffective assistance of counsel at the
punishment phase of the trial. The motion was eventually denied without a hearing.
Because the trial court did not abuse its discretion in failing to hold a hearing on the
motion for new trial, and because Morning did not meet the standard for ineffective
assistance of counsel, the trial court’s judgment is affirmed.
Morning asks us to address his second issue first. In that issue, he contends he
was denied the right to a hearing on his motion for new trial. When an accused
presents a motion for new trial raising matters not determinable from the record, which
could entitle him to relief, the trial court abuses his discretion in failing to hold a
hearing. King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000). But the effect of
granting a motion for new trial is to restore the case to its position before the former
trial. Sorto v. State, 173 S.W.3d 469, 490 (Tex. Crim. App. 2005). A trial court cannot
grant a new trial as to punishment only. Id. Even if Morning’s underlying claim of
ineffective assistance of counsel had been meritorious, that claim deals only with the
punishment phase. Thus, the trial court did not abuse its discretion in failing to hold a
hearing on the motion for new trial in the instant case. Morning’s second issue is
overruled.
Moving to his first issue, Morning asserts that he was denied the reasonably
effective assistance of counsel during the punishment phase of his trial. He points to
various “failures” of trial counsel to support his claim. A defendant must show that: (1)
counsel's performance was deficient to the extent that counsel failed to function as the
"counsel" guaranteed by the Sixth Amendment and (2) that counsel's deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To establish prejudice, a defendant must show
there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 534, 123 S.
Ct. 2527, 156 L. Ed. 2d 471 (2003). Even if we were to assume Strickland’s first prong
Morning v. State Page 2
was met, Morning failed to demonstrate with a reasonable probability, that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
See Harris v. State, 34 S.W.3d 609, 618 (Tex. App.—Waco 2000, pet. ref’d). The second
prong is not met. Accordingly, Morning’s first issue is overruled.
Having overruled each issue on appeal, the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed February 11, 2009
Do not publish
[CR25]
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