Darrell Jerome Holt v. State

BRIAN MILLSAP V. SHOW TRUCKS USA, INC. NO. 07-06-0028-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 26, 2006 ______________________________ DARRELL JEROME HOLT, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 287th DISTRICT COURT OF PARMER COUNTY; NO. 2682; HON. GORDON H. GREEN, PRESIDING _______________________________ ABATEMENT AND REMAND __________________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Darrell Holt (appellant) appeals his conviction for driving while intoxicated. After we granted appellant a prior extension, his brief was due no later than April 18, 2006 (a date requested by appellant's counsel). No brief has been received by this court. Nor has appellant explained the delay. Consequently, we abate the appeal and remand the cause to the 287th District Court of Parmer County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following: 1. whether appellant desires to prosecute the appeal; and, 2. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file appellate brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief). We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue the appeal, is indigent, and has been denied effective assistance of counsel, we further direct it to appoint new counsel to assist in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before May 26, 2006. Should additional time be needed to perform these tasks, the trial court may request same on or before May 26, 2006. It is so ordered. Per Curiam Do not publish. , and the trial judge, considering the enhancements, assessed appellant's punishment at thirty years imprisonment in a state jail facility. Appellant subsequently filed a notice of appeal. By her Anders brief, counsel concedes two grounds that could arguably support an appeal. The first is whether sufficient evidence was presented to support the conviction and judgment. When reviewing a factual sufficiency claim, an appellate court must view all the evidence "without the prism of 'in the light most favorable to the prosecution'" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex.App.-Austin 1992, pet. ref'd, untimely filed)). We must determine, considering all of the evidence in a neutral light, whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). We agree with counsel's conclusion that the State presents evidence as to each element of the charged offense. The State's evidence consists of a videotape recorded by a camera in the arresting officer's vehicle and breath sample results from the police intoxilyzer. There is also testimony from three eyewitnesses, the arresting officer, and the supervisor of the DPS breath alcohol testing program. The jury, as trier of fact, may choose to believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App. 1986). A jury's decision is not manifestly unjust merely because it resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Cr.App. 1997). Upon review of the record, we conclude the evidence was factually sufficient to support appellant's conviction beyond a reasonable doubt. We also find that appellant was afforded effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In her brief, counsel asserts that trial counsel used a viable strategy to discredit the eyewitness testimony and the administration and reliability of the tests used to determine if appellant was intoxicated. Appellant's trial counsel also filed and succeeded on several pre-trial motions, conducted proper voir dire, and vigorously cross-examined witnesses. Furthermore, trial counsel was able to get the 911 audio tape and portions of the police videotape excluded from the evidence entirely. Accordingly, we find counsel's conduct in this case falls within the wide range of reasonable and professional representation, and no reversible error is demonstrated. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001). We have made an independent examination of the entire record to determine whether there are any arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972). Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish. 1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).