Five Thousand Four Hundred Fifty-Nine Dollar ($5,459.00) v. State

NO. 07-08-0039-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 11, 2008 ______________________________ FIVE THOUSAND FOUR HUNDRED FIFTY-NINE DOLLARS ($5,459.00), Appellant V. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 47th DISTRICT COURT OF POTTER COUNTY; NO. 95,419-A; HON. HAL MINER, PRESIDING ________________________________ MEMORANDUM OPINION ___________________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Jerome Howe filed a notice of appeal on January 14, 2008, from a final summary judgment signed on October 1, 2007. No motion for new trial or like request extending the appellate deadline was filed. Consequently, appellant had until October 31, 2007, to file a notice of appeal. He did not do so. Thereafter, we afforded him opportunity to explain why his notice was untimely and why we had jurisdiction over the appeal. This resulted in his response informing us that the district clerk did not notify him of the summary judgment until December 6, 2007. Why he did not perfect his appeal within 30 days of December 6th went unexplained, however. Moreover, the allegations in his response did not satisfy the requirements of Texas Rule of Civil Procedure 306a(4), which rule permits the belated perfection of an appeal when neither the litigant or his counsel garnered notice or knowledge of the final judgment. See Tex. R. Civ. P. 306a(5) (prescribing the steps that must be satisfied to obtain the benefits of Rule 306a(4)). Given these circumstances, we cannot but conclude that we lack jurisdiction over the appeal. Thus, it is dismissed. Per Curiam We agree with counsel's conclusion that there is conflicting evidence which could be indicative of appellant's innocence. However, 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). See also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In his brief, counsel acknowledges that appellant's trial counsel did not object to hearsay evidence regarding what M.W. told the police, her grandmother, and her mother about appellant's actions. Furthermore, the record reflects that trial counsel may have elicited some evidence that would be considered harmful to appellant's case. On the other hand, appellant's trial counsel filed and succeeded on numerous pre-trial motions, conducted proper voir dire, vigorously cross-examined witnesses, and moved for a directed verdict. Absent evidence regarding counsel's trial strategy and provided the presumption that trial counsel's conduct falls within the wide range of reasonable and professional representation, 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).