James Ray Sparrow v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-404 CR ____________________ JAMES RAY SPARROW, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 89999 MEMORANDUM OPINION A jury found appellant, James Ray Sparrow guilty of Aggravated Sexual Assault of a child, (L.G.), and assessed his punishment at seventy-five years' confinement in the Texas Department of Criminal Justice - Institutional Division and a fine of $10,000. Sparrow's appellate counsel filed a brief that concluded no arguable error was presented in the trial record, and any appeal would be frivolous. Subsequently, Sparrow filed pro se paperwork he represented as his "Informal Brief" attacking his conviction and punishment. In Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005)(footnote omitted), the Court provides the following salient directive: When faced with an Anders brief and if a later pro se brief is filed, the court of appeals has two choices. It may determine that the appeal is wholly frivolous and issue an opinion explaining that is has reviewed the record and finds no reversible error. Anders, 386 U.S. at 744, 87 S.Ct. 1396. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Stafford, 813 S.W.2d at 511. Only after the issues have been briefed by new counsel may the court of appeals address the merits of the issues raised. Id. at 509-10 (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). If the court of appeals were to review the case and issue an opinion which addressed and rejected the merits raised in a pro se response to an Anders brief, then Appellant would be deprived of the meaningful assistance of counsel. Furthermore, this does not deprive Appellant of his right to file a petition for discretionary review. Appellant is free to file a petition for discretionary review with this Court claiming that the court of appeals erred in holding that there were no arguable grounds for review. (1) Sparrow's pro se brief centers on alleged ineffective assistance of his trial counsel, with various satellite issues all relating back to his ineffectiveness claim. In general, Sparrow contends that his trial counsel "was not prepared for trial . . . . allowed witnesses to contradict statements in cross-examination without objecting[,] [and] [a]fter I was convicted, he advised me to 'take responsibility and show remorse.'" Our examination of the record indicates that trial counsel filed a number of pretrial motions pertinent to the particular facts and circumstance of the case. He also filed an application for community supervision on Sparrow's behalf. Trial counsel examined and cross-examined witnesses in a professional manner and appeared to fully develop for the jury Sparrow's defensive claim of "conspiracy between Lizneth Sparrow and her daughter [the victim, L.G.] as an attempt to obtain a divorce from [Sparrow]." Sparrow also testified in his own behalf and attempted to explain why he provided an initial exculpatory statement to the authorities, and then later provided an inculpatory statement essentially admitting to having sexually assaulted L.G. on several occasions. He also testified concerning the "conspiracy" allegedly involving L.G. and her mother. Trial counsel called a number of character witnesses during the punishment phase of the trial. Sparrow also testified and admitted his complicity in sexually assaulting L.G., and also admitted to having lied to the jury during the guilt/innocence phase. On appeal, Sparrow now contends that his punishment admission and remorse were done only on advice from trial counsel in hopes of "get[ting] me probation or a small TDCJ term." Because he received neither from the jury, Sparrow reflects, "That was probably the dumbest thing I have ever done was listen to him." An accused has the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-94. Moreover, the appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In assessing an appellant's claims, we apply a strong presumption that trial counsel was competent. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in the instant case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). "If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective assistance claim." Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (citing Howard v. State, 894 S.W.2d 104, 107 (Tex. App.--Beaumont 1995, pet. ref'd). Recently, the Court of Criminal Appeals reaffirmed its holding that, absent an opportunity for trial counsel to explain his actions, appellate courts should not find ineffective assistance unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). The Court also reiterated the standard that "[a] Strickland claim must be 'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Id. (quoting Thompson, 9 S.W.3d at 813) (declining to speculate on counsel's failure to object to hearsay in light of silent record). "Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped." Id. (citing Thompson, 9 S.W.3d at 813-14). "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Id. (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Moreover, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). In the instant case, we have carefully reviewed the appellate record and agree with counsel's conclusion that no arguable issues support an appeal. Therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). As noted by the Court of Criminal Appeals, Sparrow is free to file a petition for discretionary review raising error by this Court in his direct appeal. See Bledsoe, 178 S.W.3d at 827. (2) We affirm the judgment of the trial court. AFFIRMED. __________________________________ CHARLES KREGER Justice Submitted December 20, 2005 Opinion Delivered March 15, 2006 Do not publish Before McKeithen, C.J., Kreger and Horton, JJ. 1. "Anders" refers to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and "Stafford" refers to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). 2. However, as the Court also noted: "While an appellant has the right to file a petition for discretionary review with this Court, review is not a matter of right." Bledsoe, 178 S.W.3d at 827 n. 6 (citing Tex. R. App. P. 66.2)(emphasis in original).