Moore, Herbert Willard v. State

Affirmed and Memorandum Opinion filed September 23, 2004 Affirmed and Memorandum Opinion filed September 23, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00725-CR ____________ HERBERT WILLARD MOORE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause No. 925,515 M E M O R A N D U M   O P I N I O N Appellant entered a plea of guilty to the offense of murder. On June 2, 2003, the trial court sentenced appellant to confinement for 45 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response, raising 21 issues. Probable Cause In his first issue, appellant alleges a lack of probable cause determination. Texas law holds that the right to an examining trial, or probable cause hearing, terminates upon the return of an indictment from the grand jury. Gooden v. State, 425 S.W.2d 645, 646 (Tex. Crim. App. 1968); State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990); Manning v. State, 681 S.W.2d 792, 793 (Tex. App.CHouston [14th Dist.] 1984, no pet.). The responsibility lies with the accused or his attorney to request an examining trial prior to the return of an indictment from the grand jury, or the right to a probable cause hearing is waived. Manning, 681 S.W.2d at 793. There is no indication in the record that appellant or his attorney filed a motion requesting a probable cause hearing prior to the return of the indictment from the Harris County Grand Jury. As a result, appellant waived his right to a probable cause hearing. Ineffective Assistance of Counsel Issues The majority of appellant=s issues allege ineffective assistance of trial counsel. An ineffective-assistance-of-counsel claim is analyzed under the two-prong test enumerated in Strickland v. Washington and adopted by the Texas Court of Criminal Appeals. Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 674 (1984). First, the appellant must show that counsel=s performance was deficient, and second, the appellant must show that the deficient performance prejudiced the defense. Murphy, 112 S.W.3d at 601; Strickland, 466 U.S. at 687. To satisfy the first prong the appellant must: (1) rebut the presumption that counsel is competent by identifying the acts and/or omissions of counsel that are alleged as ineffective assistance; and (2) affirmatively prove that such acts and/or omissions fell below the professional norm of reasonableness. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In any ineffective assistance of counsel claim there is a strong presumption that counsel was competent and that his actions and decisions were reasonably professional and motivated by sound trial strategy. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Stults, 23 S.W.3d at 208. To rebut this presumption the appellant must present evidence indicating why counsel performed the way he did. Stults, 23 S.W.3d at 208. The appellant will be unable to meet this burden if the record does not specifically focus on the reasons for the conduct of his trial counsel. Stults, 23 S.W.3d at 208. When the record is silent as to counsel=s reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court and appellate courts do not speculate about the reasons underlying defense counsel=s decisions. See Murphy, 112 S.W.3d at 601; Stults, 23 S.W.3d at 208. To satisfy the second prong and establish prejudice, the appellant must prove there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Tong, 25 S.W.3d at 712; Stults, 23 S.W.3d at 208. A reasonable probability has been defined as a probability sufficient to undermine confidence in the outcome of the proceedings. Tong, 25 S.W.3d at 712; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Appellant=s claims are ineffectiveness are grouped and discussed below. 1. Alleged Failure to Discuss Agreed Settings and Assist with Bond Appellant complains that counsel did not discuss with him the AAgreed Settings@ form used to reset the trial of the case and did not assist with bond. The AAgreed Settings@ forms were signed by defense counsel. Even if counsel did not discuss these with appellant, appellant does not show how this failure was harmful. Additionally, appellant presents no record support for his allegation that counsel failed to assist with bond. Accordingly, we overrule these issues. 2. Alleged Failure to Advise and Discuss Evidence Appellant presents numerous complaints about counsel=s alleged failures to communicate with appellant, including the following: (1) failure to advise appellant of the basis for probable cause and to discuss the evidence, including the offense report, autopsy report, or coroner=s report with appellant; (2) requesting a competency exam without appellant=s approval and failure to discuss the results with him; (3) failure to visit appellant until eight and a half months after the arrest and failure to conduct a client interview; (4) failure to respond to appellant=s telephone calls; (5) refusal to discuss a defense with appellant; (6) failure to advise appellant he was eligible for community service; (7) refusal to respond to appellant=s questions about the law; and (8) failure to discuss with appellant the notice of intent to destroy evidence. Nothing in the record supports these allegations. Because appellant pled guilty, he cannot claim any alleged actions or inactions by counsel affected the conviction. Furthermore, appellant does not establish how these alleged actions or inactions affected his punishment. Finally, appellant was not eligible for community supervision after pleading guilty to the offense of murder. See Tex. Code Crim. Proc. Ann. Art. 42.12, ' 3g(a)(1) (Vernon Supp. Pamph. 2004-05). We overrule these issues. 3. Alleged Coercion to Plead Guilty Appellant complains that counsel=s failure to locate witnesses and other actions forced appellant to plead guilty. These complaints are not supported by the record. The written admonishments in the record indicate that appellant understood the consequences of his plea, that he freely, knowingly, and voluntarily entered the plea, that he committed the crime alleged in the indictment, and that he understood the court could assess punishment within the full range of punishment for the offense of murder. If the record indicates that the appellant was properly admonished after pleading guilty, it is sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary. See Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). Appellant=s initials on each of the admonishments and his signature are sufficient to rebut his claims of lack of understanding of the punishment available and any coercion by counsel. To show the plea was involuntary based on his attorney=s advice, an appellant must show (1) counsel=s advice was outside the range of competence required by attorneys in criminal cases, and (2) a reasonable probability exists that, but for the erroneous advice, appellant would not have pled guilty. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Appellant fails to make this showing. Nothing in the record establishes what advice counsel gave him and appellant signed the admonishment stating that he was satisfied with counsel=s representation. Accordingly, we overrule these issues. 4. Failure to Object, Alleged Failure to Investigate and Present Mitigating Evidence, and Failure to Request Appointment of Experts During the punishment hearing, the State presented two witnesses who testified that the victim knew appellant and that when appellant was unable to obtain employment, the victim allowed appellant to move into the victim=s garage on the conditions that appellant perform occasional work for the victim and that he attend family Bible study. There was testimony that appellant had occasional disputes with the victim regarding payment for work performed. One witness testified that she was on the telephone with the victim when the shooting occurred and that the victim stated appellant had just shot her. Another witness, an inmate with appellant in the Harris County Jail, testified that appellant stated he had shot the victim and that he would do it again. Appellant complains that his counsel failed to object to these witnesses, failed to suppress this evidence, and failed to preserve favorable evidence and to obtain witnesses to rebut the State=s evidence. After a careful review of the record, it is clear that the record is silent as to counsel=s reasons for his actions. As such, this court will not speculate as to the reasons underlying defense counsel=s decisions, but will assume his actions and decisions were reasonably professional and motivated by sound trial strategy. Appellant=s sentence could have been imprisonment for 99 years. Appellant was sentenced to less than half the maximum sentence for murder. Even if appellant=s appointed trial counsel=s actions did fall below a reasonably professional standard, appellant fails to prove that the outcome of the proceeding would have been different. No error is shown in the failure to present witnesses or evidence unless appellant establishes what the proposed evidence or witness testimony would reveal and how the outcome of the trial would have been different. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). Appellant has failed to establish the subject matter of the testimony of these proposed witnesses or how their testimony would have affected the outcome of the trial, given the state=s evidence against him. As to documentary or video evidence, appellant has not established that this testimony would have resulted in a different sentence. Even if it were error for his court appointed attorney not to call the proposed witnesses or present the proposed evidence, appellant fails to satisfy the second prong of Strickland and prove prejudice. See Strickland, 466 U.S. at 687. Furthermore, mere allegations that counsel failed to investigate or discuss the case with appellant are insufficient to raise an ineffectiveness claim. Appellant must show what the investigation would have revealed. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). Finally, appellant complains his counsel failed to cross-examine a witness, Loan Le, about an alleged discrepancy between her trial testimony and a previous statement. No previous statement of this witness is in the record. Even if there are discrepancies in the statements made by this witness at trial, appellant fails to show how any objections by counsel would have resulted in a different outcome. Accordingly, we overrule these issues. Knowing and Voluntary Plea and Confession and Sufficiency of Evidence Appellant claims that his plea was involuntary and that his attorney did not advise him that he would be eligible for community supervision. Appellant claims he was therefore forced to plead guilty. If the record indicates that the appellant was properly admonished after pleading guilty, it is sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary. Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). The record indicates that appellant was properly admonished and therefore his plea is considered both knowing and voluntary. Appellant also claims there was insufficient evidence to support his guilty plea and to establish such plea beyond a reasonable doubt. A judicial confession standing alone is sufficient to sustain a conviction upon a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979). Appellant pled guilty to murder and, as such, the evidence is both legally and factually sufficient to support the verdict of guilty beyond a reasonable doubt. We overrule these issues. Trial Court=s Actions Appellant claims that the trial court erred when it refused to dismiss his appointed trial counsel and allow him to represent himself. The record contains a motion to dismiss counsel, but this motion requests appointment of other counsel. A trial judge is under no duty to search until he finds an attorney agreeable to the defendant. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The right to the counsel of one=s own choice is nether absolute nor unqualified, and the right must be balanced with the trial court=s need for prompt, orderly, effective, and efficient administration of justice. Brink v. State, 78 S.W.3d 478, 483 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Once the court has appointed an attorney to represent the indigent defendant, the defendant has been accorded the protections provided by law. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982). The burden then shifts to the defendant to prove that he was entitled to a change of counsel. Id. The Texas Court of Criminal Appeals has historically affirmed trial courts= refusal of a defendant=s motion to dismiss court-appointed counsel. Id. Appellant does not cite to any relevant evidence that demonstrates that he should have been entitled to a change of counsel or that the trial court committed error in refusing to allow appellant to represent himself. Accordingly, appellant shows no harm in the court=s refusal to dismiss appointed counsel and appoint other counsel. Appellant filed many lengthy handwritten letters to the trial judge. Buried at the end of one of these lengthy letters is a statement that appellant waives his right to counsel. This letter did not clearly request the trial court to dismiss counsel and allow appellant to represent himself. Additionally, appellant failed to obtain a ruling on this request. Indeed, this letter was filed before appellant pled guilty and at the plea hearing, appellant failed to reiterate his request or indicate that he wished to waive his right to counsel. Instead, appellant initialed his approval of his appointed attorney=s representation. No subsequent request for self-representation appears in the record. Accordingly, to the extent the record could be construed to contain a request for self-representation, appellant waived this request. Appellant further claims the trial court erred in refusing to order the sheriff to turn over to appellant his briefcase, allegedly containing the names and addresses of potential witnesses. Nothing in the record indicates appellant requested the trial court to order the sheriff to turn over this material. Under these circumstances, we can find no error by the trial court. We overrule these issues. Alleged Suppression of Evidence and Subornation of Perjury by the Prosecution Appellant contends that the prosecution suppressed witness testimony and other evidence. Under Brady v. Maryland, to establish a claim for suppression of evidence, the appellant must show that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the appellant, and (3) the evidence was material to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963); Hayes v. State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002). The evidence appellant refers to are names of witnesses. Appellant carried the names in his briefcase. The prosecution cannot suppress evidence that is already known to the defendant and, as a result, appellant fails to meet the first element. Hayes, 85 S.W.3d at 815. Appellant also contends the prosecution engaged in Asubornation of perjury material to the issuance of an arrest warrant and search warrant . . . .@ Appellant does not present any proof in the record establishing this claim. Accordingly, we find no merit to this issue. Violations of Appellant=s Rights under the Texas Constitution Appellant claims that the district attorney=s direct examination of the state=s witnesses regarding religious beliefs violates his rights under the Texas Constitution. The only authority appellant cites to support his belief is Article I, sections 3 and 6 of the Texas Constitution. To adequately brief a state constitutional issue appellant must proffer specific arguments and authorities supporting his contentions under the state constitution, otherwise his contentions are inadequately briefed. See Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999). Appellant failed to offer any authority, other than the Texas Constitution, to support his claim that the State violated his rights. The sections to which appellant refers are section 3 and section 6. Section 3, entitled, AEqual rights,@ provides: All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services. Tex. Const. art. I, ' 3. Section 6, entitled, AFreedom of worship,@ provides: All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. Id. at ' 6. Appellant does not explain how the State=s examination of witnesses violated these constitutional rights. Furthermore, appellant fails to cite any relevant evidence in the record that supports his belief that his rights were violated. In reviewing the record, the references to religion included the following: (1) testimony by family and a friend of the victim regarding the victim=s involvement in church activities; (2) testimony by family that the victim required all members of the household, including appellant, to attend Bible study; (3) testimony by family of the victim that appellant was disrespectful to the victim by rolling his eyes and not paying attention during Bible study; and (4) testimony by an inmate at the Harris County Jail that appellant had stated he shot the victim because she tried to force religion on him. No violation by the State of appellant=s rights is shown by the presentation of this testimony. Errors in the Record Appellant complains that the reporter=s record and the clerk=s record contain errors. Rule 34.6 provides the procedure for correcting inaccuracies in the reporter=s record. Tex. R. App. P. 34.6(e). Appellant has not complied with the proper procedures for challenging the reporter=s record. Furthermore, appellant has not established that the alleged factual errors in the record contributed to appellant=s punishment. Actions of Other Persons Appellant claims the sheriff denied appellant access to names of potential witnesses in appellant=s briefcase and that appointed counsel=s investigator influenced witnesses against appellant. These assertions are not supported by the record. Conclusion Having reviewed appellant=s issues and found no reversible error, we affirm the judgment of the trial court. PER CURIAM Judgment rendered and Memorandum Opinion filed September 23, 2004. Panel consists of Justices Anderson, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).