City of Glenn Heights, Texas v. Bill Bearden

IN THE TENTH COURT OF APPEALS No. 10-10-00042-CV City of Glenn Heights, Texas, Appellant v. Bill Bearden, Appellee From the 40th District Court Ellis County, Texas Trial Court No. 77669 MEMORANDUM Opinion The parties have filed an “Agreed Motion to Vacate Judgment of the Trial Court and Dismiss the Appeal,” which states that they have settled the dispute underlying this appeal. The parties ask us to vacate the judgment of the trial court, dismiss the appeal, and remand the case to the trial court for further proceedings related to dismissal of the underlying case in accordance with the parties’ agreement. See Tex. R. App. P. 42.1(a)(2)(B). The agreed motion is granted. Accordingly, we set aside the trial court’s judgment without regard to the merits, dismiss this appeal, and remand the case to the trial court for further proceedings related to dismissal of the underlying case in accordance with the parties’ agreement. REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Motion granted; judgment set aside; appeal dismissed and case remanded Opinion delivered and filed May 19, 2010 [CV06] >O P I N I O N A jury found Willie Richard Duhr guilty of delivery of a controlled substance. The trial court found three enhancement paragraphs to be true and sentenced Duhr to 20 years in prison. Duhr appeals, raising two issues for review. We affirm. Factual Background Linda Alford, a 13-year resident of Bremond, Texas, was addicted to the prescription drug, Vicadin. She was caught forging prescriptions. As a part of her plea-bargain, she agreed to assist law enforcement officers. She told them she could buy prescription drugs from Duhr. On the morning of February 17, 1999, Duhr called Alford and told her he had Xanax (the trade name for the controlled substance, Alprazolam) and Valium for sale. Alford called Thomas Hendrix, an investigator with the South Central Texas Narcotics Task Force, to inform him of Duhr’s offer. Hendrix and Alford “set up the buy,” and Alford called Duhr to arrange a time to meet. Hendrix then met Alford on a highway outside of Bremond. He searched her for drugs and money. Hendrix did not, however, conduct an extensive search such as a strip search. He searched her jacket and had Alford go into her pockets and shake out her bra. Hendrix was satisfied that Alford had no drugs or money in her possession. He then gave her $50 in pre-recorded money for the drug purchase and a micro cassette recorder which she placed in her bra. The recorder could not be turned off once it was turned on. Hendrix dropped Alford off at the post office in Bremond. She was to meet Duhr at the washateria up the hill. Duhr met Alford as scheduled and they drove around the block a few times. Hendrix witnessed Alford in Duhr’s pickup. During the drive, Duhr gave Alford 25 Xanax pills for $50. Hendrix did not witness the exchange. After the exchange, Duhr and Alford conversed for a few moments and Duhr dropped her off back at the washateria. Alford then walked to a café to call Hendrix. Hendrix picked her up, and Alford handed over the Xanax pills. Hendrix searched Alford again to make sure she did not purchase any other drugs. He found nothing. Hendrix locked the micro cassette tape and the Xanax pills in the evidence locker in his office. In May, Hendrix sent the Xanax pills to the Department of Public Safety lab in Waco, Texas. The chemist testified that the pills contained Alprazolam (Xanax) and weighed 3.23 grams. Duhr was arrested in May, and after a search of his room, officers discovered 500 Xanax tablets in various marked and unmarked prescription pill bottles. Insufficiency of the Evidence In his first issue, Duhr contends the evidence was factually insufficient to support his conviction. Specifically, he argues the evidence was factually insufficient because 1) Alford admitted to using Vicadin prior to the drug buy; 2) Hendrix did not perform a thorough search of Alford prior to the drug buy; 3) no one witnessed the actually delivery of the drugs from Duhr to Alford; and 4) no one testified that Alford was reliable. Law When conducting a review of the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence to support a criminal conviction may be factually insufficient in two distinct ways. Goodman v. State, No. 0120-00, 2001 Tex. Crim. App. Lexis 112, at *3 (November 21, 2001). In the first, evidence is factually insufficient when the only evidence presented on the particular element supports the inference that the fact is true, but that evidence is simply too weak by itself to support a rational finding. Id. at *4. In the second, the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). The jury is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Application Duhr did not testify at his trial. He argues the evidence presented by the State was too weak to support his conviction. The reasons Duhr relies on for his insufficiency claim are merely credibility issues that the jury must resolve. Obviously, the jury resolved these issues against Duhr. They are not reasons, however, to show the evidence was too weak to support the conviction. Duhr’s first issue is overruled. Ineffective Assistance of Counsel In his second issue, Duhr complains he was denied effective assistance of counsel at his trial. He lists several alleged deficiencies in his brief that rendered his trial counsel ineffective. They are: 1) counsel waived the making of a record of voir dire; 2) counsel presented no opening statement; 3) counsel failed to object to irrelevant extraneous evidence; 4) counsel did not preserve error by failing to request additional peremptory challenges and point out that he was forced to try Duhr’s case with an unacceptable juror; 5) counsel presented no punishment evidence; and 6) counsel made no argument at punishment. Law In assessing the effectiveness of counsel, whether in the guilt/innocence or punishment phase, we apply the test set forth by the Supreme Court in Strickland v. Washington. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Ex parte Jarrett, 891 S.W.2d 935, 938 (Tex. Crim. App. 1994). Strickland requires us to determine whether: (1) counsel's performance was deficient; and if so, (2) whether there is a reasonable probability the results would have been different but for counsel's deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This two-pronged test is the benchmark for judging whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). "Consideration of the 'totality of the representation,' rather than isolated acts or omissions of trial counsel, determines whether this standard has been met." Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993) (quoting Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983)); accord Ferguson v. State, 639 S.W.2d 307, 310 (Tex. Crim. App. [Panel Op.] 1982). We strongly presume that counsel's conduct lies within the "wide range of reasonable representation." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813. Our scrutiny of counsel’s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Thompson, 9 S.W.3d at 813. “Representation is not ineffective simply because, in hindsight, the attorney could have or even should have done something differently.” Godwin v. State, 899 S.W.2d 387, 392 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). Allegations of ineffective assistance of counsel must be firmly founded in the record. Thompson, 9 S.W.3d at 813. The Complaints We will group Duhr’s complaints and review them accordingly. Voir Dire Duhr complains that because his counsel waived the making of a record of voir dire, nothing there can be appealed. He further contends that he could not then question whether jury selection was proper, i.e., that counsel requested additional peremptory challenges and informed the court he was forced to accept an objectionable juror. Without more, a waiver of the transcription of voir dire cannot be ineffective assistance per se. See Wills v. State, 867 S.W.2d 852, 857 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Lopez v. State, 838 S.W.2d 758, 760 (Tex. App.—Corpus Christi 1992, no pet.). Some injury resulting from the waiver of transcription must be raised by Duhr on appeal. See Lopez, 838 S.W.2d at 760. In this case, Duhr has not shown any injury by the waiver of transcription of voir dire, just that he has the inability to prove it because of the lack of a record. This Court cannot speculate as to what may have occurred during voir dire. Opening Duhr suggests that his counsel's failure to give an opening statement helps demonstrate his overall ineffectiveness, yet provides no argument, authority, or evidence of how this alleged lapse on his counsel's part constituted ineffectiveness. Duhr’s counsel opted to make his opening statement at the end of the State’s case. This option is discretionary. See Tex. Code Crim. Proc. Ann. art. 36.01 (a)(5) & (b) (Vernon Supp. 2002). Once the State rested its case, counsel elected not to present a defense. Duhr also complains about this act. But, the State has the burden of proof at guilt/innocence. A defendant is not required to present any evidence. Duhr has failed to show what evidence would have been presented had he presented any and that the evidence necessitated an opening statement. Extraneous Offense Evidence Duhr complains that his counsel failed to object to irrelevant extraneous offense evidence which allowed him to be convicted on general criminality. Duhr fails, however, to point to any evidence in the record to which his counsel should have objected. Punishment Lastly, Duhr contends that his trial counsel failed to present any evidence or argument at his punishment hearing before the trial court. Duhr fails to point us to any evidence that could have been presented and was not. Further, the State introduced seven of Duhr’s prior convictions from three different counties. One conviction carried a punishment of 99 years in prison. In light of these prior convictions, Duhr fails to show how his counsel’s failure to make a punishment argument was either deficient or harmful. Application Duhr had the burden to show his counsel rendered ineffective assistance. Considering the totality of the representation, he has not shown that his counsel’s acts or omissions were deficient or harmful. Thus, Duhr’s second issue is overruled. Conclusion Having found the evidence to be factually sufficient and having determined Duhr did not prove his counsel was ineffective, we affirm the judgment of the trial court. TOM GRAY Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed February 20, 2002 Do not publish [CR25]