TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 98-439-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING
Each of appellant's points of error complains, at least in part, that his trial counsel did not render effective assistance. To prevail on a claim of ineffective assistance of counsel, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Although appellant filed a motion for new trial and obtained a hearing thereon, the effectiveness of trial counsel was not raised.
Appellant's first point of error is that his trial counsel was ineffective because he did not move to sever this cause from that of appellant's codefendant. Given the silent record, appellant has not overcome the presumption that this was reasonable trial strategy. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Contrary to appellant's argument in his brief, the trial record does not reflect that appellant was harmed by the absence of a severance. Point of error one is overruled.
Appellant's second point of error is multifarious. First, he complains that the indictment did not adequately describe the stolen property. The indictment alleged that appellant stole "500 memory modules." Appellant filed a motion to quash asking for a more detailed description. The motion was overruled. In light of appellant's subsequent plea of guilty, any error in overruling the motion to quash did not impair appellant's defense. See Porch v. State, 756 S.W.2d 326, 328 (Tex. App.--Austin 1988, no pet.).
Appellant further complains that this trial attorney was ineffective because he did not adequately investigate the facts and prepare for trial, and because he did not competently advise appellant regarding the plea of guilty. Appellant adds that, as a consequence of counsel's ineffectiveness, his guilty plea was involuntary. Once again, appellant's allegations regarding counsel's performance are not supported by the record and he cannot overcome the presumption that counsel rendered reasonable assistance. Point of error two is overruled.
Appellant's third point of error is that trial counsel abandoned him by failing to give notice of appeal. The record reflects that appellant filed a pro se notice of appeal, after which a new attorney was appointed to represent him. Later, appellant moved to dismiss counsel and to represent himself on appeal. This motion was granted after a hearing at which appellant was properly admonished. Whatever the reason for trial counsel's failure to file a notice of appeal, appellant was neither denied an appeal nor denied counsel on appeal. Point of error three is overruled.
The judgment of conviction is affirmed.
Mack Kidd, Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: June 22, 2000
Do Not Publish
e: 11pt">NO. 98-439-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING
Appellant Larry Reeves pleaded guilty to theft of property valued at more than $200,000. See Tex. Penal Code Ann. § 31.03(a), (e)(7) (West Supp. 2000). The court adjudged him guilty and assessed punishment at imprisonment for twenty-five years. We will affirm.
Each of appellant's points of error complains, at least in part, that his trial counsel did not render effective assistance. To prevail on a claim of ineffective assistance of counsel, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Although appellant filed a motion for new trial and obtained a hearing thereon, the effectiveness of trial counsel was not raised.
Appellant's first point of error is that his trial counsel was ineffective because he did not move to sever this cause from that of appellant's codefendant. Given the silent record, appellant has not overcome the presumption that this was reasonable trial strategy. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Contrary to appellant's argument in his brief, the trial record does not reflect that appellant was harmed by the absence of a severance. Point of error one is overruled.
Appellant's second point of error is multifarious. First, he complains that the indictment did not adequately describe the stolen property. The indictment alleged that appellant stole "500 memory modules." Appellant filed a motion to quash asking for a more detailed description. The motion was overruled. In light of appellant's subsequent plea of guilty, any error in overruling the motion to quash did not impair appellant's defense. See Porch v. State, 756 S.W.2d 326, 328 (Tex. App.--Austin 1988, no pet.).
Appellant further complains that this trial attorney was ineffective because he did not adequately investigate the facts and prepare for trial, and because he did not competently advise appellant regarding the plea of guilty. Appellant adds that, as a consequence of counsel's ineffectiveness, his guilty plea was involuntary. Once again, appellant's allegations regarding counsel's performance are not supported by the record and he cannot overcome the presumption that counsel rendered reasonable assistance. Point of error two is overruled.
Appellant's third point of error is that trial counsel abandoned him by failing to give notice of appeal. The record reflects that appellant filed a pro se notice of appeal, after which a new attorney was appointed to represent him. Later, appellant moved to dism