IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 28, 2003
______________________________IN RE NATHAN FELDER,
Relator
_______________________________
ORIGINAL PROCEEDING FOR WRIT OF PROHIBITION _______________________________Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Pending before the court is a motion for a writ of prohibition filed by Nathan Felder. The latter seeks an order "prohibiting Judge Bill Sheehan of the 69th District [C]ourt of Dallum [sic] County from continuing prosecution of cause number 3539 until it is determined whether said court has proper jurisdiction . . . to try Relator." The relator is being tried for capital murder. Furthermore, the trial court purportedly lacks jurisdiction over the proceeding because the indictment allegedly fails to charge Felder "with a violation of an offense under Article 5 Section 12b, Tx. Const. as defined by Article 3 Section 29, Tx. Const." We deny the motion.
Texas Rule of Appellate Procedure 52.3(j)(1) requires the one seeking a writ of prohibition to append to the request "a certified copy or sworn copy of . . . any . . . document showing the matter complained of." There are at least two documents which fall within the category described by Felder. The first is the indictment which purportedly failed to charge an offense. The second is the pretrial petition for writ of habeas corpus which he allegedly filed and awaits determination. According to the motion before us, it is that petition for habeas relief which must first be considered and determined before the trial court can continue with the criminal prosecution. Yet, neither document accompanied Felder's request for a writ of prohibition. Thus, he not only has failed to provide us with documentation necessary to assess his contentions but also failed to comply with Rule 52.3(j)(1).
Accordingly, the request for a writ of prohibition is denied.
Per Curiam
Both also opined, before the jury, that appellant was intoxicated. Furthermore, appellant does not complain on appeal about the admission of that particular evidence. And, to it we add the evidence illustrating that appellant 1) had a strong odor of alcohol on his breath, 2) slurred his speech, 3) had to lean on the car to keep his balance, 4) staggered when he walked, and 5) admitted to drinking at least two glasses of wine shortly before his arrest. So, given that Maynor's testimony was redundant of that provided by Officer Robinson and the overwhelming amount of other evidence indicative of appellant's intoxication, we conclude that the decision to admit Maynor's testimony had no effect on any of his substantial rights. See Tex. R. App. P. 44.2(b) (stating that error not of constitutional magnitude must affect a substantial right before it can be the basis for reversal); Couchman v. State, 3 S.W.3d 155, 160-61 (Tex. App.--Fort Worth 1999, pet. ref'd) (refusing to find harmful error when the evidence about which appellant complained was cumulative of other, properly admitted, evidence on the same subject); Gilcrease v. State, 32 S.W.3d 277, 279 (Tex. App.--San Antonio 2000, pet. ref'd) (refusing to find harm when the evidence of guilt was overwhelming).
Issues Two and ThreeIn his next, and last two issues, appellant contends that he was denied the effective assistance of counsel. This allegedly occurred in two respects. First, counsel supposedly acted improperly by failing to object when Officer Robinson allegedly testified that the manner in which appellant performed the HGN test illustrated that his blood alcohol level exceeded the legal limit. Second, counsel was allegedly deficient by failing to object to that testimony of Officer Maynor which "aided in the inescapable conclusion that appellant's [blood alcohol content] was at least above the legal limit based on the results of the HGN test." We overrule the issues.
Regarding the first act complained of, Officer Robinson did not testify as suggested by appellant. Admittedly, the officer did state that "through the results of the HGN, I can tell you what the person's alcohol level would be . . . ." Yet, trial counsel immediately objected to his doing that. At that point, the witness said 1) "I'm not going to say it," though he believed he "could have" and 2) "that would tell me that he would be a - - if he was above or below the legal limit." (Emphasis added). Nonetheless, the officer never proffered an opinion about what appellant's blood alcohol content was based upon appellant's performance on the HGN test. And, given that the witness never so testified, trial counsel cannot be held deficient by failing to object to evidence that was never offered.
Regarding the second instance of purported deficiency, appellant again mischaracterizes the record. Maynor did not testify that a suspect's performance of the HGN test in a certain manner illustrates that the suspect has a particular blood alcohol level. He simply stated that 1) to be certified by the State to perform HGN tests, an officer must administer 35 such tests, the results of which must be confirmed by subsequent "breathalyzer test[s]" and 2) "[i]n other words, if I test a person I believed was intoxicated, I would have to have a breathalyzer test to back that up on my certification that we send off to the State to be certified." As can be readily seen, Maynor was merely describing the steps required in obtaining one's certification. He was not purporting to suggest that one's performing an HGN test in a certain way means that he has a blood alcohol content exceeding the legal limit. Nor may either of his comments be rationally construed as indicating as much. At best, the comments may be interpreted as illustrating that 1) breath analysis must confirm one's opinion about another's intoxication garnered through application of the HGN test before one can be certified to administer the HGN test and 2) breath analysis may or may not confirm that opinion. So, because the testimony at issue was not of the ilk described by appellant, we refuse to hold trial counsel deficient for failing to object to evidence never offered.
Accordingly, the judgment is affirmed.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).