In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-040 CR
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ROOSEVELT BARNES, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
Polk County, Texas
Trial Cause No. 17,789
A jury convicted Roosevelt Barnes, Jr., of Possession of Controlled Substance with Intent to Deliver cocaine in an amount of at least one gram but less than four grams. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003). Two previous felony convictions in proper sequential order were included as allegations in the indictment, thus raising appellant's punishment status to that of an habitual offender. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2005). Appellant pleaded true to the enhancement allegations and the jury assessed appellant's punishment at confinement in the Texas Department of Criminal Justice - Correctional Institutions Division for a term of ninety-nine years. Appellate counsel filed a brief that concluded the appeal was wholly without merit as a diligent review of the record revealed no reversible error. Subsequently, appellant filed a pro se appellate brief raising a number of issues including ineffective assistance of trial counsel, the lack of legally and factually sufficient evidence to sustain the verdict, legal insufficiency of one of the enhancement allegations, and error by the trial court in finding the enhancement true.
In Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (footnote omitted), the Court provided reviewing courts further direction in addressing so-called "frivolous" appeals, viz:
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)
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); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). 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, 694. Moreover, the appellant bears the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing ineffective assistance claims, we apply a strong presumption that trial counsel was competent. 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. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in the instant case, no motion for new trial was filed, 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 motion for new trial 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). In the instant case, we have no affidavit from trial counsel explaining his trial strategy.
The Court of Criminal Appeals has reaffirmed its holding that, absent an opportunity for trial counsel to explain his/her 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)). Finally, as has been often noted, no Texas court defines the right to effective assistance of counsel as the right to error-free counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981); Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).
In the instant case, we have carefully reviewed the entire record, along with the briefs of appellate counsel and the State. On the record that has been presented to us, we find no arguable grounds for appeal. Trial counsel presented the most viable defense available in attempting to have the jury believe that the various law enforcement personnel misidentified the voice on the audiotape during the drug transaction as that of appellant, and by heavily impeaching the cooperating individual's credibility so as to raise reasonable doubt that her identification of appellant as the person selling cocaine to her was truthful. The jury was free to believe the State's witnesses' identification of appellant as the seller of the drugs in question. See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979). Additionally, it appears to have been reasonable trial strategy for appellant to have refrained from testifying in his defense as at least one of his numerous prior felony convictions, a delivery of controlled substance conviction, would undoubtedly have been used by the State to impeach his testimony. See Tex. R. Evid. 609(a), (b). At any rate, appellant's ineffectiveness claims would have us speculate as to any reasons for, and possible harm from, the various acts and omissions alleged. In applying the Strickland standards, we do not second-guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness, and this is especially true when the decisions in question concern presentation of a defense. Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). After a careful review of the entire record, we find no arguable ground for appeal. See Bledsoe, 178 S.W.3d at 826-27. Trial counsel did not engage in any conduct that could even remotely be considered "outrageous." He conducted vigorous and effective cross-examinations of the State's witnesses and provided a reasonable defense to the jury for its consideration. As noted by the Court of Criminal Appeals, Barnes is free to file a petition for discretionary review raising error by this Court in his direct appeal. Id. at 827. (2) We affirm the judgment of the trial court.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted March 22, 2006
Opinion Delivered April 26, 2006
Do not publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. 2. However, as the Court of Criminal Appeals additionally noted: "While an appellant has
the right to