Opinion
No. 04-03-00871-CR
Delivered and Filed: September 8, 2004. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-6899, Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Orba McVay Bomer ("Bomer") appeals his felony conviction of driving while intoxicated. Bomer's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeal has no merit. Counsel provided Bomer with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.-San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex. App.-San Antonio 1996, no pet.). This court ordered the district clerk to provide Bomer with a copy of the record. On May 21, 2004, Bomer filed a document entitled "Post Trial Conviction Habeas Corpus," and on June 23, 2004, Bomer filed a supplement to the previously filed document. We have construed appellant's documents to be appellant's pro se brief. The primary complaint raised in Bomer's pro se brief is ineffective assistance of counsel. To prevail on a claim for ineffective assistance of counsel, Bomer must show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). In addition, Bomer must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. Generally, the record reflects that trial counsel had a firm grasp of the facts and competently represented Bomer. Bomer raises several issues regarding actions he believes trial counsel failed to take; however, the record is silent as to the reason trial counsel failed to take those actions. Since the record is silent, Bomer cannot overcome the presumption that trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. This opinion does not preclude Bomer from raising his ineffective assistance claim in an application for post-conviction writ of habeas corpus which must be filed in the trial court. See id. at 814-15 (noting recourse available via an application for writ of habeas corpus); Tex. Code Crim. Proc. Ann. art. 11.07, § 3(b) (Vernon Supp. 2004) (providing that an application for writ of habeas corpus after final conviction in a felony case must be filed with the clerk of the court in which the conviction being challenged was obtained). We have reviewed the record, counsel's brief, and the documents filed by Bomer that we considered to be his pro se brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n. 1.