Opinion
No. 05-12-00208-CR
05-11-2012
EX PARTE ALBERT GARRY
AFFIRM and Opinion Filed May 11, 2012
On Appeal from the County Court At Law No. 1
Hunt County, Texas
Trial Court Cause No. CR-07-01755
OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Bridges
Albert Garry appeals the trial court's order denying his post-conviction application for writ of habeas corpus. In a single issue, appellant contends the trial court erred in holding he failed to show he received ineffective assistance of counsel. We affirm. Background
A jury convicted appellant of misdemeanor DWI and the trial court assessed the punishment the jury recommended of 180 days' confinement and a $2,000 fine, probated for twelve months. Appellant's conviction was affirmed on direct appeal to this Court. See Garry v. State, No. 05-08- 00646-CR (Tex. App.-Dallas May 18, 2009, no pet.) (mem. op.) (not designated for publication).
In his application for writ of habeas corpus, appellant contended trial counsel rendered ineffective assistance by failing to confer with him sufficiently and to prepare the case. Appellant alleged counsel failed to inform him sufficiently in advance about an independent witness, did not review or respond to his e-mails suggesting the videotape of the traffic stop in the case had been edited or altered in numerous ways, and failed to prepare him for trial.
During the habeas hearing, appellant testified that after repeatedly viewing the videotape and driving past the scene of the traffic stop many times, he became convinced the videotape did not reflect what actually happened at the time of his arrest. Although he conceded he is the person depicted in portions of the videotape, he testified the background scenery is inaccurate, many of the taped images are too blurry to identify whether he is the person on tape, the audio does not match the video, he has a different recollection of his conversation with the arresting officer than what is recorded on the tape, and he recalls his performance on the field sobriety tests was much better than depicted on the videotape. Appellant concluded that either the prosecution or the police had altered the videotape to insert different images than what was recorded at the scene of the offense.
The videotape at issue is not part of the record on appeal in this case.
Appellant testified he relayed his concerns about the videotape to trial counsel in a series of e-mails. He asked trial counsel to investigate whether the tape had been altered but trial counsel did not respond. Appellant testified trial counsel admitted to him on the last day of trial that trial counsel did not have time to review his e-mails. Appellant testified he brought the problems with the videotape to the attention of the trial court and the prosecutor on the last day of trial but was informed "it was too late to submit it."
Appellant did not offer any testimony about his other allegations regarding inadequate preparation for the third-party witness or general trial preparation. Appellant did not call trial counsel to testify in the habeas hearing nor did he submit an affidavit from trial counsel. The trial court denied appellant's writ application and entered findings of fact and conclusions of law. The trial court found not credible appellant's allegations that the videotape had been altered and that appellant had informed trial counsel before trial of his belief that the videotape had been altered. The trial court found appellant informed trial counsel of his suspicion about the alterations to the videotape at earliest "immediately before the punishment stage of his trial was to begin." The trial court concluded appellant could not meet either prong of the standard for proving ineffective assistance of counsel. Applicable Law
An individual convicted of a misdemeanor offense may attack the validity of the conviction by way of application for writ of habeas corpus if the individual is either confined or restrained as a result of the charge or conviction or, if no longer confined, is subject to collateral legal consequences arising from the conviction. Ex parte Rinkevich, 222 S.W.3d 900, 902 (Tex. App.-Dallas 2007, no pet.). In reviewing the trial judge's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial judge's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial judge's application of the law to the facts, if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. See id.
To obtain habeas corpus relief on the ground of ineffective assistance of counsel, appellant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) that but for the deficiency, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011), cert. denied, 131 S.Ct. 3073 (2011). Appellant bears the burden of proving counsel was ineffective by a preponderance of the evidence. Martinez, 330 S.W.3d at 901. Our review must be highly deferential and we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 900 (quoting Strickland, 466 U.S. at 689). Allegations of ineffectiveness must be based on the record and the presumption of sound trial strategy cannot be overcome unless the record reflects counsel's reasons for his conduct. Id. at 901. Trial counsel should ordinarily be given an opportunity to explain the challenged actions or failures before being denounced as ineffective. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
Analysis
Appellant presented no evidence other than his own self-serving testimony to show he informed counsel of his concerns about the alleged alteration of the videotape. The trial court is the exclusive judge of the credibility of the testimony. See Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006). The trial court expressly found that neither appellant's theory that the videotape was altered, nor appellant's testimony regarding what he told trial counsel before trial, was credible. We defer to the trial court's credibility judgment. See id.; Peterson, 117 S.W.2d at 819.
Moreover, despite having an opportunity to develop the record regarding his complaint, appellant did not afford trial counsel the opportunity to explain trial counsel's actions or state trial counsel's own recollection of what investigation and trial preparation trial counsel conducted regarding the videotape at issue. Appellant presented no documentation showing the existence or substance of any e-mail communications he had with trial counsel nor did he present any expert analysis of the videotape he contends was altered. Thus, the record does not provide any support for appellant's assertions about trial counsel's deficient performance. See Martinez, 330 S.W.3d at 901; Bone, 77 S.W.3d at 836. Conclusion
With no credible evidence before the trial court showing appellant informed counsel before trial of the alleged problem with the videotape and no evidence the videotape was in fact altered, we conclude appellant has failed to carry his burden of proof under either prong of the Strickland standard. See Strickland, 466 U.S. at 687-88, 694; Martinez, 330 S.W.3d at 900-01. Thus, we conclude the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. We overrule appellant's sole issue.
We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
120208F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EX PARTE ALBERT GARRY
No. 05-12-00208-CR
Appeal from the County Court At Law No. 1 of Hunt County, Texas. (Tr.Ct.No. CR07- 01755).
Opinion delivered by Justice Bridges, Justices Francis and Lang participating.
Based on the Court's opinion of this date, the order of the trial court denying relief on appellant's application for writ of habeas corpus is AFFIRMED.
Judgment entered May 11, 2012.
DAVID L. BRIDGES
JUSTICE