Nos. 05-05-00133-CR, 05-05-00134-CR
Opinion Filed March 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. WX04-03157-I, WX04-03158-I.
Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice MOSELEY.
Vitor Abimbola Idowu appeals the trial court's denial of the relief appellant sought in his applications for writ of habeas corpus. In two issues, appellant contends the trial court erred in denying relief because appellate counsel did not render effective assistance. We affirm the trial court's orders.
Background
Appellant was convicted in a non-jury trial of theft of property valued at $1500 or more, but less than $20,000 and securing execution of a document by deception. In each case, punishment was assessed at two years' confinement in a state jail, probated for five years. On direct appeal, appellant raised complaints about the legal and factual sufficiency of the evidence, the restitution order and the ineffective assistance of trial counsel. This Court overruled each of appellant's points of error and affirmed the trial court's judgments. See Idowu v. State, No. 05-00-00168-CR (Tex.App.-Dallas, May 7, 2001) (not designated for publication), aff'd, 73 S.W.3d 918 (Tex.Crim.App. 2002). Appellate counsel did not file a motion for rehearing, but filed a petition for discretionary review attacking the Court's disposition of each of appellant's points of error. The Texas Court of Criminal Appeals granted review as to the restitution order only, and affirmed this Court's judgment. See Idowu, 73 S.W.3d 918, 919 n. 1 (Tex.Crim.App. 2002). Appellant later filed applications for writ of habeas corpus under article 11.072 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon Supp. 2004-05) (habeas corpus procedure in community supervision case). Appellant claimed appellate counsel rendered ineffective assistance by not filing a motion for rehearing in the direct appeal asserting that this Court misread the record and did not defer to the trial judge's findings of fact in rejecting the ineffective assistance of counsel claims on appeal. Appellate counsel Sally Goodman's affidavit was before the trial court ruling on the application, as was the record of the underlying proceedings. In her affidavit, Goodman stated that in light of the Court's disposition of appellant's ineffective assistance of counsel complaints, she believed it would be a futile act to file a motion for rehearing. The issues were raised in a petition for discretionary review. The trial judge denied appellant relief and these appeals followed. Applicable Law
In a habeas corpus proceeding, the applicant has the burden to prove his claims by a preponderance of the evidence. See Ex parte Peterson, 117 S.W.3d 804, 818 (Tex.Crim.App. 2003) (per curiam). In reviewing the trial court's ruling on an application for writ of habeas corpus, we view the facts in the light most favorable to the ruling. See id. at 819. We afford almost total deference to the trial court's determination of historical facts that are supported by the record, especially when the court's fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same level of deference to a trial court's ruling on an application of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See id. We review de novo mixed questions of law and fact that do not involve credibility and demeanor evaluations. See id. We will uphold the trial court's ruling absent an abuse of discretion. Id. In reviewing a claim of ineffective assistance of appellate counsel, we apply the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex.Crim.App. 2001). Appellant must show that appellate counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced appellant. See Strickland, 466 U.S. at 687-88, 694; Ex parte Lozada-Mendoza, 45 S.W.3d at 109. Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). We look to the totality of the representation rather than examining isolated acts or omissions of counsel. See Scheanette v. State, 144 S.W.3d 503, 509 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 872 (2005). We indulge a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance, and appellant must overcome the presumption that the challenged action might be considered sound strategy. See Strickland, 466 U.S. at 689; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim App. 2003). The fact that another attorney might have pursued a different tactic does not prove appellate counsel rendered ineffective assistance. See Scheanette, 144 S.W.3d at 509. Analysis
Appellant claims appellate counsel was ineffective in not filing a motion for rehearing in this Court complaining that we misread the record and did not defer to the trial court's findings of fact. Appellant asserts that had counsel filed a motion for rehearing, the "motion would have been sustained because the facts and findings of fact show that trial counsel failed to call the various witnesses to advance the only viable defense. . . ." The State responds that a motion for rehearing was not required, appellate counsel chose a sound strategy of pursuing relief by discretionary review, and that appellant has not show the result would have been different. We agree with the State. In her affidavit, Goodman stated that in light of the disposition of appellant's ineffective assistance of counsel complaints, she believed it would be a futile act to file a motion for rehearing in this Court. Goodman filed a petition for discretionary review in which she asserted this Court improperly disposed of the ineffective assistance of counsel complaints. A motion for rehearing is not a prerequisite for filing a petition for discretionary review, nor is it required to preserve error. See Tex.R.App.P. 49.9. Counsel made a sound strategic decision to pursue relief in a higher court rather than to seek additional relief from this Court. That another attorney might have filed a motion for rehearing does not render appellate counsel's performance deficient. See Scheanette, 144 S.W.3d at 509. Furthermore, claims of ineffective assistance of counsel must be firmly grounded in the record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (per curiam). Although appellant asserts that this Court would have granted a motion for rehearing, nothing in the record supports that claim. There is no evidence in the record to show this Court would have granted a motion for rehearing, sustained appellant's claims that trial counsel was ineffective, and reversed the trial court's judgments. The fact that the court of criminal appeals declined to review appellant's ineffective assistance of counsel claims lends support to our conclusion that appellant has not shown the result would have been different. We conclude appellant has not shown either that appellate counsel's performance was deficient or that there would have been a different result had a motion for rehearing been filed. We resolve appellant's two issues against him. We affirm the trial court's orders denying appellant the relief sought by his application for writ of habeas corpus.