No. 05-05-00132-CR
Opinion Filed March 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. WX04-02767-H. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice WRIGHT.
Yvonne Annette Prince appeals the trial court's order denying her the relief sought by her application for writ of habeas corpus. In four issues, appellant asserts the evidence is insufficient to support her conviction, there was jury charge error, the prosecutor engaged in misconduct, and appellant received ineffective assistance of appellate counsel. We affirm the trial court's order.
Background
On March 29, 2002, a jury convicted appellant of assault of a public servant and punishment was assessed at two years' confinement, probated for three years. Appellant's direct appeal was dismissed for want of prosecution because she failed to file the clerk's record. See Prince v. State, No. 11-02-00243-CR (Tex.App.-Eastland Jan. 23, 2003, no pet.) (per curiam). In 2004, appellant filed an application for writ of habeas corpus collaterally attacking her conviction. See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon Supp. 2004-05). In the application, appellant complained of the sufficiency of the evidence to support the conviction, jury charge error, prosecutorial misconduct, and ineffective assistance of appellate counsel. The trial judge denied appellant relief and this appeal followed. Standard of Review
In a habeas corpus proceeding, the applicant has the burden to prove her 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. Sufficiency of the Evidence
In her first issue, appellant claims the trial court erred in denying her relief because the evidence is insufficient to support her conviction. Appellant asserts that there is no evidence to support an essential element of the offense — that the officer was discharging an official duty. The State responds that the trial court correctly denied appellant relief. A challenge to the sufficiency of the evidence to support a felony conviction is not cognizable by writ of habeas corpus. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004). Therefore, the trial court did not err in denying appellant relief on this basis. We resolve appellant's first issue against her. Jury Charge Error
In her second issue, appellant asserts she was entitled to relief because there was error in the jury charge submitted at her trial. Appellant claims the trial judge erred in not charging the jury on the issue of an investigative stop, and that the charge given was insufficient to direct the jury's attention to the ultimate issue of whether the officer had reasonable suspicion to believe appellant was involved in criminal activity. The State responds that the jury charge correctly sets out the law applicable to the case. Article 11.072 of the code of criminal procedure, which governs appellant's habeas corpus, provides that an application may not be filed under this article if the applicant could obtain the requested relief by means of appeal. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3. Claims of jury charge error are appealable. See, e.g., Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Moreover, to obtain habeas corpus relief on the basis of jury charge error, the applicant has the burden to plead and prove facts which, if true, entitle her to relief. See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App. 1985). It is not enough to allege the denial of a fair and impartial trial or due process of law, nor is it adequate to allege the bare fact that the charge was somehow erroneous. See id. Rather, the applicant must allege the reasons the complained-of error, in light of the trial as a whole, "so infected the procedure that the applicant was denied a fair and impartial trial." Id. Having reviewed the record before the Court, we conclude appellant did not meet her burden of showing the trial court gave an egregiously erroneous jury charge that so infected the procedure appellant was denied a fair and impartial trial. Therefore, the trial judge did not err in denying relief on this basis. We resolve appellant's second issue against her. Prosecutorial Misconduct
In her third issue, appellant argues she was entitled to habeas corpus relief on the basis of prosecutorial misconduct. Appellant does not claim the prosecutor withheld exculpatory evidence. She contends the prosecutor did not adequately investigate the evidence in the case. Appellant also asserts a police officer gave perjured testimony about the reason she stopped appellant, and the prosecutor's failure to correct this perjury violated appellant's right to a fair trial. The State asserts that the trial court correctly denied appellant relief. Appellant had the burden to show she is entitled to habeas corpus relief. See Ex parte Peterson, 117 S.W.2d at 818. Although appellant cites to a reporter's record in her brief, the reporter's record of the underlying trial was not made part of the record of habeas corpus proceedings, nor is a copy of that record before this Court. There is, therefore, nothing in the record to support appellant's claim that the prosecutor did not investigate the facts of the case or that the officer gave perjured testimony at trial. Accordingly, the trial court did not err in denying appellant relief on this basis. We resolve appellant's third issue against her. Ineffective Assistance of Appellate Counsel
In her fourth issue, appellant contends appellate counsel Ross Teter rendered ineffective assistance. Appellant asserts she retained Teter to pursue her appeal, Teter did not properly withdraw as counsel, and he did not file a brief. The overall nature of appellant's complaint is that Teter abandoned the appeal without her knowledge. The State responds that appellant's complaint has no merit. 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). Teter filed an affidavit with the trial court responding to the assertions in appellant's application for writ of habeas corpus. Teter stated that he filed a motion for new trial and notice of appeal to give appellant the opportunity to adjust to the fact of her conviction. He further stated that appellant paid him $3000 to pursue the appeal. Of that sum, Teter paid the court reporter $2351.25 for the record and he received $500 for filing the motion for new trial. Teter stated that he tried to refund the balance of $148.75 to appellant, but she refused to accept it. Teter also stated that he informed appellant he did not think her appeal was meritorious and he would not represent her further. He informed appellant that if she chose to pursue the appeal, she would have to obtain new counsel. Teter stated that appellant indicated she intended to seek legal representation from NAACP attorneys she had previously contacted about suing the arresting officers and the Richardson Police Department. Teter's affidavit does not state that he filed a motion to withdraw as an attorney with the Eleventh District Court of Appeals. See Tex.R.App.P. 6.5. The Eleventh Court's opinion dismissing the appeal states that appellant was represented by retained counsel, but does not name the attorney. Appellant presented no evidence to rebut the statements in Teter's affidavit. The trial judge made written findings of fact. The judge found that Teter's statements in his affidavit were "worthy of belief," that the statements in Teter's affidavit were true and correct, and that appellant was not denied effective assistance of appellate counsel. These findings necessarily include a finding that Teter did not abandon the appeal without appellant's knowledge. The trial court's findings were based on a credibility determination, and they are supported by the record before the Court. We must defer to the trial court's resolution of the historical facts and the mixed fact-law issues that were resolved by the credibility determination. See Ex parte Peterson, 117 S.W.3d at 819. Therefore, we conclude the trial court did not err in denying appellant relief on this basis. We resolve appellant's fourth issue against her. We affirm the trial court's order denying appellant the relief sought by her application for writ of habeas corpus.