No. 05-10-00604-CR
Opinion Filed January 26, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 11 Dallas County, Texas, Trial Court Cause No. MC09-C5390-N.
Before Justices O'NEILL, FRANCIS, and MURPHY.
Opinion By Justice O'NEILL.
Peter David Winegarner appeals the denial of his application for writ of habeas corpus. In four issues, appellant contends new evidence shows the State used perjured testimony at trial, he received ineffective assistance of counsel, and the trial court disregarded the law. We affirm.
Appellant presents his issues as part of a continuous narrative. We will discuss individually the issues we discern from appellant's brief.
JURISDICTION
Appellant requests review of the trial court's order and he presents an original application for writ of habeas corpus. The State urges the Court to dismiss appellant's request for original relief. Because our jurisdiction over this case is appellate rather than original, we dismiss the appeal to the extent appellant requests original relief. See Tex. Code Crim. Proc. Ann. art. 11.072, §§ 2(a), 8 (West 2005) (describing procedure for writs of habeas corpus in cases where community supervision was granted); Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008). BACKGROUND
A jury convicted appellant of misdemeanor assault. The trial court assessed punishment at 180 days confinement, probated for two years. On direct appeal, appellant challenged unsuccessfully the exclusion of impeachment evidence about the complainant's history of domestic violence. See Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007). Appellant filed his writ application with a notarized statement from the complainant recanting an immaterial portion of her trial testimony. The trial court denied appellant's application without a hearing. STANDARD OF REVIEW
In reviewing the trial court's order, we view the facts in the light most favorable to the trial court'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 uphold the trial court's ruling absent an abuse of discretion. Id. We afford almost total deference to the judge's determination of the historical facts that are supported by the record. Id. We likewise defer 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. Id. NEW EVIDENCE SHOWING USE OF PERJURY DURING TRIAL
In her notarized statement, the complainant avers that the prosecutor pressured her into falsely testifying that she initiated the 9-1-1 telephone call that summoned police. She also accuses a police officer of lying, recounts a conversation she overheard between paramedics discussing appellant's injuries, and asserts she was unaware of her privilege not to testify against her husband. Appellant contends the complainant's notarized statement proves she committed perjury against him and invalidates his conviction. Appellant further characterizes the State's evidence as "lies," he renews his complaint raised on direct appeal about the trial court's determination to disallow impeachment evidence of domestic violence between the complainant and her previous husband, Mohamad Knaish, and he complains about the prosecutor's trial tactics. We find nothing in the complainant's notarized statement, appellant's complaints about the evidence admitted at trial, or his contentions of prosecutorial misconduct, that would lead us to the conclusion that the trial court erred in denying his application for writ of habeas corpus. Appellant's complaint about the exclusion of evidence of the complainant's prior domestic violence was raised and decided on appeal, and thus is not cognizable in a habeas writ application. See Ex parte McFarland, 163 S.W.3d 743, 748 (Tex. Crim. App. 2005). The jury heard extensive testimony and the tape of the 9-1-1 call. Given that both parties tried to call 9-1-1, the issue of who reached the telephone first is immaterial to appellant's guilt or innocence. Moreover, it was the jury's function to sort out who was truthful in a trial that turned largely upon the credibility of the witnesses. The record does not support appellant's allegation that the prosecutor lied and used improper tactics. Even if, as appellant alleges, the prosecutor misrepresented to the trial court the details of a protective order Knaish took out against the complainant, the trial court concluded that none of the matters arising from the complainant's prior marriage were admissible. Appellant did not object to the "trick" question, hearsay evidence, or jury argument he contends the prosecutor used improperly at trial. We overrule appellant's first issue. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Appellant next contends he received ineffective assistance from trial counsel. We evaluate the effectiveness of trial counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Appellant bears the burden of proving counsel was ineffective by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Ordinarily, appellate courts will not declare counsel ineffective unless the record shows counsel had an opportunity to explain her performance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy behind counsel's actions at trial, a reviewing court will presume sound trial strategy. See Bone, 77 S.W.3d at 836; Thompson, 9 S.W.3d at 814. Appellant first contends trial counsel was ineffective for not objecting to the complainant's "perjured" testimony about her unwillingness to hit a man and for not finding a way to admit Knaish's impeachment testimony. Appellant offers no legal basis for an objection to the complainant's testimony. The court of criminal appeals determined that the trial court did not abuse its discretion in refusing to admit into evidence Knaish's testimony. See Winegarner, 235 S.W.3d at 791. The record shows trial counsel attempted to impeach the complainant's testimony with cross-examination and Knaish's testimony. Thus, trial counsel's decision to forego a possibly fruitless objection and pursue impeachment of the witness's testimony was a matter of trial strategy. Appellant next contends trial counsel failed to object when the State admitted into evidence a police officer's hearsay testimony about a report written by another officer. Assuming, without deciding, that the evidence was inadmissible, we cannot conclude that the trial court abused its discretion in failing to grant appellant's writ application based upon this isolated failure to object to inadmissible evidence. See Thompson, 9 S.W.3d at 814. Appellant is not entitled to errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). Finally, appellant alleges trial counsel was intimidated by the trial judge, had a bad personal relationship with the trial judge, and rushed through the trial so she and the trial judge could attend scheduled personal appointments. Appellant contends counsel's haste compromised his defense because she did not want him to testify, failed to object to hearsay testimony, and spent an inadequate amount of time examining him to impeach the hearsay testimony. Appellant also contends counsel refused to question him about the Coppell Police Department destroying "official state documents" he provided about his case. There is no evidence in the record showing why counsel did not want appellant to testify or that her examination of him was shortened because the trial judge or trial counsel had personal business to address. Appellant's trial was two days long. The jury delivered its verdict at 5:15 p.m. on the second day, and the trial court kept the jury in session to conduct the punishment hearing beyond that time after a juror indicated a reluctance to return for a third day of trial. Appellant's revelation that the Coppell Police Department chose to take no action on an internal affairs complaint and letter he sent detailing the complainant's history of domestic violence provides no evidence to substantiate his allegation that the Department destroyed official documents. The trial court's remark to counsel regarding being on time for court is easily construed as lighthearted banter rather than as an indication of some personal discord between the trial court and counsel. The record shows trial counsel filed pretrial motions, called appellant and his sister as witnesses, cross-examined the witnesses, and attempted to impeach the complainant's testimony. We cannot conclude appellant has shown that counsel's performance fell below an objective standard of reasonableness or that a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Accordingly, we conclude appellant has not shown he received ineffective assistance of trial counsel. We overrule appellant's second issue. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Appellant contends appellate counsel rendered ineffective assistance. We judge the effectiveness of appellate counsel under the same standard governing trial counsel. Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App. 2001); Williams v. State, 946 S.W.2d 886, 903-04 (Tex. App.-Waco 1997, no pet.). Counsel need not raise every nonfrivolous issue requested by his client. See Jones v. Barnes, 463 U.S. 745, 751, 754 (1983). We will not second-guess counsel's reasonable professional judgments about how to prosecute the appeal. Id. at 754. Appellant complains counsel filed one-issue briefs and failed to raise the issues of perjured testimony and trial counsel's ineffectiveness. Appellant points out that counsel requested extensions on his briefs and misstated appellant's probation term as ten years instead of two years. There was no evidence showing the State relied upon perjured testimony or that trial counsel was ineffective. Appellate counsel is not required to raise frivolous issues in order to meet the objective standard of reasonableness. Id. at 751. Because the additional issues appellant suggests counsel should have raised are not meritorious, we cannot conclude counsel's performance fell below an objective standard of reasonableness. The fact that appellant wanted to include additional, frivolous issues in his brief does not show he received ineffective assistance of counsel. See Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992). As to the requested extensions, the rules of appellate procedure allow extensions on briefs. See Tex. R. App. P. 38.6(d). The court of criminal appeals decided the appeal on the merits. The mistake appellant notes regarding punishment does not, in our judgment, rise to the level necessary for us to conclude appellate counsel rendered ineffective assistance. See Saylor, 660 S.W.2d at 824. Appellant's implicit contention that a lengthier brief, filed without extensions, and without the noted error on the punishment assessed, might have changed the result in his case is mere speculation without foundation in the record. We conclude the trial court did not abuse its discretion in concluding that appellant received effective assistance of counsel on appeal. We overrule appellant's third issue. DISREGARD OF THE LAW GOVERNING WRIT APPLICATIONS
Appellant contends the trial court did not follow article 11.072 because it did not consider all of the evidence, failed to conduct a hearing on his application, did not automatically grant his writ, failed to recognize that he had proven his actual innocence, and failed to prove that it entered findings of fact and conclusions of law or that it sent him a copy of the order by certified mail. We will not consider appellant's contentions that the trial court did not issue findings and conclusions and did not provide him with copies by certified mail because he first raised the issues in his reply brief. See Tex. R. App. P. 38.3; Barrios v. State, 27 S.W.3d 313, 322 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). The record does not support appellant's contention that the trial court failed to consider all of the evidence. In the absence of evidence to the contrary, we presume the regularity of trial court proceedings. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). The trial court need not conduct a hearing before adjudicating appellant's application. Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.-Fort Worth 2005, no pet.). The trial court may rely upon affidavits. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b). Citing Ex parte Villanueva, appellant contends that section four of article 11.072 compels the trial court to grant relief. Nothing, however, in section four requires the trial court to grant appellant relief without considering the merits of his claim and Villanueva merely describes an applicant's appellate remedies when the trial court fails to grant relief. See generally art. 11.072, § 4; Villanueva, 252 S.W.3d at 394-97. Appellant's claim of actual innocence attacks the jury's assessment of the credibility of the witnesses and the trial court's determination, upheld on appeal, to exclude the Knaish evidence. The only new evidence, the complainant's notarized statement, does not recant the complainant's critical testimony establishing appellant's guilt for the offense. We overrule appellant's final issue. We affirm the trial court's order.