McBreen v. State

Full title: DAVID WAYNE McBREEN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 14, 2005

Nos. 05-03-01424-CR, 05-03-01425-CR (Tex. App. Nov. 14, 2005)

Opinion

Nos. 05-03-01424-CR, 05-03-01425-CR

Opinion Filed November 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 292^nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-25495-IV, F02-25497-IV. Affirmed.

Before Justices WHITTINGTON, FRANCIS, and LANG.

MEMORANDUM OPINION

Opinion By Justice FRANCIS.

A jury convicted David Wayne McBreen of two offenses of aggravated sexual assault of a child under fourteen years of age and assessed his punishment at thirty years' imprisonment in each case. The trial court ordered that the sentences be served consecutively. Appellate counsel filed a motion to withdraw as counsel and a brief in which he concludes the appeals are wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why there are no arguable issues to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response claiming there are at least fifteen arguable issues for appeal. After reviewing the record, appellate counsel's brief, and appellant's pro se response, we agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment in cause no. 05-03-01424-CR. We affirm, as modified, the trial court's judgment in cause no. 05-03-01425-CR. The record reflects appellant was awarded custody of his son, L.M., and daughter, B.M., when he divorced his wife. During the time B.M. lived with appellant, she shared his bed in a downstairs bedroom and L.B. slept in a bedroom upstairs. When B.M. was four years old, appellant began having her put her hand on his penis and masturbate him four or five times a week. When B.M. was seven, appellant performed oral sex on her and began penetrating her mouth with his penis on a frequent basis. Appellant also began showing B.M. pornographic movies depicting men penetrating women's anuses with their penises. When B.M. was eight or nine years old, appellant began penetrating her anus with his penis at least two times a week. Appellant continued to sexually assault B.M. on a regular basis until she moved in with her mother at the age of eleven. During the time B.M. and L.M. lived with appellant, he gave them homegrown marijuana on a daily basis and alcohol on occasion. Appellant also kept B.M. home from school or pulled her out of classes early on a regular basis. The school counselor and appellant's ex-wife testified he frequently dressed B.M. in clothes that were "sexy" and not age appropriate. B.M. made her outcry at the age of eleven, after she had lived with her mother for a period of time. An appellate court must conduct an independent examination of the proceedings and determine whether the appeal is wholly frivolous. Anders, 386 U.S. at 744-45; accord Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). An appeal is "wholly frivolous" or "without merit" when it lacks "any basis in law or fact." McCoy v. Court of Appeals of Wis., 486 U.S. 429, n. 10 (1988). An appeal is not frivolous if it presents any issues that are "arguable on their merits." Anders, 386 U.S. at 744. If an appellate court concludes an appeal is wholly frivolous and there are no arguable issues for appeal, it will grant the appellate counsel's motion to withdraw and affirm the trial court's judgment. Anders, 386 U.S. at 744. In his thirteenth issue, McBreen argues the trial court abused its discretion by admitting the testimony of the pediatric nurse practitioner from the Children's REACH Clinic. He claims the pediatric nurse practitioner was not qualified to testify about the examining physician's sexual abuse report because she did not perform the examination or write the report, she had only forty hours of training relating to the sexual assault of children, and her conclusions based on the physician's report were unsupported. There is nothing in the record to show appellant objected to the pediatric nurse practitioner's testimony. Thus, the complaint is not preserved for appeal and does not present an arguable issue. See Tex.R.App.P. 33.1. In his fourteenth issue, appellant argues the trial court abused its discretion when it refused to permit his brother, Marck McBreen, to testify for the defense. Appellant claims Marck's testimony would have supported appellant's defense that his ex-wife coerced B.M. into falsely alleging and testifying he sexually assaulted her. Nothing in the record shows Marck was subpoenaed, available, or called to testify for the defense at appellant's trial, or that the trial court refused to permit Marck to testify. Further, there is nothing in the record to show what Marck's testimony would have been or that his testimony would not have been cumulative to other testimony already before the jury. We cannot take as fact appellant's assertions that the testimony would have been favorable. Franklin v. State, 693 S.W.2d 420, 431 (Tex.Crim.App. 1985). Accordingly, appellant has not raised an arguable issue. In his fifteenth issue, appellant argues the trial court abused its discretion in denying his request to subpoena Child Protective Services' employees and documents that he claims would have revealed his ex-wife filed false accusations against him in the past. During a pretrial hearing, appellant's trial counsel asked if the trial judge had reviewed the CPS records and made a determination as to whether there was any exculpatory evidence in those records. The trial judge responded that he had not done so, but would. Nothing in the record supports appellant's claim that the CPS records contained exculpatory evidence. See Franklin, 693 S.W.2d at 431 (assertions in brief not supported by record will not be considered). Further, the record does not show appellant subpoenaed or called any CPS employees to testify or that their testimony would have revealed exculpatory evidence. Id. Accordingly, appellant has not raised an arguable issue. In issues ten through twelve, appellant claims the prosecutor engaged in misconduct by not producing the CPS records, failing to produce a witness list until the day before trial, and by violating Texas Rule of Evidence 614. Misconduct by the prosecutor may be grounds for overturning a conviction if perjured testimony is knowingly used, exculpatory evidence is suppressed, or the prosecutor has a conflict of interest requiring recusal. Johnson v. State, 169 S.W.2d 223, 229 (Tex.Crim.App. 2005). The suppression of exculpatory evidence cannot always be corrected by the trial court or objected to by the defendant because, often, neither is in a position to know about the wrongdoing at the time it occurs. Id. The record shows the State provided the CPS records to the trial judge for review and the trial judge stated he would review them for exculpatory evidence. The record also shows the State filed its witness list the day before trial, but appellant did not object or otherwise complain that the witness list was not produced within a reasonable time. See Tex.R.App.P. 33.1. Further, there is nothing in the record to support appellant's claim that the State violated Texas Rule of Evidence 614. See Franklin, 693 S.W.2d at 431. Accordingly, appellant has not raised arguable issues.

INEFFECTIVE ASSISTANCE OF COUNSEL

In issues one through nine and thirteen, appellant claims he received ineffective assistance from both his trial and appellate counsel. We evaluate claims of ineffective assistance of counsel under the standard enunciated in 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 an ineffective assistance of counsel claim, appellant must show: (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. Appellate review of counsel's performance is highly deferential, and there is a presumption that counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding the reasons for counsel's conduct, a reviewing court defers to counsel's decisions if there is at least the possibility that the conduct could have been a legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Appellant asserts trial counsel was deficient in failing to do the following: (1) communicate and investigate the case; (2) submit to the State, appellant's offer to plead guilty to a lesser charge of child endangerment; (3) advise him of the State's offer of thirty-five years; (4) prepare him to testify on his own behalf; (5) file pre- and post-trial motions; (6) subpoena witnesses for trial; (7) failure to request funds for an expert witness; and (8) object to the qualification and testimony of the State's expert. The record does not support appellant's claims that trial counsel failed to communicate and investigate the case, submit appellant's offer to the State, advise appellant of the State's plea bargain offer, or prepare appellant to testify on his own behalf. The record shows trial counsel filed several pretrial motions and called five witnesses to testify for the defense, including appellant who testified on his own behalf. Appellant does not identify the specific motions trial counsel failed to file or witnesses he failed to subpoena, and nothing in the record suggests that additional motions or witnesses would have changed the outcome of the proceedings. The record shows trial counsel did not request funds for an expert or object to the State's expert, but the record does not contain trial counsel's explanation for his trial strategy. Without trial counsel's explanation, we cannot conclude on direct appeal that appellant received ineffective assistance of counsel because he did not request funds for an expert or object to the State's expert. See Ortiz, 93 S.W.3d at 88-89; Thompson, 9 S.W.3d at 813-14. Appellant also contends he received ineffective assistance from appellate counsel because he filed an Anders brief instead of a brief on the merits. Because we conclude there are no arguable issues of ineffective assistance of trial counsel, nor any other arguable issues for appeal, appellate counsel's decision to file an Anders brief and move to withdraw does not constitute deficient performance. Appellant cannot show either that appellate counsel's performance fell below an objective standard of reasonableness or that he suffered any harm. See Strickland, 466 U.S. at 687, 694. We conclude there are no arguable issues regarding the effectiveness of either trial or appellate counsel. Although not an arguable issue, we note the trial court's judgment in cause number 05-03-01425-CR does not accurately reflect the proceedings. The trial judge orally pronounced that appellant would begin to serve his sentence in trial no. F02-25497-IV (cause no. 05-03-01425-CR) after the sentence in trial no. F02-25495-IV (cause no. 05-03-01424-CR) was discharged. The judgment in trial no. F02-25497-IV (cause no. 05-03-01425-CR) does not contain a written order cumulating the sentence. Therefore, it does not accurately reflect the sentence pronounced. We have the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment in cause no. 05-03-01425-CR to add the following language:

Defendant's sentence in trial court no. F02-25497-IV will be consecutive to the sentence in trial court no. F02-25495-IV and will not begin until the sentence in trial court no. F02-25495-IV is discharged.

After reviewing the record, appellate counsel's brief, and appellant's pro se response, we agree the appeals are frivolous and without merit. There is nothing in the record that might arguably support the appeals. We affirm the trial court's judgment in cause no. 05-03-01424-CR. As modified, we affirm the trial court's judgment in cause no. 05-03-01425-CR.