Opinion
No. 04-02-00522-CR
Delivered and Filed: June 11, 2003 DO NOT PUBLISH
Appeal From the 177th Judicial District Court, Harris County, Texas, Trial Court No. 896892, Honorable Carol Davies, Judge Presiding. AFFIRMED
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Lloyd Williams ("Williams") was convicted by a jury of burglary of a habitation and sentenced by the trial court to sixty years imprisonment. Williams challenges the sufficiency of the evidence to support his conviction and claims that he was denied effective assistance of counsel at trial. Because the issues in this appeal are settled by existing precedent, we affirm the trial court's judgment in this memorandum opinion. Tex.R.App.P. 47.4. 1. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Maria Sibrian and her husband, Miguel, were asleep in their bedroom. Maria awoke and saw Williams unplugging her telephone, which also functioned as a radio and alarm clock. Maria yelled at Miguel and tried to grab Williams. Williams ran outside, but Miguel caught him as he tried to ride away on his bicycle. Maria yelled for her daughter to call the police. When Officer Izaguirre arrived, Miguel and Maria were holding Williams to prevent him from leaving, and the telephone was lying outside near the sidewalk. At trial, Maria and Miguel positively identified Williams and stated that he did not have permission to be inside their home. This evidence is legally and factually sufficient to support Williams's conviction. 2. Williams contends that he was denied effective assistance of counsel because his trial counsel did not file pre-trial motions, mishandled his competency hearing, and failed to call witnesses during the punishment stage of trial. To prevail on a claim of ineffective assistance of counsel, Williams must show that the act or omission of his counsel fell below the wide range of reasonable professional assistance, and that but for the deficiency, there is a reasonable probability the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 690 (1984). Although a single egregious error by trial counsel may be sufficient to constitute ineffective assistance, such an error must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In this case, the record is silent as to whether trial counsel made a strategic decision not to file pre-trial motions. See Thompson, 9 S.W.3d at 813; Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref'd) (noting trial counsel may decide not to file or pursue pre-trial motions as part of his trial strategy). Williams had a competency evaluation and a competency hearing, and a jury found him competent to stand trial. The allegation that trial counsel mishandled the competency hearing by not requesting an additional psychiatric evaluation and by not calling expert witnesses is not firmly founded in the record. Thompson, 9 S.W.3d at 813. Finally, in order to show that counsel was ineffective by failing to call witnesses, the evidence must show that the witnesses were available and that Williams would benefit from their testimony. Mares, 52 S.W.3d at 892. Williams did not make this required showing. The trial court's judgment is affirmed.