in Re: Oliver Wendell Hart, III ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00091-CV

                                                ______________________________

                                            IN RE:  OLIVER WENDELL HART, III

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Oliver Wendell Hart, III, files this petition for writ of mandamus complaining of deprivation of personal property from his inmate trust fund account.  The respondent is identified as the “Bowie County District Clerk.”  We dismiss Hart’s petition for lack of jurisdiction.

            Mandamus is an extraordinary remedy.  State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984). In order to establish that he is entitled to mandamus relief, Hart must show that:  (1) there is no adequate remedy at law to redress the alleged harm; and (2) only a ministerial act, not a discretionary or judicial decision, is being sought.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). Due to the nature of this remedy, it is Hart’s burden to properly request and show entitlement to the mandamus relief.  Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

            This Court has jurisdiction to issue a writ of mandamus against a “judge of a district or county court in the court of appeals district.”  Tex. Gov’t Code Ann. § 22.221(b) (West 2004).  Because we do not have jurisdiction against a district clerk unless necessary to enforce our jurisdiction, and Hart has not demonstrated that mandamus relief is necessary for this purpose, we have no jurisdiction over this petition. 

            We dismiss Hart’s petition for writ of mandamus for lack of jurisdiction.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          September 1, 2011

Date Decided:             September 2, 2011

competent as a matter of law or indicate an inability to represent criminal defendants capably. It should not be said that an attorney is competent one day, and incompetent the next, because of the failure to satisfy the MCLE requirements. Hudson, therefore, was not denied effective assistance of counsel as a matter of law because of his counsel's alleged suspension.

          Hudson alleges other grounds to support his contention he received ineffective assistance of counsel. These include his lawyer's failure to: (1) file a motion for new trial; (2) request a hearing on any pretrial motions; and (3) object to the trial court's written communication with the jury in violation of Article 36.27.

          The traditional standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced her or his defense. Strickland, 466 U.S. at 687; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

          Our review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). Any allegation of ineffectiveness 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).

          As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous no competent attorney would have engaged in it. Id.; see also Thompson, 9 S.W.3d at 814.

1. Failure to file a motion for new trial

          Hudson contends he was denied effective assistance of counsel by his counsel's failure to file a motion for new trial. He contends the failure to file a motion for new trial has, perhaps, prevented this Court from determining whether his absence from the punishment phase of trial was voluntary.

          When a motion for new trial is not filed in a case, there is a rebuttable presumption the defendant was counseled by his or her attorney regarding the merits of the motion and ultimately rejected the option. Oldham v. State, 977 S.W.2d 354, 362–63 (Tex. Crim. App. 1998). This presumption will not be rebutted when there is nothing in the record to suggest otherwise. Smith v. State, 17 S.W.3d 660, 662–63 (Tex. Crim. App. 2000) (presumption not rebutted where defendant filed notice of appeal pro se in which he alleged counsel was ineffective and defendant subsequently appeared without counsel to sign pauper's oath and request new counsel); Oldham, 977 S.W.2d at 363 (presumption not rebutted where defendant filed a notice of appeal pro se and an affidavit of indigency on twenty-eighth day after sentencing and, on twenty-ninth day, a notation was made in a court document stating attorney of record on appeal was "to be determined").

          In accordance with the above-cited cases, there is nothing in the record to rebut the presumption that Hudson was adequately counseled regarding the merits of a motion for new trial and ultimately rejected the option. Hudson filed a notice of appeal pro se, which is evidence he was informed of at least some of his appellate rights. Smith, 17 S.W.3d at 662–63. There is no evidence in the record that Hudson was interested in the option of filing a motion for new trial and that counsel did not adequately assist him in doing so. See Prudhomme v. State, 28 S.W.3d 114, 119 (Tex. App.—Texarkana 2000, no pet.) (motion to withdraw plea filed pro se was affirmative evidence appellant sought option of filing motion for new trial). Therefore, nothing in the record exists to rebut the presumption that Hudson was adequately informed of his right to file a motion for new trial and that he ultimately rejected the option.

2. Failure to request a hearing on pretrial motions

          Hudson contends defense counsel's failure to request a hearing on pretrial motions deprived him of effective assistance of counsel. The failure to file pretrial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pretrial motions as part of his or her trial strategy. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th Dist.] 1997, no pet.); Wills v. State, 867 S.W.2d 852, 857 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd). In this case, Hudson's initial trial counsel filed numerous pretrial motions, but Lee, as subsequent trial counsel, elected not to pursue a hearing on any of the motions. The decision not to pursue the motions could have been part of trial counsel's trial strategy because rulings on the motions may not have assisted with the defense, or the State may have had an open file policy regarding the evidence in the case. In any event, the record does not affirmatively demonstrate that the failure to obtain the rulings was due to counsel's ineffectiveness. See Thompson, 9 S.W.3d at 813.

3. Failure to object to jury communication

          Hudson contends he received ineffective assistance from counsel's failure to object to the trial court's written communication with the jury in violation of Article 36.27. While the failure to preserve error is an instance of deficient performance, Hudson's defense was not prejudiced by this deficiency.

          As previously discussed, the giving of additional instructions to a jury by the trial court without compliance with the statute requiring such communication to be in open court and in the presence of the defendant constitutes reversible error. Smith, 513 S.W.2d at 829. The failure to object or offer a bill of exception, however, waives error on appeal. Id. The failure to preserve error in regard to Article 36.27 has been viewed as an instance of deficient performance by trial counsel. See Williamson v. State, 771 S.W.2d 601, 608 (Tex. App.—Dallas 1989, pet. ref'd).

          Likewise, these communications were additional instructions on the law. Where communications are not carried out in strict accord with Article 36.27, courts will find no reversible error when such communications do not amount to additional instructions on the law or some phase of the case, such as communication regarding "administrative matters." Jones v. State, 963 S.W.2d 826, 829 (Tex. App.—Texarkana 1998, pet. ref'd) (jury told it could deliberate short time longer before it would be required to recess for day found to be administrative matter); Collins v. State, 762 S.W.2d 670, 673 (Tex. App.—Tyler 1988, no pet.); see also McFarland v. State, 928 S.W.2d 482, 517 (Tex. Crim. App. 1996) (response of "No" to request for definition of "society" not additional instruction); Martin v. State, 654 S.W.2d 855, 857 (Tex. App.—Dallas 1983, no pet.) (court instructed jury to continue deliberation after receiving note jury unable to reach decision).

          In this case, the jury was given instructions on the law of the case. It was instructed that a "mistrial would be granted" if it could not reach a unanimous decision and that the sentences would run concurrently. Both were responses from the court which instructed the jury on the law of the case, and neither could be termed an administrative matter. See Tex. Code Crim. Proc. Ann. art. 36.31 (Vernon 1981), art. 42.08 (Vernon Supp. 2004).

          The instructions the trial court gave, however, were correct responses under the law, and as such, Hudson has failed to show harm or prejudice to his defense under the second prong of Strickland. In Williamson, the defendant was charged with burglary of a building. The defendant, while carrying a microwave down the street, was apprehended by police. Williamson, 771 S.W.2d at 604. The owner of the building which was allegedly burglarized verified that a microwave oven, along with other property, had been removed from the building. Id. During deliberations, the jury sent out a note to the trial court which read, "Was the microwave positively identified as the one taken from the photo lab?" Id. The trial court replied to this note as follows: "In reply to your above note you are instructed that the witness Charles Drobena testified that he compared the serial number from his records to the microwave taken by the police and that it was the one removed from his business." Id. The mandates of Article 36.27 were not followed, and defense counsel waived error by not objecting or making a bill of exception. Id. at 605. The court found that the failure to preserve error for review was an instance of deficient performance by trial counsel. Id. at 608–09. The court also found harm from the fact that the trial court's response to the jury's question was unequivocal, whereas the only testimony on the subject was not as clear and direct as the trial court's answer suggested. Id.

It was the State's burden (and not the trial court's) to make that connection if there was one. See Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1980) (op. on reh'g). It was the jury's province (and not the trial court's) to choose to make the connection or inference. See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Moreover, the jury's question concerning the issue is further evidence of the equivocal nature of the testimony. Surely, this is the type of situation that articles 36.27 and 36.28 are designed to prevent. "Judges should studiously avoid any remark calculated to convey to the jury their opinion of the case." Brown v. State, 475 S.W.2d 938, 947 (Tex. Crim. App. 1971), overruled on other grounds, Bradford v. State, 608 S.W.2d 918 (Tex. Crim. App. 1980); see Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).

Id. at 609.

          In this case, unlike Williamson, the trial court properly instructed the jury on the law. See Tex. Code Crim. Proc. Ann. arts. 36.31, 42.08. No harm has been shown by Hudson from his trial counsel's failure to object to the mandates of Article 36.27. The result of the trial would not have been different had Hudson's attorney properly objected. The trial court properly instructed the jury, and the defendant's presence or the reading of the instruction in open court would not have changed the trial court's instructions to the jury or reasonably affected the outcome of the trial.

  Conclusion

          We affirm the judgment.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      January 22, 2004

Date Decided:         February 5, 2004

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