Vincent Netherly v. State of Texas--Appeal from 227th Judicial District Court of Bexar County

Memorandum Opinion

No. 04-01-00342-CR

Vincent NETHERLY,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2000-CR-2673

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 12, 2003

AFFIRMED

Appellant Vincent Netherly was convicted of one count of indecency with a child, one count of sexual assault of a child, and one count of aggravated sexual assault of a child. Following a jury trial, Netherly was sentenced to twenty years imprisonment for the indecency, twenty years imprisonment for the sexual assault, and life imprisonment for the aggravated sexual assault. On appeal, Netherly raises two issues, both asserting he was denied effective assistance of counsel. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the convictions in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Netherly asserts his counsel was ineffective because the attorney failed to call either Netherly or his spouse to the stand during the guilt/ innocence phase of trial. In order to prevail on an ineffective assistance of counsel claim, an appellant must show: (1) counsel s performance fell below an objective standard of reasonableness, and (2) prejudice, that is, a reasonable probability that, but for trial counsel s errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). It is the appellant s burden to overcome the presumption that the counsel s actions might be considered sound trial strategy. Strickland, 466 U.S. at 689. The appellant must prove, by a preponderance of the evidence, that his counsel s performance fell outside the wide range of reasonable professional assistance. Id.; Thompson, 9 S.W.3d at 813.

Because the record is silent as to the reasons why Netherly s counsel chose not to place Netherley or his wife on the stand, we can not speculate as to why counsel acted as he did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Davis v. State, 930 S.W.2d 765, 769 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). In addition, Netherly s counsel suggested in his closing argument that refusing to put witnesses on the stand constituted part of the defense s trial strategy. Because Netherly offers no other evidence of his trial counsel s ineffectiveness, he has failed to meet his burden under the Strickland test. We overrule his first issue.

2. In his second issue, Netherly claims his counsel was ineffective because the attorney failed to attach a sworn affidavit to the motion for new trial and the amended motion for new trial. Again, in order for Netherly to prevail on this claim, he must meet the two prong test laid out in Strickland and described above. Strickland, 466 U.S. at 687-688.

The motion for new trial did not raise issues outside the record; therefore, no affidavit was necessary. The amended motion for new trial raised the issue of newly discovered evidence, which requires an affidavit showing the truth of the matter asserted. However, the record shows trial counsel did not become aware of the new evidence or file the amended motion until after the period for filing an amended motion had expired. Tex. R. Civ. P. 329(b). Because the trial court had no jurisdiction to rule on the untimely amended motion for new trial, counsel s failure to attach the affidavit did not prejudice Netherly s ability to obtain a new trial. See Roberts v. State, 784 S.W.2d 430, 435 (Tex. Crim. App. 1990); State v. Mapp, 764 S.W.2d 823, 823-24 (Tex. App. Houston [14th Dist.] 1989, no pet.). Accordingly, we overrule Netherly s second issue and affirm the judgment of the trial court.

Paul W. Green, Justice

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