Perry H. Brown v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00561-CR
Perry H. BROWN,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-6717
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 2, 2004

AFFIRMED

Perry Brown ("Brown") was convicted by a jury of possession of one gram or more but less than four grams of cocaine. (1) As a habitual offender, Brown was sentenced by the trial court to twenty-five years confinement. Brown's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that the appeal has no merit. Counsel provided Brown with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.). Brown filed a pro se brief asserting that trial counsel was ineffective and complaining of a supplemental jury charge given by the trial court in response to a note from the jury.

Brown complains of several actions that he contends trial counsel failed to take. To prevail on a claim for ineffective assistance of counsel, Brown must first show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). In addition, Brown must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

"There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. In cases where "the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Id.

Generally, the record reflects that trial counsel had a firm grasp of the facts, made appropriate objections during trial, and competently represented Brown. With regard to the issues raised in Brown's pro se brief, the record is silent as to the reason trial counsel failed to take the actions about which Brown complains. Since the record is silent, Brown cannot overcome the presumption that trial counsel's decisions during trial fell within the wide range of reasonable professional assistance; therefore, a complaint that trial counsel was ineffective is not an arguable issue requiring further briefing on direct appeal. See Nichols, 954 S.W.2d at 86 (requiring further action by appellate court only if independent examination reveals nonfrivolous grounds for appeal exist). This opinion does not preclude Brown from resubmitting his ineffective assistance claim via an application for writ of habeas corpus. See id.

Brown also complains of the trial court's supplemental charge to a note received from the jury. The reporter's record reflects that the jury retired for deliberations at 3:37 p.m. on March 6, 2003. Brown agreed to allow the jury to go home around 7:30 p.m. According to the reporter's record, the jury was to return for deliberations at 9:00 a.m. on March 7, 2003. At 10:47 a.m. on March 7, 2003, the trial judge went back on the record, and the following exchange occurred:

THE COURT: Okay. 2002-CR-6717. Mr. Perry, we got a note from the jury. I think your attorney showed it to you.

THE DEFENDANT: Yes, ma'am.

THE COURT: Let me go ahead and read it into the record. This was about 15 minutes ago and their note reads as follows: Would you accept at this point in time that we cannot come to a unanimous decision, but we have a majority. And it's signed by the foreperson. Mr. Chumbley [Defense Counsel], do you have a response?

MR. CHUMBLEY: I feel the response should be that you must reach a unanimous verdict.

THE COURT: Okay.

MR. CHUMBLEY: Would be sufficient.

THE COURT: Is there any objection from the State?

MR. HADEN: No opposition or objection from the State, Your Honor.

THE COURT: Okay. I'll send it back via the bailiff again. And we'll let you know when we hear something, Mr. Brown. Okay?

THE DEFENDANT: Yes, ma'am.

Approximately twenty minutes later, the jury returned with a unanimous verdict. Brown appears to be contending that the trial court should have declared a mistrial based on the jury's note; however,

there are no set time limits on the amount of time a jury may deliberate. Guidry v. State, 9 S.W.3d 133, 155 (Tex. Crim. App. 1999). It is within the trial court's discretion to determine when a jury has been together for so long that it is improbable that it can agree. See Guidry, 9 S.W.3d at 155;Ex parte Templin, 945 S.W.2d 254, 256 (Tex. App.--San Antonio 1997, pet. ref'd). In this case, the jury had only been deliberating a total of about six hours, and only about two hours since returning from an overnight break. Accordingly, the trial court's response to the jury's note does not present an arguable issue requiring further briefing. See Nichols, 954 S.W.2d at 86 (requiring further action by appellate court only if independent examination reveals nonfrivolous grounds for appeal exist).

We have reviewed the record, counsel's brief, and Brown's pro se brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. The jury acquitted Brown of the offense of possession of cocaine with intent to deliver.