Johnny Lee Walker v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00115-CR
Johnny Lee WALKER,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-3628
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 3, 2004

AFFIRMED

Johnny Lee Walker ("Walker") appeals his conviction of aggravated robbery. Walker'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 Walker 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.). This court ordered the district clerk to provide Walker with a copy of the record. On August 9, 2004, Walker filed a pro se brief.

Walker pled guilty pursuant to a plea bargain agreement, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by Walker. Accordingly, we may only address Walker's first five complaints because they relate to "matters that were raised by written motion filed and ruled on before trial." Tex. R. App. P. 25.2(a)(2)(A). We do not have the power to address the merits of Walker's sixth issue. See Bayless v. State, 91 S.W.3d 801, 803 n.2 (Tex. Crim. App. 2002).

The first issue raised in Walker's brief is that the competency evaluation that was prepared at Walker's request was not prepared by a licensed psychologist. The record, however, contains a written competency evaluation prepared by Edwin L. Gerwell, Ph.D., P.C., a licensed counselor. Although John Sparks, M.D. signed the report, his signature indicates that he was signing "for" Dr. Gerwell.

In his second and third issues, Walker contends that he received ineffective assistance of counsel. To prevail on a claim for ineffective assistance of counsel, Walker must 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, Walker 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. Walker raises several issues regarding actions he believes his trial counsel failed to take; however, the record is silent as to the reason trial counsel failed to take those actions. Since the record is silent, Walker cannot overcome the presumption that his trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. This opinion does not preclude Walker from raising his ineffective assistance claim in an application for post-conviction writ of habeas corpus which must be filed in the trial court. See id. at 814-15 (noting recourse available via an application for writ of habeas corpus); Tex. Code Crim. Proc. Ann. art. 11.07, 3(b) (Vernon Supp. 2004) (providing that an application for writ of habeas corpus after final conviction in a felony case must be filed with the clerk of the court in which the conviction being challenged was obtained).

In his fourth issue, Walker contends that the trial court erred in denying his motion to dismiss his trial counsel. The trial court has discretion to determine whether to grant a motion to dismiss appointed counsel. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The trial court is the sole judge of the credibility of the witnesses in a pretrial hearing and absent a showing of an abuse of discretion, the trial court's findings will not be disturbed on appeal. Freeman v. State, 723 S.W.2d 727, 729 (Tex. Crim. App. 1986). In this case, the trial court held a hearing on Walker's motion to dismiss. Walker detailed various allegations he believed supported the dismissal, but trial counsel denied all of the allegations. Because the trial court was the sole judge of the credibility of the witnesses at the hearing, the trial court did not abuse its discretion in denying the motion to dismiss.

In his fifth issue, Walker contends that the trial court erred in failing to accept evidence of Walker's medical reports from Laurel Ridge Hospital from 1993. The trial court's rulings on whether to admit or exclude evidence are reviewed under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-022 (Tex. Crim. App. 1996). In this case, Walker's medical reports from Laurel Ridge Hospital are contained in our clerk's record as an attachment to Walker's motion to dismiss. At the hearing on the motion to dismiss, the trial court informed Walker that he could have the letter he was reading and its attachments, which included the medical records, marked as an exhibit and admitted into the record. Walker stated that he preferred to finish reading the letter so that all of it was in the record. The trial court responded:

THE COURT: It would all be in there actually because if you've marked it as an exhibit, an appellate court, if it does get to that point, is required to look at all of it. But if you'd like to go ahead and read the rest of it, that's fine.

Walker proceeded to read the remainder of the letter. Accordingly, the trial court did not abuse its discretion with regard to the medical reports.

We have reviewed the record, counsel's brief, and Walker'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.

Alma L. L pez, Chief Justice

DO NOT PUBLISH