Corey McPherson v. The State of Texas--Appeal from 13th District Court of Navarro County

Opinion Withdrawn 4/26/00

IN THE

TENTH COURT OF APPEALS

No. 10-99-006-CR

COREY McPHERSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,219

O P I N I O N

Appellant, Corey Ray McPherson, was charged with the aggravated robbery of Mary Weaver, a person 65 years of age or older, by placing her in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. 29.03(a) (Vernon 1999). Appellant pled not guilty, waived a jury trial, and was tried by the court. The trial court found appellant guilty and sentenced him to twenty years confinement in the Department of Criminal Justice, Institutional Division. In his sole issue for review, appellant asserts he was denied effective assistance of counsel during his trial. Because we find that appellant has failed to preserve this issue for review, we will affirm.

On March 6, 1996 at approximately 3:00 p.m., Mary Weaver was shopping at College Park Mall in Navarro County, Texas. As she got into her car, a man opened the passenger door and demanded money. He then took her purse, tucked it under his shirt, and ran out of the parking lot.

The State called Weaver during appellant s trial, and she positively identified the appellant as the man who robbed her. She testified that he had short hair and was wearing a goldish or gold jersey at the time. The State also called Karen Davis, an employee of the Corsicana Daily Sun who was standing in the J.C. Penney s parking lot that day. Davis testified that she observed a man wearing a black and gold basketball jersey running through the parking lot toward Highway 31. She was not able to see the man s face, however. Finally, the State called Dixie Corrington, the manager of the J.C. Penney s located in College Park Mall. Corrington testified that, at the time of the robbery, she was standing outside the back doors of her store. She saw a man wearing an orange or gold basketball jersey run around the back of her store and start south toward Highway 31. From his clothing, she recognized him as a man she had observed standing outside her store earlier that day. She identified the appellant in court as the man she saw.

Appellant seeks reversal on the ground that he was denied effective assistance of counsel. Specifically, appellant asserts his trial counsel was deficient in failing to conduct an adequate investigation of the case, failing to file pretrial motions or to present a cohesive defense theory, and allowing the prosecutor to elicit damaging hearsay testimony without objection.

Before a litigant may present a complaint for appellate review, Rule 33.1 of the Rules of Appellate procedure requires that the record show (1) the complaint was made to the trial court by a timely request, objection or motion, and (2) the trial court ruled on the request, objection or motion or expressly refused to rule and the complaining party objected to such refusal. Tex. R. App. P. 33.1(a). Furthermore, if a complaint of ineffective assistance of counsel is asserted in a timely filed motion for new trial, the motion must be presented to the trial court for consideration. See Carranza v. State, 960 S.W.2d 76, 77 (Tex. Crim. App. 1998). "Presented" means that the record must show that the party moving for a new trial sustained the burden of (1) actually delivering the motion for new trial to the trial court or someone authorized to act for the court or (2) otherwise bringing the motion to the court s notice or attention. See id. at 79. When an accused properly presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial court abuses its discretion in failing to hold a hearing under Rule 21.7. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (citing former Tex. R. App. P. 31(d), now Tex R. App. P. 21.7).

The record does not indicate that appellant s complaint of ineffective assistance of counsel was ever presented to the trial court. See Gonzales v. State, 994 S.W.2d 369, 372-73 (Tex. App. Waco 1999, no pet.). Thus, nothing is presented for our review.

The judgment of the trial court is affirmed.

ROBERT M. CAMPBELL

Justice (Sitting by Assignment)

Before Chief Justice Davis,

Justice Vance and

Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed March 29, 2000

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