James Clayton Campbell v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00168-CR

James Clayton Campbell,

Appellant

v.

The State of Texas,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. F37378

MEMORANDUM Opinion

Campbell appeals convictions for aggravated assault with a deadly weapon as a lesser included offense of murder and for possession of a firearm by a felon. See Tex. Penal Code Ann. 19.02(b) (Vernon 2003), 22.02(a), 46.04(a) (Vernon Supp. 2004-2005). We affirm.

Motion for Continuance. In Campbell s first issue, he contends that the trial court erred in overruling Campbell s motion for continuance. See Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Campbell s motion contended that he had inadequate time to prepare for trial because of other obligations. It is well settled that a motion for new trial must be made to preserve complaint of the overruling of a motion for continuance . . . . Benoit v. State, 561 S.W.2d 810, 817 (Tex. Crim. App. 1977); accord Taylor v. State, 612 S.W.2d 566, 569 (Tex. Crim. App. [Panel Op.] 1981); see Tex. R. App. P. 21.2, 33.1(a); see generally 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure 28.56, at 532-33 (2d ed. 2001). We assume without deciding that Campbell preserved his issue. The truth of the . . . motion, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same. Tex. Code Crim. Proc. Ann. art. 29.06(6) (Vernon 1989); see Ross v. State, 133 S.W.3d 618, 629 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). To find an abuse of discretion in refusing to grant a motion for continuance, there must be a showing that the defendant was prejudiced by his counsel s inadequate preparation time. Heiselbetz at511; accord Ross at 629; Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). In particular, where the motion alleges inadequate time to prepare for trial, [c]ounsel should make a bill of exception or file a motion for new trial to explain how, if at all, [the] client was prejudiced by [the] inadequate preparation time. Tanguma v. State, 47 S.W.3d 663, 681 (Tex. App. Corpus Christi 2001, pet. ref d). Where an appellant fails to do so, the record does not indicate that the trial court abused its discretion in denying appellant s motion for continuance. Greenwood v. State, 948 S.W.2d 542, 548 (Tex. App. Fort Worth 1997, no pet.); accord Ramirez v. State, 976 S.W.2d 219, 224 (Tex. App. El Paso 1998, pet. ref d). Campbell s motion for new trial did not raise the issue, and Campbell does not point to a bill of exception. The record thus does not show that the trial court abused its discretion in overruling Campbell s motion. See id.; Tanguma at 681. We overrule Campbell s first issue.

Effective Assistance of Counsel. In Campbell s second issue, he contends that his trial counsel failed to render the effective assistance of counsel. See U.S. Const. amend. VI; Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984). Campbell argues that counsel failed to prepare for trial, failed to file a motion to sever Campbell s two charges, failed to question the voir-dire panel effectively, failed to develop the issue of self-defense, and failed to object to the absence of a charge instruction limiting the jury s consideration of Campbell s prior felony conviction. To have his conviction reversed on the grounds of ineffective assistance of counsel, an appellant must show by the preponderance of the evidence that (1) counsel s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); accord Strickland at 687-96; Howard v. State, 153 S.W.3d 382, 388 (Tex. Crim. App. 2004); Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). A Strickland claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, No. PD-1882-03, 2005 Tex. Crim. App. LEXIS 520, at *4 (Tex. Crim. App. Apr. 6, 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). If counsel s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel s decisions and deny relief on an ineffective assistance claim on direct appeal. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 940 (2004); accord Goodspeed at *4. Campbell points to, for example, trial counsel s desire to speed the trial along; however, Campbell fails to show the reasons for trial counsel s conduct of which Campbell complains, and fails to establish by the preponderance of the evidence in the record that his trial counsel rendered deficient performance or that Campbell suffered prejudice from trial counsel s performance. We overrule Campbell s second issue.

Charge. In Campbell s third and fourth issues, he complains of the trial court s charge.

Necessity. In Campbell s third issue, he contends that the trial court erred in denying Campbell s requested necessity defense to the offense of misdemeanor unlawfully carrying a weapon as a lesser included offense of murder. See Tex. Penal Code Ann. 19.02(b), 46.02(a) (Vernon 2003).

Our first duty in analyzing a jury-charge issue is to decide whether error exists. Then, if we find error, we analyze that error for harm. Preservation of charge error does not become an issue until we assess harm. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find some harm to his rights. When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows egregious harm to the defendant. Thus, we review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.

Ngo v. State, No. PD-0504-04, 2005 Tex. Crim. App. LEXIS 457, at *9 (Tex. Crim. App. Mar. 16, 2005) (internal footnotes omitted) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)); see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981).

We assume without deciding that the trial court erred. Campbell was not convicted of unlawfully carrying a weapon. Campbell did not suffer harm from any error. We overrule Campbell s third issue.

Limiting Instruction. In Campbell s fourth issue, he contends that the trial court erred in not including a limiting instruction in the charge. The appellant s brief must . . . contain . . . a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1 & (h). Appellant shoulders the responsibility of citing all the applicable facts and the record references supporting those facts. Hall v. State, 160 S.W.3d 24, 26 (Tex. Crim. App.), cert. denied, 125 S. Ct. 2962 (2005). When the defendant fails to discuss the evidence supporting his claim, he presents nothing for review. Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000); accord Threadgill v. State, 146 S.W.3d 654, 673 (Tex. Crim. App. 2004); see Tex. R. App. P. 33.1(a). Campbell fails to cite to the record or cite authorities. Campbell thus forfeits the issue. We overrule Campbell s fourth issue.

Having overruled Campbell s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 9, 2005

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