Clarence Leon McDowell, Sr. v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed February 28, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00081-CR

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   CLARENCE LEON MCDOWELL, SR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR17442

O P I N I O N

Clarence Leon McDowell, Sr. entered an open plea of guilty to the offense of possession with intent to deliver between 4 and 200 grams of methamphetamine. Appellant also pleaded true to the enhancement allegations. The trial court convicted appellant and assessed his punishment as a habitual offender at confinement for life. We affirm.

In his sole point of error on appeal, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to object to his case being heard by a visiting judge. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In order to assess counsel=s performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel=s perspective at the time. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Staffordv. State, 813 S.W.2d 503, 508 09 (Tex. Crim. App. 1991).

Appellant urged his contention in a motion for new trial and presented his testimony in support at the hearing on the motion. The record from the hearing shows that appellant had written a letter to trial counsel instructing counsel to Amake sure that Judge Ellis heard@ his case. On the day of the plea, a visiting judge was sitting for Judge Ellis. Trial counsel did not object. Appellant testified that the visiting judge was Anot familiar . . . with the stuff that goes on here@ and that Judge Ellis knew appellant and his background. Appellant testified that he did not believe he received a fair trial from the visiting judge and that he probably would have been in a better position if Judge Ellis had heard his case.

We hold that appellant has not met either prong of the Strickland test. Appellant had no right to have his case heard by a particular judge and, because this is a criminal case, had no viable objection to the visiting judge under Tex. Gov=t Code Ann. ' 74.053 (Vernon 2005). If trial counsel had objected, the visiting judge would have had no authority to remove himself from the case. See State ex rel. Rodriguez v. Marquez, 4 S.W.3d 227 (Tex. Crim. App. 1999) (applying Section 74.053 and granting mandamus relief where visiting judge removed himself from case that was criminal in nature); see also Strong v. State, 138 S.W.3d 546, 551-52 (Tex. App.CCorpus Christi 2004, no pet.). Moreover, appellant has not shown a reasonable probability that the result would have been different but for counsel=s alleged error. Appellant=s point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

February 28, 2007 CHIEF JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.