James R. McAllister v. State of Texas--Appeal from 88th District Court of Hardin County

Opinion filed December 20, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-07-00218-CR

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JAMES R. MCALLISTER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 88th District Court

Hardin County, Texas

Trial Court Cause No. 17773

O P I N I O N

The jury convicted James R. McAllister of driving while intoxicated as a third offense and assessed his punishment at confinement for ten years and a $3,000 fine. We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief. A response has been filed. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

In his response, appellant contends that his sentence was improperly stacked because the State did not timely file a motion to stack, that his trial counsel was ineffective, that State=s Exhibit No. 1 (peace officer=s sworn report, completed statutory warning form, and completed notice of suspension/temporary driving permit form) was improperly admitted because the exhibit consisted of copies of these documents and not the originals, that the evidence was insufficient because the Aalleged@ bottle recovered from his vehicle was never introduced into evidence, that any testimony concerning the bottle was hearsay, that the State did not elect which substance in the definition of intoxication it was relying on, that the only evidence of any intoxication was the testimony of the arresting officer, that there was no testimony that anyone observed appellant driving, that the State made improper comments in its closing arguments, that the prior DWI convictions were never properly tied to him, that a reasonable doubt instruction was not given at the punishment phase, and that the trial court failed to allow him to make a mitigating statement as required under Fed. R. Crim. P. 32(c)(3). Appellant argues that he, therefore, did not receive a fair and impartial trial.

The record does not support appellant=s contentions. The record reflects that trial counsel provided reasonably effective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The record also supports a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance and that, under the circumstances, the challenged action could well be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991). The evidence is both legally and factually sufficient to support the verdict. Jackson v. Virginia, 443 U.S. 307 (1979); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The State=s arguments were within the acceptable scope of closing arguments. Jackson, 17 S.W.3d at 673. The record further reflects that State=s Exhibit No. 1 was properly authenticated, that the prior DWI convictions were tied to appellant, and that the sentences were properly ordered to run consecutively. We note that the trial was conducted according to applicable provisions of the Texas Code of Criminal Procedure, the Texas Penal Code, and the Texas Rules of Evidence.

All of appellant=s contentions and arguments have been considered. Each is overruled.

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).

The motion to withdraw is granted, and the judgment is affirmed.

PER CURIAM

December 20, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.