EX PARTE DAVID LANCELOT JENKINS, JR

Affirmed and Opinion filed September 11, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00774-CR
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EX PARTE DAVID LANCELOT JENKINS, JR.
 
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On Appeal from County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB88-00002-K
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OPINION PER CURIAM
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES BAKER AND WHITTINGTON
 
        David Lancelot Jenkins, Jr. appeals the partial denial of his application for writ of habeas corpus in which he claimed he was denied effective assistance of counsel at the trial at which he was convicted of assault. We affirm the judgment of the trial court.
        In order to show that trial counsel was ineffective, appellant must first show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). He must then show that but for counsel's errors, the result of the proceeding would likely have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.
        Appellant first claims that counsel was ineffective because he failed to file any motions. Specifically, he complains that counsel did not file a motion to dismiss for failure to comply with the Speedy Trial Act. TEX. CODE CRIM. PROC. ANN. art. 32 A. 01 et seq. (Vernon Supp. 1989). The Speedy Trial Act has been declared unconstitutional by the court of criminal appeals. Meshell v. State, 739 S.W.2d 246, 257-258 (Tex. Crim. App. 1987). As a result, failure of defense counsel to file a motion to dismiss for failure to comply with the Speedy Trial Act did not prejudice appellant. Ex parte Owenby, 749 S.W.2d 880, 881 (Tex. Crim. App. 1988).
        Appellant next claims that counsel was ineffective for failing to investigate the case. Counsel has a duty to make an independent investigation of his client's case. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Failure to seek out and interview potential witnesses is ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced. Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983).
        Appellant argues that his attorney's failure to investigate resulted in the failure to discover eye witnesses and certain exculpatory evidence. In the present cause, appellant was accused of assault. The only issue before the court was whether the complainant was injured in an assault by appellant; it was undisputed that the complainant, appellant's estranged wife, had suffered an injury. Counsel said that he called the Kroger store where the assault allegedly occurred, and the information he received there was not beneficial to appellant's case. Thus, it would appear that the decision not to present witnesses from the Kroger store was a tactical decision. Given the strong presumption that counsel's representation was adequate, this Court will not inquire into matters of trial strategy unless from all appearances there still is no plausible basis in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. 1981).
        Further, counsel said that he told appellant and his father to obtain names of anyone who had witnessed the altercation so that he could interview those people; appellant and his father did not provide any information. Compare Ex parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim. App. 1987) (counsel not ineffective for failing to present witnesses when appellant did not provide any names of witnesses). We cannot say that counsel was ineffective when appellant did not assist by telling counsel who he wanted called as witnesses.
        With regard to exculpatory evidence, the evidence presented by appellant at the hearing on his application for writ of habeas corpus did not disclose any exculpatory evidence, or any defensive theory which was not presented. Although hospital records indicated that the complainant told them the assault had occurred "at home", which might have cast doubt on the complainant's testimony, the doctor who prepared the records said that the complainant had not, in fact, said that the assault took place at home. The complainant had told him that her husband had assaulted her, and the doctor assumed it took place at home. In addition, insurance records reflected that the complainant claimed that the cause of her injury was an auto accident. However, the issue presented to the court at trial, and the only issue raised by appellant, was whether the complainant had been hit by appellant, or whether she had sustained all her injuries when she fell from a truck driven by appellant's father immediately following the alleged assault. The complainant testified that she had suffered injuries both from the assault and from the fall from the truck. Her characterization of the source of some of her injuries as an "auto accident", then, is not inconsistent with her testimony at trial. In short, there is no indication that any evidence existed which would have assisted in presenting a defense. As a result, we cannot say that appellant was harmed by counsel's lack of independent investigation of the case.
        Finally, appellant claims that counsel was ineffective because he failed to conduct pre-trial discovery. Counsel admitted that he did not conduct any formal discovery. In addition, he said that he did not examine the State's file until the morning of trial. However, the only evidence introduced by the State which appears in the record are a photograph of the complainant with a cut on her upper forehead, and hospital bills. Counsel said that appellant had insisted that the complainant had not been injured by him. However, when counsel saw the photograph of the complainant, he realized that there was documentation of the injury to the complainant. He confronted appellant with this information, but appellant did not waver from his story. We cannot see how, if at all, counsel's failure to conduct formal discovery prejudiced appellant.
        We have also conducted our own investigation of the record. Counsel pursued a plea bargain agreement, which appellant refused to accept. In addition, the State presented two witnesses at trial, the complainant and a person who had been at the store at the time of the assault. Counsel vigorously cross-examined both State's witnesses and presented appellant and his father to testify as to their version of the altercation. The issue in the case clearly turned on credibility of the witnesses. We can find nothing in the record before this Court to indicate that, but for counsel's alleged omissions, the outcome of the case would likely have been different. Appellant's point of error is overruled.
        The order of the trial court denying appellant's application for writ of habeas corpus is affirmed.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
890774F.U05
 
 
File Date[11-07-89]
File Name[890774F]