Allen Jay Amason v. The State of Texas--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION

No. 04-03-00955-CR

Allen Jay AMASON,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Gillespie County, Texas

Trial Court No. 4151

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 15, 2004

AFFIRMED

A jury found defendant, Allen Jay Amason, guilty of first degree aggravated robbery. The trial court assessed punishment of twenty-five years' confinement. Defendant complains of his conviction in two issues on appeal. We affirm.

JURISDICTION

As a preliminary matter, the State asserts this appeal should be dismissed for lack of jurisdiction. The State argues that because defendant's pro se motion for new trial was filed more than thirty days after sentence was imposed, the motion was untimely and, therefore, the notice of appeal was untimely. (1) The trial court imposed sentence on October 15, 2003; therefore, a motion for new trial was due on or before November 14, 2003. On November 10, 2003 defendant mailed a letter to the trial court stating his desire to appeal his conviction, requesting appointment of appellate counsel, and requesting a new trial. The letter bears a district clerk file-stamp date of November 17, 2003. The State suggests a motion for new trial is not timely filed unless it is filed in the clerk's office on or before the due date and not merely deposited in the mail addressed to the trial judge. We disagree.

Mailing a motion for new trial to the court itself is as effective as mailing it to the clerk, conditioned on the clerk receiving a copy of the same document within the proscribed ten days of the mailing. Tex. R. App. P. 9.2(b) (mailbox rule); see also Moore v. State, 840 S.W.2d 439, 441 (Tex. Crim. App. 1992) (noting ten day period requirement under former Tex. R. App. P. 4(b) now Rule 9.2(b)); Guzman v. State, No. 04-97-00739-CR, 1997 WL 731998 (Tex. App.--San Antonio Nov. 26, 1997, no pet.) (not designated for publication) (citing Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268 (Tex. 1996))(clerk must receive document within ten days to perfect filing)). Here, because the letter requesting a new trial was mailed to the proper court on November 10th and received by the clerk within the applicable ten-day period, the motion was timely filed. (2) Therefore, the deadline for filing the notice of appeal was extended and this appeal is properly before the court. Tex. R. App. P. 26.1 (a)(1).

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue on appeal, defendant argues he received ineffective assistance of counsel because of several errors and omissions made by his counsel during trial. Defendant contends his trial counsel failed to: (1) file various pre-trial motions; (2) secure an expert for his defense; and (3) object to prejudicial and extraneous offense evidence. Although defendant's arguments invoke both state and federal constitutional protections, he has not separated his points of error in such a way as to argue a separate ground of relief under the Texas Constitution. Therefore, we must assume that he is claiming no greater protection under the Texas Constitution than that provided by the United States Constitution. Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993).

We follow the established standard of review for evaluating claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume trial counsel acted pursuant to a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14.

Defendant faults trial counsel for failing to file pre-trial motions and for failing to secure a defense expert witness. However, failure to file pre-trial motions or call expert witnesses does not result in ineffective assistance of counsel. Mares v. State, 52 S.W.3d 886, 891 (Tex. App.--San Antonio 2001, pet. ref'd)(failure to file pre-trial motions not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of trial strategy); Rylander, 101 S.W.3d at 110-11 (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reason counsel failed to call expert witness). Defendant also complains of counsel's failure to request notice of the State's intention to introduce extraneous offense evidence and for not objecting to the admission of that evidence. Specifically, defendant asserts that counsel failed to object to testimony regarding a prior theft defendant was accused of committing while employed at the restaurant where the robbery in this case took place. Defendant further argues counsel made no attempt to limit the scope of the questioning, made no request for a balancing test under Rule of Evidence 403, and did not request a limiting instruction. The record, however, does not reveal the reason trial counsel did not request notice, object, or request a limiting instruction regarding such evidence.

Although defendant filed a motion for new trial, no hearing was conducted to explore defense counsel's trial strategy. Accordingly, there is no evidence from defense counsel's perspective concerning any of the complained-of actions. Therefore, we conclude defendant has not established that trial counsel's performance fell below an objective standard of reasonableness.

EXCULPATORY EVIDENCE

In his second issue, defendant asserts the State's failure to preserve and make available certain exculpatory evidence deprived him of his rights to counsel, confrontation, and due process under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I section 10 of the Texas Constitution. Defendant contends a rusty steel bar found behind the restaurant where the crime occurred was not tested by the authorities or made available to the defense for examination. He argues that because another bar introduced at trial did not provide blood or fingerprint samples, the failure to preserve and produce the rusted bar prevented him from determining whether this rusted bar was favorable to his defense.

At trial, defense counsel offered a picture of the rusted bar into evidence. Counsel questioned the detective in charge regarding this bar's existence, whether it was tested, and why it was not produced to the defense or the State. However, the record does not show a complaint was ever lodged with the trial court requesting a continuance to test the rusted bar, nor does it show defendant ever complained to the trial court of the alleged violation of defendant's rights under the Texas or United States Constitution. Accordingly, defendant has failed to preserve this issue for our review. Tex. R. App. P. 33.1.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. On November 20, 2003, the trial court denied defendant's Motion for New Trial because it was "untimely filed and without merit."

2. The trial court acted on defendant's letter by appointing appellate counsel on November 13, 2003, within the period for filing a motion for new trial.