Dennis Mitchell Alford v. The State of TexasAppeal from 207th District Court of Comal County (memorandum opinion by chief justice jones)
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00320-CR
Dennis Mitchell Alford, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2011-284, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Dennis Mitchell Alford of unlawful possession of a
firearm. See Tex. Penal Code § 46.04. Punishment, enhanced by five prior felony convictions, was
assessed at 40 years’ imprisonment. See id. §§ 12.32 (punishment for first-degree felony includes
life in prison or any term of not more than 99 years or less than 5 years plus up to $10,000 fine),
.42(d) (establishing enhanced punishment range for felony offense if defendant was convicted of two
prior felony offenses and second felony offense occurred after conviction of first felony offense
became final).
Alford’s court-appointed attorney has filed a motion to withdraw supported by a brief
concluding that the appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75
(1988). Alford received a copy of counsel’s brief and was advised of his right to examine the
appellate record and to file a pro se brief. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766.
Alford subsequently filed a pro se brief, contending that (1) the trial court abused its
discretion by denying him the opportunity to pursue a “necessity” defense, (2) trial counsel failed
to investigate, present evidence, and request jury findings that the firearm did not belong to the
defendant, and (3) trial counsel provided ineffective assistance by not pursuing these two defenses
and by pursuing a defense that lacked merit (that the gun did not constitute a “firearm” under the
penal code because it lacked a firing pin and was inoperable). We will briefly explain why Alford’s
contentions lack arguable merit. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009);
Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
One of the essential elements of a “necessity” defense is that “the actor reasonably
believes the conduct is immediately necessary to avoid imminent harm.” Tex. Penal Code § 9.22.
At trial, Alford testified outside the jury’s presence that he needed the gun to protect himself in the
event he encountered an individual who had physically assaulted him and broken his jaw five days
prior. During his testimony, he admitted that he possessed the gun. He testified similarly before the
court in the non-jury punishment phase. Alford’s testimony negates the imminency requirement of
the necessity defense and also establishes that he had possession of the gun on the date of the
offense. Ownership of a firearm is not required in order to commit the offense of unlawful
possession of a firearm. See Tex. Penal Code §§ 1.07(39) (“‘Possession’ means actual care, custody,
control, or management.”); 46.04 (defining elements of unlawful possession of firearm). There is
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no merit to the claim that the trial court abused its discretion in declining to allow evidence of
necessity or that trial counsel rendered ineffective assistance by failing to pursue these meritless
defenses. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 1994) (observing that
challenged conduct will constitute ineffective assistance only when counsel’s conduct “is so
outrageous that no competent attorney would have engaged in it”).
Although trial counsel’s argument to the jury that the gun did not constitute a firearm
because it was inoperable is foreclosed by precedent, see, e.g., Walker v. State, 543 S.W.2d 634, 637
(Tex. Crim. App. 1976); Lewis v. State, 852 S.W.2d 667, 669-70 (Tex. App.—Houston [14th Dist.]
1993, no pet.), we fail to see how Alford could have been prejudiced by trial counsel’s strategy. See
Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish ineffective assistance, defendant
must show both deficient performance and prejudice resulting from such deficiency). To the extent
Alford contends that there may have been other evidence bearing on these defenses that trial counsel
failed to investigate and present, an assertion of ineffective assistance will be sustained only if the
record affirmatively supports such a claim. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim.
App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In addition to being
contrary to his own statements, the evidence Alford cites in his brief concerning alternate theories
for the gun’s presence in his proximity at the time he was arrested is not a part of the record
on appeal.
Having reviewed the record and the briefs from Alford and his counsel, we find no
reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe, 178 S.W.3d at
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826-27. We agree with appellate counsel that the record presents no arguably meritorious grounds
for review and that the appeal is frivolous. Counsel’s motion to withdraw is granted.
The judgment of conviction is affirmed.
____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Goodwin and Field
Affirmed
Filed: July 12, 2013
Do Not Publish
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