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[W] Landers v. State4/17/2003
ge for cause, articulating grounds; (2) that all peremptory challenges were exhausted; (3) that appellant sought and was denied an additional peremptory challenge; and (4) that an objectionable juror served. Harris v. State, 790 S.W.2d 568, 581 (Tex. Crim. App. 1989). Assuming appellant's trial counsel made the challenge for cause for a clearly articulated reason, he thereafter failed to use an available peremptory challenge against Ms. Campos, and the issue was not preserved for review.
Appellant's issues four and five are overruled.
C. Failure to request and present evidence at a motion for new trial hearing
In her Sixth Issue, appellant asserts she was denied effective assistance of counsel because her first post-trial attorney failed to present a motion for new trial and obtain an evidentiary hearing. Attorney David Boyer timely substituted for trial counsel, Andrew J. Lannie, and filed a motion and an amended motion for new trial, each containing supporting affidavits. However, the record contains no evidence that post-trial counsel pursued obtaining a hearing. Tex. R. App. P. 21.6. The amended motion for new trial was overruled by operation of law. Tex. R. App. P. 21.8.
Appellant asserts that a hearing on her motion for new trial was necessary to develop the record concerning her trial counsel's lack of preparation, erroneous advice, and poor health. Because her post-trial counsel neither presented nor requested a hearing on either motion, she asserts he effectively abandoned her, and prevented her from establishing her trial counsel's ineffective assistance. We disagree.
Because there is no evidence of post-trial counsel's reasons for not presenting the amended motion for new trial, we would be required to speculate to assume this was not a strategic decision.
Appellant's amended motion for new trial asserted: (1) the State failed to prove the prior convictions which enhanced the DWI to a felony; and (2) her trial counsel provided ineffective assistance. The amended motion is supported by affidavits from appellant, her mother, and an attorney formerly associated with trial counsel, each exhaustive in its discussion of her trial counsel's alleged transgressions.
However, none of the allegations in the amended motion for new trial set out facts entitling appellant to a new trial. For instance, appellant testified at trial about her prior DWI convictions, and documentation of the convictions was admitted as exhibits; the amended motion's allegation that the State failed to prove her prior conviction was therefore baseless.
Appellant alleged ineffective assistance by her trial counsel in failing to call additional witnesses, failing to accept a plea bargain for probation (for which she was ineligible due to her prior convictions), and failing to be prepared generally. Her trial attorney's lengthy controverting affidavit, submitted with the State's response, addressed strategic decisions behind each alleged act of ineffective assistance, and showed that a hearing on these complaints would have been a swearing match. For example, trial counsel explained that he did not call as witnesses the two people who drove appellant home from the accident because he and appellant were concerned that evidence would show that the two were on their way to appellant's home to buy drugs. Trial counsel's affidavit cites the caselaw demonstrating appellant's ineligibility for probation, recounts his consultations regarding the State's plea offer during trial, and reiterates appellant's repeated protestations of innocence.
Appellant states she was abandoned on appeal because her post-trial counsel did not present the
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