 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Dunn v. State8/19/2004
peals has clarified, prior convictions can be mentioned during voir dire, opening statements, and closing arguments. Hollen, 117 S.W.3d at 802. Thus, counsel could not have been ineffective for failing to object. Regarding the denial and withdrawal of the stipulation, Appellant’s prior convictions could have been proven through a stipulation or through the admission of the judgments. Id. at 801. Requiring the State to prove up the convictions falls within the realm of reasonable trial strategy.
Punishment Evidence
Appellant next complains that counsel failed to use Appellant’s health problems in presenting evidence at the punishment phase of trial. He contends that his illness was mentioned in passing during sentencing but was not placed before the jury at punishment and there was no indication that the matter was investigated by counsel at all. In support of his argument, he directs us to Justice Price’s dissent in Ex parte Brewer, 50 S.W.3d 492, 494 (Tex.Crim.App.), cert. denied, Brewer v. Texas, 534 U.S. 955, 122 S.Ct. 356, 151 L.Ed.2d 269 (2001). There, trial counsel did not justify his complete failure to investigate Brewer’s mental condition in preparation for trial. Counsel had claimed that nothing about his client’s behavior caused suspicion about his mental health status, but Brewer had been committed to a mental hospital for severe depression only three months before the instant offense occurred. Id.
A review of the record reveals that Appellant may have had some problems with his inner ear and with his liver, not mental health issues which may give rise to considerations of competency. We fail to see how Brewer is analogous. Thus, we must presume that trial counsel was acting within the reasonable realm of trial strategy.
Filing of Motion for New Trial
Finally, Appellant asserts that his original appellate counsel offered him no assistance in filing his pro se motion for new trial. Appellate counsel filed a motion to withdraw based on Rule 1.15 of the Texas Rules of Disciplinary Procedure in which he advised that his relationship with Appellant was strained and he could no longer zealously represent him. Moreover, Appellant had requested that counsel withdraw. Appellant has failed to show that counsel’s conduct in withdrawing for ethical reasons constituted ineffective assistance of counsel. Point of Error No. Four is overruled in its entirety.
FACTUAL SUFFICIENCY
In Point of Error No. Five, Appellant challenges the factual sufficiency of the evidence to support his conviction because (1) Montes failed to identify him or describe the vehicle he was driving; (2) no witness identified Appellant as the person involved in the accident, and (3) there was a lack of objective indicators that Appellant was intoxicated at the time of his arrest.
Standard of Review
In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of guilt, although adequ
Page 1 2 3 4 5 6 7 8 9 10 11 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|