            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                   NOS. WR-82,850-01 & -02


                  EX PARTE ANTHONY EUGENE JOHNSON, Applicant


              ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
                  CAUSE NOS. W08-71994-V(A) & W11-00273-V(A)
        IN THE 292ND JUDICIAL DISTRICT COURT FROM DALLAS COUNTY


       Per curiam.

                                          OPINION

       Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated

assault and manslaughter and sentenced to ten and twenty years’ imprisonment, respectively. The

Fifth Court of Appeals affirmed his convictions. Johnson v. State, Nos. 05-12-00743-CR &

05-12-00744-CR (Tex. App.—Dallas July 3, 2013)(not designated for publication).

       Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because counsel failed to pursue a defense of involuntary conduct in the aggravated assault case, and

failed to pursue defense of a third person in the murder case. Applicant alleges that he maintained
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 that the shooting was an accident, but that trial counsel insisted on pursuing a theory of self defense,

 which was negated when the trial judge refused to include an instruction on self defense in the jury

 charge.

           On October 7, 2015 the parties were ordered to brief the following issues:

                  A. Whether the standard for harm set out in Vasquez v. State, 830
                  S.W.2d 948 (Tex. Crim. App. 1992), is the proper standard when trial
                  counsel fails to request a jury instruction. In Vasquez, this Court held
                  that, due to trial counsel’s failure to request an instruction on the
                  defensive issue of necessity, the jury was precluded from giving affect
                  to the appellant’s defense and that “in itself undermines our
                  confidence in the conviction sufficiently to convince us that the rest
                  of the trial might have been different had the instruction been
                  requested and given.” Id. at 951; and

                  B. Whether counsel rendered ineffective assistance in this case.

       Subsequently, this Court received a letter dated October 13, 2015, stating that, in both cases,

the Findings of Fact and Conclusions of Law signed by the original habeas judge, Judge Brandon

Birmingham, had been vacated by Order dated April 20, 2015. Judge Birmingham stated that he was

voluntarily recusing himself due to his participation in the cases as a prosecutor. The order vacating

the Findings of Fact and Conclusions of Law was included with the letter. Because this Court’s

briefing order was premised on vacated Findings of Fact and Conclusions of Law, the matter was held

in abeyance so that the trial court could resolve the fact issues.

       By Order of Assignment By Presiding Judge Mary Murphy, Judge of the First Administrative

Judicial Region, dated April 27, 2015, Judge Murphy assigned Judge Robert Burns to preside in these

cases. On May 2, 2016, Judge Burns’s new Findings of Fact and Conclusions of Law were received

by this Court. Those findings, contrary to the prior findings, recommend denying relief. We have

reviewed these new Findings of Fact and Conclusions of Law, and we find that they are supported
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by the record.    First, as to Applicant’s claim that he was denied the right to be present in the

courtroom, his counsel testified that the only portion of the proceedings when Applicant was not

present was when the judge called the witnesses to be sworn and placed under the Rule. Applicant

fails to provide any proof that he was not present in the courtroom when the trial started. Therefore,

as to this claim, Applicant fails to allege and prove facts that, if true, would entitle him to relief. Ex

parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App. 1985). Second, as to Applicant’s claim that he

was denied the right to a public trial, his counsel stated that as soon as he became aware that

Applicant’s family was not present during voir dire, he spoke to the judge, who allowed the family

to come into the courtroom. Applicant did not raise this complaint on direct appeal. This claim was

known to Applicant at the time of his direct appeal and is therefore not available for review on

habeas. Ex parte Banks, 769 S.W.2d 539 (Tex. Crim. App. 1989). Third, we agree with the trial

court’s findings and conclusions that Applicant’s trial counsel was not ineffective under Strickland

v. Washington, 466 U.S. 668 (1984).

        We hold that Applicant’s claims are without merit. Therefore, we withdraw this Court’s

briefing order from October 7, 2016, and we deny relief.



Delivered:              November 2, 2016

Do not publish
