                                          NO. 07-02-0056-CR

                                   IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL D

                                       AUGUST 7, 2002
                               ______________________________

                                   RICHARD GLENN O’GORMAN,

                                                                 Appellant

                                                    v.

                                       THE STATE OF TEXAS,

                                                     Appellee
                             _________________________________

                   FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

                      NO. 6109; HON. STEVEN R. EMMERT, PRESIDING
                            _______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

       Upon a plea of not guilty, a jury convicted appellant Richard Glenn O’Gorman of

felony driving while intoxicated (DWI), and assessed punishment at life imprisonment.

Appellant timely noticed his appeal, and counsel was appointed.

           Appellant’s appointed counsel has filed a motion to withdraw, together with an

Anders1 brief, wherein he certifies that, after diligently searching the record, he has

concluded that appellant’s appeal is without merit. Along with his brief, he has filed a copy



       1
           See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
of a letter sent to appellant informing him of counsel’s belief that there was no reversible

error and of appellant’s right to appeal pro se. By letter dated May 29, 2002, this court

notified appellant of his right to file his own brief or response by June 28, 2002, if he

wished to do so. On June 17, 2002, appellant filed a motion to extend the time to file his

brief, which resulted in the deadline being extended until July 29, 2002. On July 26, 2002,

appellant filed with this court a document alleging that 1) defense counsel was ineffective,

2) the State improperly advised the court that appellant had not filed an application for

probation and 3) the State improperly referred to statements made by appellant after his

arrest but before he received his Miranda warnings.                        None are meritorious for the

following reasons.

        Appellant claims that trial counsel was ineffective because he 1) did not strike two

jurors who claimed to be biased and were seated on the jury, 2) was unaware that

appellant’s “application had been submitted,” 3) failed to point out discrepancies in the

testimony of one of the State’s witnesses and 4) failed to object to evidence determined

to be inadmissible by the trial court.2 We note that appellant was obligated to prove his

counsel rendered ineffective assistance. Hernandez v. State, 988 S.W2d 770, 772 (Tex.

Crim. App. 1999). However, even though appellant filed a motion for new trial and a

hearing was had, ineffective assistance of counsel was not raised nor argued below.

Thus, appellant has failed to produce evidence in the record concerning trial counsel's


        2
         Appellant, also, complains that a “[l]arge support pillar. . .situated in [the] center of [the] temporary
courtroom made it impossible to see juror responses or establish who was responding to[] questions.”
However, appellant has failed to give substantive analysis or authority regarding how the obstacle prevented
him from receiving a fair and impartial trial. Thus, this argument was waived. Vasquez v. State, 22 S.W.3d
28, 31 (Tex. App.--Amarillo 2000, no pet); TEX. R. APP. P. 38.1(h).

                                                        2
reasons for not challenging or striking venire members, see Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App.1994); see also Delrio v. State, 840 S.W.2d 443 (Tex. Crim.

App.1992), objecting to purportedly inadmissible testimony, or pursuing alleged

discrepancies in witness’ testimony. See Beck v. State, 976 S.W.2d 265, 267 (Tex.

App.--Amarillo 1998, pet. ref’d). And, because the record before us does not allow us to

assess whether the presumption of competency was rebutted, we cannot hold that

appellant's trial counsel was deficient and, therefore, overrule the issue.

       Next, appellant complains that the State incorrectly informed the trial court that

appellant had not filed an application for probation, thus denying appellant the opportunity

to voir dire the panel on probation. First, the record does not reflect that appellant had

filed an application for probation. Second, before he could be considered for probation,

article 42.12(e) of the Code of Criminal Procedure required him to file a verified motion

wherein he stated that he had not previously been convicted of a felony. TEX . CODE CRIM .

PROC . art. 42.12 (e). Yet, the record reflects that appellant previously had been convicted

of a felony. So too does it illustrate that the minimum sentence he could have received,

in view of the State’s attempt to enhance punishment, was 25 years.          TEX . PEN . CODE

§12.42(d) (setting 25 years as the minimum sentence). Given that he had not complied

with the prerequisites of art. 42.12(e) and that the minimum sentence involved exceeded

the statutory ceiling, appellant was not eligible for probation. See TEX . CODE CRIM . PROC .

art 42.12 (d)(1) (granting the opportunity for probation to those whose sentence is 10 years

or less). So, the complaints about the opportunity, or lack thereof, to voir dire on probation

are meritless, and, we overrule appellant’s second issue.


                                              3
        In his third issue, appellant contends that the arresting officer and prosecution

witness named David O’Brian (O’Brian) referred to a statement made by appellant after his

arrest but before receiving his Miranda warnings. Specifically, once the officer told

appellant that he was under arrest for driving while intoxicated, appellant responded with

“I believe that you are right.” Appellant contends that this statement came after the trial

court had ruled that it was inadmissible. We note, however, that no objection was made

when O’Brian testified about the statement, and same was necessary to preserve error.

TEX . R. APP . P. 33.1(a); Holberg v. State, 38 S.W.3d 137, 140 (Tex. Crim. App. 2000), cert.

denied, 151 L. Ed.2d 298, 122 S. Ct. 394 (2001) (holding that by not objecting to the trial

court appellant forfeited his right to complain on appeal). Furthermore, appellant was

mistaken in saying that the trial court held the testimony inadmissible. In reviewing the

portion of the record cited by appellant, we find that the trial court was explaining the law

regarding Miranda as it understood it and was not making a ruling on this particular

statement. Thus, we overrule this issue as well.3

        As to the Anders brief itself, appellate counsel raised thirteen possible arguments.

However, counsel also explained why none were meritorious.                          Furthermore, after

conducting an independent review of the record and legal authority to assess the accuracy

of counsel’s representation, see Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)

(requiring same), we agree with appellate counsel’s analysis and conclude that there

exists no arguable basis for appeal.


        3
         Because the motion for new trial and the hearing on same did not raise ineffective assistance of
counsel, the state of the record before us does not allow us to assess whether any purported error regarding
counsel’s performance was something other than sound trial strategy. Tong v. State, 25 S.W.3d 707, 712
(Tex. Crim. App. 2000); See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). However, we
do not comment upon the availability of article 11.07 of the Texas Code of Criminal Procedure to address
these issues.

                                                     4
       Accordingly, appellate counsel’s motion to withdraw is granted, and the judgment

is affirmed.

                                                            Brian Quinn
Do not publish.                                               Justice




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