      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-10-00303-CR



                               Joseph James Bishop, Appellant

                                                v.

                                 The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
         NO. 35385, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an appeal pursuant to Anders v. California, 386 U.S. 738 (1967). A jury

convicted appellant Joseph James Bishop of the offense of burglary of a habitation with intent

to commit robbery, a first-degree felony. See Tex. Penal Code Ann. § 30.02(d) (West 2011).

Punishment, enhanced by a prior felony conviction, was assessed at life imprisonment and a

$10,000 fine. We will affirm the judgment of the district court.


                                        BACKGROUND

               The State alleged that on or about the night of March 17, 2008, Bishop, along with

two other individuals who were charged separately, burglarized a home. During the burglary, the

occupant of the residence, 58-year-old Catherine Adair, was allegedly assaulted, blindfolded,

threatened, and held down on her bed by one of the burglars while the others rummaged through her

house and stole her property. According to the State, Bishop was the perpetrator who had held down

the victim while the other men searched the house. Bishop was charged with one count of burglary
of a habitation with intent to commit robbery, one count of burglary of a habitation with intent to

commit theft, and one count of credit card abuse.

               The case proceeded to trial, but a mistrial was declared after the jury was unable

to reach a verdict. The case was subsequently retried. Evidence considered by the jury during the

retrial included the testimony of the victim; testimony of the police officers who had investigated

the burglary; Bishop’s video-recorded statement that he had provided to the police following his

arrest; testimony of witnesses who had identified a man who appeared to be Bishop at a retail store

with his alleged accomplices subsequent to the burglary (the accomplices were allegedly using the

victim’s stolen credit cards to purchase items at the store); corresponding security camera footage

from the retail store showing a man at the store who appeared to be Bishop; testimony from an ex-

girlfriend of Bishop’s who claimed that Bishop had admitted to her that he had committed the

offense and had requested that she help him develop an alibi; and DNA evidence tending to show

that Bishop could not be excluded as a contributor of DNA that had been found on a bag and

binoculars that were allegedly used during the offense and found in Bishop’s possession.

               At the close of evidence, the State abandoned count three of the indictment relating

to the offense of credit card abuse. The jury found Bishop guilty of the offenses of burglary of a

habitation with intent to commit robbery and burglary of a habitation with intent to commit theft.

The State elected to proceed to punishment solely on the offense of burglary with intent to commit

robbery. After finding that Bishop had been previously convicted of the offense of aggravated

assault, the jury assessed punishment as noted above. This appeal followed.

               Bishop’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



                                                 2
Anders v. California by presenting a professional evaluation of the record demonstrating why there

are no arguable grounds to be advanced. See 386 U.S. at 744-45; see also Penson v. Ohio, 488 U.S.

75, 80 (1988); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553, 553 (Tex. Crim.

App. 1972); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Bishop 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. In response, Bishop has filed a pro se brief and two supplemental briefs asserting various

reasons why he does not believe the appeal to be frivolous.


                            STANDARD AND SCOPE OF REVIEW

               Before granting counsel’s motion to withdraw in an Anders appeal, an appellate court

must conduct “a full examination of all the proceeding[s] to decide whether the case is wholly

frivolous” or if there are any arguable grounds for appeal. Anders, 386 U.S. at 744; Stafford v. State,

813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We are “not required to review the merits of

each claim raised in an Anders brief or a pro se response.” Bledsoe v. State, 178 S.W.3d 824, 827

(Tex. Crim. App. 2005). Instead, our “duty is to determine whether there are any arguable grounds

and if there are, to remand to the trial court so that new counsel may be appointed to brief the

issues.” Id.

               “The terms ‘wholly frivolous’ and ‘without merit’ are often used interchangeably in

the Anders-brief context.” McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10 (1988). “Whatever

term is used to describe the conclusion . . . the court must reach before granting [counsel’s] request




                                                  3
[to withdraw], what is required is a determination that the appeal lacks any basis in law or fact.”1

Id. If such a determination is made, the appeals court may then grant counsel’s motion to withdraw

and affirm the judgment below. See Anders, 386 U.S. at 744. “On the other hand, if [the appeals

court] finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior

to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. In such a case, we

must “remand the cause to the trial court so that new counsel may be appointed to brief the issues.”

Bledsoe, 178 S.W.3d at 827 (citing Stafford, 813 S.W.2d at 511).


                                            DISCUSSION

                In keeping with this Court’s practice of addressing the pro se issues that have been

raised, we will briefly explain why Bishop’s contentions lack “arguable merit.” See Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009).2 Bishop claims that (1) the district court erred in

admitting evidence of extraneous offenses and refusing to grant a mistrial based on the admission

of such evidence; (2) the district court erred in admitting Bishop’s statement to the police following

the invocation of his Fifth Amendment right to counsel; (3) the evidence is insufficient to support

a finding that a firearm was used or exhibited during the offense; (4) he was denied a fair trial due

to prosecutorial misconduct; (5) the jury charge impermissibly authorized a conviction for an



        1
          The Supreme Court has also described a frivolous argument as one that “cannot
conceivably persuade the court.” McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988) (quoting
United States v. Edwards, 777 F.2d 364, 365 (7th Cir. 1985)).
        2
           See also Hernandez v. State, No. 03-11-00198-CR, 2011 Tex. App. LEXIS 9784, at *4
(Tex. App.—Austin Dec. 14, 2011, no pet.) (mem. op., not designated for publication); Pulliam
v. State, No. 03-10-00737-CR, 2011 Tex. App. LEXIS 6976, at *2 (Tex. App.—Austin Aug. 26,
2011, pet. ref’d) (mem. op., not designated for publication); Diaz v. State, No. 03-10-00267-CR,
2011 Tex. App. LEXIS 2667, at *4-6 (Tex. App.—Austin Apr. 7, 2011, pet. ref’d) (mem. op.,
not designated for publication).

                                                    4
“irrelevant theory” of theft; (6) he was harmed by the district court’s failure to comply with certain

procedural and charge requirements relating to evidence presented during the punishment hearing;

and (7) he was denied the effective assistance of counsel during trial and on appeal.


Admission of evidence relating to extraneous offenses

                Bishop first argues that the district court erred in admitting evidence of extraneous

offenses contained in State’s Exhibit 14, the video-recorded statement he provided to police

following his arrest. In the statement, Bishop referred to a prior aggravated-assault conviction

from New Jersey and an alleged domestic-violence incident involving his girlfriend. Also in the

statement, Bishop claims knowledge of drug transactions and other burglaries and robberies

committed by his alleged accomplices.

                We are to review the trial court’s admission of evidence for abuse of discretion.

Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The trial court does not abuse its

discretion in admitting evidence unless its ruling lies “outside the zone of reasonable disagreement.”

Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). Evidence of other crimes, wrongs

or acts is not admissible to prove the character of a person in order to show action in conformity

therewith. Tex. R. Evid. 404(b). It may, however, be admissible for other purposes. Id. Moreover,

the erroneous admission of evidence “must be disregarded” unless it affects “substantial rights.”

Tex. R. App. P. 44.2(b); see Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). Under

this standard, an error is harmless if an appellate court has “fair assurance from an examination of the

record as a whole that the error did not influence the jury, or had but slight effect.” Taylor v. State,

268 S.W.3d 571, 592 (Tex. Crim. App. 2008).




                                                   5
                Even if we were to find that the evidence should not have been admitted, we could not

conclude on this record that Bishop was harmed by its admission. Regarding Bishop’s knowledge

of other crimes committed by the co-defendants, the district court’s admission of the evidence was

conditioned upon the prosecutor eliciting testimony in front of the jury that Bishop himself was not

involved with those crimes. In compliance with the district court’s condition, the prosecutor asked

the following question of the officer who had obtained Bishop’s statement:


        Q:      As the judge was just [saying], there was some talk about other crimes that
                [Bishop] would tell you about. Did you at any time think he, this defendant,
                was involved in those crimes?

        A:      No, ma’am, I did not.


The district court also provided to the jury the following oral instruction to disregard any evidence

of extraneous offenses:


        Members of the Jury, any evidence that you might have heard, if any, about any other
        offense other than the offense charged is to be disregarded by you. The defendant
        is on trial for the offense charged in the indictment. You’re not to consider any
        evidence, if there was any, of any other such matters in consideration of this case.


There is no indication in the record that the jury considered the extraneous-offense evidence despite

the court’s instruction to disregard it or that the jury attributed to Bishop the other crimes committed

by his alleged accomplices. Accordingly, there is no basis in law or fact for concluding that Bishop

was harmed by the admission of the evidence. See Marshall v. State, 210 S.W.3d 618, 628-29

(Tex. Crim. App. 2006). For the same reason, there is no basis in law or fact for concluding that the

district court abused its discretion in declining to grant a mistrial based on the admission of the

evidence. See Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009).

                                                   6
Invocation of right to counsel

               Bishop further complains that the entirety of his video-recorded statement should

have been excluded because the statement was obtained in violation of his Fifth Amendment right to

counsel. See U.S. Const. amend. V; Edwards v. Arizona, 451 U.S. 477, 483-85 (1981). In Edwards,

the Supreme Court held that a suspect who has “expressed his desire to deal with the police only

through counsel, is not subject to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further communication, exchanges, or

conversations with the police.” 451 U.S. at 484-85.

               The record reflects that when Bishop was brought before the magistrate for his initial

appearance, see Tex. Code Crim. Proc. Ann. art. 15.17 (West Supp. 2011), he filled out a written

form requesting the appointment of counsel. According to Bishop, this written request was sufficient

to invoke his right to counsel for Fifth Amendment purposes. In Bishop’s view, his subsequent

interrogation, without counsel being present, violated that right. However, the court of criminal

appeals has recently explained that “a defendant’s invocation of his right to counsel at his

Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later

police-initiated custodial interrogation.” Pecina v. State, No. PD-1095-10, 2012 Tex. Crim. App.

LEXIS 143, at *24-25 (Tex. Crim. App. Jan. 25, 2012). Instead, “an Article 15.17 initial appearance

and magistration marks the initiation of adversarial judicial proceedings in Texas and ‘plainly

signals’ the attachment of a defendant’s Sixth Amendment right to counsel,” which is separate from

a suspect’s invocation of his Fifth Amendment right to counsel. See id. at *20-23. The court added,

“The magistration hearing is not an interrogation event.” Id. at *25. Thus, there is no basis in law

or fact for concluding that Bishop invoked his Fifth Amendment right to counsel by requesting the



                                                 7
appointment of counsel at his initial appearance. Nor is there any basis in law or fact for concluding

on this record that Bishop’s statement was obtained following a clear and unequivocal invocation

of his Fifth Amendment right to counsel. See Davis v. United States, 512 U.S. 452, 459 (1994)

(explaining that invocation of right to counsel must be clear and unambiguous); Davis v. State,

313 S.W.3d 317, 339 (Tex. Crim. App. 2010) (“To trigger law enforcement’s duty to terminate the

interrogation, a suspect’s request for counsel must be clear, and the police are not required to attempt

to clarify ambiguous remarks.”).


Deadly-weapon finding

                Bishop next asserts that the evidence is insufficient to support the jury’s deadly-

weapon finding. According to Bishop, although there was evidence presented that a gun was stolen

during the burglary, “there is no indication the gun was used in a threatening manner or for any

purpose other than to steal it.”

                In reviewing the sufficiency of the evidence, this Court considers all the evidence

in the light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319

(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; see Hooper

v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).

                When applied to the special issue regarding the use or exhibition of a deadly weapon

during the commission of a felony offense, the question facing this Court is whether a rational trier

                                                    8
of fact could find beyond a reasonable doubt that the mere possession of the deadly weapon

facilitated the associated felony.3 Gale v. State, 998 S.W.2d 221, 224 (Tex. Crim. App. 1999); see

also Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004). Any employment of a firearm

or other deadly weapon, even its simple possession, to facilitate the commission of another offense

constitutes a “use” of the weapon. Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).

               In this case, the victim, Catherine Adair, provided testimony regarding the use

or exhibition of a deadly weapon. Adair testified that the burglars asked her if she had any guns in

the house. She told them that she had a “shotgun in the closet,” and “they went and got it.” Adair

was asked if she could “hear anything with regard to the shotgun,” and she answered, “Yes.” When

asked to describe what she had heard, Adair explained, “Well, it’s 20 gauge. And growing up

around here, I’m sure a lot of people know about that. And so you have a lever that you pull back

to load your first shell. And when you click the button, it pops. And then when you put your others

[sic] in, they just click in the bottom.” Adair was next asked if someone was “manipulating or

handling the shotgun.” Again, Adair answered, “Yes,” and added, “I could hear them.” When asked

how what she had heard affected her, Adair replied, “I didn’t know what they were going to do

with [the gun].” When asked if she was afraid for her life, she answered, “Yes, ma’am.” From this

evidence, the jury could have reasonably inferred that Adair had heard the men loading the shotgun

and that by loading the shotgun in Adair’s presence, the men were threatening her with its use. The




       3
           It is important to note that the deadly-weapon portion of the jury charge included an
instruction on the law of parties. See Tex. Penal Code Ann. § 7.01(a) (West 2011). Accordingly,
even if Bishop himself did not use or exhibit a firearm during the offense, if there is sufficient
evidence that one of his accomplices did, the use or exhibition of the deadly weapon can be
attributed to Bishop. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 2011).


                                                 9
jury also could have reasonably inferred that by threatening Adair with the shotgun, the men were

facilitating the commission of the burglary by further scaring Adair into submission. Adair later

testified that the man who was holding her down on the bed (allegedly Bishop) said “[s]omething

to the effect of, ‘Let’s rod her’ or ‘I’m going to rod her.’” Although Adair did not know “for sure”

what this meant and whether the comment was “of a sexual nature,” she “knew it didn’t sound

good.” A rational jury could have reasonably inferred from this testimony that Bishop had intended

to either sexually assault Adair with the gun or frighten her further into submission. Consequently,

the jury could have reasonably inferred from this and the other testimony summarized above that the

gun was used to facilitate the commission of the burglary—the handling and manipulation of the gun

in Adair’s presence caused her to fear for her life and made her less likely to resist the men who were

robbing her. When the above evidence and all reasonable inferences to be drawn therefrom are

viewed in the light most favorable to the finding, there is no basis in law or fact for concluding that

the evidence was insufficient to support the deadly-weapon finding.


Alleged charge error

                Bishop also asserts that the jury charge authorized a conviction “based on an

irrelevant theory of theft.” The “irrelevant theory,” in Bishop’s view, is his unexplained possession

of Adair’s recently stolen property, some of which, the evidence tended to show, was found

in Bishop’s possession. The unexplained possession of recently stolen property “is not positive

evidence of burglary or theft, but is merely a circumstance to be considered with other evidence

in determining guilt.” Acy v. State, 618 S.W.2d 362, 365 (Tex. Crim. App. 1981). The court of

criminal appeals once held that “[w]hen proof of theft is supported only by the unexplained

possession of property recently stolen, a defendant is entitled to a charge on the law of circumstantial

                                                  10
evidence, if timely requested or if there is a timely objection to the court’s jury instructions.” Levi

v. State, 573 S.W.2d 784, 784-85 (Tex. Crim. App. 1978). However, the court of criminal appeals

later abolished this requirement, holding that such a charge was improper because it confused

the jury by creating different standards for direct and circumstantial evidence cases. See Hankins

v. State, 646 S.W.2d 191, 197 (Tex. Crim. App. 1983) (op. on reh’g); see also Roberts v. State,

672 S.W.2d 570, 580 (Tex. App.—Fort Worth 1984, no pet.) (holding that “[a]s the evidence of

possession may rise to no higher a level than a ‘circumstance of guilt’ and so considered on appellate

review, the jury should never be instructed on the ‘inference or presumption’ of guilt, and thereby

be told by the court what is the least evidence necessary for them to find guilt”).

               As the State observes, Bishop’s argument is misplaced, as no such instruction or

theory was provided in the charge. Instead, the jury was appropriately instructed on the applicable

law of the case as defined in the penal code. See Tex. Penal Code Ann. § 31.03 (West Supp. 2011).

There is no basis in law or fact for concluding otherwise.4


Prosecutorial misconduct

               Bishop further contends that the prosecutor engaged in misconduct during trial

by (1) arguing outside the record that Adair, who was unable to visually identify Bishop as the

perpetrator,5 was able to identify Bishop’s voice in an audio recording that was never admitted into



       4
          We also note that even if there had been error in the charge, Bishop did not object to it
during trial. Accordingly, to be entitled to reversal, the record would have to reflect that Bishop
was egregiously harmed by the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh’g) (test for egregious harm is whether defendant has been denied fair and impartial
trial). On this record, there is no basis in law or fact for concluding that such harm occurred.
       5
         Adair testified that during the burglary, something was placed over her head so that she was
unable to see anything.

                                                  11
evidence, and (2) attempting to elicit evidence that the other alleged burglars named Bishop as their

accomplice. Regarding the first complaint, although defense counsel objected to the prosecutor’s

argument (and the district court twice admonished the prosecutor in the presence of the jury to stay

on the record), counsel never obtained a ruling on his objection from the district court. Nor did

counsel request an instruction to disregard the prosecutor’s argument or move for a mistrial.

Accordingly, Bishop failed to preserve error on this point. See Tex. R. App. P. 33.1(a); Estrada

v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Cockrell v. State, 933 S.W.2d 73, 89

(Tex. Crim. App. 1996). Consequently, there is no basis in law or fact for reversing Bishop’s

conviction on that ground. Regarding the second complaint, the record reflects that the district court

sustained defense counsel’s objections to the prosecutor’s attempts to elicit evidence relating

to the statements of the co-defendants. As the prosecutor’s efforts to elicit the testimony were

unsuccessful, there is no basis in law or fact for concluding that Bishop was harmed by the

prosecutor’s failed attempts to admit the evidence.


Punishment issues

               Bishop asserts that there were two non-frivolous issues that arose during punishment.

First, Bishop claims that he was egregiously harmed by the district court’s failure to instruct the

jury that it may not consider evidence of extraneous offenses in assessing punishment unless it

was satisfied beyond a reasonable doubt that such offenses were attributable to the defendant. See

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 2011); Fields v. State, 1 S.W.3d 687, 688

(Tex. Crim. App. 1999). Second, Bishop contends that he was harmed by the district court’s failure

to comply with the procedural requirements relating to enhancement allegations. See Tex. Code




                                                 12
Crim. Proc. Ann. art. 36.01 (West 2007). Specifically, the record reflects that the district court failed

to read the enhancement allegation to the jury and failed to receive Bishop’s plea to the allegation.

                Regarding the failure of the district court to instruct the jury on the State’s burden

of proof regarding extraneous-offense evidence, such failure is charge error. See Huizar v. State,

12 S.W.3d 479, 484-85 (Tex. Crim. App. 2000). Accordingly, because Bishop did not object to the

error during trial, he is not entitled to reversal unless the record reflects that he suffered egregious

harm. See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on reh’g). In other

words, the record must show that Bishop was deprived of a fair and impartial trial. Id. at 171. The

harm to the accused must be actual, not merely theoretical. Id. at 174. “Egregious harm is a difficult

standard to prove and such a determination must be done on a case-by-case basis.” Hutch v. State,

922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Errors that result in egregious harm affect the very

basis of the case, deprive the defendant of a valuable right, vitally affect a defensive theory, or make

the State’s case clearly and significantly more persuasive. Taylor v. State, 332 S.W.3d 483, 490

(Tex. Crim. App. 2011).

                Having reviewed the entire record, including the record of the punishment hearing,

we find no basis in law or fact for concluding that Bishop suffered egregious harm. The extraneous-

offense evidence offered by the State at the punishment hearing was strong. In fact, much of the

evidence, including the evidence of Bishop’s prior conviction for aggravated assault, was largely

undisputed. Thus, the jury could have found beyond a reasonable doubt that Bishop had committed

the extraneous offenses even without the instruction. See Graves v. State, 310 S.W.3d 924, 930

(Tex. App.—Beaumont 2010, pet. ref’d). We also observe that the charged offense, which the jury

had already found beyond a reasonable doubt that Bishop had committed, was a violent home



                                                   13
invasion committed at night against a woman who was assaulted while she slept, held down

and essentially blindfolded on her bed, and threatened with a firearm. The victim provided vivid

testimony of how the ordeal had terrified her and continued to traumatize her to this day. In light

of this and other evidence presented during trial, we cannot conclude that the evidence concerning

the extraneous offenses made the case for punishment clearly and significantly more persuasive. See

Martinez v. State, 313 S.W.3d 358, 368 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). On this

record, there is no basis in law or fact for concluding that the failure of the district court to instruct

the jury on the State’s burden of proof regarding the extraneous-offense evidence affected the very

basis of the case, deprived the defendant of a valuable right, vitally affected a defensive theory, or

made the State’s case for punishment clearly and significantly more persuasive.

                Regarding the district court’s failure to comply with the procedural requirements

of article 36.01, Bishop failed to object during trial and thus the error was not preserved for our

review. See Tex. R. App. P. 33.1(a). Accordingly, there is no basis in law or fact for reversing

Bishop’s punishment on that ground. See Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim. App.

1997); Lee v. State, 239 S.W.3d 873, 876-77 (Tex. App.—Waco 2007, pet. ref’d); Hardin v. State,

951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.); see also Yeakley v. State,

No. 03-09-00584-CR, 2011 Tex. App. LEXIS 1429, at *16-21 (Tex. App.—Austin Feb. 25, 2011,

pet. dism’d, untimely filed) (“[D]efendants are not excused from preserving error at the trial court

when there is a violation of article 36.01.”).


Ineffective assistance of counsel

                Finally, Bishop argues that trial and appellate counsel were ineffective. Bishop

asserts that trial counsel was ineffective by failing to request an instructed verdict at the conclusion

                                                   14
of the first trial. Bishop also claims that appellate counsel was ineffective by filing an Anders brief

that, in Bishop’s view, “misquoted the record.”

                To establish that he received ineffective assistance of counsel, Bishop must show

that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is

a reasonable probability that, but for counsel’s error, the result of the proceeding would have been

different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Thus, the “benchmark for

judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Id. at 686.

                On the record before us, without knowing the reasons for counsel’s decision to not

request an instructed verdict, we cannot conclude that trial counsel’s performance fell below an

objective standard of reasonableness. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005) (explaining that “where counsel’s reasons for failing to do something do not appear

in the record,” “an appellate court should not find deficient performance unless the challenged

conduct was ‘so outrageous that no competent attorney would have engaged in it.’”) (quoting Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)); see also Gill v. State, 111 S.W.3d 211, 217

(Tex. App.—Texarkana 2007, no pet.) (concluding that when State presented more than scintilla of

evidence in its case-in-chief that would have supported guilty verdict, defense counsel had no ground

on which to move for instructed verdict, and thus failure to do so did not render assistance

ineffective); McGarity v. State, 5 S.W.3d 223, 229 (Tex. App.—San Antonio 1999, no pet.) (“[T]he

fact that the defense attorney may or could have moved for the directed verdict on the possibility

of its being granted does not show that trial counsel’s assistance was ineffective.”). Nor can we

conclude on this record that if trial counsel had requested an instructed verdict, there is a reasonable

                                                  15
probability that the district court would have granted the request. Accordingly, there is no basis in

law or fact for concluding that trial counsel was ineffective under either Strickland prong.

               As for the claims regarding appellate counsel’s Anders brief, because we have already

concluded that the brief complies with the requirements of Anders, we cannot conclude that

counsel’s performance fell below an objective standard of reasonableness. See Stafford, 813 S.W.2d

at 509-10. Additionally, because we have reviewed the record independent of counsel’s Anders

brief, we cannot conclude that there is a reasonable probability that, but for the alleged “misquoting

of the record” in counsel’s Anders brief, the result of this appeal would have been different. Thus,

there is no basis in law or fact for us to conclude that Bishop was denied effective assistance of

appellate counsel.

               Having reviewed the record, counsel’s brief, and Bishop’s pro se briefs, we agree with

counsel that the appeal is wholly frivolous. See Garner, 300 S.W.3d at 766; Bledsoe, 178 S.W.3d

at 826-27. Counsel’s motion to withdraw is granted.


                                          CONCLUSION

               We affirm the judgment of the district court.



                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: April 18, 2012

Do Not Publish


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