                                   NO. 07-09-0351-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 FEBRUARY 4, 2010
                          ______________________________


                          EX PARTE MIKEL PETER EGGERT,

                                                      Relator
                          ______________________________

              FROM THE 266TH DISTRICT COURT OF ERATH COUNTY;

               NO. CR12110A; HON. DAVID CLEVELAND, PRESIDING
                       ______________________________

                                  Memorandum Opinion
                          ______________________________

       Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Relator Mikel Peter Eggert appeals pro se from the denial of his application for writ

of habeas corpus by contending the trial court erred in failing to find that his appointed

counsel was ineffective during his trial for criminal conspiracy in fabricating physical

evidence and that his retained counsel was ineffective in prosecuting his petition for

discretionary review of that conviction. We affirm the trial court=s order.

       Background

       Relator and his father Peter Helmuth Eggert, neither of whom was licensed to

practice law in Texas at the time, attempted to assist Marcos Gallardo, who had

previously pled guilty in a criminal case, from being deported.         In doing so, they
contacted Jason Cashon, an assistant district attorney in Erath County, for assistance

and later contacted Leroy Gaitan, the former chief of police who had investigated

Gallardo=s crime. They sought to have Gaitan contact the mother of the complaining

witness and obtain her and her daughter=s signatures on affidavits which stated that

Gallardo had not committed any offense. During this time, an appeal of Gallardo=s

application for writ of habeas corpus was pending in the Eleventh Court of Appeals.

       After an offer of assistance for a fund raiser for Gaitan=s campaign for constable

and after receiving a check for $100 from Peter Eggert as well as the affidavits Eggert

sought to have executed, Gaitan contacted the complainant=s mother. Gaitan did not

cash the check and did not present the affidavits to the victim=s mother but did tell her that

Peter Eggert wanted to speak to her and that there might be money available to her if she

and her daughter were to sign the affidavits. The mother met with Peter Eggert and

relator and eventually contacted the Texas Rangers through her attorney and turned the

affidavits over to them. Relator was convicted of the charge of criminal conspiracy to

fabricate physical evidence.

        Habeas Corpus Standard of Review

       The decision to deny an application for writ of habeas corpus lies within the trial

court=s discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). In

reviewing that decision, we examine the record in the light most favorable to the trial

court=s ruling, id., and defer to findings of the trial court supported by the record. Ex parte

Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006).          Moreover, the applicant has




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the burden to prove his allegations by a preponderance of the evidence. Kniatt v. State,

206 S.W.3d at 664.

         Ineffective Assistance of Counsel -Trial

         In his first six issues, relator asserts that his trial counsel was ineffective in failing to

1) object to opinion testimony of the prosecutor/witness Jason Cashon about the ultimate

issue of the case, 2) request an instruction that Gaitan was an accomplice witness, 3)

interview witnesses, 4) investigate and adequately prepare for trial, and 5) understand

applicable criminal law. Moreover, he contends the totality of counsel=s representation

was ineffective.

         In making these claims, it was relator=s obligation to prove that counsel was

deficient and that the deficiency caused prejudice. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 286 S.W.3d 333, 340

(Tex. Crim. App. 2009).         Moreover, claims of ineffective assistance must be firmly

founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

That record must be sufficient to illustrate that the alleged deficiency was something other

than reasonable trial strategy. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App.

2007).

         Prejudice

         We address the last prong of the Strickland test first.                   Though relator

acknowledges in his brief that analyzing prejudice requires the examination of counsel=s

Aerrors not as isolated incidents, but in the context of the overall record,@ he undertakes

no such examination. Instead, his analysis consists of proffering such generalities as

Athe record before us undisputedly establishes >the benchmark for judging any claim of

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ineffectiveness,=@ A>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,=@

Athe totality of counsel=s constitutionally deficient performance prejudiced his defense,@

and the like. Though such generalities may have their place in argument they are neither

evidence of prejudice nor explanation developing prejudice. Nor is it our responsibility to

fulfill the burden of showing prejudice which authority clearly placed on him.

       Indeed, the phrase ipse dixit best sums up what we have before us; we are to

conclude that the supposed errors are prejudicial merely because relator says they are.

That, however, is not enough to satisfy the second prong of Strickland. We must follow

the law and avoid concluding that we are always right simply because we say we are.

That same obligation lies with relator. He must follow the law espoused in Strickland and

prove prejudice. Having not done so, each of his contentions is overruled for that reason

alone. Nonetheless, we will also address the substance of his claims.

           Failure to Object to Opinion Testimony

       First, relator argues that his counsel permitted Jason Cashon to testify as to his

guilt on three separate occasions without objection. However, in the first cited instance,

objection was made by counsel for relator=s father 1 and that objection was overruled. In

the second cited instance, the witness was asked whether another attorney was involved

in procuring phony affidavits to which he replied that, in his opinion, it was relator and his

father who had done that. In the third cited instance, Cashon testified that either relator

or his father or both Atyped out those affidavits ahead of time, knowing the falsity thereof,


       1
           Relator and Peter Hellmuth Eggert were tried together.


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and asking [the victim=s mother] to sign them, in order for - - to make an actual innocence

claim.@ No objection was made to either of the last two statements.

        A witness may give a lay opinion if it is rationally based on the perception of the

witness and helpful to a clear understanding of the testimony or a determination of a fact

in issue. TEX. R. EVID. 701. Such testimony is not objectionable because it includes an

ultimate issue to be decided by the trier of fact. TEX. R. EVID. 704; Ex parte Nailor, 149

S.W.3d 125, 135 (Tex. Crim. App. 2004); Davis v. State, 223 S.W.3d 466, 476 (Tex.

App.–Amarillo 2006, pet. ref=d, untimely filed). Furthermore, counsel is not incompetent

for failing to object to opinion evidence on the ground it goes to an ultimate issue. Ex

parte Nailor, 149 S.W.3d at 135.

       Relator does not argue that this testimony was not based on the perception of the

witness and/or was not helpful to an understanding of a fact in issue.         Rather, he

complains about Cashon being an officer of the court; yet, that was not the capacity in

which Cashon was called as a witness. Cashon was a fact witness because he had

indeed met with relator and his father with respect to their desire to prevent the

deportation of Gallardo and had suggested a means to them as to how to prevent that

deportation. He was also involved in the appeal of Gallardo=s application for writ of

habeas corpus and to some extent was an expert witness as well.

       Relator also concludes that there could have been no reasonable trial strategy in

failing to object. However, given the fact that one such objection was overruled by the

court, counsel could have chosen not to emphasize the matter further to the jury by

additional objections.   As previously stated, we may not speculate as to counsel=s

reasons for failing to object when the record fails to reveal them. Rodriguez v. State, 292

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S.W.3d 187, 190 (Tex. App.–Amarillo 2009, no pet.). Accordingly, we cannot say the

trial court abused its discretion in finding that relator failed to prove by credible evidence

that counsel=s performance was deficient.

         Jury Instruction

         Next, relator argues that his counsel was deficient in not requesting an accomplice

witness jury instruction with respect to Gaitan. It is relator=s contention that Gaitan was

an accomplice and that relator was entitled to an instruction that the jury could not

consider Gaitan=s testimony unless it was corroborated by other evidence tending to

connect relator to the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon

2005).

         Fabricating physical evidence occurs when a person, knowing that an

investigation or official proceeding is pending or in progress makes, presents, or uses any

record, document, or thing with knowledge of its falsity and with intent to affect the course

or outcome of the investigation or official proceeding.            TEX. PENAL CODE ANN.

'37.09(a)(2) (Vernon Supp. 2009). A criminal conspiracy occurs when a person agrees

with one or more persons that they or one of them engage in conduct that constitutes the

offense and he or one or more of them performs an overt act in pursuance of the

agreement. Id. '15.02(a) (Vernon 2003). An accomplice participates with a defendant

before, during or after the commission of the crime and acts with the culpable mental

state. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). If the parties

present conflicting or unclear evidence as to whether a witness is an accomplice, the jury

must initially determine whether the witness is an accomplice as a matter of fact. Cocke

v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). A court=s failure to submit an

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accomplice as a matter of fact instruction may be harmless error if some non-accomplice

evidence exists tending to connect the accused to the offense and there is no rational

basis upon which to disregard it. Herron v. State, 86 S.W.3d 621, 632-33 (Tex. Crim.

App. 2002).

       Even assuming arguendo that Gaitan was an accomplice, there was other

evidence tending to connect relator to the offense. The victim=s mother testified that she

met with Peter Eggert at a time when relator was present and that they told her they would

give her money if she would sign the affidavits and have them notarized. She further

testified that Peter Eggert asked relator to type up the affidavits. She also told Peter

Eggert the next day that the affidavits were not true. This is some evidence tending to

connect relator to the offense.    Therefore, we cannot find error in the trial court=s

conclusion that relator failed to prove that the result of the proceeding would have been

different.

       Failure to Investigate

       Relator then contends that his trial counsel did not adequately investigate his case

and prepare for trial. Yet, he fails to provide information as to what evidence might have

been uncovered if counsel had conducted an Aadequate@ investigation or of what that

adequate investigation should have constituted. Without the same, he has failed to meet

his burden to show that counsel=s performance was deficient. Flowers v. State, 133

S.W.3d 853, 858-59 (Tex. App.–Beaumont 2004, no pet.).

       Failure to Interview Witnesses

       Relator also alleges that his counsel did not interview potential witnesses. In

particular, he mentions Jose Lopez, a licensed attorney who signed Gallardo=s pleadings

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with respect to his application for writ of habeas corpus since relator and his father were

not licensed in Texas. Relator contends that his counsel would have discovered that

Lopez was not just a figurehead on pleadings if he had interviewed Lopez. However, he

fails to explain how this evidence would have affected the outcome of the case. See In

re A.D., 287 S.W.3d 356, 363 (Tex. App.–Texarkana 2009, pet. denied) (stating that the

applicant must show that the evidence would have been of some benefit to him). It was

relator=s burden to establish that he was prejudiced by counsel=s actions and he has not.

      Failure to Understand Criminal Law

      Finally, relator argues that counsel did not understand how to make an offer of

proof and failed to object to Cashon=s opinion testimony as to his guilt. We have already

addressed the latter complaint. As to the former, counsel attempted to inquire of the

victim=s mother as to the facts of the underlying offense committed by Gallardo. The

State objected and the objection was sustained. Counsel then remarked, A[w]e may

want to present an offer of proof on that too, your honor.@ Nevertheless, an offer of proof

was not made.

      Relator contends that whether the affidavits were true or false Astrikes at the very

heart of the case.@ Yet, he offers no authority to show that the evidence was admissible.

Moreover, counsel may have changed his mind about wanting to make an offer of proof

based on his trial strategy. Without more in the record to show the reason for counsel=s

actions, we may not find that his failure to make that offer of proof was deficient.

Furthermore, to the extent that relator complains that the totality of his trial counsel=s

performance was deficient, we find that he has failed to meet his burden to prove that



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each individual complaint has merit and thus the totality of that representation is likewise

not deficient.

       Ineffective Assistance of Counsel - Petition for Discretionary Review

       Relator further contends that the trial court erred in rejecting his contention that his

retained counsel was ineffective in petitioning for discretionary review because he

omitted various issues (e.g. legal impossibility, abuse of discretion in denying a motion for

new trial, and legal and factual sufficiency challenges) from the petition. We overrule the

contention for the following reason. There is no right to counsel for purposes of seeking

a petition for discretionary review. Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex.

Crim. App. 2001); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Because

no such right exists at that stage of the proceeding, he cannot claim that his purported

right to effective assistance of counsel was denied him. Ex parte Graves, 70 S.W.3d

103, 111 (Tex. Crim. App. 2002) (holding that because he had no right to counsel during

the habeas proceeding, he cannot claim that his right to effective assistance of counsel

was denied him).

       Accordingly, we overrule all of relator=s issues and affirm the order of the trial court.



                                                   Per Curiam



       Do not publish.




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