Affirmed and Memorandum Opinion filed February 11, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00773-CR

                 EX PARTE STEPHEN KYLE HELMCAMP


                      On Appeal from the County Court
                          Colorado County, Texas
                       Trial Court Cause No. 21,179-A

                 MEMORANDUM                     OPINION


      On January 5, 2012, this court affirmed appellant’s conviction for
misdemeanor driving while intoxicated. Helmcamp v. State, No. 14-10-01036-CR,
2012 WL 19656 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.). On
October 1, 2012, appellant filed an application for post-conviction writ of habeas
corpus alleging ineffective assistance of counsel. See Tex. Code Crim. Proc. art.
11.072.

      In his application, appellant claimed his trial counsel rendered ineffective
assistance because counsel failed to (1) challenge the State’s “normal use” theory
of intoxication through use of the complete videotape of appellant’s stop, arrest,
and continued custody at the scene; (2) object to the prosecutor’s improper jury
arguments; (3) object to the Trooper’s improper opinion testimony; (4) call
appellant’s parents as witnesses to establish time evidence relevant to the
admissibility of the Intoxilyzer breath test result; (5) obtain an expert witness to
evaluate the validity of the breath test evidence; and (6) call appellant in his own
defense.

      On January 4, 2013, the trial court denied appellant’s application and entered
the following findings of fact and conclusions of law:

                              FINDINGS OF FACT
      1. Applicant filed his first application for writ of habeas corpus on
      October 1, 2012. In his application Applicant alleges that: Mr.
      Helmcamp was deprived of his right to effective assistance of counsel
      at trial, in violation of Amendment VI and Amendment XIV, U.S.
      Constitution, and Article I §10, Texas Constitution by:
      (1) Trial counsel’s failure to challenge the state’s “normal use”
      intoxication theory including (a) failure to use the arresting officer’s
      complete in-car video in front of the jury; (b) failure to object to the
      prosecutor’s improper jury arguments; (c) failure to object to the
      arresting officer’s improper opinion that Applicant was legally
      intoxicated; and (2) Trial counsel’s failure to address the state’s
      “alcohol concentration” evidence including (a) failure to call
      Applicant’s mother and step-father as witnesses and failure to offer
      their telephone records which would have established crucial time
      evidence; (b) failure to obtain an expert witness to evaluate the
      validity of the breath test; (c) failure to investigate, offer available
      evidence and seek the services of an expert in the Texas Breath
      Alcohol Testing Program. [Application at 11, 13, 28, 31, 35, 36, 40,
      and 42]
      2. The jury had the complete original in-car video tape to view if it
      believed the video would aid its decision making process.
      3. The prosecutor’s jury argument was a summation of the evidence at
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      trial and/or a reasonable deduction from the evidence.
      4. Trooper Clark’s opinion that Applicant was legally intoxicated was
      merely his opinion and did not link the results of Applicant’s
      standardized field sobriety tests to a precise Breath Alcohol
      Concentration.
      5. Time evidence in Applicant’s mother and step-father’s cell phone
      records merely established the time when calls were made according
      to the cell phones’ internal clocks. Without evidence of the cell
      phones being matched or synchronized with the clocks in Trooper
      Clark’s video camera and the Intoxilyzer 5000 the cell phone records
      do not undermine the Trooper’s testimony that he remained in the
      presence of the Applicant at least 15 minutes before the breath test.
      6. The Applicant’s writ application docs not cast any doubt upon the
      validity of the breath test in this case, nor does it refute the evidence at
      trial.
      7. Not having Applicant testify at trial was a reasonable trial strategy.
                             CONCLUSIONS OF LAW
      1. There are no material, previously unresolved issues of fact which
      are material to the legality of Applicant’s conviction and sentence and
      there being ample evidence in the record for the court to rule on the
      relief sought, an evidentiary hearing is not required.
      2. In this proceeding for habeas corpus relief, the Applicant has not
      met his burden of proving ineffective assistance of counsel by a
      preponderance of the evidence. Ex parte Salinas, 660 S.W.2d 97 (Tex.
      Crim. App. 1983).
      3. Applicant has not shown that counsel’s performance fell below an
      objective standard of reasonableness, that deficient performance
      prejudiced Applicant, or that but for counsel’s unprofessional errors, a
      reasonable probability exists that the outcome of the proceedings
      would have been different. Strickland v. Washington, 466 U.S. 668,
      694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

      Appellant appealed the denial of his application for writ of habeas corpus,
and was represented by retained counsel on appeal, Nancy B. Barohn. On October
8, 2013, counsel filed a motion to withdraw as appellate counsel because it

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appeared to counsel that appellant had abandoned his appeal. On October 10, 2013,
this court ordered a hearing to determine whether appellant desired to prosecute his
appeal. On October 31, 2013, the trial court conducted the hearing. The record of
the hearing was filed in this court on November 6, 2013.

      Appellant’s retained counsel and the State’s counsel appeared at the hearing,
but appellant did not. Appellant’s counsel sent notice of this court’s order to
appellant through certified mail. At the hearing, counsel produced the return
receipt reflecting that appellant received counsel’s notice. The trial court recited
into the record that it prepared a notice of hearing and summons and requested that
the clerk issue both to appellant, certified mail, return receipt requested. The return
notice was signed by appellant’s agent. The trial court instructed appellant’s
counsel to phone appellant and ask whether he wanted to pursue his appeal. After a
brief recess, appellant’s counsel reported that she spoke with appellant by
telephone and that appellant wished to pursue his appeal. Counsel further
represented that appellant “was in agreement” with counsel’s motion to withdraw
as appellate counsel.

      The trial court granted counsel’s motion to withdraw and instructed her to
inform appellant in writing “all necessary information regarding timelines and, in
your opinion, what he needs to do to go forward[.]” The trial court declined to
appoint substitute counsel because it was unaware of any allegation that appellant
is indigent.

      It is a well established principle of federal and state law that no
constitutional right to counsel exists on a writ of habeas corpus. Ex parte Graves,
70 S.W.3d 103, 110 (Tex. Crim. App. 2002). On January 7, 2014, this court
ordered appellant to file either a pro se brief, or obtain counsel to file a brief on or
before January 28, 2014. See Tex. R. App. P. 31.1. Appellant has failed to file a

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response to the court’s order.

      On the basis of the trial court’s findings, this court has considered the appeal
without briefs. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994)
(affirming conviction on record alone where appellant failed to file a pro se brief
after being properly admonished). We find no fundamental error.

      Accordingly, the judgment of the trial court is affirmed.

                                              PER CURIAM



Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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