                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00122-CR

OTIS DWAYNE KIRVEN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1545-C1


                          MEMORANDUM OPINION


      Appellant Otis Dwayne Kirven was charged in a four-count indictment for

aggravated assault, failure to stop and render aid, abandoning a child, and endangering

a child. The indictment also contained an enhancement allegation. Kirven pleaded guilty

to the offenses of aggravated assault and failure to stop and render aid and pleaded true

to the enhancement allegation.     In exchange, the State abandoned the charges for

abandoning a child and endangering a child.       Thereafter, a jury assessed Kirven’s

punishment at thirty-five years’ imprisonment for the aggravated-assault conviction and
twenty years’ imprisonment for the failure-to-stop-and-render-aid conviction, to be

served concurrently. This is the appeal of his aggravated-assault conviction. We affirm.

        Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d

493 (1967), Kirven’s court-appointed appellate counsel filed a brief and motion to

withdraw with this Court, stating that his review of the record yielded no grounds of

error upon which an appeal can be predicated. Counsel’s brief meets the requirements

of Anders as it presents a professional evaluation demonstrating why there are no

arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.

Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’

points of error if counsel finds none, but it must provide record references to the facts

and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State,

112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel has informed this Court that he has

provided Kirven a copy of the motion to withdraw, the accompanying Anders brief, and

the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Kirven

has filed a pro se response that cites to the record.

        Kirven asserts in his pro se response that he was denied effective assistance of trial

counsel. To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.

Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156

L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005)

(same). Under Strickland, the appellant must prove by a preponderance of the evidence

Kirven v. State                                                                         Page 2
that (1) counsel’s performance was deficient, and (2) the defense was prejudiced by

counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466

U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent both showings, an

appellate court cannot conclude that the conviction resulted from a breakdown in the

adversarial process that renders the result unreliable. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999).

        In this case, Kirven filed a motion for new trial, stating as follows:

              1. On March 26, 2014, Mr. Kirven was convicted of the offense of
        aggravated assault and sentenced to 35 years confinement in the Texas
        Department of Criminal Justice, Institutional Division. No fine was
        imposed.

              2. Defendant contends that he received ineffective assistance of
        counsel in that he was not fully advised of the facts of the case at a point in
        time when he could have made an informed and intelligent decision
        regarding the proposed 12 year plea offer by the State.

               3. Defendant contends that he received ineffective assistance of
        counsel in that he was not told that there was a deadline on his acceptance
        of the proposed 12 year plea offer by the State.

               4. Defendant contends that he received ineffective assistance of
        counsel in that witnesses were subpoenaed late for trial and were not
        interviewed prior to, nor prepared for, their trial testimony.

              5. Defendant contends that he received ineffective assistance of
        counsel in that mitigating evidence regarding the job that he obtained after
        he was released from jail on bond was not presented at the trial.

The trial court held a hearing on the motion for new trial. The only evidence presented

to prove ineffective assistance was Kirven’s testimony.            Kirven’s trial counsel also

testified and disputed Kirven’s allegations.

        At a hearing on a motion for new trial, a trial court as finder of fact is free to believe

Kirven v. State                                                                            Page 3
or disbelieve the testimony of any witness, even if the testimony is uncontroverted. Bell

v. State, 256 S.W.3d 465, 468 (Tex. App.—Waco 2008, no pet.). Here, the trial court was

presented with conflicting testimony regarding the allegations in the motion for new trial.

Thus, it was within the court’s discretion to believe Kirven’s trial counsel’s testimony and

to disbelieve Kirven’s testimony to the contrary. See id.

        In addition to complaining that he was denied effective assistance based on several

of the allegations in his motion for new trial, Kirven also contends in his response that he

was denied effective assistance of counsel because his trial counsel failed to object to

certain evidence presented at the punishment hearing, trial counsel did not impeach or

cross-examine certain witnesses, which showed that trial counsel was unprepared for the

punishment hearing, and trial counsel failed to object to the improper statements that the

prosecutor made during closing arguments. To overcome the strong presumption that

counsel’s actions and decisions were reasonably professional and motivated by sound

trial strategy, any allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness. See Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813. When the record

is silent regarding the reasons for counsel’s conduct, a finding that counsel was

ineffective would require impermissible speculation by the appellate court. Gamble v.

State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (citing Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). The record is silent in this case as to

trial counsel’s reasons for these actions and decisions. To conclude that trial counsel was

ineffective would therefore call for speculation, which we will not do. See Jackson, 877

Kirven v. State                                                                       Page 4
S.W.2d at 771; Gamble, 916 S.W.2d at 93. Kirven’s complaints about ineffective assistance

of counsel are therefore not arguable grounds to advance in this appeal.

        Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). We have reviewed the entire record

and counsel’s brief and have found nothing that would arguably support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of

Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs

and reviewed the record for reversible error but found none, the court of appeals met the

requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

Accordingly, the trial court’s judgment convicting Kirven of aggravated assault is

affirmed.

        In accordance with Anders, Kirven’s attorney has asked this Court for permission

to withdraw as counsel for Kirven. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also

Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant.         To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”)). We grant counsel’s motion to withdraw.

Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of

this opinion and this Court’s judgment to Kirven and to advise him of his right to file a



Kirven v. State                                                                         Page 5
petition for discretionary review.1 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d

at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).



                                                          REX D. DAVIS
                                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 17, 2015
Do not publish
[CRPM]




        1 No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or from the date the last timely motion
for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the
petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See id. at
R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the
Texas Rules of Appellate Procedure. See id. at R. 68.4; see also Schulman, 252 S.W.3d at 409 n.22.

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