                                     NO. 12-12-00347-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

BRENT MERGERSON,                                        §           APPEAL FROM THE
APPELLANT

V.                                                   §             COUNTY COURT

THE STATE OF TEXAS,
APPELLEE                                            §              NACOGDOCHES COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Brent Dion Mergerson appeals his conviction for driving while license invalid. In two issues,
Appellant argues that he received ineffective assistance of counsel and that the trial court erred in
overruling his motion for new trial. We affirm.


                                                BACKGROUND
       A jury found Appellant guilty of the class B misdemeanor offense of driving while license
invalid. The offense is ordinarily a class C misdemeanor, but the offense in this case was the higher
level because it was alleged, and proven at trial, that Appellant had a previous conviction for the same
offense.1
       Appellant pleaded not guilty at his trial, but the jury found him guilty as charged. The trial
court sentenced Appellant to an agreed upon suspended jail sentence, and this appeal followed.




       1
            See TEX. TRANSP. CODE ANN. § 521.457(f) (West 2013).
                              INEFFECTIVE ASSISTANCE OF COUNSEL
       In his first issue, Appellant argues that he received ineffective assistance of counsel because
trial counsel did not present evidence in a persuasive way and because counsel failed to present
certain evidence and call a specific witness.
Applicable Law–Ineffective Assistance of Counsel
       We evaluate claims of ineffective assistance of counsel under the two step analysis articulated
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step
requires an appellant to demonstrate that trial counsel‘s representation fell below an objective
standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688,
104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel‘s
representation is not reviewed for isolated or incidental deviations from professional norms, but on
the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
       The second step requires the appellant to show prejudice from the deficient performance of his
attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish
prejudice, an appellant must show that there is a reasonable probability that the result of the
proceeding would have been different but for counsel‘s deficient performance. See Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
       We begin with the strong presumption that counsel‘s conduct falls within the wide range of
reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994). An appellant has the burden of proving ineffective assistance of counsel and must overcome
the presumption that ―under the circumstances, the challenged action ‗might be considered sound trial
strategy.‘‖ Id. (internal quotations omitted).
       An appellant cannot meet this burden if the record does not affirmatively support the claim.
See Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007) (court presumed trial counsel
had reasonable trial strategy in absence of record indicating reasons for a trial counsel‘s actions or
intentions); Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on
direct appeal to evaluate whether trial counsel provided ineffective assistance). Generally, a record
that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.]
1994, pet. ref‘d). And, before being condemned as ―unprofessional and incompetent,‖ defense

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counsel should ―ordinarily [be given] an opportunity to explain [his] actions.‖ See Bone v. State, 77
S.W.3d 828, 836 (Tex. Crim. App. 2002).
Analysis
         Appellant asserts that his defense in this case was that he made a ―mistake of fact‖ as to
whether he had the right to drive in Texas. There are three documents that Appellant asserts are part
of this defense. The first document is an order of suspension issued by the Texas Department of
Public Safety on January 12, 2011. That order was never introduced at Appellant‘s trial or at the
hearing on his motion for new trial and is not in the appellate record.2 The parties did discuss the
order during the trial. The order states that Appellant‘s license was suspended from December 6,
2010, until May 19, 2011. It also states that his driving privileges would continue to be suspended
beyond the ―mandatory period‖ unless he ―file[d] with the Department‖ and maintained proof of
financial responsibility.
         The second document is an order signed by the Nacogdoches County, Texas, Precinct 2
Justice of the Peace granting a motion by the ―Department of Public Safety Representative‖ to
dismiss a cause in October 25, 2011.3 The document conspicuously states on the bottom that it is
―NOT A PERMIT TO DRIVE.‖ This document was never introduced in the trial court and is not in
the appellate record. The third document is from the State of California and states that Appellant‘s
license was eligible for renewal as of March 2, 2010. This document is also not in the appellate
record. Appellant‘s position is that he thought the first document stated that he merely needed to
obtain proof of financial responsibility to be permitted to drive. He interpreted the dismissal in
October 2011 to be an acquittal on the charge of driving with an invalid license.4 And he interpreted
the fact that his license was eligible for renewal to mean that he had a license to drive, despite the fact
that the document itself states that his license ―will not be reinstated until you take care of this with

         2
            It appears that trial counsel offered the document during the trial, but the trial court sustained the State‘s
objection to it. Appellant has attached this letter and several others to his brief. Evidence may not be placed into the
appellate record in this way. The appellate record consists of the clerk's record and, if necessary to the appeal, the
reporter's record. TEX. R. APP. P. 34.1. A party may not circumvent the appellate rules by submitting evidence with an
appellate brief. See, e.g., Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).
         3
            Appellant states that he was found ―not guilty‖ in the justice of the peace court. This document does not
establish that he was found not guilty in that court.
         4
          The State maintained that the offense in the justice court was the present offense. The State suggested that the
charge was initially filed in the justice of the peace court as a class C misdemeanor, but that it was dismissed and refiled as
the enhanced offense.
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your licensing agency.‖
       Appellant argues that trial counsel should have introduced these documents to show that
Appellant reasonably believed he had a valid license on the date he was ticketed. As we have stated
previously, we will not ―fault counsel for failing to offer inadmissible evidence.‖ See Grantham v.
State, 116 S.W.3d 136, 147 (Tex. App.–Tyler 2003, pet. ref‘d). Appellant has not shown that the
documents he attaches to his brief are admissible, the documents are not authenticated in any way,
and they were never admitted in the trial court. Finally, the State has not had an opportunity to
respond to them. In fact, the only document that was ever offered, the letter from the Texas
Department of Public Safety, was ruled to be inadmissible by the trial court.
       The same problem is presented by Appellant‘s argument that trial counsel should have called
a specific witness. Appellant asserted in his motion for new trial that he discussed the letter from the
Texas Department of Public Safety with the assistant principal of a middle school in Nacogdoches,
Texas. He asserts that counsel should have called the assistant principal and that he would have
testified the letter was ―clearly not grammatically nor appropriately written.‖ However, when
challenging an attorney's failure to call a particular witness, a defendant must show that the witness
―had been available to testify and that his testimony would have been of some benefit to the defense.‖
Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). Appellant did not do this. He
merely named the witness and summarized his testimony in his motion for a new trial. He did not
actually introduce the testimony and, again, the State was not able to test the proposed evidence. An
affidavit attached to a motion for new trial can become evidence if it is introduced at a hearing. See
McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985). But the statements contained in a
motion for new trial are not self–proving and are not evidence unless offered at a hearing. See Rouse
v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009).
       Appellant has not met his burden to establish that trial counsel was ineffective.            See
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant introduced no evidence
at either of two hearings on the motion for new trial and has not shown that counsel should have
employed a different strategy or presented additional evidence. We overrule Appellant‘s first issue.


                                      MOTION FOR NEW TRIAL
       In his second issue, Appellant argues that the trial court should have appointed new counsel as

                                                   4
soon as he filed a pro se motion for new trial.
Background
       Following his conviction, Appellant filed a motion for new trial alleging ineffective assistance
of counsel. Trial counsel moved to withdraw at the hearing. The trial court granted that motion and
appointed new counsel. That attorney also sought to withdraw, and the trial court appointed a third
attorney. The third attorney filed an amended motion for new trial. The State argued that the
amendment was untimely because it was not filed within thirty days of the verdict. See TEX. R. APP.
P. 21.4(b).
Analysis
       Appellant argues that he was deprived of his right to due process because he did not have
counsel to assist him with preparation of an amended motion for new trial. Specifically, he argues
that because replacement counsel was appointed more than thirty days after sentencing, he was
unable to have assistance filing an amended motion for new trial. This argument fails because the
trial court did consider the amended motion for new trial filed by Appellant and because the amended
motion is without merit.
       At the hearing on the amended motion, the trial court specifically asked Appellant‘s counsel if
she was ―planning on putting on evidence for the hearing or on just the arguments.‖ The State
objected to consideration of the amended motion for new trial because it was untimely filed. The
trial court implicitly overruled that objection and discussed the issues presented with Appellant‘s
counsel and the attorney representing the State. The trial court ultimately overruled the motion for
new trial, but the court never prevented Appellant from offering evidence or testimony in support of
the original motion or the amended motion.
       Even if the trial court had not considered Appellant‘s amended motion, Appellant has not
shown that he has been harmed because the amended motion would not have been granted by the trial
court. The cornerstone of Appellant‘s nascent argument is that the letter from the Texas Department
of Public Service somehow granted him the right to end his suspension immediately if he obtained
automobile insurance. Because he never presented it, we are without the testimony of Appellant‘s
witness who would, Appellant supposes, support his interpretation of the document. Even so,
Appellant‘s interpretation of the document is not reasonable. The document clearly states that his
license is to be suspended for a specific period of time. The document goes on to say that his license

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will remain suspended after that period of time if he does not obtain insurance. He was stopped for
this offense within that initial period of time. The trial court carefully and professionally discussed
this document and the document from California with Appellant‘s counsel.                The court gave
Appellant an opportunity to present a persuasive argument but one was not, and is not, forthcoming.
         Appellant has not shown that the trial court erred in its handling of its plenary power following
the conviction or that the timing of the appointment of counsel caused him any prejudice. We
overrule Appellant‘s second issue.


                                                     DISPOSITION
         Having overruled Appellant‘s two issues, we affirm the judgment of the trial court.



                                                                    JAMES T. WORTHEN
                                                                       Chief Justice

Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)


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                                     COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                             JUDGMENT


                                             JULY 31, 2013


                                         NO. 12-12-00347-CR


                                      BRENT MERGERSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the County Court at Law
                      of Nacogdoches County, Texas. (Tr.Ct.No. CF1101102)


                       THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certified to the court below

for observance.

                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



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