Carr v. State, 01-82-0157-CR

• Decision Date: 16 December 1982
• Docket Number: No. 01-82-0157-CR,01-82-0157-CR
• Citation: 646 S.W.2d 520
• Parties: Eddie Wayne CARR, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 520

646 S.W.2d 520

Eddie Wayne CARR, Appellant, v. The STATE of Texas, Appellee.

No. 01-82-0157-CR.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 16, 1982.

Ray Bass, Houston, for appellant.

Winston E. Cochran, Jr., Houston, for appellee.

Before EVANS, C.J., and DUGGAN and STILLEY, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from a plea of nolo contendere to the offense of involuntary manslaughter. A pre-sentence investigation report included appellant's own admission to the interviewing officer that he had in all probability been intoxicated the night his automobile crossed into oncoming traffic and caused a head-on collision, which killed an 11-year old boy and seriously injured his 9-year old brother. The report also showed that appellant had confided to the investigator that he had been intoxicated to the point of passing out at the wheel of his car that night. Appellant was sentenced to three years imprisonment.

Appellant's sole ground of error urges that the trial court erred in overruling his motion for new trial, which asserted ineffective assistance of trial counsel. As authority for his argument that ineffectiveness of counsel is grounds for a new trial, appellant cites the recent decision of Glaze v. State, 628 S.W.2d 252 (Tex.App.--Beaumont 1982, writ granted). A dispositive opinion in Glaze has not yet been issued by the Court of Criminal Appeals, and we are unable to determine the grounds upon which the Court may have granted writ.

Nevertheless, we note that in Glaze the appellant conclusively established as a matter of record that his trial counsel had rendered ineffective assistance of counsel at his plea of guilty:

But, from the hearing on the motion for new trial, it is undisputed that [trial counsel] had not prepared for trial. He testified that he had not visited the scene of the crime, had not interviewed any witness, nor made any other preparations for trial.

628 S.W.2d at 254. As shown, the trial attorney in Glaze testified at the hearing on motion for new trial as to facts establishing his own ineffectiveness. See also Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), and cases cited therein.

In direct contrast to the concrete testimony of ineffectiveness displayed in Glaze and Duffy, appellant's support for ineffectiveness in the present case arises from his appellate counsel's oral rendition of certain excluded testimony presented at the motion for new trial hearing. The record shows that the trial court was of the opinion that ineffectiveness of counsel could not be urged on motion for new trial, and therefore refused to allow appellant's appellate counsel to call witnesses.

At the hearing, appellate counsel presented, by narrative summary, the statements of several persons whom he alleged had not been contacted by trial counsel. He urges these and other omissions to investigate as grounds for ineffectiveness of counsel.

A review of the orally summarized statements of such prospective witnesses reveals that several of these persons would have testified merely that they were unable to form an opinion as to appellant's state of sobriety or intoxication on the night of the accident. The analyst who tested appellant's blood sample would have testified that appellant's blood alcohol level was .07% some three hours after the accident, and that the blood sample contained a trace of methaqualone. In addition, the pre-sentence investigation report contains the...