## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S
NOS. WR-82,850-01 & - 02

EX P ARTE ANTHONY EUGENE JOHNSON, App licant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. W08-71994-V(A) & W11-00273- V(A) IN THE 292 JUDICIAL DISTRICT COURT F ROM DALLAS COUNTY

N D

Per curiam . O P I N I O N Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court these applications for wr i t s o f h ab ea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of ag g ravated assault and manslaug hter and sentenc ed to te n and twenty y ear s’ imprisonment, respec tively

. The Fifth Court of Appea ls af fi rmed his convictions. Johnson v. State , Nos. 05-12-00743- CR & 05-12-00744- CR (Tex. App.—Dallas J uly 3, 2013)(not designated f or publication). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use counsel failed to pursue a defe nse of involuntary conduct in the ag g ravated assault case , and failed to pursue defe nse of a third person in the murde r ca se. Applica nt alleg es that he maintained2

that the shooting was an acc ident, but that trial counsel insisted on pursuing a theory of self defe nse, which was neg ated when the trial judge ref used to include an instruction on self defe nse in the jury char g e. On Octobe r 7, 2015 the pa rties wer e orde red to brie f the followingissues: A. Whether the standard for harm set out in Vasquez v. State , 830 S.W .2d 948 (Tex. Crim. App. 1992), is the proper standard when trial counsel fails to reque st a jury instruction. In Vasquez , this Court held that, due to trial counsel’s fa i l u re t o reque st an instruction on the defe nsive issue of nece ssity , the jury was prec lude d f r om g iving aff

ect to the appellant’ s defe nse and that “in itself u n d ermines our confide nce in the c onviction sufficiently to c onvince us that the re st of the trial might have been differ ent had the instruction been reque sted and g iven.” Id . at 951; and B. Whether

counsel re ndere d ineffe ctive assistanc e in this case. Subsequently , this Court rec eived a letter dated October 13, 2015, stating that, in both case s, the Finding s of Fa ct and Conc l u s i o n s o f L aw signe d by the orig inal habea s judge , J udg e Br andon Birmingham, had been vacated by Orde r dated April 20, 2015. J udg e Birming ham stated that he was voluntarily rec using himself due to his participation in the case s as a prosec utor. The order vacating the Finding s of Fa ct and Conc l u s i o n s o f L aw was included with the letter. Be cause this Court’s briefing order was premised on vaca ted Finding s of Fa ct and Conclusions of L aw, the matter was held in abeyance so that the trial cour t could resolve the fac t issues. By Orde r of Assignme nt By Presiding J udg e Mary Murphy , J udg e of the First Administrative J udicial Reg ion, dated April 27, 2015, J udg e Murphy assig ned J udg e Robert Bur ns to preside in these

case s. On May 2, 2016, J udg e Bur ns’s new Finding s of Fa ct and Conclusions of L aw wer e rec eived by this Court. Those fi n dings, contrar y to the prior finding s, rec ommend denying relief. We have revie wed these new Findings of Fa ct and Conclusions of L aw, and we fi n d that they are supported3

by the rec ord. Firs t , as to Applicant’s claim that he was denied the rig ht to be prese nt in the courtroom, his counsel testified that the only portion of the proce eding s when Ap p licant was not
prese nt was whe n the judg e ca lled the witnesses to be sworn and place d under the Rule. Applicant fails to provide any proof that he was not prese nt in the courtroom when the trial started. There fore ,

as to this claim, Applicant fails to alleg e and prove fac ts that, if true, would entitle him to relief

. Ex parte Maldonado , 688 S.W .2d 114 (Tex. Crim. App. 1985). Second, as to Applicant’s claim that he

was denied the rig ht to a public trial, h i s counsel stated that as soon as he beca me awa re that Applicant’s f

amily was not pre sent during voir dire , he spoke to the judge , who allowed the family
to come into the courtroom. Applicant did not raise this complaint on direc t appea l. This claim was known to Applicant at the time of his direc t app ea l an d i s there fore not available for revie w on habea s. Ex parte Banks , 769 S.W .2d 539 (Tex. Crim. App. 1989). Third, we agr ee wi th the trial court’s finding s and conclusions that Applicant’s trial counsel was not ine ffe ctive under Strickland v. W ashington , 466 U.S. 668 (1984). We hold that Applica n t ’s cl aim s are without merit. There fore , we withdraw this Court’s briefingorder

from Oc tober 7, 2016, a

nd we de ny

relief

.

Deliver ed: November 2, 2016 Do not publish