James Harmon Jaubert, Jr. aka James Harmon v. The State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-99-090-CR

No. 10-99-091-CR

No. 10-99-092-CR

No. 10-99-093-CR

No. 10-99-094-CR

     JAMES HARMON JAUBERT, JR.,

     AKA JAMES HARMON,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 372nd District Court

Tarrant County, Texas

Trial Court No. 0548270D

Trial Court No. 0594393A

Trial Court No. 0594394A

Trial Court No. 0594396A

Trial Court No. 0594398A

                                                                                                                                                                                                                            

O P I N I O N

                                                                                                                    

      James Jaubert, Jr., was charged with one count of murder and four counts of attempted murder. See Tex. Pen. Code Ann. §§ 19.02, 15.01 (Vernon 1994). He pled guilty to each charge and elected to have a jury assess punishment. Jaubert was sentenced to sixty years for the murder charge, twenty years for one attempted murder charge, and ten years for each additional attempted murder charge. He appeals, asserting only that he received ineffective assistance of counsel. We will affirm the judgment.

      In his sole issue for review, Jaubert contends that his retained trial counsel “failed to render effective assistance of counsel as required by the Sixth Amendment to the U.S. Constitution and by Article 1, Section 10 of the Texas State Constitution.” It is undisputed that these claims were not presented to the trial court in a motion for new trial or otherwise. We have determined that ineffective-assistance-of-counsel claims must be presented to the trial court to be preserved for appellate review. Foster v. State, No. 10-99-41-CR, slip op. at 2 (Tex. App.—Waco December 22, 1999, no pet.) (citing Gonzalez v. State, 994 S.W.2d 369, 372-74 (Tex. App.—Waco 1999, no pet.)); Tex. R. App. P. 33.1(a).

      Jaubert’s case was transferred to this court by order of the Texas Supreme Court. There are some who argue that we should apply the law of the court from which the case was transferred to cases transferred out of one court of appeals and into another. We disagree. Because this case has been transferred to us, we apply our interpretation of Rule 33.1. Therefore, because this complaint has not been preserved as required by Rule 33.1 and Gonzalez, we overruled Jaubert’s complaint.

 

      The judgment of the trial court is affirmed.

 

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

          (Justice Gray concurring)

Affirmed

Opinion delivered and filed March 15, 2000

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Noland’s briefs are due, regardless of whether this Court has yet reinstated the appeals.

            Within 7 days of signing the written order, the trial court must deliver the order to the trial court clerk who must prepare a clerk’s record which includes the order and file that record with the Clerk of this Court within 7 days of receiving the trial court’s order.

 

                                                                        PER CURIAM

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal abated

Order issued and filed September 10, 2008

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