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Click here for the full text of this decision FACTS:Tammy Balderrama was a civilian employee at the Texas Department of Public Safety (DPS) headquarters in Austin. She worked in the security office as a systems support specialist. Her supervisor described her duties as processing applications for security passes and preparing employee identification badges. Balderrama described her work as maintaining records, inputting data and updating records. DPS regularly receives payments for various fees and deposits. Each morning, the previous day’s receipts are placed in locked money bags and collected by a uniformed trooper assigned to the security office for delivery to the state comptroller. On the morning in question, DPS Trooper Bill Maley collected the money bag from the customer service bureau and took it to the security office. Maley left the bag on a desk in the office and went about other duties while he waited for the bag from the cash-receiving department. Balderrama and two uniformed officers, including the head of security, were in the office when Maley left the bag. About four hours later, after collecting the second money bag, Maley returned to the security office and discovered that the first bag was missing. Balderrama gave a written statement to investigators admitting her guilt. In the statement, she said that she took the money bag from the desk and hid it in a shredder box. Later, when she had the opportunity, she took the bag to a bathroom, cut it open and removed the cash. She then threw away the bag and its remaining contents. She used the cash she stole, totaling $9,161, to pay bills. At trial, Balderrama disavowed her statement and denied the theft. She said that she signed the incriminating statement after being threatened with 20 years in prison and the loss of her children, and after being promised that she would be allowed to resign and not be prosecuted if she would sign the statement. Tammy Balderrama was placed on 10 years of community supervision after she was convicted of theft by a public servant. The 3rd Court of Appeals affirmed the conviction. Two years later, Balderrama applied for a writ of habeas corpus urging that the attorney who represented her in the original appeal was ineffective, because he did not challenge the legal sufficiency of the evidence. She sought a second, out-of-time appeal in which to raise this contention. The district court denied the requested relief. HOLDING:Affirmed. The 3rd Court of Appeals first noted that Balderrama’s writ application invoked Texas Code of Criminal Procedure Art. 11.08, but the state argued that that the writ application should have been filed pursuant to Art 11.072. The 3rd Court held that the district court had jurisdiction to consider Balderrama’s writ application. The court that stated that to prevail on her ineffective assistance of counsel claim, Balderrama must show that 1. her attorney was objectively unreasonable in failing to discover and raise the issue, and 2. but for this failure, she would have prevailed on appeal. Balderrama argued that any reasonably competent attorney would have recognized that in order to convict her of theft by a public servant under Texas Penal Code �31.03(f)(1), the state was required to prove that she was authorized, by virtue of her status as a public servant, to exercise custody, possession or control over the stolen money. Balderrama’s argument, the court stated, rested on case law construing former official misconduct statutes and not �31.03(f)(1). As a result, the court stated, a reasonably competent attorney could conclude that the case law on which Balderrama relies does not govern a prosecution for theft by a public servant, and that the evidence adduced by the state at Balderrama’s trial was sufficient to sustain a conviction for theft by a public servant. The court further stated that a reasonably competent attorney could conclude that under the facts of this case, Balderrama, by virtue of her employment in the security office, exercised a degree of care or control over the stolen property sufficient to satisfy even her reading of �31.03(f)(1). Given the indefinite state of the law and the evidence, the court further stated that Balderrama did not show that her counsel’s failure to raise the legal sufficiency issue was so obviously wrong as to render his performance ineffective. OPINION:Patterson, J.; Law, C.J., and Patterson and Pemberton, J.J.

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