Aurilio Gomez v. State ( 2003 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00041-CR ______________________________



AURELIO GOMEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court No. F01-22617-WM

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Before Morriss, C.J., Ross and Cornelius,* JJ. Opinion by Justice Cornelius *William J. Cornelius, C.J., Retired, Sitting by Assignment

O P I N I O N

Aurelio Gomez appeals from his conviction on his plea of guilty before a jury for the offense of delivery of a controlled substance. The jury assessed his punishment at eighty years' imprisonment and a $250,000.00 fine. Gomez was represented by appointed counsel both at trial and on appeal.

Counsel filed a brief on June 18, 2002, pursuant to Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Gomez a copy of his brief. The brief contains a certificate of counsel advising Gomez that counsel believes there are no arguable contentions of error and informing Gomez of his right to review the record and file a pro se brief. Gomez filed a pro se brief on October 2, 2002.

Counsel's brief discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). She also reviewed the representation by appointed counsel at trial as reflected by the record and has concluded that the record does not show that trial counsel was ineffective. Counsel concluded from her review of the record that there is no arguable point of error to support the appeal.

In his pro se brief, Gomez contends that he is entitled to a reversal because his punishment was set by the jury, although he had previously asked in writing that punishment be assessed by the trial court. The written document that supports his statement is his election of punishment in a jury trial on his plea of not guilty-in which he elected to have punishment assessed by the court. However, at some point between the time that document was prepared and the date of trial, Gomez decided to enter an open plea of guilty before a jury. Accordingly, the jury then assessed his punishment.

The record does not indicate any other reason for Gomez's change in strategy. The record also does not contain any complaint by Gomez about the procedure. Gomez made no objection to the procedure, and he made no complaint until now. In fact, the record shows that Gomez affirmatively agreed that he wanted the jury to assess his punishment. Under these circumstances, any claim of error has not been preserved for appellate review. Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (Vernon Supp. 2003); Tex. R. App. P. 33.1; Rushton v. State, 695 S.W.2d 591, 595 (Tex. App.-Corpus Christi 1985, no pet.).

Gomez also contends in several related arguments that his trial counsel misled him about various activities connected with the trial. We first point out that none of these claims is supported by the record. Gomez's command of English is evidently at best limited, and he complains now about the interpreter's deficiencies in translating the proceedings. Our review is limited to the record before us. The information before us does not suggest any such deficiency on the part of the interpreter, but it is also clear that such a claim would not typically be discernible from the written English record of the trial. Still, the claim of error is unsupported by the record, and we thus cannot address it on its merits. See Hernandez v. State, 978 S.W.2d 137, 141 (Tex. App.-Austin 1998, pet. ref'd); Mendiola v. State, 924 S.W.2d 157, 162 (Tex. App.-Corpus Christi 1995, no pet.); Frescas v. State, 636 S.W.2d 516, 518 (Tex. App.-El Paso 1982, no pet.).

Gomez also suggests that his counsel was ineffective in several respects based on his failure to complain about the matters set out above and his failure to ensure the punishment was set by the jury rather than by the court. ⁽¹⁾ As already stated, the record does not support a suggestion of any deficiency on counsel's part. The Texas Court of Criminal Appeals has recognized that a reviewing court will only rarely be provided with a record capable of providing a fair evaluation of the merits of a claim of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

This record does not support Gomez's claim.

We have also independently reviewed the record, and we agree with counsel that there are no arguable points of error in this case.

The judgment of the trial court is affirmed.

William J. Cornelius*

Justice

Date Submitted: November 7, 2002

Date Decided: January 3, 2003

Do Not Publish

*Chief Justice, Retired, Sitting by Assignment

1. The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, the appellant must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. His claim must be supported by the record.