Alcona, Jovani v. State ( 2002 )

Opinion issued August 22, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00661-CR

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JOVANI ALCONA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 20,725-C

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O P I N I O N  

A jury found appellant, Jovani Alcona, guilty of aggravated assault of a public servant and possession of a deadly weapon in a penal institution. ⁽¹⁾ The trial court, having found true the enhancement allegations of prior convictions for possession of a deadly weapon in a penal institution and delivery of cocaine, assessed the minimum habitual-offender punishment of 25 years in prison. We affirm.

Anders Brief  

Appellant's counsel has filed a motion to withdraw from any further obligation as appellant's counsel. As a prerequisite for presenting this motion, counsel has submitted a brief stating her opinion that a thorough and complete analysis of the record revealed the appeal is without merit. Although counsel's review did not uncover any arguable points of reversible error, she did brief a number of potential points of error.

The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds of error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

Counsel advised appellant of her evaluation of this appeal and informed him of his right to file his own pro se brief. Appellant timely filed a pro se brief.

Ineffective Assistance of Counsel

In his first pro se point of error, appellant claims his trial attorney was deficient by (1) failing to insist that the trial court relieve trial counsel and, in his stead, appoint a Spanish-speaking trial attorney and (2) making a prejudicial final argument at the guilt stage.

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under Strickland, appellant must first show that his counsel's performance was so deficient that it fell below an objective standard of reasonableness. Second, appellant must affirmatively prove that he was prejudiced by his counsel's conduct. Id. In other words, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Furthermore, appellant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).

Regarding appellant's claim that his trial counsel should have insisted that the trial court appoint a Spanish-speaking attorney, the record reflects that appellant conversed well in the English language and told the trial court he had no problem understanding the English language. During appellant's testimony, an interpreter was sworn in to assist him in understanding the questions. After a few questions, the interpreter informed the trial court that appellant could understand and speak English and that there was no need for a translator. All further examinations were conducted in English, without problems.

Appellant contends a Spanish-speaking counsel could have prepared a better defense, but does not inform us what that defense would have been or how he would have benefitted from, or was harmed by the lack of, appointment of a Spanish-speaking attorney. Consequently, appellant has not met his burden to establish either deficient representation or harm regarding his first claim of ineffectiveness.

Appellant's second claim of ineffectiveness focuses on his attorney's final argument at the guilt stage. According to appellant, his trial counsel prejudiced his right to be found not guilty by referring to former clients of trial counsel who were in prison and who were difficult. Appellant has taken this argument out of context. The argument should be read along with statements that preceded and followed the challenged remarks. In its entirety, counsel's argument informed the jury about trial counsel's perception that the State's case was inadequate, due primarily to an overextended and, thus, less-than-capable penitentiary staff, and that it would be wrong to convict appellant when so much potentially available evidence had not been produced. Trial counsel also alluded to matters he claimed the prosecution was hiding and did not want the jury to know. Based on this record, we hold that appellant has not sufficiently overcome the presumption that his trial counsel's argument was part of his trial strategy and, therefore, has not shown deficient representation.

We overrule appellant's first point of error.

In his second pro se point of error, appellant claims his appellate counsel was ineffective and deprived him of due course of law and equal protection of the laws by not explaining to appellant about frivolous appeal briefs and his available options after counsel withdrew.

As is almost always the case with such claims, the record does not reflect what advice appellate counsel provided, or did not provide, to appellant. Accordingly, appellant has not met his burden to show deficient representation.

We overrule appellant's second point of error.

Prosecutorial Argument

•   Calling Defendant a Liar

In his third pro se point of error, appellant complains of the State's final argument on guilt, when the prosecutor referred to appellant as a liar and to portions of his testimony as a lie.

When, as here, testimony from various witnesses is highly contradictory, it is obvious that someone is not telling the truth. Under these circumstances, to characterize a witness, even the defendant, as a liar can be a reasonable inference from the evidence. See Adams v. State, 813 S.W.2d 698, 700-01 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd).

We overrule appellant's third point of error.

•   Matters Concerning Punishment

In his fourth pro se point of error, appellant claims the prosecutor made improper, prejudicial remarks concerning punishment matters during his final argument on guilt. Appellant first criticizes the prosecutor for stating that, in his opinion, a person who committed this type of crime, and had been twice previously convicted, deserved to be confined for a long period of time. Appellant next complains that the prosecutor argued prejudicial matters outside the record by telling the jurors that it was appellant who elected to have the trial judge assess punishment.

The record reflects no objection to either argument. Thus, any error was waived, and nothing was preserved for review. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Accordingly, we overrule appellant's fourth point of error.

Our Responsibility

In addition to addressing appellant's pro se points of error, we have also discharged our responsibility in frivolous appeals to research the record for possible reversible error. Having carefully read and reviewed the entire record in this matter, we concur with appellate counsel's assessment that there are no arguable grounds of error that could be presented on appeal.

Conclusion

We affirm the judgment and grant counsel's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.--Houston [1st Dist.] 2000, no pet.).

Tim Taft

Justice

Panel consists of Justices Mirabal, Taft, and Alcala.

Do not publish. Tex. R. App. P. 47.

1.

The two offenses were charged as separate counts in the same indictment and tried together.