Antonio Roldan, Jr. v. State of Texas ( 2002 )

NO. 12-01-00176-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANTONIO ROLDAN, JR.,

§ APPEAL FROM THE 145TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ NACOGDOCHES COUNTY, TEXAS PER CURIAM  

Antonio Roldan, Jr. ("Appellant") appeals his conviction of engaging in organized criminal activity, for which he was sentenced to confinement for thirty years. Appellant raises one issue on appeal. We affirm.

Background

On the night of February 6, 2001, a man named Sergio Martinez ("Martinez"), who associated with a street gang known as the Latin Kings, drove by the apartment of Jessica Jasso ("Jasso"). Santos Yanez ("Yanez"), who was a member of a rival gang known as the South-side 13's, was visiting Jasso at the time. As Martinez drove into a parking lot near Yanez's vehicle, he and Yanez made gang signs toward one another. Martinez drove away, but returned later to Jasso's apartment with Appellant and three other people. Upon his arrival, Appellant, who Officer Refugio Tony Jasso, Jr. testified was one of the leaders of the Latin Kings in Nacogdoches, exited the vehicle. According to Yanez's testimony, Appellant then stated to Yanez, "This is Latin King . . . I'm going to kill you because you shot me." Yanez further testified that he and Appellant argued for a moment before Appellant pulled the trigger. However, the gun did not fire. Appellant then cocked the gun, loading a round of ammunition in the chamber, and again pointed the gun at Yanez. Yanez suggested that Appellant give the gun to a friend and that he and Appellant would fight. At this time, a security guard arrived and separated Yanez and Appellant. Officers from the Nacogdoches Police Department soon arrived, seized the gun, and arrested Appellant.

Appellant pleaded "not guilty" and a jury trial was conducted. During trial, Appellant's counsel stipulated that Appellant was a member of the Latin Kings and that the Latin Kings were a criminal street gang as defined by section 71.01(d) of the Texas Penal Code. The jury convicted Appellant of engaging in organized criminal activity. Following a separate hearing on punishment, the trial court sentenced Appellant to imprisonment for thirty years.

Ineffective Assistance of Counsel

In his sole issue, Appellant contends that his trial counsel was ineffective because he failed to file a pretrial request for notice of the State of Texas's (the "State") intent to use prior bad acts during its case-in-chief, and because he failed to properly research the governing law and make an independent investigation of the facts of the case.

The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:

•    Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms, and



• If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?

See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A "reasonable probability" was defined by the supreme court as a "probability sufficient to undermine confidence in the outcome." Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on Appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). He must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id. After proving error, Appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id.  

In the case at hand, Appellant argues at length as to why certain inactions on his trial counsel's behalf cumulatively constitute ineffective assistance. However, even assuming arguendo that Appellant's trial counsel's inactions, as noted in Appellant's brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. Appellant's brief is devoid of any argument that but for his counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. Therefore, since Appellant has failed to satisfy his burden under Strickland, we hold that Appellant's trial counsel was not ineffective. Appellant's sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Opinion delivered April 30, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.  

(DO NOT PUBLISH)