Carlos Martinez v. State ( 2004 )

  NUMBER 13-03-070-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

CARLOS MARTINEZ,                                                                  Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 351st District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

          Without an agreed punishment recommendation, appellant, Carlos Martinez, pled guilty on September 4, 2002 to the felony offense of possession of a controlled substance. The trial court found appellant guilty, sentenced him to sixty-two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, and imposed a fine of $250,000. In his pro se brief, appellant contends he was denied effective assistance of counsel because: (1) his counsel’s failure to obtain the services of an interpreter during the four resets prior to entering his plea and counsel’s failure to obtain rulings on two pre-trial motions (discovery and suppression) rendered his plea involuntary; and (2) at the punishment phase, his counsel failed to present any witnesses or evidence to mitigate punishment and failed to request a sentence on the lower end of the punishment range. We affirm.

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

          The record contains the trial court’s certification that this case is not a plea-bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2).

Anders Brief  

          Appellant’s attorney has filed a brief with this Court asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738 (1967). According to the brief, counsel has reviewed the clerk’s record and reporter’s record and has concluded that appellant’s appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court’s judgment. In the brief, appellant’s counsel states that she has informed appellant of his right to review the appellate record and to file a pro se brief. See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.–Waco 2001, no pet.). Appellant filed a pro se brief.

          Upon receiving a “frivolous appeal” brief, the appellate courts must conduct “a full examination of all the proceedings to decide whether the case is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.–Corpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel’s brief. We agree with appellant’s counsel that the appeal is wholly frivolous and without merit. We now address appellant’s pro se brief.

Pro Se Brief

          In his first issue, appellant contends he was denied effective assistance of counsel and his plea was therefore rendered involuntary because his counsel failed to request the services of a Spanish-speaking interpreter to assist in explaining the nature of the proceedings against appellant. Appellant also complains that his counsel failed to obtain rulings on two pre-trial motions, a motion to suppress evidence and a motion for discovery.

          Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland requires a two-part inquiry. Id. The defendant must first show that counsel’s performance was deficient, in that it fell below an objective standard of reasonableness. Id. Second, the defendant must further prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

          The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. at 813. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel’s effectiveness. Id.

          The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, “any 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).

          Because appellant pled guilty to the offense, he waived the right to appeal any nonjurisdictional defects, other than the voluntariness of his plea, that occurred before entry of the plea, so long as the judgment of guilt was rendered independently of, and is not supported by, the alleged error. See Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App. 1995). Therefore, our independent review of the record is limited to potential jurisdictional defects, the voluntariness of appellant's plea, potential error occurring before appellant's plea that resulted in or supports the judgment of guilt, and potential error occurring after the guilty plea. See Young, 8 S.W.3d at 666-67.

          In his first subissue, appellant contends his counsel’s failure to obtain the services of a Spanish-language interpreter to assist in explaining the proceedings to him rendered his plea involuntary. We have jurisdiction to address this issue because it calls into question the voluntariness of appellant’s plea and because it involves potential error occurring before entry of the plea of which the judgment would be dependent on to be affirmed. See id.

          Here, appellant entered a plea of guilty, and the trial court withheld a finding of guilt until a later date, following a presentence investigation hearing. The record contains appellant’s written admonishments and waivers, including waiver of the right to have a court reporter record his plea.

          When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.–Corpus Christi 2001, no pet.). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2004); Dorsey, 55 S.W.3d at 235. In reviewing the voluntariness of a defendant’s guilty plea, we examine the record as a whole. Dorsey, 55 S.W.3d at 235.

          Appellant was admonished in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2004). The written admonitions are signed by appellant and appellant’s attorney and state that appellant understands the admonitions and the consequences of his plea. See id. The admonitions also state that the admonitions, waivers, stipulations, and judicial confession were “read to me and explained to me in [Spanish] by my attorney and/or an interpreter, namely Alan Acosta, before I signed them, and I consulted fully with my attorney before entering this plea.” Moreover, appellant does not allege that he did not understand the nature and consequences of the proceedings against him due to counsel’s failure to obtain the services of an interpreter. We hold that appellant has not met his burden to show that he pleaded guilty without understanding the consequences of his plea and consequently, suffered harm. See id. at art. 26.13(c).

          Appellant also contends his counsel was ineffective for failing to obtain rulings on his pretrial motions. Trial counsel may decide not to file pretrial motions as part of a trial strategy; therefore, failure to file pretrial motions is not categorically deemed ineffective assistance of counsel. Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.–Houston [14th Dist.] 1997, no pet.). Likewise, failure to obtain a ruling on pretrial motions is not ineffective assistance of counsel. Wills v. State, 867 S.W.2d 852, 857 (Tex. App.–Houston [14th Dist.] 1993, pet. ref'd). Moreover, unless an appellant shows that a pretrial motion had merit “and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion.” Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993)).

          Here, the record is silent as to trial counsel’s strategy in not obtaining rulings on the pretrial motions. Appellant has failed to demonstrate how obtaining rulings on his pretrial motions would have changed anything in the case. We overrule appellant’s first issue.

          In his second issue, appellant contends he was denied effective assistance of counsel at the punishment phase because his counsel failed to present any witnesses or evidence and failed to request a sentence at the lower end of the punishment range. Trial counsel is not ineffective for failing to call witnesses on a defendant's behalf when, as here, there is no evidence that the testimony would have been favorable or would have produced a different result. See Hoang v. State, 825 S.W.2d 729, 732-33 (Tex. App.–Houston [14th Dist.] 1992, writ ref'd). At the sentencing hearing, appellant’s counsel successfully argued for the deletion of a pending criminal charge from New York from the presentence investigation report. Appellant’s counsel also urged the trial court to consider probation for appellant and informed the court that members of appellant’s family were available and willing to assist appellant in complying with terms and conditions of probation. Counsel argued that appellant’s role in the offense was minor and that his prior criminal history was minimal. We conclude appellant has failed to establish ineffective assistance based on his counsel’s failure to present evidence or request punishment at the lower end of the punishment range. We overrule appellant’s second issue.   

          We have carefully reviewed appellant’s pro se brief. We find nothing in the record that might arguably support this appeal. The trial court’s judgment is affirmed.

Motion to Withdraw  

          Additionally, counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel's motion to withdraw and order her to notify appellant of the disposition of his appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed this the

27th day of August, 2004.