DocketNumber： 03-98-00345-CR
Filed Date： 10/22/1998
Status： Precedential
Modified Date： 9/5/2015
In two points of error, appellant contends he did not receive the effective assistance of trial counsel to which he was entitled under the federal and state constitutions. U.S. Const. Amend. VI; Tex. Const. art. I, § 10. To prevail on this claim, appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).
The affidavit in support of the information states that appellant was seen throwing a small plastic bag from the window of a car. The bag was recovered and contained a "trace amount" of a substance the officer believed was marihuana. Appellant contends his trial counsel was ineffective because he did not advise appellant to plead not guilty and put the State to the burden of proving the allegations made in the information. Appellant reasons that because the plastic bag containing marihuana was recovered, the State could not prove that he destroyed or concealed evidence. See Spector v. State, 746 S.W.2d 945 (Tex. App.--Austin 1988, no pet.) (evidence defendant tore marihuana cigarette in half, but marihuana was recovered, did not sustain conviction for destroying evidence).
A defendant asserting an ineffective assistance claim must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This burden is made more difficult when, as in this cause, this issue was not raised in a motion for new trial and there is no record focused on the conduct of counsel. Id. at 772 (Baird, J., concurring). While we know what was stated in the supporting affidavit, we do not know why appellant chose to plead guilty. We do not know whether other incriminating facts were disclosed to counsel by the prosecutors, or if there were other considerations that caused counsel to recommend a guilty plea. In fact, there is no evidence that counsel advised appellant to plead guilty at all, or that appellant's decision to enter his plea was based entirely or in significant part on counsel's advice that he do so. In short, appellant has not met his burden of demonstrating that his attorney was not functioning effectively as counsel.
The points of error are overruled and the judgment of conviction is affirmed.
Lee Yeakel, Chief Justice
Before Chief Justice Yeakel, Justices Jones and B. A. Smith
Affirmed
Filed: October 22, 1998
Do Not Publish
Appellant pleaded guilty and judicially confessed to an information accusing him of destroying and concealing physical evidence. See Tex. Penal Code Ann. § 37.09(a)(1) (West 1994). The district court assessed punishment at imprisonment for ten years.
In two points of error, appellant contends he did not receive the effective assistance of trial counsel to which he was entitled under the federal and state constitutions. U.S. Const. Amend. VI; Tex. Const. art. I, § 10. To prevail on this claim, appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).
The affidavit in support of the information states that appellant was seen throwing a small plastic bag from the window of a car. The bag was recovered and contained a "trace amount" of a substance the officer believed was marihuana. Appellant contends his trial counsel was ineffective because he did not advise appellant to plead not guilty and put the State to the burden of proving the allegations made in the information. Appellant reasons that because the plastic bag containing marihuana was recovered, the State could not prove that he destroyed or concealed evidence. See Spector v. State, 746 S.W.2d 945 (Tex. App.--Austin 1988, no pet.) (evidence defendant tore marihuana cigarette in half, but marihuana was recovered, did not sustain conviction for destroying evidence).
A defendant asserting an ineffective assistance claim must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This burden is made more difficult when, as in this cause, this issue was not raised in a motion for new trial and there is no record focused on the conduct of counsel. Id. at 772 (Baird, J., concurring). While we know what was stated in the supporting affidavit, we do not know why appellant chose to plead guilty. We do not know whether other incriminating facts were disclosed to counsel by the prosecutors, or if there were other considerations that caused counsel to recommend a guilty plea. In fact, there is no evidence that counsel advised appellant to plead guilty at all, or that appellant's decision to enter his plea was based entirely or in significant part on counsel's advice that he do so. In short, appellant has not met his burden of demonstrating that his attorney was not functioning effectively as counsel.
The points of error are overruled and the judgment of conviction is affirmed.