Johnny Fuentes, Jr. v. State

No. 04-01-00610-CR Johnny FUENTES, Jr., Appellant v. The STATE of Texas, Appellee From the 218th Judicial District Court, Frio County, Texas Trial Court No. 01-04-00022-CRF Honorable Olin B. Strauss, Judge Presiding

Opinion by: Alma L. López, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 2, 2002

AFFIRMED

A jury found Johnny Fuentes, Jr. guilty of aggravated assault with a deadly weapon and sentenced him to fifty years imprisonment and a $10,000.00 fine. Fuentes's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that the appeal has no merit. Counsel provided Fuentes with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

Fuentes filed a pro se brief contending: (1) trial counsel rendered ineffective assistance of counsel; (2) the trial court erred in assessing a $10,000.00 fine; (3) the evidence was insufficient to prove that Fuentes used a "knife" as alleged in the indictment; (4) the trial court erred in allowing the enhancement of Fuentes's sentence since the State did not introduce a pen packet to prove the prior conviction; and (5) the trial court erred in overruling objections to testimony by a physician based on the victim's conflicting testimony. We briefly respond to each of these contentions as follows:

(1) "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation." Id. "In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. at 813-14. "The record in the case at bar is silent as to why appellant's trial counsel failed to object" in those instances in which Fuentes contends that counsel should have objected. Id. at 814. The record is also silent as to why appellant's trial counsel otherwise failed to take the actions that Fuentes contends trial counsel should have taken. "Therefore, [Fuentes] has failed to rebut the presumption this was a reasonable decision" or sound trial strategy. Id. The record does reflect that trial counsel was well-prepared and conducted extensive cross-examination to impeach the evidence introduced against Fuentes; therefore, on the record before us, we cannot agree that trial counsel rendered ineffective assistance of counsel. See id. at 814-15 (explaining submission of ineffective assistance claim via an application for writ of habeas corpus provides better opportunity to develop record).

(2) Fuentes was charged with aggravated assault, a second degree felony, punishable by a term of imprisonment of not more than 20 years and not less than 2 years, together with a fine not to exceed $10,000.00. Tex. Pen. Code Ann. § 22.02, 12.33 (Vernon 1994). Fuentes's offense was enhanced to a first degree felony by proof that he had been convicted once before of a felony. Tex. Pen. Code Ann. §12.42(b) (Vernon Supp. 2002). A first degree felony is punishable by a term of imprisonment of not more than 99 years and not less than 5 years, together with a fine not to exceed $10,000. Tex. Pen. Code Ann. § 12.32 (Vernon 1994). Therefore, the trial court did not err in assessing the $10,000.00 fine.

(3) One of the victims testified that Fuentes had a pocketknife in his hand with a three-inch blade.

(4) Fuentes pled true to the enhancement. See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) (plea of true removes State's burden to prove prior final conviction and waives complaint as to sufficiency of evidence supporting prior conviction).

(5) Conflicts in testimony go to the weight of the evidence rather than to its admissibility. Davis v. State, 992 S.W.2d 8, 11 (Tex. App.--Houston [1st Dist.] 1996, no pet.); Cagle v. State, 976 S.W.2d 879, 882 (Tex. App.--Tyler 1998, no pet.).

We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. López, Justice

DO NOT PUBLISH