AFFIRMEI) and Opinion Flied this 6th day of March, 2013.
In The Qnurt ni JFiftIi Oitrict nf cxa at t1at1a No. 05-11-01639-CR
RAYMON GARZA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No, 2 Dallas County, Texas Trial Court Cause No. F1i-598424
MEMORANDOM OPINION Before Justices FitzGerald, Fillmore and Richter 1 Opinion by Justice Richter Raymon Garza was convicted of burglary of a building, and punishment, enhanced by
two prior felony convictions, was assessed at twenty years in prison. In two issues, appellant
contends he received ineffective assistance of counsel and the evidence against him is legally
insufficient to support his conviction. The facts of this case are well-known to the parties and we
do not recite them in detail here. Further, because all dispositive issues are clearly settled in law,
we issue this memorandum opinion. See TEx R. App. P. 47.4. We affirm the trial court’s
judgment.
In his first issue, appellant complains he received ineffective assistance of counsel
The Honorable Martin E. Richter, Retired Justice, sitting by assignment because his attorney failed to properly admonish him regarding the consequences of rejecting the
State’s fouryear plea offer in light of the State’s notice of intent to enhance punishment based on
two felony convictions that increased the punishment range for the offense from two to twenty
years. To prevail on a claim of ineffective assistance of counsel the defendant must show that
(1) his counsel’s performance was deficient, and (2> a reasonable probability exists that but for
the deficient performance, the result of the proceeding would be different. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Mitchell ij’. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002), In reviewing the complaint, we presume counsel’s actions fell within the wide range of
reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). Moreover, a claim of ineffective assistance must be firmly supported in the record.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Rarely will the record on direct
appeal be sufficient to overcome the presumption that counsel’s conduct was reasonable and
professional. Bone, 77 S.W.3d at 833.
Appellant did not assert an ineffective assistance complaint regarding the plea offer in his
motion for new trial and there is no evidence in the record regarding counsel’s discussions with
appellant about the plea offer. The trial record reveals that after appellant was arraigned and
before trial, the prosecutor indicated to the court that the punishment range had changed and that
appellant should be informed. The trial court advised appellant that if the State could prove two
prior penitentiary trips, the punishment range would be two to twenty years and a fine up to
$10,000. The prosecutor then confirmed the plea offer of four years was still available to
appellant. Appellant’s counsel indicated that it was up to appellant whether he wished to accept
the plea offer or not. The Court then asked appellant if he wished to accept the prosecutor’s plea
offer. Appellant responded “No, Your Honor.”
2 \ppellaiit argues that counsel’s objection to the State’s notice of enhancement, after the
jury began its deliberations on the guiltannocence stage of trial, suggests counsel did not realize
the maximum punishment had increased to twenty years at the time when the fouryear plea offer
was still available. We do not agree. Counsel’s objection focused on the timeliness of the
State’s notice to enhance punishment and reveals nothing about counsel’s understanding or
thought processes or his discussions with appellant as to the enhanced punishment range arid the
State’s plea offer. Based on the record heft)re us, we can only speculate as to why counsel acted
or failed to act as he did. See Id. at 36. Absent any evidence of counsel’s tactical or strategic
decisionmaking, we must presume counsel acted reasonably. Id. Moreover, even assuming
appellant satisfied the first prong of the Strickland test, appellant cannot establish the second
prong. Here, the record reveals that after the trial court specifically admonished appellant about
the enhanced punishment range of two to twenty years, he still rejected the State’s plea offer.
We resolve appellant’s first issue against him.
In his second issue, appellant complains the evidence seized was insufficient to establish
that appellant participated in any offense. Appellant contends that although there was evidence
that as many as ten wine bottles were taken from the garage, at trial, the garage owner only
identified three of the bottles that were recovered. He further argues there is no evidence that he
handled the bottles taken from the garage. In making this argument, appellant acknowledges that
he was in possession of “a small fraction of the wine stolen.”
In reviewing a challenge to the legal sufficiency of the evidence, we examine the
evidence to determine whether any rational fact finder could have found the essential elements of
the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.
App. 2005). We review all the evidence in the light most favorable to the verdict and assume the
3 fact finder resolved contlicts in testimony, weighed the evidence, and drew reasonable inferences
in a manner that supports the vcrdicL See Rollerson r. State. 227 SW.3d 71 , 724 (Tex. Crim.
App. 2U07). Viewed in the light most tavorable to the verdict, the evidence shows that appelhmt
and another male identified as Dewayne Shepard, were walking when they were stopped by a
police olticer on patrol because they matched the description the otlicer had received on a
suspicious persons call. At the time they were stopped, appellant was carrying a white box with
several bottles of wine, and cans of beer and soda. Shepard was carrying a black bag that also
had wine inside of it. Shepard then directed the police to the garage where they obtained the
beverages. The owner of the garage confirmed to police that missing from her garage were a box
and various beverages from the refrigerator. At trial, photographs of three of the bottles of wine
were admitted into evidence. The garage owner confirmed these bottles were hers and were
missing from her garage refrigerator. An officer also testified that the garage owner identified all
of the beverages the police had recovered from appellant and Shepard as her property. During
his testimony, appellant denied entering the garage, but he admitted that he stood in the alley as a
lookout for about 30 minutes while Shepard was in the garage. Shepard testified that appellant
entered the garage and stole the beverages. The evidence before us is legally sufficient to
support appellant’s conviction for burglary of a building. We resolve appellant’s second issue
against him.
We affirm the trial court’s judgment.
7 1 MARTIN RICHThR Do Not Publish JUSTICE, ASSIGNED TEX. R. App. 47•
11 1639F.U05
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AFFIRMEI) and Opinion Flied this 6th day of March, 2013.
In The Qnurt ni JFiftIi Oitrict nf cxa at t1at1a No. 05-11-01639-CR
RAYMON GARZA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No, 2 Dallas County, Texas Trial Court Cause No. F1i-598424
MEMORANDOM OPINION Before Justices FitzGerald, Fillmore and Richter 1 Opinion by Justice Richter Raymon Garza was convicted of burglary of a building, and punishment, enhanced by
two prior felony convictions, was assessed at twenty years in prison. In two issues, appellant
contends he received ineffective assistance of counsel and the evidence against him is legally
insufficient to support his conviction. The facts of this case are well-known to the parties and we
do not recite them in detail here. Further, because all dispositive issues are clearly settled in law,
we issue this memorandum opinion. See TEx R. App. P. 47.4. We affirm the trial court’s
judgment.
In his first issue, appellant complains he received ineffective assistance of counsel
The Honorable Martin E. Richter, Retired Justice, sitting by assignment because his attorney failed to properly admonish him regarding the consequences of rejecting the
State’s fouryear plea offer in light of the State’s notice of intent to enhance punishment based on
two felony convictions that increased the punishment range for the offense from two to twenty
years. To prevail on a claim of ineffective assistance of counsel the defendant must show that
(1) his counsel’s performance was deficient, and (2> a reasonable probability exists that but for
the deficient performance, the result of the proceeding would be different. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Mitchell ij’. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002), In reviewing the complaint, we presume counsel’s actions fell within the wide range of
reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). Moreover, a claim of ineffective assistance must be firmly supported in the record.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Rarely will the record on direct
appeal be sufficient to overcome the presumption that counsel’s conduct was reasonable and
professional. Bone, 77 S.W.3d at 833.
Appellant did not assert an ineffective assistance complaint regarding the plea offer in his
motion for new trial and there is no evidence in the record regarding counsel’s discussions with
appellant about the plea offer. The trial record reveals that after appellant was arraigned and
before trial, the prosecutor indicated to the court that the punishment range had changed and that
appellant should be informed. The trial court advised appellant that if the State could prove two
prior penitentiary trips, the punishment range would be two to twenty years and a fine up to
$10,000. The prosecutor then confirmed the plea offer of four years was still available to
appellant. Appellant’s counsel indicated that it was up to appellant whether he wished to accept
the plea offer or not. The Court then asked appellant if he wished to accept the prosecutor’s plea
offer. Appellant responded “No, Your Honor.”
2 \ppellaiit argues that counsel’s objection to the State’s notice of enhancement, after the
jury began its deliberations on the guiltannocence stage of trial, suggests counsel did not realize
the maximum punishment had increased to twenty years at the time when the fouryear plea offer
was still available. We do not agree. Counsel’s objection focused on the timeliness of the
State’s notice to enhance punishment and reveals nothing about counsel’s understanding or
thought processes or his discussions with appellant as to the enhanced punishment range arid the
State’s plea offer. Based on the record heft)re us, we can only speculate as to why counsel acted
or failed to act as he did. See Id. at 36. Absent any evidence of counsel’s tactical or strategic
decisionmaking, we must presume counsel acted reasonably. Id. Moreover, even assuming
appellant satisfied the first prong of the Strickland test, appellant cannot establish the second
prong. Here, the record reveals that after the trial court specifically admonished appellant about
the enhanced punishment range of two to twenty years, he still rejected the State’s plea offer.
We resolve appellant’s first issue against him.
In his second issue, appellant complains the evidence seized was insufficient to establish
that appellant participated in any offense. Appellant contends that although there was evidence
that as many as ten wine bottles were taken from the garage, at trial, the garage owner only
identified three of the bottles that were recovered. He further argues there is no evidence that he
handled the bottles taken from the garage. In making this argument, appellant acknowledges that
he was in possession of “a small fraction of the wine stolen.”
In reviewing a challenge to the legal sufficiency of the evidence, we examine the
evidence to determine whether any rational fact finder could have found the essential elements of
the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim.
App. 2005). We review all the evidence in the light most favorable to the verdict and assume the
3 fact finder resolved contlicts in testimony, weighed the evidence, and drew reasonable inferences
in a manner that supports the vcrdicL See Rollerson r. State. 227 SW.3d 71 , 724 (Tex. Crim.
App. 2U07). Viewed in the light most tavorable to the verdict, the evidence shows that appelhmt
and another male identified as Dewayne Shepard, were walking when they were stopped by a
police olticer on patrol because they matched the description the otlicer had received on a
suspicious persons call. At the time they were stopped, appellant was carrying a white box with
several bottles of wine, and cans of beer and soda. Shepard was carrying a black bag that also
had wine inside of it. Shepard then directed the police to the garage where they obtained the
beverages. The owner of the garage confirmed to police that missing from her garage were a box
and various beverages from the refrigerator. At trial, photographs of three of the bottles of wine
were admitted into evidence. The garage owner confirmed these bottles were hers and were
missing from her garage refrigerator. An officer also testified that the garage owner identified all
of the beverages the police had recovered from appellant and Shepard as her property. During
his testimony, appellant denied entering the garage, but he admitted that he stood in the alley as a
lookout for about 30 minutes while Shepard was in the garage. Shepard testified that appellant
entered the garage and stole the beverages. The evidence before us is legally sufficient to
support appellant’s conviction for burglary of a building. We resolve appellant’s second issue
against him.
We affirm the trial court’s judgment.
7 1 MARTIN RICHThR Do Not Publish JUSTICE, ASSIGNED TEX. R. App. 47•
11 1639F.U05
4 Q!nurt ni iftIi t1iitrict uf ixai at Ja1ta JUDGMENT
Raymon Garza. Appellant On Appeal from the Criminal District Court No. 2, Dallas County. Texas No. 05-I 1-01639-CR V. Trial Court Cause No. Fl 1-59842-1. Opinion delivered by Justice Richter. The State of Texas, Appellee Justices FitzGerald and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. 6 t h Judgment entered this day of March, 2013.
MARTIN RICHTER JUSTICE, ASSIGNED