Jaubert v. State

65 S.W.3d 73

• Court: Court of Appeals of Texas
• Decided: June 20, 2001
• Docket: 10-99-090-CR to 10-99-094-CR
• Status: Published

Opinions

OPINION

BILL VANCE, Justice.

James Jaubert, Jr., was charged with one count of murder and four counts of attempted murder. See Tex. Pen.Code Ann. §§ 19.02, 15.01 (Vernon 1994). He pled guilty to each charge and elected to have a jury assess punishment. Jaubert was sentenced to sixty years for the murder charge, twenty years for one attempted murder charge, and ten years for each additional attempted murder charge. He appeals, asserting only that he received ineffective assistance of counsel. We will affirm the judgment.

In his sole issue for review, Jaubert contends that his retained trial counsel “failed to render effective assistance of counsel as required by the Sixth Amendment to the U.S. Constitution and by Article 1, Section 10 of the Texas State Constitution.” It is undisputed that these claims were not presented to the trial court in a motion for new trial or otherwise. We have determined that ineffective-assistance-of-counsel claims must be presented to the trial court to be preserved for appellate review. Foster v. State, 8 S.W.3d 445, 446 (Tex.App.—Waco 1999, no pet.) (citing Gonzalez v. State, 994 S.W.2d 369, 372-74 (Tex.App.—Waco 1999, no pet.)); Tex.R.App. P. 33.1(a).

Jaubert’s case was transferred to this court by order of the Texas Supreme Court. There are some who argue that we should apply the law of the court from which the case was transferred to cases transferred out of one court of appeals and into another. We disagree. Because this case has been transferred to us, we apply our interpretation of Rule 33.1. Therefore, because this complaint has not been preserved as required by Rule 33.1 and Gonzalez, we overruled Jaubert’s complaint.

The judgment of the trial court is affirmed.

Justice GRAY concurring.