COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-386-CR
JAVIER MAYORGA APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
Appellant Javier Mayorga received deferred adjudication pursuant to a
plea of guilty to a first-degree felony. He appeals from a judgment adjudicating
his guilt and sentencing him to thirty years’ confinement and asserts that his
trial counsel provided ineffective assistance. We affirm.
1 See Tex. R. App. P. 47.4. II. Factual and Procedural Background
In September 2005, Appellant pleaded guilty to the offense of aggravated
robbery with a deadly weapon, and the trial court ordered Appellant to pay a
$1,000 fine and placed him on deferred adjudication community supervision for
ten years. By signing the Written Plea Admonishment, Appellant waived “the
attendance and record of a court reporter” required by Rule 13.1 of the Texas
Rules of Appellate Procedure.
On August 19, 2008, the State filed a petition to proceed to adjudication
and alleged Appellant violated his probation by possessing a criminal
instrument, failing to pay fines, and failing to report monthly as ordered by the
trial court. Appellant entered an open plea of “true” to “each and every act
alleged” and again waived “the attendance and record of a court reporter”
required by Rule 13.1 of the Texas Rules of Appellate Procedure. Following the
hearing, the trial court adjudicated Appellant’s guilt, revoked Appellant’s
community supervision, and sentenced him to thirty years’ imprisonment.
Appellant did not file a motion for new trial but filed a pro se notice of
appeal on October 17, 2008. In an affidavit signed by Appellant and attached
to his brief, Appellant asserts his court-appointed trial counsel provided
ineffective assistance following the filing of the State’s Petition to Proceed to
Adjudication because his trial counsel:
2 • failed to tell him that a plea bargain offer of six years’ imprisonment was only good for one day or would expire before the next court date;2
• advised him to plead “true” to the allegations and “take his chances” with an open plea to the judge; 3 and
• assured him that he was “highly likely” to have his community supervision reinstated. 4
III. Discussion
In his sole point, Appellant contends his trial counsel was ineffective for
failing to (1) ensure that the district attorney’s plea offer of six-years’
imprisonment would either remain open until the September 26, 2008 hearing
or (2) explain that the offer would expire prior to the hearing.
2 Appellant’s affidavit states that he told his attorney he wanted to think about the six-year plea offer and would give an answer at the next court setting. The affidavit also states that Appellant intended to accept the six-year plea offer during the September 26, 2008 punishment hearing. 3 Appellant’s affidavit states that his attorney offered this advice after Appellant learned at the September 26, 200, punishment hearing that the district attorney rescinded the six-year plea offer and instead offered a fifteen- year sentence. 4 Appellant’s affidavit further alleges that his attorney (1) did not cross- examine the alleged victim of the 2005 aggravated robbery during the punishment hearing and (2) failed to offer into evidence several letters of recommendation from teachers at the Lincoln Tech school Appellant attended.
3 A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The standard for review
for ineffective assistance of counsel at the punishment phase is whether
appellant received reasonably effective assistance of counsel. Ex parte Walker,
794 S.W.2d 36, 37 (Tex. Crim. App. 1990) (per curiam).
Failure of defense counsel to inform a criminal defendant of plea offers
made by the State is an omission that falls below an objective standard of
professional reasonableness, and the criminal defendant is prejudiced by the
missed opportunity of accepting the bargain and presenting it to the trial court
for consideration in sentencing. See Ex parte Lemke, 13 S.W.3d 791, 795–97
(Tex. Crim. App. 2000); Aldrich v. State, 296 S.W.3d 225, 243 (Tex.
App.—Fort Worth 2009, pet. ref’d).
4 In evaluating the effectiveness of counsel, we look to the totality of the
representation and the particular circumstances of each case. Thompson, 9
S.W.3d at 813. Review of counsel’s representation is highly deferential, and
the reviewing court indulges a strong presumption that counsel’s conduct fell
within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim. 5
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome 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.” Id. (quoting Thompson, 9 S.W.3d at 813).
5 Ineffective assistance claims are usually best addressed by a post- conviction writ of habeas corpus. See Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475–76 (Tex. Crim. App. 1997). But see Ex parte Nailor, 149 S.W.3d 125, 131–32 (Tex. Crim. App. 2004) (holding that specific allegations of deficient attorney performance that were rejected on direct appeal are not cognizable on habeas corpus as a part of a larger ineffective assistance of counsel claim when defendant does not offer additional evidence to support that specific claim of deficient performance in habeas proceeding).
5 B. The Record Does Not Support Appellant’s Claim
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-386-CR
JAVIER MAYORGA APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
Appellant Javier Mayorga received deferred adjudication pursuant to a
plea of guilty to a first-degree felony. He appeals from a judgment adjudicating
his guilt and sentencing him to thirty years’ confinement and asserts that his
trial counsel provided ineffective assistance. We affirm.
1 See Tex. R. App. P. 47.4. II. Factual and Procedural Background
In September 2005, Appellant pleaded guilty to the offense of aggravated
robbery with a deadly weapon, and the trial court ordered Appellant to pay a
$1,000 fine and placed him on deferred adjudication community supervision for
ten years. By signing the Written Plea Admonishment, Appellant waived “the
attendance and record of a court reporter” required by Rule 13.1 of the Texas
Rules of Appellate Procedure.
On August 19, 2008, the State filed a petition to proceed to adjudication
and alleged Appellant violated his probation by possessing a criminal
instrument, failing to pay fines, and failing to report monthly as ordered by the
trial court. Appellant entered an open plea of “true” to “each and every act
alleged” and again waived “the attendance and record of a court reporter”
required by Rule 13.1 of the Texas Rules of Appellate Procedure. Following the
hearing, the trial court adjudicated Appellant’s guilt, revoked Appellant’s
community supervision, and sentenced him to thirty years’ imprisonment.
Appellant did not file a motion for new trial but filed a pro se notice of
appeal on October 17, 2008. In an affidavit signed by Appellant and attached
to his brief, Appellant asserts his court-appointed trial counsel provided
ineffective assistance following the filing of the State’s Petition to Proceed to
Adjudication because his trial counsel:
2 • failed to tell him that a plea bargain offer of six years’ imprisonment was only good for one day or would expire before the next court date;2
• advised him to plead “true” to the allegations and “take his chances” with an open plea to the judge; 3 and
• assured him that he was “highly likely” to have his community supervision reinstated. 4
III. Discussion
In his sole point, Appellant contends his trial counsel was ineffective for
failing to (1) ensure that the district attorney’s plea offer of six-years’
imprisonment would either remain open until the September 26, 2008 hearing
or (2) explain that the offer would expire prior to the hearing.
2 Appellant’s affidavit states that he told his attorney he wanted to think about the six-year plea offer and would give an answer at the next court setting. The affidavit also states that Appellant intended to accept the six-year plea offer during the September 26, 2008 punishment hearing. 3 Appellant’s affidavit states that his attorney offered this advice after Appellant learned at the September 26, 200, punishment hearing that the district attorney rescinded the six-year plea offer and instead offered a fifteen- year sentence. 4 Appellant’s affidavit further alleges that his attorney (1) did not cross- examine the alleged victim of the 2005 aggravated robbery during the punishment hearing and (2) failed to offer into evidence several letters of recommendation from teachers at the Lincoln Tech school Appellant attended.
3 A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The standard for review
for ineffective assistance of counsel at the punishment phase is whether
appellant received reasonably effective assistance of counsel. Ex parte Walker,
794 S.W.2d 36, 37 (Tex. Crim. App. 1990) (per curiam).
Failure of defense counsel to inform a criminal defendant of plea offers
made by the State is an omission that falls below an objective standard of
professional reasonableness, and the criminal defendant is prejudiced by the
missed opportunity of accepting the bargain and presenting it to the trial court
for consideration in sentencing. See Ex parte Lemke, 13 S.W.3d 791, 795–97
(Tex. Crim. App. 2000); Aldrich v. State, 296 S.W.3d 225, 243 (Tex.
App.—Fort Worth 2009, pet. ref’d).
4 In evaluating the effectiveness of counsel, we look to the totality of the
representation and the particular circumstances of each case. Thompson, 9
S.W.3d at 813. Review of counsel’s representation is highly deferential, and
the reviewing court indulges a strong presumption that counsel’s conduct fell
within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim. 5
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome 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.” Id. (quoting Thompson, 9 S.W.3d at 813).
5 Ineffective assistance claims are usually best addressed by a post- conviction writ of habeas corpus. See Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475–76 (Tex. Crim. App. 1997). But see Ex parte Nailor, 149 S.W.3d 125, 131–32 (Tex. Crim. App. 2004) (holding that specific allegations of deficient attorney performance that were rejected on direct appeal are not cognizable on habeas corpus as a part of a larger ineffective assistance of counsel claim when defendant does not offer additional evidence to support that specific claim of deficient performance in habeas proceeding).
5 B. The Record Does Not Support Appellant’s Claim
Appellant claims his trial counsel was ineffective for failing to (1) ensure
that the district attorney’s plea offer of six-years’ imprisonment would either
remain open until the September 26, 2008 hearing or (2) explain that the offer
would expire prior to the hearing. Appellant points us to no evidence in the
record, and we find none, indicating that the State even made such a plea
offer.6 See Lemke, 13 S.W.3d at 795–96; see also Harvey v. State, 97
S.W.3d 162, 167 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating
that when there is not a “firm plea bargain offer,” courts have declined to find
counsel’s failure to inform the defendant deficient). In fact, the only plea
bargain offer referenced in the record is the State’s offer of ten years’
imprisonment, which Appellant rejected on August 15, 2005. And we cannot
consider Appellant’s affidavit on appeal because it was not introduced to the
trial court and is not part of the appellate record. See Tex. R. App. P. 34.5,
34.6; Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)
(prohibiting an appellate court from considering factual assertions that are
6 Similarly, the record in this case is silent as to why Appellant's counsel did not cross-examine the alleged victim of the 2005 aggravated robbery during the punishment hearing and failed to offer into evidence several letters of recommendation from teachers at the Lincoln Tech school Appellant attended.
6 outside the record and stating that a party cannot circumvent this prohibition
by submitting an affidavit for the first time on appeal). Thus, there is no
evidence to rebut the presumption that Appellant's trial counsel acted
appropriately concerning the plea bargain with the State. Salinas, 163 S.W.3d
at 740; see Mallett, 65 S.W.3d at 62; Thompson, 9 S.W.3d at 813. We
overrule Appellant’s claim of ineffective assistance of counsel.
IV. Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s judgment.
ANNE GARDNER JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: March 25, 2010