Jimenez, Jose v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2000
• Docket: 13-99-00574-CR
• Status: Published

Opinion

NUMBER 13-99-574-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

JOSE JIMENEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 36th District Court of San Patricio County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

After a bench trial, the trial court found appellant, Jose Jimenez, guilty of two counts of aggravated assault, affirmatively found that a deadly weapon had been used, and assessed his punishment for each count at twelve years imprisonment. Appellant's court-appointed counsel filed a brief in which he concludes that a "review of the trial proceedings reveals no error which would require a new trial." Counsel filed a motion to withdraw and informed appellant that he had the right to file his own brief. Appellant has filed a pro se brief in which he challenges the trial court's judgment by seven points of error. Appellant contends that: (1) the trial court erred in not allowing him to proceed to trial by jury "due to promise made not kept;" (2) the trial court erred in not allowing him to question his trial counsel about a promise that he would get community supervision if he waived his right to trial by jury; (3) the trial court erred in allowing the State to withhold evidence favorable to him; (4) the trial court erred in denying his pro se motion for new trial "based on the merits presented in" his first three points of error; (5) the trial court erred in violating the ex post facto clause by applying a new law that was punitive in nature; (6) his "appointed counsel denied [him] effective assistance of counsel due to his indigent status on his Pro se Motion for New Trial;" and (7) his "appointed counsel denied [him] effective assistance of counsel on appeal due to his indigent status." We affirm.

A. Background and Procedural History

Appellant was charged by indictment with two counts of aggravated assault with a deadly weapon after he shot Robert Ramos and Martin Benavides, Jr., at La Baby Doll Lounge in Aransas Pass. Appellant waived his right to a jury trial. The case was tried to the court, and appellant was found guilty of both counts on June 4, 1999. On June 21, 1999, appellant filed a pro se motion for new trial, alleging that he had not knowingly and intelligently waived his right to a jury trial because his trial counsel had told him the trial court would "probably" sentence him to community supervision. On July 23, 1999, the trial court assessed his punishment for each count at twelve years imprisonment and affirmatively found that a deadly weapon had been used.

Appellant's first appellate counsel was appointed by the court on July 28, 1999. On August 2, 1999, appellant filed an amended pro se motion for new trial. The motion was presented to the court on October 1, 1999, but an attorney who was substituting for appellant's counsel was not prepared to present evidence concerning appellant's claim that he had received ineffective assistance of counsel at trial. The trial court offered to allow appellant to testify, but appellant stated, through counsel, that he preferred to do so by affidavit. The trial court granted appellant's request to supplement the record with affidavits and ordered that they be filed on or before October 5, 1999. The State did not object.

On October 5, 1999, appellant filed a third motion for new trial with his affidavit and the affidavits of his trial counsel and the owner of La Baby Doll Lounge. A written order denying appellant's motion for new trial was signed October 22, 1999, but the motion was overruled by operation of law when no written order granting a new trial was signed on or before October 6, 1999, the seventy-fifth day after the sentence was imposed. See Tex. R. App. P. 21.8(c). Appellant timely filed a pro se notice of appeal on September 9, 1999. On November 30, 1999, the trial court appointed appellant's present counsel to represent him in this appeal.

B. What is Properly Before this Court?

Because several of appellant's points of error pertain to matters outside the record, we must first determine what evidence is properly in the appellate record before us.

(1) Motions for New Trial

The rules of appellate procedure set forth the requirements for filing and amending motions for new trial:

21.4 Time to File and Amend Motion.

(a) To File. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.

(b) To Amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

Tex. R. App. P. 21.4. An amended motion for new trial is not permitted more than thirty days after sentencing, even with leave of court. Dugard v. State, 688 S.W.2d 524, 530 (Tex. Crim. App. 1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.--Austin 2000, no pet. h.); Pena v. State, 767 S.W.2d 206, 207 (Tex. App.--Corpus Christi 1989, no pet.). Even where the original motion for new trial is timely, an untimely amended motion for new trial is a nullity and cannot form the basis for points of error on appeal. Dugard, 688 S.W.2d at 529-30; Guevara v. State, 4 S.W.3d 771, 780 (Tex. App.--San Antonio 1999, no pet.); Rangel v. State, 972 S.W.2d 827, 838 (Tex. App.--Corpus Christi 1998, pet. ref'd).

Although it is not statutorily required that a motion for new trial be supported by affidavits, it is well settled that when the grounds for a new trial are outside the record, the movant must support his motion by his own affidavit or by the affidavit of someone with knowledge of the relevant facts. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983). Both the motion for new trial and any supporting affidavits must be filed within the thirty-day deadline. Mallet v. State, 9 S.W.3d 856, 865 (Tex. App.--Fort Worth 2000, no pet. h.). Filing affidavits in support of a motion for new trial more than thirty days after sentencing is imposed is considered an untimely attempt to amend the motion for new trial. Dugard, 688 S.W.2d at 529-30; Mallet, 9 S.W.3d at 865; Flores, 18 S.W.3d at 798.

Here, appellant timely filed his first pro se motion for new trial and his amended pro se motion for new trial. However, under the rules of appellate procedure, appellant's third motion for new trial, filed on October 5, 1999, was not timely filed and is not properly before us.

(2) Affidavits Filed on October 5, 1999

At the October 1 hearing, the trial court expressly authorized appellant to file affidavits in support of his motion for new trial on or before October 5, and the State did not object.

Allegations in a motion for new trial do not prove themselves. Vaughn v. State, 456 S.W.2d 141, 142 (Tex. Crim. App. 1970). Appellate rule 21.7, entitled "Types of Evidence Allowed at Hearing [on motion for new trial]," states that the trial court "may receive evidence by affidavit or otherwise." Tex. R. App. P. 21.7. However, an affidavit itself is not evidence, but must be introduced as such at the hearing on the motion for new trial. See McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985); Rios v. State, 510 S.W.2d 326, 328-29 (Tex. Crim. App. 1974) (affidavit attached to motion for new trial is only a pleading that authorizes the introduction of supporting evidence; it is not evidence in itself, and must be introduced as such at the hearing on the motion). See also Adams v. State, 765 S.W.2d 479, 481 (Tex. App.--Texarkana 1988, pet. ref'd) (the affiant must testify and be subject to cross-examination) (citing Rios, 510 S.W.2d at 326, and Stephenson v. State, 494 S.W.2d 900 (Tex. Crim. App. 1974)).

However, in this case the trial court expressly authorized admission of the affidavits without proper introduction, and the State did not raise any objection. The determination of admissibility of evidence is within the sound discretion of the trial court. Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979). That determination will not be reversed on appeal unless a clear abuse of discretion is shown. Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986). However, error may not be predicated upon a ruling which admits evidence unless a substantial right of the party is affected, and a timely and proper objection is made. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 33.1 (failure to make a timely and proper objection waives an issue for appeal). We hold the affidavits filed on October 5, 1999, which were authorized by the trial court without any objection by the State, were properly before the trial court for its consideration of appellant's motion for new trial.

C. The Record Before this Court (1) Reporter's Record

The State presented evidence that appellant was at La Baby Doll Lounge in the early morning hours of September 7, 1998, with his girlfriend and another couple. Appellant was involved in a physical altercation with some other men at the bar, including one of the shooting victims, Martin Benavides, and the brother of the other victim. Appellant sustained a gash on his head, and the police were called. When the police arrived, they found a lot of people yelling at each other in the parking lot outside the lounge. Appellant was bleeding from his head and was placed in the backseat of a police car. Appellant said he did not want to file charges, but he threatened to kill at least one of the men with whom he had fought. Although appellant appeared very intoxicated, the police released him to the custody of his companions, with the understanding that they would drive him to a hospital for treatment of his head wound. Appellant appeared at the lounge a short time later and asked the men with whom he had fought earlier to step outside. When the men refused, appellant pulled out a long-barreled, large-caliber chrome revolver and shot twice, injuring Benavides and Robert Ramos.⁽¹⁾ No one else at the lounge displayed a weapon.

The defense called two witnesses, appellant and a girlfriend who accompanied him to La Baby Doll that night. The girlfriend testified the fight occurred after the other men made vulgar comments to appellant about her. After the fight, appellant refused to be taken to the hospital and insisted on driving her car. After dropping off the other couple, appellant tried to find some of his friends, but he did not find them at home. He drove to a bank parking lot, told his girlfriend to wait, and left on foot. Shortly thereafter, he returned to the car, and they drove off. She did not see appellant with a gun at any time that night.

Appellant testified that the fight started after one of the other men said some very vulgar things to him about his girlfriend. Several men attacked him, and he grabbed a pool cue to defend himself. He was hit over the head with a beer bottle at least once. After he and his companions left the bar, he dropped off the other couple and tried to find some friends because:

I was angry, and I wanted -- I guess you could say I wanted to start a fight with the people that beat on me, and I wanted to bring a friend with me, at least one or two friends to go back and confront them again.

He returned to the bar alone after leaving his girlfriend in the car because:

I was angry, and I guess you could say I wanted revenge for what happened to me. I was humiliated, my girlfriend was hysterical in tears, and I felt -- like I said, I felt really humiliated what happened, sir, and I wanted some kind of revenge on these people.

He testified that when he arrived at the bar, he began to wrestle with Benavides, who reached under his shirt and pulled out a gun out of his waistband.

And at that moment he had backed off, and we started to wrestle, and we fell to the floor. The gun had discharged, the gun fired one time, sir.

Appellant said he never touched the gun and did not know how Ramos was shot.

(2) Appellant's Affidavit.

According to the affidavit, appellant stated that he would not have waived his right to a jury trial except that his trial counsel wrongly told him he could receive community supervision only from the judge,⁽²⁾ not the jury,⁽³⁾ and that the judge would "probably" sentence him to community supervision. Appellant contended his trial counsel was ineffective because he failed to file "evidentiary motions," failed to investigate appellant's claim of self-defense, and failed to present evidence of the victim's bad character, to support appellant's claim of self-defense. He further contended that his first appellate counsel was ineffective because he failed to appear at the motion for new trial hearing and obtain testimony from appellant's trial counsel and Paul Torres, the owner of La Baby Doll Lounge.

(3) Trial Counsel's Affidavit

Trial counsel's affidavit states that he conferred with appellant:

at length regarding the option of proceeding to trial of this case before a jury or before the bench. Prior to executing any waivers in this case I advised Jose Jimenez and discussed with him the advantages and disadvantages of bench trial versus jury trial. I did also, prior to executing any waiver of jury, discuss with Jose Jimenez the fact that he would not be eligible for probation from the judge in a bench trial if Mr. Jimenez were to be found guilty and a deadly weapon finding were made. I did also advise my client, Mr. Jimenez, that a deadly weapon finding would be automatic if he were found guilty of aggravated assault as charged in the indictment. After a full discussion of his options Jose Jimenez freely and voluntarily made an informed decision to proceed with this case as a trial to the Court and waive a jury trial. Jose Jimenez freely, knowingly and intelligently made the decision to execute a waiver of jury trial and he wanted me to join in his waiver of jury trial.

I further advised Jose Jimenez that the deadly weapon finding would be made, if he were found guilty of the indicted charge, because a firearm or handgun is a deadly weapon regardless of the seriousness of the injury to a victim. I believed, and Jose Jimenez believed, that his best course of trial was to not go before a jury but have this case tried to a judge -- even knowing and advising Mr. Jimenez that he could not then receive probation consideration.

I did investigate this case, as is my duty as attorney for the defendant, as requested by Jose Jimenez and followed up on information provided to me by Mr. Jimenez that he thought would be helpful to his defense. The Court did provide the defense with funds to hire an investigator. I hired investigator KEVIN D. BEHR to assist with the investigation and preparation for trial of this case. As reported to me by Mr. Behr, he interviewed at least six (6) witnesses from the scene and none of these witnesses were beneficial to Jose Jimenez. Specifically, the bar owner, PAUL TORRES, stated to the investigator and to police that he did not see the shooting and that his statement to the police was true and correct and that was what he could testify to in court. I did not consider Paul Torres to be in any way helpful to the defense of Mr. Jimenez. And did not consider it to be harmful that Mr. Torres did not testify, either for the prosecution or the defense. I am attaching a copy of the statement of Paul Torres for reference.

(4) Affidavit of Paul Torres

In his affidavit, Paul Torres, the owner of La Baby Doll Lounge, said he saw the aftermath of the first altercation appellant was involved in at the lounge that night. He heard appellant tell one man in Spanish that "he was going to get him." He later heard two gunshots, but he did not see the shooting or the events occurring just prior to it.

D. Voluntariness of Waiver of Jury Trial

In his first point of error, appellant contends his waiver of a jury trial was involuntary because his trial counsel told him that if he agreed to a bench trial, the judge would impose a sentence of community supervision.

No person may be convicted of a felony except upon the verdict of a jury, unless the defendant has waived the right of a jury trial; the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp. 2000); Hatch v. State, 958 S.W.2d 813, 814 (Tex. Crim. App. 1997); Shaffer v. State, 769 S.W.2d 943, 944-45 (Tex. Crim. App. 1989). Additionally, the waiver of a constitutional right must be a voluntary, knowing and intelligent act. Brady v. United States, 397 U.S. 742, 748 (1970). A jury trial waiver is voluntary and knowing when it is signed by the defendant after discussing with counsel the advantages and disadvantages of a jury trial. Hoang v. State, 825 S.W.2d 729, 732 (Tex. App.--Houston [14th Dist.] 1992, pet ref'd).

When the record shows a constitutional right was waived after proper admonishment, there is a prima facie showing that the waiver was knowing and voluntary. Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.--Houston [1st Dist.] 1996, no pet.) (addressing claims of involuntary waiver of jury trial and involuntary plea of guilty). The burden then shifts to the defendant to show that he waived his constitutional right without understanding the consequences. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985); Edwards, 921 S.W.2d at 479. Such waiver will be involuntary only if the appellant shows affirmatively that he was unaware of the consequences of his waiver, and that he was misled or misinformed. Williams, 704 S.W.2d at 775.

In this case, the clerk's record and the reporter's record show appellant voluntarily executed a written waiver of his right to a trial by jury after being admonished regarding his right to a jury trial. The waiver was approved by the trial court and by the prosecutor. The waiver constitutes prima facie evidence that appellant's waiver of his right to trial by jury was knowing and voluntary. The burden of proof then shifted to appellant to prove otherwise.

The record before us contains conflicting evidence concerning what appellant's trial counsel told him about his eligibility for community supervision. According to appellant, trial counsel told him the trial court could give him probation. Trial counsel, however, said he told appellant the trial court could not sentence him to community supervision if it found him guilty of aggravated assault with an affirmative finding of use of a deadly weapon. We conclude appellant has not met his burden of proving his waiver of his right to a jury trial was involuntary.

E. Ineffective Assistance of Trial Counsel

In his first issue, appellant also contends he received ineffective assistance of counsel at trial.

Claims of ineffective assistance are analyzed under the rule set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-56 (Tex. Crim. App. 1986). The Strickland test is the benchmark for judging whether counsel's conduct has so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992)). The appellant must first show his trial counsel's performance was not reasonably effective, falling below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812-13. A showing of deficiency requires a demonstration that the trial counsel made errors so serious that he was not functioning as the counsel guaranteed a defendant under the Sixth Amendment. Strickland, 466 U.S. at 687. We must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that counsel made all significant decisions in the exercise of reasonable professional judgment. Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). There is also a strong presumption that the trial counsel's conduct was reasonable and constitutes sound trial strategy. Strickland, 466 U.S. at 689; McFarland v State, 845 S.W.2d at 843. The "reasonably effective assistance" standard does not mean errorless counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Hernandez v. State, 799 S.W.2d 507, 508 (Tex. App.--Corpus Christi 1991, pet. ref'd).

If the appellant can demonstrate deficient assistance under the first part of the Strickland test, he must then show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812; Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989). "A reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). The prejudice element requires a showing that the trial counsel's errors were so serious as to deprive the defendant of a fair trial; one whose result is reliable. Strickland, 466 U.S. at 687. The totality of the representation is evaluated from counsel's perspective at trial, not his isolated acts or omissions in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979); Stone v. State, 17 S.W.3d 348, 350 (Tex. App.--Corpus Christi 2000, no pet. h.). The appellant must prove his claim of ineffective assistance of counsel by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). Furthermore, he must show ineffective assistance firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). We may not speculate as to the reasons behind trial counsel's actions nor should we try to second guess trial counsel's tactical decisions which do not fall below the objective standard of reasonableness. Young, 991 S.W.2d at 837-38; Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); Stone, 17 S.W.3d at 350.

Specifically, appellant alleges his trial counsel was ineffective because he (1) failed to investigate the case, (2) failed to call more defense witnesses, and (3) failed to adduce testimony of the victims' bad character. Based on the evidence before us, we conclude appellant has not proved that he received ineffective assistance of counsel at trial. Indeed, the record before us shows appellant's trial counsel's actions were reasonable.

The record shows that trial counsel did investigate the case according to appellant's wishes. He filed motions requiring the State to disclose all exculpatory material and to provide him with a list of all potential witnesses. Trial counsel obtained funding from the trial court to hire an investigator, who interviewed witnesses named by appellant. None of the witnesses corroborated appellant's account that the shooting was either accidental or in self-defense. The trial record shows four eyewitnesses testified that appellant did not act in self-defense, but instead pulled out a large revolver without adequate provocation and fired twice into a crowded room. Thus, there is no evidence that trial counsel was ineffective for failing to call additional defense witnesses or for failing to investigate the case properly.

The clerk's record shows that trial counsel filed motions requiring the State to provide the criminal history of all its testifying witnesses. Appellant has produced no evidence, other than his own affidavit, that the victims were of a bad or violent character, or had criminal histories. Based on the record before us, we hold appellant did not receive ineffective assistance of counsel at trial. We overrule appellant's first point of error.

F. Inability to Question Trial Counsel Under Oath

In his second point of error, appellant contends the trial court erred by not allowing him to question his trial counsel, under oath, concerning the alleged promise that appellant would be sentenced to community supervision if he waived his right to a jury trial.

The record reflects appellant did not object to the trial judge's decision to rule on the motion for new trial on affidavits alone. Therefore, he has waived this issue on appeal. See Tex. R. App. P. 33.1 (making a contemporaneous objection is required to preserve an issue for appeal, as well as obtaining a ruling on the objection).

Furthermore, it is the responsibility of the proponent of live testimony, not the trial court, to procure the presence of necessary witnesses. The trial court cannot be said to have erred in failing to permit examination of a witness whose presence the proponent failed to procure. Appellant's second point of error is overruled.

G. Withholding of Exculpatory Evidence

In his third point of error, appellant complains the State withheld exculpatory evidence, specifically the testimony of Paul Hernandez Torres, the owner of La Baby Doll Lounge. He contends Torres could have testified to the violent nature of the two victims and that they were gang members who had participated in a fatal beating of a man at La Baby Doll just four months before this incident.

One of the cornerstones of our criminal justice system is the government's duty to disclose exculpatory evidence; suppression of favorable evidence by the prosecution results in a violation of the defendant's right to due process under the Fourteenth Amendment. Brady v. Maryland, 373 U.S. 83, 87 (1963). However, there is no constitutional requirement that the prosecution disclose all information which might be useful in contradicting unfavorable testimony. Pennsylvania v. Ritchie, 480 U.S. 39, 52-57 (1987).

To invoke Brady, the accused must present evidence that: (1) the prosecution suppressed or withheld evidence; (2) this evidence would have been favorable to the accused; and (3) this evidence would have been material to the accused's defense. Page v. State, 7 S.W.3d 202, 206 (Tex. App.--Fort Worth 1999, no pet.); Cruz v. State, 838 S.W.2d 682, 686 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). The State's duty to disclose exculpatory material encompasses impeachment evidence if the evidence is admissible under the rules of evidence. United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989). The duty also encompasses evidence of the existence of material witnesses; where the State conceals a material witness whose testimony is shown to create a reasonable doubt of guilt that did not otherwise exist, there is a deprivation of due process. Hernandez v. Estelle, 674 F.2d 313, 317 (5th Cir. 1981). Therefore, the action of the State in contributing to the absence of a material witness can constitute the suppression of evidence. White v. State, 517 S.W.2d 543, 546-48 (Tex. Crim. App. 1974)(op. on reh'g). A constitutional violation occurs only when the State is directly responsible for the witness's absence. See United States v. Henao, 652 F.2d 591, 594 (5th Cir. 1981); Hernandez, 674 F.2d at 317.

In this case, the reporter's record reveals the following colloquy occurred after the State rested on April 30, 1999:

Defense Counsel: Your Honor, I had wanted to call some witnesses that the State had subpoenaed, and I need to discuss that with my client before putting on my case.

The Court: Take your time.

Defense Counsel: Your Honor, if I could go back on the record. Judge, we wanted to call the gentleman, the owner of the bar. I think his name is -- last name is Torres, I believe; and also a Nancy Guerrero that was made mention to [sic]. They're the State's witnesses, Judge, and have been subpoenaed. We would want to be able to call them as witnesses.

The Court: Are they here?

Prosecutor: They're on standby. I told [defense counsel] this morning when we discussed that I did not intend to call them.

The Court: Okay. If you'll contact them and find out how long it will take them to get here.

The court then recessed. When the court reconvened, appellant presented the testimony of Nancy Guerrero, the girlfriend who accompanied appellant to the lounge on the night of the shooting. After her testimony, the following occurred:

The Court: Okay, you're excused. Have you heard from Mr. Torres?

Ms. Mettlach:⁽⁴⁾ I called dispatch about two minutes before we started the hearing and called probably about five minutes ago, and they're still trying to find him. Left a message with his roommate. They have some officers looking for him. No luck.

The Court: Okay. When would you like to conclude this trial?

Prosecutor: Whatever the pleasure of the Court [sic].

The Court: Reset the case for conclusion at 1:30 on May 10th.

Defense Counsel: Your Honor, that's Monday?

The Court: Yes.

Defense Counsel: That will be perfect.

The Court: If you need a new subpoena for Mr. Torres and any other witnesses, Mr. Santos, I'm going to urge you to issue new subpoenas for anybody you want to have so you don't have to be relying on State subpoenas.

Defense Counsel: Judge, I may see if I can get an investigator that did some work on this case to possibly do that so we can get it done a lot faster.

The Court: No problem. See you at 1:30 on the 10th.

When the trial was reconvened June 4, 1999, no mention was made of Torres, and appellant did not call him to testify.

The record clearly shows that appellant knew of the existence of Mr. Torres, and that the State had subpoenaed Torres, but then decided not to call him as a witness. The trial was recessed, and the trial court specifically urged appellant to procure another subpoena for Torres and any additional witnesses he wished to call. When the trial reconvened some five weeks later, appellant did not call Torres as a witness, and made no objection to or even mentioned his absence. Furthermore, there is no evidence in the record that Torres had any knowledge of the victims' bad character, or of any extraneous bad acts by the victims. We hold there is no evidence that the State withheld any exculpatory evidence with respect to Torres. Appellant's third point of error is overruled.

H. Denial of Motion for New Trial

By his fourth point of error, appellant contends the trial court erred in denying his pro se motion for new trial "based on the merits of the errors presented" in his first, second, and third points of error.

The granting or denial of a motion for new trial is entrusted to the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). The only question on appeal is whether the trial court's decision was clearly wrong and outside the zone of reasonable disagreement. Gonzalez, 855 S.W.2d at 695 n. 4. The test has been stated as being "a question of whether the court acted without reference to any guiding rules and principles." Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). The reviewing court should not substitute its judgment for that of the trial court, but should only decide whether the trial court's decision was arbitrary or unreasonable. Lewis, 911 S.W.2d at 7; State v. Dixon, 893 S.W.2d 286, 288 (Tex. App.--Texarkana 1995, no pet.). It is well established that when there is conflicting evidence on an issue presented at a hearing on a motion for new trial, the trial court does not abuse its discretion in overruling the motion. Russell v. State, 711 S.W.2d 114, 116 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). We have overruled appellant's first, second and third points of error. We also overrule his fourth point of error.

I. Violation of Ex Post Facto Clause

In his fifth point of error, appellant contends the trial court erred in applying a new law to his request for an appeal bond in violation of the ex post facto clause. See U.S. Const. art. I, § 10, cl. 1("No State shall . . . pass . . . any ex post facto law); Tex. Const. art 1, § 16 ("No bill of attainder, ex post facto law, retroactive law . . . shall be made.").

When a court makes an ex post facto analysis, it should be concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred. Weaver v. Graham, 450 U.S. 24, 29 n. 3 (1981); Grimes v. State, 807 S.W.2d 582, 587 (Tex. Crim. App. 1991).

Appellant filed a pro se motion for an appeal bond with his first pro se motion for new trial on September 21, 1999, but did not urge his motion for an appeal bond at the sentencing hearing on September 23, 1999. At the hearing on the motion for new trial held on October 1, 1999, the following occurred:

Defense Counsel: And one final point, he is eligible for an appeal bond and would request the Court to assign an appeal bond amount while we're here today.

The Court: You want to put on evidence or you're just asking?

Defense Counsel: I'm just asking you to set a bond amount.

The Court: State have a request [sic]?

Prosecutor: Judge, we would -- has there been an appeal, notice of appeal?

The Court: Well, there is a motion for new trial, I don't know if that's the same or not.

Defense Counsel: I believe there is a notice of appeal.⁽⁵⁾

Prosecutor: I believe it was insufficient.

The Court: If it's in writing, it's pro se, I guarantee you the Court of Appeals will find it's plenty sufficient.

The Prosecutor: We would --

The Court: They passed a new statute, and this is the question I have to ask: It's my understanding as of September 1st, there is a new statute that says -- in the Code of Criminal Procedure it says if you're convicted of a second degree aggravated assault using a deadly weapon, that you're no longer eligible for appeal bonds if you get more than ten years.

Now that may be one of those ex post facto statutes and may apply only to offenses committed after September 1st, but they may view that as -- that may be viewed otherwise. And before I set bond, I need to look at the new statutes, but I know there is some new legislation concerning availability or allowance of appeal bonds in certain scenarios, and they reduced the amount of -- the number of years, depending on the offense committed. And let me look at that before I say. Otherwise I will go on the record as indicating if he's -- if it's appropriate and he's available, I'll set his appeal bond at $30,000 surety.

The Prosecutor: Yes, sir.

The Court: But I'm telling you that that's what I will set if appropriate, but I need to verify what the status of that new -- that new addendum, as it were, to the Code of Criminal Procedure is. But otherwise it will be set at 30 if he's eligible.

The record shows that on October 28, 1999, the trial court set an appeal bond for appellant in the amount of $50,000 cash or surety.

Appellant now claims a new criminal statute was applied to him retroactively in violation of the ex post facto clause of the constitution. However, because the trial court set an appeal bond for appellant, we conclude the new law was not applied to him. In other words, if the trial court had applied the new statute, it would not have granted appellant an appeal bond.

The version of article 44.04 of the code of criminal procedure in effect at the time of appellant's first request for an appeal bond was:

(b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement . . . but shall immediately be placed in custody and the bail discharged.

Act of 1991, 72nd Leg., ch. 14, § 284(50) (amended 1999) (current version at Tex. Code Crim. Proc. Ann. art. 44.04 (Vernon Supp. 2000)). However, article 44.04 was amended effective September 1, 1999, and now states:

The defendant may not be released on bail pending the appeal from any felony conviction where the punishment equals or exceeds 10 years confinement or where the defendant has been convicted of on offense listed under Section 3g(a)(1), Article 42.12, but shall immediately be placed in custody and the bail discharged.

Tex. Code Crim. Proc. Ann. art. 44.04 (Vernon Supp. 2000). The legislature provided that the amended version of article 44.04:

applies only to a request for bail pending appeal that is made by a defendant on or after the effective date of this Act. A request for bail pending appeal that is made by a defendant before the effective date of this Act is covered by the law in effect when the request was made, and the former law is continued in effect for that purpose.

Act of 1999, 76th Leg., ch. 546, § 2.

The trial court assessed appellant's punishment at twelve years imprisonment for each count. Appellant was eligible for an appeal bond under the prior version of article 44.04, but he is ineligible under the current version. Because the trial court set an appeal bond of $50,000, we conclude it applied the prior version of article 44.04. Thus, the trial court could not have violated the ex post facto clause. Appellant's fifth point of error is overruled.

J. Ineffective Assistance of Appellate Counsel

In his sixth point of error, appellant complains he received ineffective assistance of appellate counsel in connection with his motion for new trial. In his seventh point of error, appellant contends he received ineffective assistance of counsel on appeal.

We have already set out above the applicable standards of review for claims of ineffective assistance of counsel. These demanding standards are virtually impossible to meet when no proper evidentiary record was developed at a hearing on a motion for new trial. As the court of criminal appeals noted recently: "[a] substantial risk of failure accompanies an appellant's claim of ineffective assistance on direct appeal. . . . In a majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 813-14. The reason an adequate record is so important in these cases is because in the absence of such a record, the court must apply the strong presumption that counsel's performance was a part of trial strategy, and typically will not second-guess a matter of trial strategy. Young, 991 S.W.2d at 837; Stone, 17 S.W.3d at 350.

There is no evidence in the record before us about what appellate counsel's strategy may have been. We are, thus, unable "to second-guess . . . counsel's tactical decisions which do not fall below the objective standard of reasonableness." See Young, 991 S.W.2d at 837-38; Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992). All we can do is determine from the record before us if the complained-of actions "fall below the objective standard of reasonableness." Young, 991 S.W.2d at 837-38.

Where the record before us affirmatively demonstrates that counsel took some action in defending his client that no reasonably competent attorney could have believed constituted sound trial strategy, the defendant has shown he received ineffective assistance of counsel. Stone, 17 S.W.3d at 353; see also Campbell v. State, 2 S.W.3d 729, 734 (Tex. App.--Houston [14th Dist.] 1999, pet. granted on other grounds)("[I]f a silent record clearly indicates no reasonable attorney could have made such trial decisions, to hold counsel ineffective is not speculation.").

Here, the record before us is silent as to any strategy employed by appellant's first appellate counsel in connection with the motion for new trial, and we are not permitted to speculate. In the absence of any such evidence, we must apply the strong presumption set forth above. Accordingly, we hold appellant has not demonstrated that he received ineffective assistance from his first appellate counsel. Appellant's sixth point of error is overruled.

Similarly, there is no evidence in the record before us that appellant received ineffective assistance from his present appellate counsel. Counsel informed appellant that a "review of the trial proceedings reveals no error which would require a new trial." This court has similarly found no viable appellate issues among appellant's claims. Therefore, we cannot say that appellant received ineffective assistance from his present appellate counsel. Appellant's seventh issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.

1. Both victims recovered fully, and testified against appellant at trial.

2. Appellant could not receive a sentence of community supervision from the trial judge "where it is shown that a deadly weapon . . . was used or exhibited during the commission of a felony. . . . On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment." Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2000).

3. We note that appellant was also ineligible to receive a sentence of community supervision from a jury because he had a prior felony conviction for burglary of a habitation. See Tex. Code Crim. Proc Ann. art. 42.12, §4(e) (Vernon Supp. 2000).

4. Ms. Mettlach is not identified in the record.

5. Appellant filed a pro se notice of appeal on September 9, 1999,