Pedro Molina Bazan v. State

• Court: Court of Appeals of Texas
• Decided: August 4, 2005
• Docket: 13-02-00721-CR
• Status: Published

Opinion

                              NUMBER 13-02-721-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

PEDRO MOLINA BAZAN,                                                               Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Hinojosa and Yañez

                            Memorandum Opinion by Justice Yañez

Pursuant to a plea agreement, appellant, Pedro Bazan, pleaded guilty to assault on a public servant and possession of more than two ounces but less than four ounces of marihuana.^[1]  The trial court assessed his punishment at eleven years= imprisonment for possession of marihuana and ten years= imprisonment for assault on a public servant to be served concurrently.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it.^[2]

The trial court has certified that this is a plea‑bargain case but appellant has the right to appeal matters that were raised by written motion filed and ruled on before trial.^[3]

Anders Brief

On appeal, appellant's attorney has filed a brief with this Court asserting there is no basis for appeal.^[4] According to the brief, counsel has reviewed the record and has concluded that appellant's appeal is frivolous and without merit.^[5]  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.^[6]   In compliance with High v. State,^[7] counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. 

Upon receiving a Afrivolous appeal@ brief, the appellate courts must conduct Aa full examination of all the proceedings to decide whether the case is wholly frivolous.@^[8] 

The record reflects that appellant=s counsel informed appellant of his right to review the record and to file a pro se brief.^[9]  The record shows that  appellant has filed a pro se brief.^[10]  In his brief, he raises two issues: (1) he is entitled to a complete and accurate record on appeal; and (2) ineffectiveness of counsel.

Regarding appellant=s first issue, he claims generally that Adocuments@ are missing from the clerk=s record.  However, in his brief, he references only a Amotion to disclose informant.@ 

The record reflects that the trial court held a pre-trial hearing on June 3, 1999 regarding appellant=s Amotion to disclose informant.@  At the hearing, appellant=s trial counsel actually urged two pre-trial motions: a motion to disclose informant and a motion to suppress.  The principal contentions were that the State was required to disclose an informant=s identity and provide specific information which formed the factual and legal basis that supported the State=s probable cause affidavit that authorized a search of appellant=s home.  After hearing arguments presented by the State and appellant=s trial counsel, the trial court conducted an in camera evidentiary hearing and heard testimony from a DPS narcotics investigator regarding the informant.  However, prior to the trial court=s ruling on the motions, appellant=s trial counsel informed the court that the State and appellant had reached a plea agreement.  As a result, the court did not rule on the motions. Instead, the court advised appellant that without the benefit of a final ruling on the motions, appellant was waiving his right to constitutionally challenge or otherwise contest the motions.  The court specifically asked appellant whether he understood.  Appellant stated, AYes.  I understand that, Your Honor.@    

 We note that the record does not include a written motion to disclose.  An appellant would normally be entitled to a new trial if the Alost@ record is necessary to resolve an appeal.^[11]  However, the record contains a transcript of the court reporter=s record at the hearing on the motion to disclose.  Because the record shows that appellant explicitly agreed to waive any challenge to the motion, we conclude that examination of the actual written motion is unnecessary to resolve this appeal.^[12]               

With regard to appellant=s generalized contention regarding Adocuments,@ we conclude that he has failed to specifically identify, argue, or explain how any other alleged Adocuments@ would be applicable to this appeal and we therefore find this section to have been inadequately briefed for purposes of appeal.^[13]  Appellant=s first issue is therefore overruled.

Regarding appellant=s second issue, he argues that his counsel was ineffective because he (1) failed to obtain a ruling on the motion to disclose informant, (2) failed to object, fully investigate evidence, and properly communicate the consequences of his guilty plea, and (3) did not petition the court for withdrawal of appellant=s guilty plea or file a motion for new trial.      

An ineffective‑assistance‑of‑counsel claim is analyzed under the two‑prong test enumerated in Strickland and adopted by the Texas Court of Criminal Appeals.^[14]   First, the appellant must show that counsel's performance was deficient.^[15]  Second, the appellant must show that the deficient performance prejudiced the defense.^[16]  To satisfy the first prong, the appellant must (1) rebut the presumption that counsel is competent by identifying the acts and/or omissions of counsel that are alleged as ineffective assistance and (2) affirmatively prove that such acts and/or omissions fell below the professional norm of reasonableness.^[17]  In any ineffective assistance of counsel claim there is a strong presumption that counsel was competent and that his actions and decisions were reasonably professional and motivated by sound trial strategy.^[18]

To rebut this presumption, the appellant must present evidence indicating why counsel performed the way he did.^[19]  The appellant will be unable to meet this burden if the record does not specifically focus on the reasons for the conduct of his trial counsel.^[20]  When the record is silent as to counsel's reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court, and appellate courts do not speculate about the reasons underlying defense counsel's decisions.^[21]  To satisfy the second prong and establish prejudice, the appellant must prove there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.^[22]  A reasonable probability has been defined as a probability sufficient to undermine confidence in the outcome of the proceedings.^[23]

Appellant's claims of ineffectiveness are grouped and discussed below.

Failure to Obtain a Ruling on Motion to Disclose

The record reflects that the court did not rule on the motion because a plea agreement had been reached.  After a careful review of the record, we conclude that trial counsel=s actions and decisions were reasonably professional and motivated by sound trial strategy.^[24]  Moreover, the court admonished appellant regarding the consequences of a failure to obtain a ruling on the motion.  Even if trial counsel's actions did fall below a reasonably professional standard, appellant has failed to prove that the outcome of the proceeding would have been different.^[25]

Alleged Failure to Object, Alleged Failure to Fully Investigate Evidence, and Alleged Failure to Properly Communicate the Consequences of a Guilty Plea

Appellant contends that trial counsel erred in his failure to object to the admission into evidence of police reports and lab results of suspected drugs seized from appellant=s residence.  However, appellant fails to show how any objections by counsel would have resulted in a different outcome.^[26] 

Appellant further argues generally that a full investigation would have revealed insufficient evidence.  Mere allegations that counsel failed to investigate or discuss the case with appellant are insufficient to raise an ineffectiveness claim.^[27]  An appellant must show what an investigation would have revealed.^[28]   In this case, appellant has failed to show what an investigation would have revealed.^[29]

Appellant further claims his trial counsel failed to properly communicate the consequences of a guilty plea.  In light of the record, appellant has not proven by a preponderance of the evidence that counsel's alleged failure to communicate was outside the wide range of competence demanded of attorneys in criminal cases.^[30]  Further, appellant has failed to prove that the alleged deficient performance caused him to enter a guilty plea.^[31]  The written admonishments in the record indicate that appellant understood the consequences of his plea, that he freely, knowingly, and voluntarily entered the plea, that he committed the crimes alleged in the indictment, and that he understood the range of  punishment.^[32]

Alleged Failure to Petition the Court for Withdrawal of Appellant=s Guilty Plea or File a Motion for New Trial

At appellant=s sentencing hearing, after the court had pronounced sentence, trial counsel, without stating the specific reasons, informed the court that appellant wanted to withdraw his guilty plea.  The trial court declined to consider appellant=s request to withdraw his plea.  The record also reflects that a motion for new trial was not filed.

The record is silent as to why appellant's trial counsel took, or failed to take, the actions appellant asserts are proof of ineffective assistance of counsel.^[33]   To defeat the presumption of sound trial strategy, the allegation of ineffective assistance of counsel must be "firmly founded in the record," which must "affirmatively demonstrate the alleged ineffectiveness."^[34]   To find that appellant's counsel was ineffective based on the asserted grounds would call for speculation.^[35]

Appellant=s second issue is overruled.

We have carefully reviewed the appellate record and counsel=s brief.  We agree with appellant=s counsel that the appeal is wholly frivolous and without merit.

Motion to Withdraw

An appellate court may grant a motion to withdraw from counsel in connection with an Anders brief.^[36]  The record shows that counsel has not filed a motion to withdraw.  If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion.  We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.^[37]

After an independent review of the record and consideration of appellant=s pro se brief, we find nothing in the record that might arguably support this appeal.^[38] 

We affirm the judgment of the trial court.               

_______________________

LINDA REYNA YAÑEZ,

Justice

Do not publish.                                             

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 4th day of August, 2005.

---

^[1]  Because appellant had two prior felony convictions, the possession of marihuana charge was enhanced to a second degree felony.

^[2]  See Tex. R. App. P. 47.4.

^[3]  See Tex. R. App. P. 25.2(a)(2).

^[4]  See Anders v. California, 386 U.S. 738 (1967).

^[5]  See id.

^[6]  See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

^[7]  573 S.W.2d 807, 813 (Tex. Crim. App. 1978).

^[8]  See Penson v. Ohio, 488 U.S. 75, 80 (1988); Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.). 

^[9]  The record shows that counsel on appeal filed his Anders brief on December 1, 2004.  On December 28, 2004, appellant filed a motion for extension of time to file a pro se brief.  In the motion, appellant acknowledges that he received notice of his right to review the record and file a pro se brief. See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.BWaco 2001, no pet.).

^[10]  Although this Court granted appellant=s requests for extensions of time to file his pro se brief, the brief was untimely received.  The record shows that appellant=s pro se brief was due on June 7, 2005.  However, this Court did not receive his brief until June 13, 2005.  Nevertheless, in the interests of justice, we will address the merits of appellant=s pro se brief. 

^[11]  See Tex. R. App. P. 34.6(f)(3).

^[12]  See Tex. R. App. P. 33.1 (a)(2)(A); Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000) (holding lost reporter's record from underlying deferred adjudication proceeding was not necessary to resolve appeal).

^[13]  See Tex. R. App. P. 38.1(h).

^[14]  Strickland v. Washington, 466 U.S. 668, 687 (1984); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).

^[15]  See Murphy, 112 S.W.3d at 601.

^[16]  See Strickland, 466 U.S. at 687; Murphy, 112 S.W.3d at 601.

^[17]  Stults v. State, 23 S.W.3d 198, 208 (Tex. App.BHouston [14th Dist.] 2000, pet. ref'd).

^[18]  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (en banc); Stults, 23 S.W.3d at 208.

^[19]  Stults, 23 S.W.3d at 208.

^[20]  See id.

^[21]  See Murphy, 112 S.W.3d at 601; Stults, 23 S.W.3d at 208. 

^[22]  Tong, 25 S.W.3d at 712; Stults, 23 S.W.3d at 208.

^[23]  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

^[24]  Stults, 23 S.W.3d at 208.

^[25]  Tong, 25 S.W.3d at 712.

^[26]  See id.

^[27]  See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (en banc).

^[28]  See id.

^[29]  See id. 

^[30]  Stults, 23 S.W.3d at 208.

^[31]  Tong, 25 S.W.3d at 712; Stults, 23 S.W.3d at 208.

^[32]  See Gottson v. State, 940 S.W.2d 181, 185‑86 (Tex. App.BSan Antonio 1996, pet. ref'd).

^[33]  See Murphy, 112 S.W.3d at 601; Stults, 23 S.W.3d at 208.

^[34]  Thompson, 9 S.W.3d at 813.

^[35]  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).

^[36]  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that motion to withdraw from case should be filed with Anders brief).

^[37]  See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

^[38]  See Penson, 488 U.S. at 80.