Robert Zamora v. State

• Court: Court of Appeals of Texas
• Decided: December 6, 2012
• Docket: 13-12-00261-CR
• Status: Published

Opinion

NUMBER 13-12-00261-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERT ZAMORA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion by Chief Justice Valdez

By one issue, appellant, Robert Zamora, appeals from his conviction for two

counts of aggravated sexual assault of a child, a first-degree felony, on the basis that he

was denied effective assistance of counsel in violation of the Sixth Amendment. See

U.S. CONST. amend. VI; TEX. PENAL CODE ANN. § 22.021(a), (e) (West Supp. 2011). We

affirm. I. BACKGROUND

In 1994, appellant pleaded guilty to two counts of aggravated sexual assault of a

child. See TEX. PENAL CODE ANN. § 22.021(a). He was given deferred-adjudication

community supervision for ten years. In 1999, the term of appellant’s community

supervision was extended an additional ten years, such that it would expire on October

12, 2014. On December 21, 2011, the State filed a motion to revoke appellant’s

community supervision, alleging a number of violations, including failure to pay

probation and sex offender fees, travelling past several schools, and having contact with

his three-year-old niece.

On December 28, 2011, a magistrate judge signed an order finding reasonable

cause to believe that appellant had a mental illness and ordering an assessment under

article 16.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 16.22 (West Supp. 2011). Attached to the order was a jail screening form,

dated December 27, 2011, suggesting that an officer at the jail suspected that appellant

may be at risk for suicide because of a mental illness. On the form, appellant reported

hearing noises or voices, being very depressed, and thinking about killing himself.

There is no indication in the record that any mental assessment was ever made.

On March 22, 2012, the trial court held a hearing on the State’s motion to revoke.

Appellant pleaded true to the allegations of failure to pay and not true to the allegations

of improper contact. Cleo Vanaman, appellant’s probation officer, testified that

appellant had admitted both to her and to a polygraph examiner that he had contact with

his three-year-old niece and that he drives by local high schools to look at the girls.

Larry Serna, the polygraph examiner, testified that appellant admitted having sexual

2 thoughts about a 15 or 16 year-old student while he was driving past the high schools.

According to Serna, appellant admitted going out of his way to drive past high schools

and elementary schools to look at the students, thought about having sex with them,

and had fantasies about what they looked like naked. According to Serna, appellant

has been diagnosed with bipolar disorder, schizophrenia, and depression.

Appellant’s mother and sister both testified on his behalf. They testified

regarding appellant’s contact with his niece. George Phillips, appellant’s counselor,

also testified on his behalf. According to Phillips, appellant is a paranoid schizophrenic,

with post-traumatic stress disorder and depression. Phillips also testified that appellant

had been referred to MHMR for psychiatric care and was supposed to be taking

medication to reduce his sexual thoughts about children. Phillips testified that appellant

also participates in group therapy and individual counseling.

On March 29, 2012, the trial court signed a judgment adjudicating guilt and

sentencing appellant to 20 years in prison. This appeal ensued.

II. ANALYSIS

Appellant challenges his conviction based on ineffective assistance of counsel.

A. Applicable Law and Standard of Review

Both the United States and Texas Constitutions guarantee an accused the right

to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1 § 10; see also TEX.

CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2011). To prove ineffective assistance

of counsel, the defendant must meet the heavy burden established in Strickland v.

Washington, 466 U.S. 668, 687 (1984). In Strickland, assistance of counsel is

ineffective if, in considering the totality of the circumstances: (1) counsel’s

3 representation fell below an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for the attorney’s errors, the result of the proceeding

would have been different. Id.; Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim.

App. 1995). “A convicted defendant making a claim of ineffective assistance must

identify the acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment.” Strickland, 466 U.S. at 690. The record must

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). We will not find counsel ineffective when the record is

silent as to counsel's reasoning or strategy. Godoy v. State, 122 S.W.3d 315, 322 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

B. Discussion

Appellant’s claim of ineffective assistance of counsel is based on his attorney’s

failure to investigate the possibility of mental illness as reflected in the magistrate’s

order. Appellant contends that his counsel was ineffective in that he failed to ensure

that a mental examination was conducted prior to the hearing on the State’s motion to

revoke.

Assuming counsel’s performance was deficient in this regard, appellant has not

shown that the outcome of the proceeding would have been different in the absence of

such deficiency. See Strickland, 466 U.S. at 687. Appellant’s conviction was based on

his guilty plea in 1994. Appellant has not raised any complaint regarding the

effectiveness of counsel’s assistance during the plea proceeding that resulted in him

receiving deferred-adjudication community supervision for two first-degree felony

offenses involving aggravated sexual assault of a child. To the extent appellant

4 contends that, but for counsel’s deficient performance, he would not have pleaded true

to the violations of his community supervision alleged in the State’s motion to revoke,

we note that the State produced independent evidence to prove the truth of the alleged

violations. Thus, appellant has failed to show that the outcome of the proceeding would

have been different in the absence of counsel’s allegedly deficient assistance.

Accordingly, appellant’s sole issue is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed.

ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 6th day of December, 2012.