Selma Telles Espinoza v. State

• Court: Court of Appeals of Texas
• Decided: April 2, 2009
• Docket: 08-07-00358-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

SELMA TELLES ESPINOZA, § No. 08-07-00358-CR Appellant, § Appeal from the v. § County Court at Law Number Four THE STATE OF TEXAS, § of El Paso County, Texas Appellee. § (TC#20070C08404) §

OPINION

Selma Espinoza was convicted by a jury of assault causes bodily injury family violence,

on December 14, 2007. She was sentenced to 365 days in county jail, but was placed on

community supervision for a period of twelve months, and the fine of $4,000 dollars imposed

against her was probated. Appellant timely filed a pro se notice of appeal and a pauper’s oath on

December 18, 2007. On January 8, 2008, Carlos Spector (Spector) was appointed to represent

Appellant on appeal. On January 24, 2008, Spector requested the record be prepared for

Appellant. The trial court’s certification of the right to appeal was filed on February 1, 2008.

Appellant raises three issues on appeal relating to ineffective assistance of counsel.

The appeal arises out the alleged abandonment by Luis Labrado, who was Appellant’s

counsel at trial. Appellant claims that Labrado did not admonish his client of her appellate

rights, perfect the appeal, prepare a docketing statement, or request the record, and that he

withdrew as counsel prior to notifying the court or receiving his client’s consent. Appellant

argues that the trial court erred in permitting the withdrawal of Labrado. Appellant also argues

that the acts of Labrado amount to ineffective assistance of counsel. To establish ineffective assistance of counsel the defendant has the burden to prove, by a

preponderance of the evidence, the two-prong test established in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052 (1984). Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999);

Bradley v. State, 960 S.W.2d 791, 803-04 (Tex.App.–El Paso1997, pet. ref’d). Specifically,

appellant must demonstrate that: (1) trial counsel’s performance was deficient because it fell

below an objective standard of reasonableness; and (2) a probability sufficient to undermine

confidence in the outcome existed that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10

(Tex.Crim.App. 2003); Bradley, 960 S.W.2d at 803-04.

Ineffective assistance of counsel cannot be established by isolating or separating out one

portion of the trial counsel’s performance for examination. Bridge v. State, 726 S.W.2d 558, 571

(Tex.Crim.App. 1986). In that regard, this Court, on review, will not engage in hindsighted

comparisons of how other counsel, in particular, appellate counsel, might have tried the case.

See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). Rather, we must look at the

totality of the representation. Id.

Appellant has failed to show through the record that she was never admonished of her

appellate rights. Also, there is nothing in the record to support Appellant’s claim that she was

abandoned. We will not assume that because Appellant filed a pro se notice of appeal she was

abandoned. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). In most instances, the

record on direct appeal is undeveloped and cannot adequately reflect the failings of trial counsel,

which is the case in this appeal. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.

1999).

2 Even if Appellant was able to prove that Labrado failed to inform her of her appellate

rights and abandoned her after trial, Appellant has not been harmed in any way that is discernable

from the record. The second prong of Strickland requires a showing, by a preponderance of the

evidence, that the error or omission did change the outcome of the case. Rylander, 101 S.W.3d

at 109-10. As the State points out, Appellant gave her notice of appeal four days after

sentencing. The reporter’s record, clerk’s record, and her appellate brief were all timely filed

with this Court. Appellant was also represented by appellate counsel shortly after she filed her

pro se notice of appeal and pauper’s oath. Based on the record and the very fact that Appellant is

on appeal before this Court is evidence that she was not harmed by any alleged act or omission of

her trial counsel.

The second prong of Strickland has not been satisfied. Appellant has failed to show how

she was harmed by the errors she complains of. Moreover, there is nothing in the record to

support any claim of ineffective counsel. Accordingly, we overrule all three of Appellant’s

issues and affirm the judgment of the trial court.

DAVID WELLINGTON CHEW, Chief Justice April 2, 2009

Before Chew, C.J., McClure, and Carr, JJ. Carr, J., not participating

(Do Not Publish)