Victor Palacios v. State

• Court: Court of Appeals of Texas
• Decided: June 17, 2004
• Docket: 13-01-00811-CR
• Status: Published

Opinion

Palacios v. SOT

NUMBER 13-01-00811-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

VICTOR PALACIOS,                                                                    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 Hinojosa and Wittig

Memorandum Opinion by Justice Hinojosa

          Appellant, Victor Palacios, pleaded guilty on March 28, 2000, to the offense of indecency with a child. After accepting appellant’s guilty plea, the trial court deferred adjudication of guilt, assessed a fine of $500, and placed him on community supervision for ten years.

          On February 7, 2001, the State filed a motion to revoke, and on March 14, 2001, an amended motion to revoke, alleging various violations of the conditions of appellant’s community supervision, including: (1) the commission of several criminal offenses; (2) the failure to report; (3) the failure to abstain from the use of alcohol; (4) the failure to pay various costs; (5) the failure to participate in various counseling programs; and (6) the failure to perform community service hours. Appellant pleaded “true” to the State’s allegations that he failed to report, failed to pay various costs, failed to participate in various counseling programs, and failed to perform community service hours. He pleaded “not true” to the remaining allegations. After an evidentiary hearing, the trial court found that appellant had violated numerous conditions of his community supervision order, adjudicated him guilty of two counts of indecency with a child, and assessed his punishment at fifteen years imprisonment. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2).

                                                        A. Anders Brief

          Appellant’s court-appointed counsel filed an Anders brief on February 27, 2002, asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). In the brief, counsel states that he has reviewed the clerk’s record and reporter’s record and has concluded that appellant’s appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court’s judgment.

          After reviewing counsel’s brief, we noted that counsel had not certified he had informed appellant of his right to review the record and to file a pro se brief. See Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.–Waco 1994, pet. ref’d). On January 27, 2003, we sent a letter to appellant’s counsel informing him that his brief failed to meet the requirements of Anders, and ordered him to file an amended brief within ten days.

          On January 31, 2003, counsel filed an amended brief, asserting an ineffective assistance of counsel claim. On February 3, 2003, the State filed a motion to strike the amended brief and remand for appointment of new appellate counsel. On February 18, 2003, appellant filed a motion requesting that counsel’s amended brief be withdrawn. On April 2, 2004, we granted appellant’s motion, dismissed as moot the State’s motion to strike the amended brief, and denied the State’s motion to remand for reappointment of new counsel.

B. Counsel’s Motion to Withdraw

          In accordance with Anders, appellate counsel has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant counsel’s motion to withdraw.

C. Appellant’s Pro Se Brief

          Appellant filed a pro se brief on November 4, 2002. In the brief, appellant raises the following five issues: (1) trial counsel was ineffective because he failed to object to untrue statements in the record, failed to investigate and seek out possible evidence, and gave erroneous advice to appellant that caused an involuntary plea; (2) the trial court improperly admonished appellant; (3) the sentence received was disproportionate to the offense committed; (4) the judge’s discretion is unlawful; and (5) appellate counsel was ineffective because he filed an Anders brief before consulting with appellant.

D. Complaints Regarding Original Conviction and Adjudication

          Article 42.12, section 5(b) of the Texas Code of Criminal Procedure provides in relevant part:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred . . . .

Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004). Therefore, appellant may not raise issues regarding the proceeding at which his community supervision was revoked and his guilt was formally adjudicated. See id.; Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Furthermore, a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceedings only in appeals taken when deferred adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Thus, we do not have the power to review appellant’s issues regarding the effectiveness of trial counsel in the original proceeding, the voluntariness of appellant’s guilty plea, or the trial court’s admonishments before entry of the guilty plea.

E. Disproportionate Sentence

          Appellant contends that his sentence was “so greatly disproportionate as to be completely arbitrary and shocking to the sense of justice.” However, appellant did not inform the trial court that he objected to the sentence, either at the time of sentencing or in any post-trial motion, on any grounds, nor did he object, under constitutional or other grounds, to any part of the sentencing procedure or to the alleged disparity, cruelty, unusualness, or excessiveness of the sentence.

          Even constitutional claims can be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). Generally, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App.–Houston [1st Dist.] 1997, pet. ref'd) (claim of grossly disproportionate sentence violative of Eighth Amendment waived by failure to object); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.–Corpus Christi 1989, pet. ref'd) (failure to object to sentence as cruel and unusual waives error). Because appellant failed to preserve error, we overrule his issue regarding disproportionate sentence.

F. Ineffective Assistance of Appellate Counsel

          Appellant contends he received ineffective assistance of counsel because appellate counsel filed an Anders brief before consulting with appellant.

          The standard of review in ineffective assistance of counsel claims is that appellant must show that: (1) counsel’s performance was deficient, and (2) the deficiency of counsel’s performance caused prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). Such claims must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

          Appellant’s contention that appellate counsel was ineffective because counsel failed to consult with appellant regarding possible errors that appellant believes are worthy of appeal and counsel filed an Anders brief, is not supported by the record. After reviewing the record, we have found that appellant’s alleged errors lack merit. We cannot say that appellate counsel was ineffective if he also found those alleged errors to have no merit. Because appellant failed to rebut the presumption that appellate counsel rendered reasonable professional assistance, we overrule appellant’s issue regarding ineffective assistance of appellate counsel.

          We affirm the judgment of the trial court.

                                                                           FEDERICO G. HINOJOSA

                                                                           Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this the

17th day of June, 2004.