
NO. 07-07-0280-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 5, 2007
______________________________

TEXAS DEPARTMENT OF PUBLIC SAFETY,

										Appellant

V.

ROBERT AARON SANCHEZ,

										Appellee
_________________________________



FROM THE 111th DISTRICT COURT OF WEBB COUNTY;

NO. 2004-CVQ-001435-D2; HONORABLE RAUL VASQUEZ, PRESIDING
_______________________________

ORDER DISMISSING APPEAL
 _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 
	Appellant, by and through its attorney, has filed an unopposed motion to dismiss.
Without passing on the merits of the case, we grant the motion pursuant to Texas Rule of
Appellate Procedure 42.1(a)(1)(2) and dismiss the appeal.  Having dismissed the appeal
at appellant's request, no motion for rehearing will be entertained, and our mandate will
issue forthwith.


							Brian Quinn
						          Chief Justice

ry Lee, an officer with the Wilbarger County Sheriff's
Department, received a phone call reporting a "possible meth lab actually in the process
of making meth" at a residence in Oklaunion, Texas.  When he arrived, Lee noticed a
pickup truck backed up to a shed at the rear of the property.  He then observed three
people run out of the building, get into the pickup, and attempt to leave.  Lee and another
officer who responded to the scene apprehended the three individuals and identified them
as appellant, who was the driver, appellant's wife, Maria Foster, and appellant's partner,
Cesilio Gonzales.  Inside the truck, Lee discovered a "fully loaded" pistol in a pouch on the
driver's door and an SKS, "high powered semi-automatic rifle" behind the seat.  When
officers entered the shed, they located a working "clandestine methamphetamine lab."  The
officers seized several jars of chemicals, which were later analyzed and determined to
contain methamphetamine and cocaine in various levels of concentration.  At trial,
appellant consented to a stipulation of evidence admitting each of the elements of the
offense contained in the indictment.  He further testified during the punishment phase and
freely admitted that: (1) he had a drug problem; (2) the guns seized from the crime scene
were his; (3) he manufactured the drugs at issue in this case; (4) he became "interested
in cooking dope and using the dope" when he was fifteen or sixteen; and (5) he "actually
made some profits out of the sale" of methamphetamine he manufactured.

	Before addressing appellant's specific contentions, we first acknowledge the
standard of review of an ineffective assistance of counsel claim.  To prevail on such an
allegation, a defendant must establish by a preponderance of the evidence that:  (1)
counsel's performance was deficient, that is, it fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that but for counsel's deficient
performance, the result of the proceeding would have been different.  Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  Rylander v. State, 101
S.W.3d 107, 109-10 (Tex.Cr.App. 2003).  A reasonable probability is a probability sufficient
to undermine confidence in the outcome.  Mitchell v. State, 68 S.W.3d 640, 642
(Tex.Cr.App. 2002).  In other words, appellant must demonstrate that the deficient
performance prejudiced his defense.  Id.  Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v.
State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct.
1368, 131 L.Ed.2d 223 (1995).  
	The adequacy of defense counsel's assistance is based upon the totality of the
representation rather than by isolated acts or omissions of trial counsel.  Id.  And, although
the constitutional right to counsel ensures the right to reasonably effective counsel, it does
not guarantee errorless counsel whose competency or accuracy of representation is to be
judged by hindsight.  Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993), cert.
denied, 510 U.S. 840, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993).  Appellate review of trial
counsel's representation is highly deferential and presumes that counsel's conduct fell
within the wide range of reasonable and professional representation.  Bone v. State, 77
S.W.3d 828, 833 (Tex.Cr.App. 2002).  That another attorney, including appellant's counsel
on appeal, might have pursued a different course of action does not necessarily indicate
ineffective assistance.  Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Texarkana
2004, no pet. h.).  
	Any allegation of ineffectiveness 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.Cr.App. 1999).     In the absence of direct evidence in the record of
counsel's reasons for the challenged conduct, an appellate court will assume a strategic
motivation if any can be imagined.  Garcia v. State, 57 S.W.2d 436, 440 (Tex.Cr.App.
2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003).  Under
normal circumstances, the record on direct appeal will not be sufficient to show that
counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that his conduct was reasonable and professional. 
See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001).  Indeed, appellate courts can
rarely decide the issue of ineffective assistance of counsel because the record almost
never speaks to the strategic reasons trial counsel may have considered.  Id.  Although the
most effective procedure for presenting this claim may be via a habeas corpus, Aldrich v.
State, 104 S.W.3d 890, 896 (Tex.Cr.App. 2003), nevertheless, some claims may be
disposed of on direct appeal where trial counsel's ineffectiveness is apparent from the
record.  Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Cr.App. 2003).  
	We now direct our attention to appellant's first two points of error by which he claims
that he was denied his constitutional right to effective assistance of counsel, thus rendering
his plea involuntary and the resulting conviction void.  In support of the voluntariness of his
plea, appellant suggests we review letters written by him to the court prior to trial revealing
his skepticism of his attorney's competence and his reluctance to enter a guilty plea. 
Regarding the void conviction argument, appellant contends that his attorney failed to
appreciate the variance between the quantity of methamphetamine alleged in the
indictment and the proof of that amount at trial.  According to appellant, the indictment
alleged that he manufactured over 400 grams of pure methamphetamine, while the
evidence at trial merely established a combined weight for the controlled substances
seized from the crime scene of 167.33153 grams. (1)  This discrepancy obtains, he says,
because of the State's failure to include in the indictment the language, "by aggregate
weight, including adulterants or dilutants."  The omission of that phrase, suggests
appellant, resulted in his accountability for only that portion of the substance confirmed as
pure methamphetamine.  Then, because the quantity of drugs determines the range of
punishment in a manufacturing case, appellant argues that, had his attorney provided
effective assistance, "it is quite conceivable that [appellant] may have only been guilty of
a State Jail felony as opposed to an aggravated first degree felony."  See Tex. Health &
Safety Code Ann. § 481.0112(b) & (f) (Vernon 2003).  With appellant's contentions, we
disagree.
	When a defendant challenges the voluntariness of a plea entered upon the advice
of counsel contending that his counsel was ineffective, the voluntariness of the plea
depends upon: (1) whether counsel's advice was within the range of competence
demanded, and if not, (2) whether there is a reasonable probability that, but for the
ineffective assistance, the defendant would not have pleaded guilty and would have
insisted on going to trial.  Ex parte Moody, 991 S.W.2d 856, 857-88 (Tex.Cr.App. 1999). 
Because appellant did not file a motion for new trial raising his ineffectiveness claim, the
record has not been developed with respect to the reasons for the entry of appellant's
guilty plea, the advice provided to him, or counsel's trial strategy.  Without a record having
been developed on these issues, we are unable to determine whether appellant entered
a plea of guilty on the advice of counsel or whether counsel's advice was legally correct
and made pursuant to sound trial strategy. 
	With regard to appellant's assertion that his letters to the court "clearly reflect [his]
state of mind as to the involuntariness of his plea," we observe that the record reveals
abundant evidence demonstrating that his plea was, in fact, freely and voluntarily made. 
Indeed, we find the following exchange more probative of appellant's state of mind on the
day of trial:
		State:		So back to my original question.  You understand
completely what you pled guilty to?
		Defendant:	Yes, sir.
		State:		And that it's the over 400 grams which puts it into a
higher penalty bracket?  Do you understand that?
		Defendant:	Yes, sir.
		State:		Minimum punishment, fifteen years?
		Defendant:	Yes, sir.
		State:		If you are found guilty and you have pled guilty?
		Defendant:	Yes, sir.
		State:		You have signed a statement telling the Judge that you
are guilty?
		Defendant:	Yes, sir.
		State:		You wanted to do all that and you did all that
voluntarily?
		Defendant:	Yes, sir.
		State:		No one forced you to do it?
		Defendant:	No, sir.	
		State:		You understood the questions the Judge asked you
about that and all that?
		Defendant:	Yes, sir.
		State:		All right.  And you understand in all likelihood then that,
well, fifteen years is the minimum sentence?
		Defendant:	Yes, sir.
		State:		You know that?
		Defendant:	Yes, sir.
Bearing the preceding discussion in mind, and considering the lack of direct evidence of
what advice trial counsel gave appellant, whether it was legally correct, and whether that
advice was the product of sound trial strategy, we conclude appellant has failed to
demonstrate ineffective assistance by a preponderance of the evidence.  
	Furthermore, the genesis of appellant's void conviction argument is his
misunderstanding of the requisites of an indictment and the definition of a controlled
substance.  First of all, an indictment tracking the language of the statute will satisfy
constitutional and statutory requirements; the State need not allege facts that are merely
evidentiary in nature.  State v. Mays, 967 S.W.2d 404, 406 (Tex.Cr.App. 1998).  Moreover,
when a term is defined in the statute, it need not be further alleged in the indictment.  Id. 
Contrary to appellant's assertion, the indictment here tracked the language of the statute. (2) 
And, because controlled substance is defined by statute as a substance, including a drug,
an adulterant, and a dilutant listed in . . . Penalty Grou[p] 1" (3) and "includes the aggregate
weight of any mixture, solution, or other substance containing a controlled substance," it
was unnecessary for the State to define the term further in the indictment.  Tex. Health &
Safety Code Ann. § 481.002(5) (Vernon 2003).  As a matter of fact, appellant manifested
his appreciation of the charge against him during cross-examination:
		State:		And you told him [the judge] that you are pleading guilty
because in fact you are guilty of the manufacture of
methamphetamine of 400 grams or more?
		Defendant:	Yes, sir.
		State:		As was accused in the indictment?
		Defendant:	Well, the only thing I feel that isn't right about it is over
400 grams.  I know y'all are weighing everything on it,
but as far as actual meth that you are going to make
money off of or do, there wasn't over 400 grams.
		State:		Well, I understand that but you understand the law says
the material that's in there?
		Defendant:	Yes, sir, I understand.

(Emphasis added).
	Even in the absence of a record detailing counsel's advice to appellant and
counsel's trial strategy, we conclude appellant has failed to establish by a preponderance
of the evidence that his attorney's representation fell below an objective standard of
reasonableness under prevailing norms.  Vasquez v. State, 830 S.W.2d 948, 949
(Tex.Cr.App. 1992).  Indeed, given the inaccuracy of appellant's assertions under these
points of error, trial counsel can hardly be faulted for "failing" to advise appellant in
accordance with them.  Thus, having failed to overcome the presumption that trial
counsel's conduct could be considered sound trial strategy, appellant's ineffective
assistance claims must fail.  We overrule his first and second points of error.  
	By his third point of error, appellant maintains that "[a]s a matter of law, [he] could
not be convicted of the offense of manufacturing over 400 grams of methamphetamine
where the State's evidence clearly reflected there was less than 400 grams of
methamphetamine."  Because appellant labors under a misconceived understanding of the
law related to the offense of manufacturing a controlled substance, we disagree.  In
reviewing the legal sufficiency of the evidence to support a conviction, we view the
evidence in the light most favorable to the verdict, and ask whether a rational trier of fact
could find the essential elements of the crime beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).  In our
review, we must evaluate all of the evidence in the record, both direct and circumstantial,
whether admissible or inadmissible.  Dewberry v. State, 4 S.W.3d 735, 740 ( Tex.Cr.App.
1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).  This
standard gives full play to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.  Jackson, 44 U.S. at  319. 
	When the State proved that the substances seized from the crime scene had a
combined weight of well over 400 grams, and that they contained methamphetamine,
regardless of its concentration, it established the elements of the offense as alleged in the
indictment beyond a reasonable doubt.  See Williams v. State, 936 S.W.2d 399, 405
(Tex.App.-Fort Worth 1996, pet. ref'd)(holding that proof of the gross weight of the
controlled substance appellant manufactured was sufficient, and that the State need only
to have demonstrated that part of the substance was a controlled substance, and that the
aggregate weight exceeded the minimum statutory amount).  Furthermore, appellant
entered into a stipulation of evidence judicially confessing that on the date of the offense
he manufactured methamphetamine in an amount of 400 grams or more.  In short, the
evidence is legally sufficient to support the verdict.  Appellant's third point of error is
overruled.
	With his fourth and final point of error, appellant claims his conviction should be
reversed because the attorney for the State "intentionally or recklessly made a false
material representation in open court."  We disagree.  Like appellant's other points of error,
this one is premised on his misconception of the law.  Appellant faults the attorney for the
State for commenting during cross-examination that appellant was responsible for the
gross weight of the controlled substance seized from the crime scene.  According to
appellant, the "State's attorney knew or should have known that his representation . . . was
false."  Apart from his bald assertion that "[i]n the interest of justice, said cause should be
reversed and [appellant] acquitted because of prosecutorial misconduct," however,
appellant has failed to provide any argument or authority in support of his position. 
Notwithstanding that inadequacy, we discern nothing improper about the prosecutor's
statement.  Indeed, as detailed in length above, the State was merely required to prove
that a portion of the substance appellant was charged with manufacturing was a controlled
substance, and that the aggregate weight of the seized substances exceeded the minimum
statutory amount.  See Williams, 936 S.W.2d at 405.  Thus, the prosecutor's statement
was, in fact, a correct statement of the law.  Appellant's fourth point of error is overruled.
	Accordingly, the judgment of the trial court is affirmed.
						Don H. Reavis
						    Justice
 
Do not publish.
1. Appellant obtains this result by multiplying the weight of the substance tested by
the percentage of methamphetamine, .02%, contained in the substance.
2. Under the statute, a person commits an offense if "the person knowingly
manufactures . . . a controlled substance listed in Penalty Group 1."  Tex. Health & Safety
Code Ann. § 481.112(a) (Vernon 2003).  The indictment in this case alleges that  appellant
"did then and there knowingly manufacture, . . . a controlled substance, namely
methamphetamine, in an amount of 400 grams or more."   
3. Methamphetamine is listed in Penalty Group 1.  Tex. Health & Safety Code Ann.
§ 481.102(6).
