                                                                                       PD-1355-15
                           PD-1355-15                                 COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                   Transmitted 10/26/2015 10:52:28 PM
                                                                      Accepted 10/27/2015 4:55:38 PM
                          IN THE CRIMINAL COURT OF                                     ABEL ACOSTA
                                                                                               CLERK
                           FOR THE STATE OF TEXAS



                         Case No. ______________________


                             JOSHUA JAMES OZUNA

                                        Vs.

                              THE STATE OF TEXAS



                        Appeal from the 13th Court of Appeals
                             Val Verde County, Texas
                             Case No. 13-14-00734-CR

                       Appeal from the County Court at Law
                                Kerr County, Texas
                             Trial Court No. CR14-0258
                   Honorable Spencer Brown Presiding, Respondent


                   PETITION FOR DISCRETIONARY REVIEW



                         ORAL ARGUMENT REQUESTED




October 27, 2015



                               OSCAR L. CANTU, JR.
                              Attorney at Law, P.L.L.C.
                                    507 South Main
                    San Antonio, Texas 78204 (210)472-3900 Phone
                                  (210)354-2996 Fax
                                  R3Oscar@aol.com
                 IN THE CRIMINAL COURT OF APPEALS
                      FOR THE STATE OF TEXAS



                      Case No. ______________________



                           JOSHUA JAMES OZUNA

                                       vs.

                           THE STATE OF TEXAS


                        CERTIFICATE OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, Appellee certifies the
following parties and names is a complete list of litigants and counsels in this
matter:

Joshua James Ozuna, Appellant                        The State of Texas, Appellee
401 Clearwater                                       County Attorney’s Office
San Antonio, TX 78204                                700 Main St. BA-103
Appellant                                            Kerrville, TX 782028-2215
                                                     Appellee
Oscar L. Cantu, Jr.
Counsel for Appellant                                Hon. Spencer Brown
c/o OSCAR L. CANTU, JR.                              County Court at Law
Attorney at Law, PLLC                                Kerr County Courthouse
507 S Main                                           700 Main St.
San Antonio, TX 78204                                Kerrville, TX 78028



                                               __/s/ by Oscar L. Cantu, Jr._____
                                               Oscar “JR” Cantu




                                       Pg. 2
                          TABLE OF CONTENTS

NAMES OF PARTIES                              2
REQUEST FOR ORAL ARGUMENT                     7
TABLEOFCONTENTS                               4
INDEX OF AUTHORITIES                          5-6
INTRODUCTION                                  7
STATEMENT OF THE NATURE OF THE CASE           7
STATEMENT OF PROCEDURAL HISTORY               7
GROUNDS FOR REVIEW                            8
ARGUMENT OF JUDGMENT                          8-11
ISSUE ONE                                     12
ISSUE TWO                                     17
PRAYER                                        20
CERTIFICATE OF SERVICE                        21

APPENDIX
    Judgment 13th Court of Appeals            1-7




                                     Pg. 3
                           INDEX OF AUTHORITIES

Ex parte Beck, 922 S.W.2d 181, 182(Tex.Crim.App. 1996);                19

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App., 2002)                   10

Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d
108(1976)                                                              12

Brown v. State, 974 S.W.2d 289, 292 (Tex.App.- San Antonio
1998, pet. ref'd)                                                      13

John Bustamante Mendez vs. The State of Texas, 138 S.W.3d 334
(Tex.Crim.App. 2004)                                                   14

Fuentes v. Shevin, 407 U.S. 67, 80(1972)                               16

Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979)             15

Jagaroo v. State, 180 S.W.3d 793, 802 (Tex. App.—Houston
[14th Disk] 2005, pet. ref'd)                                          16

McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)            13

Ex parte McIver, 586 S.W.2d 851, 854 (Tex.Crim.App. 1979)              19

Misell v. State, 119 S.W.3d 804(Tex.Crim.App. 2003)                    19

Ex parte Pena, 71 S.W.3d at 337 n 4, 338                               19

Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003)
overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335
(Tex. Crim. App. 2007)

Ex parte Pritzkau, 391 S.W.3d 185,     186 (Tex. App.-Beaumont
2012, no pet.)                                                         17

Ex parte Roberts, 409 S.W.3d 759, 762 (Tex. App.-San Antonio
2013, no pet.)                                                         17




                                           Pg. 4
Producer’s Const. Co. v. Muegge, 669 S.W.2d 717, 718-19
(Tex.1984)                                                      16

Rankin v. State, 904 S.W.2d 707 (Tex. Crim. App. 1996)          14

Ex parte Seidel, 39 S.W.3d 221, 225 n. 4(Tex.Crim. App. 2001)   19

Smith v. State, No. 996-98, 1999 WL 415336 (Tex. Crim. App.
June 23, 1999)                                                  14

Soeffe v. Jones, 270 S.W.3d 617, 625(Tex.App.-San Antonio
2008, no pet)                                                   16

Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)                                           11

Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999)        11

Whatley v Jones, (Tex. App. 2013)                               16

Ex Parte Weinstein, No. WR– 78, 989–01, 2014 WL 300802 at*5     17
(Tex. Crim. App. Jan. 29, 2014)


OTHER

TEX.CODE CRIM. PROC. Art. 26.14                                 15
Texas Constitution Article 1 §10                                16
Texas Constitution, Article 1 §19                               16
Texas Rules of Criminal Evidence 403 and 404(b)                 12
Texas Penal Code § 12.21                                        19
U.S. Const. amend XIV §1                                         16




                                         Pg. 5
       IN THE CRIMINAL COURT OF
        FOR THE STATE OF TEXAS



      Case No. ______________________


          JOSHUA JAMES OZUNA

                     Vs.

           THE STATE OF TEXAS



     Appeal from the 13th Court of Appeals
          Val Verde County, Texas
          Case No. 13-14-00734-CR

    Appeal from the County Court at Law
             Kerr County, Texas
          Trial Court No. CR14-0258
Honorable Spencer Brown Presiding, Respondent


PETITION FOR DISCRETIONARY REVIEW




            OSCAR L. CANTU, JR.
           Attorney at Law, P.L.L.C.
                507 South Main
           San Antonio, Texas 78204
             (210)472-3900 Phone
              (210)354-2996 Fax
              R3Oscar@aol.com



                     Pg. 6
TO THE CRIMINAL COURT OF APPEALS:

       Appellant, Joshua James Ozuna, submits this Petition for Discretionary Review

in appeal of a Judgment and Sentence in a misdemeanor criminal proceeding. This

Appeal is from the Thirteenth Court of Appeals (reassigned by Court Order) and

originally from the County Court at Law of Kerr County, the Honorable Spencer

Brown presiding, in which Appellant was charged with Possession of Marijuana less

than 2oz in a Drug Free Zone.

                    STATEMENT REGARDING ORAL ARGUMENT

       Appellant is convinced that oral argument is necessary to clarify the extreme

nature of the allegations in this appeal and to eliminate confusion as how these events

might have occurred. The Court of Appeals denied oral argument and made the same

assumptions of the Trial Court which gave rise to mistakes and to this appeal.

                   STATEMENT OF THE NATURE OF THE CASE

       This is an appeal from the denial of a motion for new trial by operation of law.

(CR doc 11). Kerr County jailed a young black Texan without plea, trial, evidence, a

court reporter’s record of the trial, plea or waiver or paperwork other than the usual

judgment form listing a trial date.

                   STATEMENT OF PROCEDURAL HISTORY

              The Thirteenth Court of Appeals affirmed the conviction of Joshua James

Ozuna on September 17, 2015. No motion for rehearing was filed or otherwise ruled




                                           Pg. 7
upon by the Court of Appeals.

                             GROUNDS FOR REVIEW

      The Thirteenth Court of Appeals has issued a judgment which raises three (3)

grounds for review under Texas Rules of Appellate Procedure 66.3. The first is (a) the

judgment conflicts with another court of appeals decision on the same point as well as

its own; The second is (c) the judgment decides an important question of both state and

federal law in a way that conflicts with the applicable decisions of the Court of

Criminal Appeals and the Supreme Court of the United States; The third is (f) the

Thirteenth Court of Appeals has so far departed from the accepted and usual course of

judicial proceedings and sanctioned such a departure by the lower court as to call for

an exercise of the Court of Criminal Appeals’ power of supervision.

                                     ARGUMENT

      The initial introduction by the Court of Appeals illustrates the problem with the

judgment. The Court opens with:

            Appellant Joshua James Ozuna pleaded nolo contendere to
      possession of less than two ounces of marihuana in a drug-free zone, a
      Class A misdemeanor offense.

             See Appendix entry 1. Judgment page 1

This conclusion is an assumption entirely based upon the self-serving precept that the

document which use the word “trial” and “plea” are definitive proof that they occurred.

The Court of Appeals statement demonstrates that it is assuming a “plea” or that the




                                          Pg. 8
Defendant “pleaded” as the Judgment form document used by the Trial Court claimed.

The Court of Appeals overlooks the fact that no record or document is in the docket of

the appeal to support that conclusion.

        The judgment in this case affirms a conviction without court reporter’s records

and exhibits. No one disputes what the sentence was-because there is a record to quote

from. What is in dispute is whether or not the Defendant ever made a voluntary waiver

of his rights, actually pleaded, and was sentenced properly. What this record does

reveal is a heated dispute, silencing of the record, resumption of proceedings and the

sentence being pronounced.

Paradigm used by the Court: Assumption that things occurred absent record

        The Court does admit that there is neither a reporter’s record of such a plea or

documents upon which to defend the conviction with. It then places the burden to

prove that no trial occurred squarely upon the Defendant but misapplies prior decisions

or does not examine issues on appeal. The Defendant must prove a negative to sustain

the Court’s analysis. Appellant asserts it is the State who should be proving the

conviction as valid and defensible1. As the Court notes that the Clerk’s record is “silent

as to the circumstances of the offense.” See Judgment page 1.

        The Court of Appels applies this analysis requiring the Defendant to explain

both an empty record on appeal and each of the two stated issues; 1)Having a visible

1 The Court of Appeals makes no reflection upon the fact that the newly elected County Attorney waives her right to
file a brief defending this conviction.




                                                       Pg. 9
lawyer present with a voice pointing out the most elemental errors would have made a

difference and 2) that the complete lack of any statement, word, record, document or

evidence for a Reviewing Court to see is, in fact, evidence that a trial did not happen,

that a knowing intelligent waiver was not made, and that it is a complete abuse of

discretion to deny this young man effective counsel.

      In its comment examining what little record does exist, the Court demonstrates a

determination to place the burden upon the appellant to prove why the record usually

found in any criminal case is absent and had he (Defendant) been allowed other

counsel he would have a different outcome.

             “The reporter’s record reflects the sentencing hearing and
      consists of two-and-a-half pages. At the end of the sentencing hearing,
      after the trial court has assessed punishment, appellant responded,
      “Okay. That’s cool.” Appellant’s mother attempted to raise an issue
      regarding appellant’s “other new attorney,” but the State objected and
      the trial court did not permit any further discussion.
             Here, the sparse record is completely silent on the actions or
      alleged omissions of appellant’s court-appointed counsel. The record
      contains nothing to support appellant’s claims. We conclude that
      appellant’s allegations of ineffectiveness are not firmly founded in the
      record. See Bone, 77 S.W.3d at 835.”

      When the record has no proof that Appellant’s attorney was even present,

Appellant asserts that fact is evidence of the degree of representation received-

none. The Thirteenth Court of Appeals disagrees, it seems to argue that the

Defendant need first prove that if he had a Counsel who was there, seen and heard

it would have made a difference.




                                          Pg. 10
      That is not the standard quoted by the Court and the Appellant in Strickland

v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052,80 L.Ed.2d 674 (1984) The

standard agreed to is that the conduct of Counsel is so far below that expected from

a reasonable attorney. No action or bad lawyering by omission is undeniably so far

below the standards of reasonable behavior anywhere else but in this Judgment.

The Court of Appeals ignores Strickland and Thompson v. State placing in dispute

long established Federal and State case law. Once again, there a pervasive and

overpowering assumption that a trial did happen, there was a plea, there was a

knowing and intelligent waiver of rights and that there is evidence to defend the

conviction with.

      This same standard of noting the absence of required proof in the record is

not evidence of deficiency is applied by the Court in issue two-No Trial No

Waiver. The Appellant asserts that no evidence in the record of any of the required

elements of a proper plea and sentencing i.e. a trial is reasonable proof that there

was none. The Thirteenth Court of Appeals makes the circular argument that when

the Defendant argues that there is no proof in the record, he must lose the appeal

because he offers “no evidence” of this fact? The Court diverges from standard

case law regarding abuse of discretion and what constitutes a valid waiver with no

justification whatsoever. There mere fact that the Appellant does not prove the

absence of required documents, testimony and exhibits means he must lose.




                                       Pg. 11
Whether or not the Trial Court abused its discretion and proceeded despite a

timely, valid and reasonable request of the Defendant not to, is not questioned by

the Court of Appeals or seems to require review at all.

                             ISSUES PRESENTED FOR REVIEW

ISSUE ONE The Defendant was irrefutably denied effective assistance of counsel when his
Court Appointed Counsel failed to file any motions, refused to withdraw, failed to tender a
defense and allowed the Defendant to be adjudicated “guilty” and sentenced to a term of
incarceration in the County Jail without: a) waiver of jury trial; b) admission of guilt; c) plea
bargain or agreement; d) a trial of any kind; and did not utter one word of protest or objection
on his client’s behalf to any of the above items or to e) the lack of evidence upon which the
judgment of conviction was based.2

ISSUE TWO The trial court did commit clear error when it sentenced the Defendant to
a term in the County Jail without benefit of trial or waiver of same.3

ISSUE NO. 1(Restated)

        The Appellant's primary point of error is a direct attack upon the lack of any

legal assistance by his Court Appointed Attorney. The facts regarding no defense or

advocacy are irrefutable as they are stark and absent. The omissions of his Counsel are

so clearly beyond acceptable behavior, indefensible and taken overall constitute a

complete lack of any defense or professional representation. The Court of Appeals

concedes the record is “silent” but concludes Ozuna failed to prove another or at least a

Counsel would be any different.


2 The record if void of any evidence admitted in this case from the former County Attorney’s Office (The State) The

only way the 13th Court of Appeals knows what the conviction is for is by way of the Judgment-a form universally
filled out and submitted with every conviction.
3 A finding of “Guilt” must be assumed from the judgment as no such finding appears anywhere in the transcript of a

proceeding of any kind nor mention of the word “guilt” at sentencing.(RR pgs.3-5)




                                                      Pg. 12
STANDARDS

      In order to prevail on an ineffective assistance of counsel point of error,

Appellant Ozuna must demonstrate by a preponderance of the evidence that: (1)

counsel's performance was so deficient as to fall below an objective standard of

reasonableness; and (2) he was prejudiced, i.e., a reasonable probability exists that

but for counsel's unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). The

constitutional right to effective assistance does not mean errorless counsel. See

Brown v. State, 974 S.W.2d 289, 292 (Tex.App.- San Antonio 1998, pet. ref'd).

Ozuna must overcome the presumption that trial counsel rendered adequate

assistance, and it is incumbent on him to identify those acts or omissions which do

not amount to reasonable professional judgment. See Strickland, 466 U.S. at 689,

104 S.Ct. 2052

      In this case there is absolutely nothing to prove his Counsel was even

present. That fact is ignored by the Court of Appeals and blame falls upon the

Appellant for failing to prove he is deserving of more. There the Court concludes

that nevertheless, even under this stringent burden, ineffectiveness of counsel does

exist when the effect of trial counsel’s errors undermines the concept of a fair trial.

See Brown, 974 S.W.2d at 292. Joshua Ozuna did not receive a fair trial, the record




                                          Pg. 13
has not evidence to say so and no proof his attorney exists.

         The one thing the Counsel did do was to request a pre-sentencing report (PSR)

on July 8, 2014.4 Why this was done when there is no plea entered on the same date

we do not know. What is absent is a court reporter’s record reflecting a plea or waiver

on that date.

         So the one action taken by Appellant’s Counsel is negated by his apparent

failure to read it prior to October 10, 2014 or to make objections on the record at

sentencing. What would be reasonable is to object under Texas Rules of Criminal

Evidence 403 and 404(b) is that evidence of out of county arrests is prejudicial and

not admissible at time of trial. See Rankin v. State, 904 S.W.2d 707 (Tex. Crim.

App. 1996) and Smith v. State, No. 996-98, 1999 WL 415336 (Tex. Crim. App.

June 23, 1999)

         Noted above, Counsel failed to obtain or object to the lack of a waiver of a jury

trial which is an absolute right of the Appellant. See Texas Constitution Article 1

section 10. Any mention by the State of a waiver during the sentencing hearing must

nevertheless withstand strict scrutiny in this appeal. The High Court sets forth a

delineated decision regarding waiver of rights in the case John Bustamante Mendez

vs. The State of Texas, 138 S.W.3d 334 (Tex.Crim.App. 2004Citing Brady v.

United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 108(1976)
4 This date conflicts with the Court of Appeals notes regarding a “trial date.” The Court cites the Judgment which
clearly states a trial occurred on October 14, 2014 but there is no record of trial proceedings only sentencing and
request not to continue.




                                                        Pg. 14
        The decision whether or not a person is competent and making a voluntary

waiver is made by the trial Judge. However, the burden in making that

determination is clearly high as the Court cannot proceed when such factors are

unclear. Specifically, the Bustamante Court indicated that:

                 “The Court may not accept a plea other than not guilty unless it
                 appears that the defendant is mentally competent and the plea is
                 free and voluntary. Citing TEX.CODE CRIM. PROC. Art. 26.14”
                 Bustamante at 337.

        Thus, the burden to make the determination as to whether or not the

defendant is making a knowing and voluntary plea is upon the Court. Until that

decision is made, there is no requirement that the Defendant act or prove anything

regarding his knowing or intelligent waiver.

        Appellant asserted to the Court of Appeals that the reasonable defense attorney

could have noted that the Defendant (Appellant) has the absolute right to withdraw his

desire to plea any time before the trial court renders judgment or takes the case under

advisement5. Courts of Appeals have demonstrated this repeatedly. San Antonio’s 4th

Court of Appeals is no exception. In a prior case the Court held:

        A defendant may withdraw his plea as a matter of right, without assigning
        a reason, until judgment is pronounced or the case is taken under advisement
        by the trial court. Jackson v. State,590 S.W.2d 514, 515 (Tex.Crim.App.
        1979).

        There is no evidence in existence to deny a victory to the Appellant during a

5Counsel is not conceding that the Appellant ever plead. Merely that the Court believed so mistakenly when
viewing the PSR ordered in July. Nevertheless, the right to withdraw even a fictional plea remains intact.




                                                     Pg. 15
Jury trial or it would be in this record. Again, that is proof or evidence of a

different outcome. Even the Court of Appeals conceded that the Defendant made

his stated desire not to proceed known and it was overruled by the Court. Judgment

page 2.

      This Judgment conflicts with another issued by the same court. Previously

the guarantee of all Texas citizens to a jury trial of their peers listed in Article 1

§10 of the Texas Constitution was found as the primary issue on appeal in a civil

case before the Thirteenth Court of Appeals.

      In the matter of Richard Whatley vs. O.F. Jones, III, the Thirteenth Court of

Appeal was faced with a civil appellant who was deprived of an actual “trial” prior

to the rendering of a judgment against him. There, the Court held that:

 “The United States Constitution provides that a person shall not be deprived
of life, liberty, or property without due process of law. U.S. Const. amend
XIV, § 1; see Tex.Const. art. 1§19. Fundamental to the concept of due
process is the right to be heard.” Citing Fuentes v. Shevin, 407 U.S. 67,
80(1972). “The right to be heard includes the right to a full and fair hearing
before a court having jurisdiction over the matter. “ Citing Soeffe v. Jones,
270 S.W.3d 617, 625(Tex.App.-San Antonio 2008, no pet). “Complete
denial of the opportunity to present any evidence is a clear violation of due
process.” Citing Producer’s Const. Co. v. Muegge, 669 S.W.2d 717, 718-
19(Tex.1984)

See Whatley v Jones, (Tex. App. 2013)

      There is no argument using the record that there was no trial, no offer of

proof by the County and other than asking Mr. Ozuna “what he thought” about the

events recorded on his pre-sentencing report, there was no opportunity for Mr.



                                          Pg. 16
Ozuna to either contest or present evidence in his defense. The only question is

what would a reasonable defense attorney do?

       The second part of analysis in this appeal is whether or not the actions or

omissions of the Appellant’s Appointed Counsel prejudiced him? But for the lack

of a defense or advice from his attorney, the defendant would not have been found

guilty on October 10, 2014 or served forty (40) days in the County Jail.

ISSUE TWO (restated) The trial court did commit clear error when it sentenced the
Defendant to a term in the County Jail without benefit of trial or waiver of same.

       The Appellant’s second argument is that the sentence imposed by the Court is

illegal as it was adjudged without a plea or trial. Thus the pre-requisite of being

“adjudged” is not met under the statute notwithstanding all of the constitutional violations

made above. § 12.21 of the Texas Penal Code states that:

       “an individual adjudged guilty of a Class A misdemeanor shall be punished
by:
               A fine not to exceed $4000.00
               Confinement in jail for a term not to exceed one year; or
               Both such fine and confinement.”
               Tex.P.C. § 12.21

       As explained above, the record is absent any trial proceeding, plea agreement,

guilty plea or finding of “guilt” by the Court. There is no adjudication as required by the

statute. While the time and fine limits are not violated herein, the prerequisite of due

process and a simple adjudication of guilt is not done either. Given the lack of compliance

with statute, the sentence is illegal.




                                            Pg. 17
      In determining whether or not a trial occurred, the Court of Appeals

looks to subsequent documents to support this assumption. The mere

appearance of the word “trial” in the judgment is sufficient evidence of the

existence and sufficiency of the required constitutional rights satisfaction-

record to the contrary. The Court notes that:

             “By his second issue, appellant contends that the sentence
      imposed by the trial court was “illegal as it was adjudged without a
      plea or trial.” Appellant argues that there was “no adjudication” of
      guilt.
             We disagree. The clerk’s record contains the “Judgment and
      Sentence by Court,” which stated, in relevant part:
             On October 14, 2014, the above-styled and numbered cause
      came before the Court for sentencing after a Pre-Sentence Investigation
      had been ordered. The Defendant having pled open to the Court to the
      allegations in the State’s complaint and information, the Court having
      reviewed the pre- sentence investigation report, hereby orders as
      follows:

            On October 14, 2014, this case came before the Court for
      review of the Pre-Sentence Investigation report and for sentencing.
      Evidence was presented by the parties and by probation; and the cause
      was submitted to the judge for sentencing.

            The defendant is hereby adjudged GUILTY of the offense of
      Possession of Marijuana in a Drug Free Zone, and having pled Nolo
      Contendere to the Class A misdemeanor, the date of the offense being
      JANUARY 8, 2014.”

             Judgment page 6

      Simply the fact that the judgment says that the “Defendant pled open to the

Court…” and “…to the allegations in the State’s Complaint and information” neither

of which appear in the record, and that “evidence was presented by the parties and by



                                          Pg. 18
probation” none appears anywhere in this record on appeal, the Court of Appeals is

satisfied that the trial, waiver, and procedures did occur and the absence of proof and

case law Federal and State to the contrary is irrelevant. While the Appellant may have

the burden, there is clear determination to disregard the absence of minimal evidence

of standard procedural safeguards.

STANDARDS

       The Criminal Court of Appeals explains the nature and standards in dealing with

“illegal sentence” cases. The norm is a sentence that is less than or more than the statute

dictates for a particular crime. In this case, the Appellant contends that a condition

requisite is not met-adjudication. In Mizell v. State the Appellant filed the appeal of a

conviction for both charges of official oppression and civil rights violations. However the

State countered with an issue on appeal regarding the amount of fine imposed by the jury.

There, the court set forth the basis for an illegal sentence review.

        “A sentence that is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.” Citing Ex parte Seidel, 39 S.W.3d 221, 225 n.
4(Tex.Crim. App. 2001) “This Court has long held that a sentence is void when the
punishment is unauthorized.” Ex parte Beck, 922 S.W.2d 181, 182(Tex.Crim.App. 1996);
Ex parte McIver, 586 S.W.2d 851, 854(Tex.Crim.App. 1979) “A defendant may obtain
relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus.”
Citing Ex parte Pena, 71 S.W.3d at 337 n 4, 338.
Mizell v. State, 119 S.W.3d 804, 806(Tex.Crim.App. 2003)

       Despite the fact that the term of forty (40) days and One thousand two hundred

($1,200.00) is within both the range and amount allowed in §12.21, the third word

requires that a person be “adjudged” guilty. For all of the absent evidence normally



                                             Pg. 19
contained in the record and argued by Appellant above, that requirement is not met. There

is no proof of any waiver, plea or trial as defined by our jurisprudence. Without

compliance with the statute the sentence is void and should be set aside by the Court of

Appeals.

                                        PRAYER

       The Appellant prays that the Court accepts this Voluntary Petition for Review

and Orders both Oral Argument and Briefing on these issues, ultimately reversing both

the Court of Appeals and the Trial’s Court’s judgment in this case and any further

relief in law or in equity that the Defendant may be so entitled to

                                   Respectfully Submitted,

                                   OSCAR L CANTU JR
                                   Attorney at Law PLLC
                                   507 South Main
                                   San Antonio, Texas 78204
                                   (210)472-3900 Phone
                                   (210)354-2996 Fax

                                   By:__/s/ by Oscar L. Cantu, Jr.____
                                   Oscar “JR” Cantu
                                   SBN 03767448




                                           Pg. 20
                       CERTIFICATE OF COMPLIANCE

      This is to certify that the undersigned Counsel does file this Petition in filed

in good faith and true. Further, this Counsel attests that the contents are within the

amount allowed by the TRAP and do not exceed 4,464 words om this computer

generated document with 14 point font used and 12 point footnotes.

                          ____/s/by Oscar L. Cantu, Jr._____
                                Oscar “JR” Cantu



                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this document has been

served upon all counsel of record via a manner in compliance with the TRAP and

TRCP on this, the 26th day of October, 2015 addressed as follows.

Joshua James Ozuna, Appellant                           The State of Texas, Appellee
401 Clearwater                                          c/o County Attorney’s Office
San Antonio, TX 78204                                   Heather Stebbins
Appellant                                               700 Main St. BA-103
(email tawnyaozuna@hotmail.com)                               Kerrville, TX 78028-
2215
                                                        Appellee

Hon. Spencer Brown, Respondent
County Court at Law
Kerr County Courthouse
Kerrville, TX 78028
                                                  ___/s/ by Oscar L. Cantu, Jr.______
                                                  Oscar “JR” Cantu




                                         Pg. 21
APPENDIX
                          NUMBER 13-14-00734-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JOSHUA JAMES OZUNA,                                                    Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                 On appeal from the County Court at Law
                        of Kerr County, Texas.


                       MEMORANDUM OPINION
             Before Justices Garza, Benavides and Longoria
                Memorandum Opinion by Justice Garza

      Appellant Joshua James Ozuna pleaded nolo contendere to possession of less

than two ounces of marihuana in a drug-free zone, a Class A misdemeanor offense. See

TEX. HEALTH & SAFETY CODE ANN. §§ 481.121(a), (b)(1), 481.134 (West, Westlaw through
2015 R.S.).1 The trial court assessed punishment at forty days’ confinement in county jail

and a $1,200.00 fine, plus payment of court costs and attorney’s fees. Appellant appeals

from the denial of his motion for new trial. By two issues, appellant contends: (1) he was

denied effective assistance of counsel; and (2) the trial court erred by imposing a

sentence “without a plea or trial.” We affirm.

                                           I.      BACKGROUND2

    The record is silent regarding the circumstances of the offense. The clerk’s record

contains a motion for new trial, submitted by appellant’s appellate counsel, which states:

         COMES NOW, Counsel for the Defendant and files this Motion for New
         Trial and would show unto the Court as follows:

            1.   This case was set for sentencing on October 14, 2014.

            2.   Defendant made known to his counsel, the District Attorney and the
                 Court that prior to sentencing he wished to retain alternate counsel.

            3.   Counsel Pat Phillips was previously appointed for the Defendant.

            4.   Defendant had released Mr. Phillips, informed Counsel of same and
                 retained Oscar Cantu.

            5.   Counsel moved to appear as Counsel of Record for the Defendant.

            6.   All parties initially denied knowledge of the events described above
                 then declined to allow the requested relief.

            7.   Defendant wished to withdraw his plea and tender a defense.

            8.   The Defendant has a viable defense to the charge(s) and no such
                 offer was made by his Court[-]appointed Counsel nor were any
                 motions filed on his behalf.



       We note that section 481.134 of the Texas Health & Safety Code has been amended, but the
        1

amendments are not applicable to this case.

        2 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant

to an order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw
through 2015 R.S.). The State has not filed a brief to assist us in our disposition of this case.

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       Wherefore, premises considered, counsel moves this Court to Grant him a
       new trial in this matter, allow him to withdraw his plea and to any further
       relief, at law or in equity that he may be entitled to.

Appellant states that the motion was denied by operation of law.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       We review the denial of a motion for new trial under an abuse of discretion

standard. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004),

superseded in part on other grounds by TEX. R. APP. P. 21.8(b); Lewis v. State, 911

S.W.2d 1, 7 (Tex. Crim. App. 1995); Cueva v. State, 339 S.W.3d 839, 856–58 (Tex.

App.—Corpus Christi 2011, pet. ref'd). A trial court abuses its discretion by denying a

motion for new trial only when its decision is arbitrary or unreasonable, or when no

reasonable view of the record could support the trial court's ruling. Charles, 146 S.W.3d

at 208; Cueva, 339 S.W.3d at 856–58. The ruling of the trial court is presumed to be

correct, and it is the appellant's burden to establish the contrary. Jensen v. State, 66

S.W.3d 528, 545 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). The test for abuse of

discretion is whether the trial court acted without reference to any guiding rules or

principles, and “the mere fact that a trial court may decide a matter within its discretionary

authority differently than an appellate court does not demonstrate such an abuse.” State

v. Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App. 2007) (quoting Howell v. State,

175 S.W.3d 786, 792 (Tex. Crim. App. 2005)). We do not substitute our judgment for that

of the trial court. Charles, 146 S.W.3d at 208.

       “To obtain a reversal of a conviction under the Strickland test, a defendant must

show that: (1) counsel’s performance fell below an objective standard of reasonableness

and (2) counsel’s deficient performance prejudiced the defense, resulting in an unreliable



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or fundamentally unfair outcome of the proceeding.” Davis v. State, 278 S.W.3d 346, 352

(Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

“Deficient performance means that ‘counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Ex

parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.

at 687). “The prejudice prong of Strickland requires showing ‘a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is

a probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland,

466 U.S. at 694). “[E]ach case must be judged on its own unique facts.” Davis, 278

S.W.3d at 353.

       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Appellant must overcome the strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance and that his actions could be

considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient to

demonstrate that counsel’s conduct was not the product of a strategic or tactical decision,

a reviewing court should presume that trial counsel's performance was constitutionally

adequate . . . .”). Counsel’s effectiveness is judged by the totality of the representation,

not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes, 216 S.W.3d at



                                             4
851. An allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d

828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.

                                      II.    DISCUSSION

   A. Ineffective Assistance

       By his first issue, appellant complains that he was denied effective assistance of

counsel. Specifically, he complains that his court-appointed counsel: (1) did not review

or challenge any evidence offered by the State; (2) requested a pre-sentencing report

that contained other alleged offenses; (3) did not object to the absence of any written

waiver of jury trial in the record; and (4) did not inform appellant that he had the right to

withdraw his plea any time before the trial court rendered judgment.

       Of these complaints, the only one arguably raised to the trial court is that appellant

“wished to withdraw his plea and tender a defense.” The reporter’s record reflects the

sentencing hearing and consists of two-and-a-half pages. At the end of the sentencing

hearing, after the trial court has assessed punishment, appellant responded, “Okay.

That’s cool.” Appellant’s mother attempted to raise an issue regarding appellant’s “other

new attorney,” but the State objected and the trial court did not permit any further

discussion.

       Here, the sparse record is completely silent on the actions or alleged omissions of

appellant’s court-appointed counsel. The record contains nothing to support appellant’s

claims. We conclude that appellant’s allegations of ineffectiveness are not firmly founded

in the record. See Bone, 77 S.W.3d at 835.

       Moreover, appellant has not shown that there is a reasonable probability that but


                                             5
for trial counsel's alleged errors, the result would have been different. Thompson, 9

S.W.3d at 812; see Strickland, 466 U.S. at 694. He argues only that, if appellant’s court-

appointed counsel had noted that there was no voluntary waiver form in the file, it would

have allowed sufficient time for appellant’s retained counsel to appear and provide a

defense. In his motion for new trial, appellant asserts that he “has a viable defense,” but

does not identify the defense. We hold that appellant has not met his burden to prove

ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9

S.W.3d at 813. We overrule appellant’s first issue.

   B. No Trial or Waiver

       By his second issue, appellant contends that the sentence imposed by the trial

court was “illegal as it was adjudged without a plea or trial.” Appellant argues that there

was “no adjudication” of guilt.

       We disagree. The clerk’s record contains the “Judgment and Sentence by Court,”

which stated, in relevant part:

              On October 14, 2014, the above-styled and numbered cause came
       before the Court for sentencing after a Pre Sentence Investigation had been
       ordered. The Defendant having pled open to the Court to the allegations in
       the State’s complaint and information, the Court having reviewed the pre-
       sentence investigation report, hereby orders as follows:

              On October 14, 2014, this case came before the Court for review of
       the Pre-Sentence Investigation report and for sentencing. Evidence was
       presented by the parties and by probation; and the cause was submitted to
       the judge for sentencing.

             The defendant is hereby adjudged GUILTY of the offense of
       Possession of Marijuana in a Drug Free Zone, and having pled Nolo
       Contendere to the Class A misdemeanor, the date of the offense being
       JANUARY 8, 2014.

The remainder of the judgment recites the punishment assessed by the court. In addition,



                                            6
at the beginning of the sentencing hearing, the prosecutor informs the trial court that “we

pled the case and set it for a PSI.” The record reflects that appellant pleaded nolo

contendere and was adjudged guilty by the trial court. We overrule appellant’s second

issue.

                                       IV. CONCLUSION

         We affirm the trial court’s judgment.



                                                     Dori C. Garza
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
17th day of September, 2015.




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