                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 EX PARTE: JESUS TORRES,                         '
                                                                 No. 08-10-00330-CR
                              Appellant.         '
                                                                    Appeal from the
                                                 '
                                                             243rd Judicial District Court
                                                 '
                                                               of El Paso County, Texas
                                                 '

                                                 '            (TC# 20060D01655-243-1)



                                           OPINION

       Jesus Torres appeals the trial court’s denial of his post-conviction application for writ of

habeas corpus. Finding no error, we affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       On December 28, 2005, Appellant stopped at a traffic checkpoint and was cited for not

having his driver’s license or proof of insurance. Appellant’s wife and son were following in

another vehicle. At the checkpoint, Appellant’s wife was detained for involvement in possible

drug activity. As a result, the police took custody of Appellant’s son, but released him to

Appellant’s mother-in-law. As a result, Appellant returned to the scene to learn more about the

detention of his family, but police instructed him to leave. As Appellant drove away, the police

learned that there were outstanding warrants for his arrest, and they proceeded to follow, stop, and

arrest Appellant. The police conducted an inventory of Appellant’s vehicle and found cocaine

inside the vehicle.

       Appellant was indicted by a grand jury for cocaine possession in a quantity of four grams

or more but less than 200 grams. On September 19, 2006, Appellant’s attorney filed a motion to
suppress the evidence and a hearing was set on November 16, 2006. In November, Appellant

continued the hearing, filed a motion to substitute counsel, and Daniel Anchondo entered as

substitute counsel for Appellant. The suppression hearing was last set for March 29, 2007. On

that date, a new setting was scheduled indicating a plea/judge’s conference to take place in April

2007. There was no evidence in the record indicating why the suppression motion was not going

to be heard.

       In April, the plea/judge’s conference was reset for July 23, 2007. On July 23, 2007, as

part of a plea bargain, Appellant pleaded guilty to the charged offense and the State sought

deferred adjudication for a period not to exceed ten years. The trial court admonished Appellant,

accepted his plea, deferred adjudication, and placed Appellant on community supervision for

seven years. In 2010, upon facing removal proceedings, Appellant filed for habeas corpus relief.

In his writ, Appellant alleged that he received ineffective assistance of counsel because Anchondo,

his second attorney, failed to file a motion to suppress the cocaine. The State responded that

Appellant failed to establish Anchondo’s ineffective assistance because the record showed that a

motion to suppress had previously been filed and remained pending. The State also argued that

Appellant could not prove that his motion to suppress would have been granted because the

evidence was obtained when Appellant was detained and arrested for outstanding warrants. The

trial court denied Appellant’s application for habeas relief, and found that Appellant failed to

prove ineffective assistance of counsel because his first attorney’s motion to suppress had been

pending at the time he pleaded guilty. This appeal followed.

                                         DISCUSSION

       In three issues on appeal, Appellant contends that the trial court abused its discretion by


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failing to adequately address the merits of his ineffective assistance of counsel claim. Appellant

complains Anchondo rendered ineffective assistance of counsel because: (1) Anchondo failed to

move to suppress the cocaine as the product of an illegal traffic stop; (2) Anchondo failed to move

to suppress the cocaine as the product of an illegal search of his vehicle; and (3) Anchondo failed

to move to suppress the cocaine based on the police’s unlawful detention of Appellant’s son at the

police checkpoint on the day in question.          Under Issue One, Appellant also asserts two

sub-arguments that: (1) the denial of his writ was error because the motion to suppress filed by

his first attorney was generic and global; and (2) the denial of his writ was error because Anchondo

rendered ineffective assistance when he failed to schedule a hearing on the pending motion to

suppress.

                                         Standard of Review

       An applicant seeking post-conviction habeas corpus relief bears the burden of establishing

by a preponderance of the evidence that the facts would entitle him to relief.               Ex parte

Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We apply an abuse of discretion

standard when reviewing a trial court’s decision to grant or deny habeas relief, and we review the

evidence in the light most favorable to the trial court’s ruling. Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006). We give almost total deference to the trial court’s determination of

the historical facts, particularly when the fact findings are based on an evaluation of credibility and

demeanor. 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). If the trial court’s ruling on

mixed questions of law and fact turns on an evaluation of credibility and demeanor, we afford that

same level of total deference. Id. If the resolution of those mixed questions of law and fact

depend on an application of legal standards our review is de novo. Id.

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                                       Preservation of Error

       To preserve a complaint for appellate review, the record must show that the complaint was

made to the trial court by a timely request, objection, or motion that stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient specificity to make the

court aware of the complaint. TEX. R. APP. P. 33.1. In Issue One, Appellant asserts two

sub-arguments: (1) that the trial court erred in denying habeas relief as to all three grounds

asserted in his writ because the motion to suppress filed by his first attorney was generic and

global; and (2) even if the motion to suppress filed by his first attorney was adequate, the trial

court’s denial of his writ was erroneous because Anchondo rendered ineffective assistance of

counsel because he did not schedule a hearing on the motion. Because the record does not show

that Appellant objected to the inadequacy of the motion to suppress filed by his first attorney or

that he argued to the trial court that Anchondo rendered ineffective assistance of counsel for failing

to schedule a hearing on the pending motion, he failed to preserve his complaints for our review.

See TEX. R. APP. P. 33.1; see Ex parte Jones, No. 2-07-388-CR, 2008 WL 3185168, at *10 (Tex.

App. – Fort Worth Aug. 07, 2008, pet. ref’d) (mem. op., not designated for publication) (finding

that appellant failed to preserve issues for appellate review because the arguments were never

presented to or considered by the trial court).

                                 Ineffective Assistance of Counsel

       To prevail on a claim of ineffective assistance of counsel, Appellant must satisfy a two-prong

test by a preponderance of evidence showing that: (1) his attorney’s performance was deficient;

and that (2) his attorney’s deficient performance deprived him of a fair trial. Strickland v.

Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182

S.W.3d 350, 353 (Tex. Crim. App. 2005). Under the first prong, the attorney’s performance must

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be shown to have fallen below an objective standard of reasonableness. Thompson v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999). Namely, Appellant must prove that his attorney’s

conduct fell below the professional standard. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002).

       Under the second prong, Appellant must establish that there is a reasonable probability that

but for his attorney’s deficient performance, the outcome of his case would have been different.

See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. “Reasonable probability” is that

which is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694;

Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Appellant also bears the burden

of proving that his motion to suppress would have been granted. See Jackson, 973 S.W.2d at 957

(defendant claiming ineffective assistance of counsel by attorney’s failure to file motion to

suppress had to prove motion would have been granted); Roberson v. State, 852 S.W.2d 508,

510-12 (Tex. Crim. App. 1993) (an attorney will not be found ineffective for failing to assert a

pretrial motion unless defendant can show that the motion had merit and that a ruling on the

motion would have changed the outcome). If the two-pronged test is not satisfied the ineffective

assistance of counsel claim is defeated. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim.

App. 2003).

       On review, we presume that the attorney’s representation fell within the wide range of

reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001) (quoting Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). Accordingly,

ineffective assistance claims must be firmly found in the record, and the record must affirmatively

show the alleged ineffectiveness. Mallett, 65 S.W.3d at 63 (quoting Thompson, 9 S.W.3d at 814).

When the record is silent and does not provide an explanation for the attorney’s conduct, the strong

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presumption of reasonable assistance is not overcome. Rylander, 101 S.W.3d at 110-11.           We

do not engage in speculation to find ineffective assistance when the record is silent as to an

attorney’s strategy at trial. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

       Here, the record reflects that Appellant’s first attorney filed a motion to suppress evidence

and that it was set to be heard on November 16, 2006. The trial court granted Appellant’s motion

to continue the suppression hearing. During this time, Appellant hired Anchondo as substitute

counsel. The motion was last set for a hearing on March 29, 2007 and Anchondo had notice of the

pending motion to suppress. We note that the record reflects that no hearing was held and no

ruling was ever made on the pending motion to suppress. Instead on March 29, 2007, the last date

a hearing was set, the case was reset for a plea/judge’s conference. On July 23, 2007, Appellant

pleaded guilty to possession of cocaine as part of a plea bargain and received seven years of

community supervision.

       The record before us on appeal shows that Appellant’s ineffective assistance claim is not

firmly founded in the record. The record is silent as to Anchondo’s strategy or reasoning for not

filing a second motion or for not obtaining a ruling on the pending motion to suppress. The record

reflects that Appellant did not file an affidavit from Anchondo. Consequently, we do not know

what advice Anchondo rendered to Appellant before or during the plea/judge’s conference. The

record merely shows that a motion to suppress was filed, the suppression hearing was continued,

no hearing was ever held, no ruling was made on the motion, and Appellant entered a guilty plea as

the result of a plea bargain. Based on this evidence, we decline to find that Anchondo engaged in

conduct that fell below an objective standard of reasonableness. See Rylander, 101 S.W.3d at 111

(noting that “trial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective”).

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       Because the record fails to affirmatively demonstrate the alleged ineffective assistance of

counsel and because Appellant has failed to carry his burden of establishing ineffective assistance

of counsel, we overrule Issues One, Two, and Three. See Rylander, 101 S.W.3d at 110-11;

Mallett, 65 S.W.3d at 59; Jackson, 973 S.W.2d at 957.

                                         CONCLUSION

       We affirm the trial court’s denial of habeas corpus relief.



                                              GUADALUPE RIVERA, Justice
April 25, 2012

Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)




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