                         NOS. 07-07-0104-CR; 07-07-0105-CR
                    07-07-0106-CR; 07-07-0107-CR; 07-07-0108-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                         PANEL B

                                  JUNE 24, 2009
                         ______________________________

                  ALFONSO DEMETRIO RODRIGUEZ, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                NOS. 17772-C, 17773-C, 17774-C, 17829-C, 18159-C;

                       HONORABLE DAVID GLEASON, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Alfonso Rodriguez appeals his convictions in five cases for kidnapping, assaulting

a public servant, unauthorized use of a motor vehicle, abandoning or endangering a child,

and criminal mischief on the ground he was denied effective assistance of counsel at trial.

We affirm the trial court’s judgments.
                                        Background


       With appellant’s agreement, his five cases were consolidated for trial and trial was

to the court. Also by agreement, the guilt-innocence and punishment phases of trial were

not bifurcated. The State made no plea bargain offer. The indictments in the cases

alleging kidnapping, abandoning or endangering a child, and assaulting a public servant

contained an enhancement paragraph alleging a prior conviction for robbery.


       At the beginning of trial, appellant plead guilty in the cases alleging abandonment

or endangering a child, unauthorized use of a motor vehicle, and criminal mischief. In the

case alleging abandoning or endangering a child, appellant plead true to the enhancement

paragraph. Appellant entered pleas of not guilty in the cases alleging kidnapping and

assaulting a public servant.1


       On the second day of trial, as the State continued presentation of its case in chief,

appellant notified the court that he wished to change his pleas to guilty in the two contested

cases. The court admonished appellant of the effect of his decision and accepted his

guilty pleas. The State then resumed presentation of its case.


       After both sides rested and closed the court found appellant guilty in each case and

assessed the following punishments: (1) ninety-nine years in prison for abandoning a child;

(2) twenty years in prison for kidnapping; (3) fifteen months in state jail for unauthorized

use of a motor vehicle; (4) twelve years in prison for assaulting a public servant; and (5)


      1
        The trial court later accepted appellant’s plea of true to the enhancement
paragraphs in the indictments in the two contested cases.

                                              2
two years in state jail and a $10,000 fine for criminal mischief. The court ordered

appellant’s sentence for criminal mischief to be served after his four other sentences,

which it ordered to run concurrently. Appellant did not file motions for new trial but timely

perfected appeals of each case and received the trial court’s certifications to appeal.


                                           Issues


       Through two issues, appellant asserts his trial counsel rendered ineffective

assistance because he did not: (1) require the State prove the allegation of the

enhancement paragraph contained in three of the indictments and (2) offer evidence in

mitigation of punishment.


                                        Discussion


       The adequacy of defense counsel's assistance is based on the totality of the

representation rather than isolated acts or omissions. Thompson v. State, 9 S.W.3d 808,

814 (Tex.Crim.App. 1999). 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 judged by hindsight. Robertson v. State, 187

S.W.3d 475, 483 (Tex.Crim.App. 2006).


       Strickland v. Washington is the seminal case setting forth the standard for

ineffective assistance of counsel claims under the United States Constitution. 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court in Strickland established a two-

pronged test for analyzing a claim of ineffective assistance of counsel. Reversal requires


                                             3
an appellant demonstrate (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the appellant. 466 U.S. at

687, 104 S.Ct. at 2064. See also Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex.Crim.

App. 1986) (applying Strickland standard under Texas constitution).


       The first prong of the Strickland test requires an appellant prove that counsel made

such serious errors that he did not function as the “counsel” guaranteed by the Sixth

Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2064. Appellant must show that

counsel’s performance was unreasonable under prevailing professional norms and that the

challenged action was not sound trial strategy. 466 U.S. at 689-90, 104 S.Ct. at 2065-66.

The second Strickland prong requires an appellant “show a reasonable probability that, but

for his counsel’s unprofessional errors, the result of the proceeding would have been

different.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). “Reasonable

probability” means probability of a degree sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.


       An appellant bears the burden of proving ineffective assistance of counsel by a

preponderance of the evidence. Mitchell, 68 S.W.3d at 642. Our review of counsel’s

performance is highly deferential and a strong presumption exists that counsel’s conduct

fell within a wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d

59, 63 (Tex.Crim.App. 2001); see Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (noting

there are countless ways to provide effective assistance in any given case). To overcome

the presumption of reasonable professional assistance, any allegation of ineffectiveness



                                            4
must be firmly rooted in the record. Thompson, 9 S.W.3d at 813-14. In the majority of

cases, the record on direct appeal is inadequate to show that counsel’s conduct fell below

an objectively reasonable standard of performance; thus, the better course is to pursue the

claim in habeas proceedings. Mitchell, 68 S.W.3d at 642. Absent evidence of counsel’s

reasons for the challenged conduct, we will not conclude the challenged conduct

constituted deficient performance unless the conduct was so outrageous that no competent

attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.

2001).


         We turn first to appellant’s claim that counsel was ineffective by not requiring the

State to prove the enhancement paragraph’s allegation that he was convicted of robbery

in Lubbock County in January 2000. We find the claim without merit.


         Appellant plead “true” to the enhancement paragraph, and persisted in his plea after

the trial court’s admonitions concerning the effects of his plea. He points to no place in the

record showing that his lawyer was responsible for his decision to plead true. His brief

refers to his incomplete formal education,2 and asserts that he deferred to his lawyer’s

advice regarding trial strategy. But nothing in the record shows what his lawyer advised

appellant with regard to his plea to the enhancement allegation. For that reason alone, his

claim thus cannot be “firmly rooted in the record.” Thompson, 9 S.W.3d at 813-14.




      2
        Appellant was twenty years old at the time of his trial, and told the court he had
completed only the sixth grade.

                                              5
       Moreover, even if we assume his lawyer was responsible for the decision to plead

true, appellant points to nothing in the record suggesting the outcome of his trial would

have been different had he required the State to prove his Lubbock County robbery

conviction.


       In support of his argument under this issue, appellant directs us to Lyons v.

McCotter, 770 F.2d 529 (5th Cir. 1985), a federal habeas proceeding in which the petitioner

successfully argued his Texas state court trial counsel rendered ineffective assistance

during his trial for aggravated robbery. The Fifth Circuit’s opinion says the State’s evidence

against Lyons was “far from overwhelming.” 770 F.2d at 533 n.5. During the guilt-

innocence phase of trial, his counsel allowed evidence that Lyons had previously been

convicted of robbery and later paroled to be admitted without objection, and failed to

request an instruction limiting the jury’s consideration of that evidence. Id. at 534. The

appellate court found that the evidence would have been excluded on proper objection. Id.

In that circumstance, the court thus concluded counsel’s failure to object had no strategic

value and undermined the reliability of Lyons’ conviction. Id.


       It can readily be seen that the circumstance in Lyons bears little resemblance to

appellant’s. Here, appellant plead guilty in each case and admitted the truth of the

enhancement offense on questioning by the trial court. Appellant does not contend that

evidence of the enhancement conviction would have been excludible had he plead “not

true” and his counsel objected to the evidence. Lyons does not assist appellant. We

overrule his first issue.



                                              6
       In his second issue, appellant complains that his trial counsel failed to offer

evidence in mitigation of punishment. The record shows that after the State rested

appellant’s counsel requested and received a fifteen minute recess during which he and

appellant conferred. When trial resumed counsel announced appellant rested because

appellant chose not to testify and the defense would have no witnesses. The record does

not tell what, if any, mitigation evidence appellant possessed and why counsel chose not

to present this evidence if it existed. We will not speculate on the question, for, again, a

claim of ineffective assistance is “not built on retrospective speculation; [it] must be ‘firmly

founded in the record.’” Bone v. State, 77 S.W.3d at 828, 835 (Tex.Crim.App. 2002). And

the record must affirmatively demonstrate the ineffectiveness. Thompson, 9 S.W.3d at

813-14. The record here does not establish that counsel’s actions with regard to the

presentation of mitigating evidence were ineffective. Cf. Thompson, 9 S.W.3d at 814 n.6

(“in the vast majority of cases, the undeveloped record on direct appeal will be insufficient

for an appellant to satisfy the dual prongs of Strickland”). Without record evidence of what,

if any, mitigating evidence was available to appellant and counsel’s reasons for not offering

such evidence as existed, appellant is unable to overcome the presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.


       Relying on Ex parte Gonzales, 204 S.W.3d 391 (Tex.Crim.App. 2006), appellant

argues his counsel was required to “make a minimal attempt to present” evidence in

mitigation of punishment. As the State points out, Gonzales was a habeas corpus

proceeding following the applicant’s conviction of capital murder and sentence of death.

Id. at 393. Important to this discussion, the court in Gonzales was reviewing a well-


                                               7
developed habeas record describing potential mitigation evidence as well as trial counsel’s

statement that his failure to investigate the described evidence was not strategic. Id. at

394-96. The court’s reference in Gonzales to facts developed in the habeas proceeding

underscores why direct appeal ordinarily does not present a record sufficient for a proper

Strickland review. For that reason, Gonzales actually supports our conclusion appellant’s

second issue also must be overruled, and we do so.


                                       Conclusion


       Having overruled appellant’s two issues, we affirm the five judgments of the trial

court appellant challenged by this appeal.




                                                 James T. Campbell
                                                      Justice




Publish.




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