                                  NO. 07-04-0091-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 16, 2004

                         ______________________________


                           ELOY CARL CRUZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

             NO. 45,632-A; HONORABLE RICHARD DAMBOLD, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


       Following a plea of not guilty,1 appellant Eloy Carl Cruz was convicted by a jury of

possession of marijuana, and the trial court assessed a sentence of one year confinement



      1
       Appellant testified that although the marijuana on his person was his, he denied
having possession of the marijuana found in the sofa.
in a state jail facility. In presenting this appeal, counsel has filed an Anders2 brief in support

of a motion to withdraw. We affirm and grant the motion to withdraw.


       In support of his motion to withdraw, counsel certifies that he has diligently reviewed

the record and, in his opinion, it reflects no reversible error or grounds upon which an

appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967). In the brief accompanying the motion to withdraw, counsel reviews

the indictment, pretrial proceedings, voir dire, evidence introduced at trial, arguments, jury

charge, objections made by trial counsel during the underlying proceedings, the

punishment hearing, sentencing, and the effectiveness of appellant’s trial counsel. He then

concludes the appeal is frivolous and without merit. In compliance with High v. State, 573

S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel discusses why, under the controlling

authorities, there is no error in the court's judgment. Counsel also shows that he has sent

a copy of the brief to appellant, and informed appellant that, in his view, the appeal is

without merit. In addition, counsel demonstrates that he notified appellant of his right to

review the record and file a pro se response if he desired to do so. Appellant has not

availed himself of that opportunity. Neither has the State favored us with a brief.


       By his brief, counsel contends “an issue that needs to be addressed is whether the

Defense should have objected to the State’s comments while questioning Appellant in




       2
           See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                                2
regard to his prior conviction for a Class A misdemeanor possession of marijuana.”3

According to counsel, appellant’s trial counsel could have voiced a legitimate objection to

the State’s impeachment of appellant by that evidence. See Tex. R. Evid. 609(a) (providing

that evidence that the witness has been convicted of a crime shall be admitted if elicited

from the witness or established by public record but only if the crime was a felony or

involved moral turpitude). Counsel concludes, however, that: (1) trial counsel may have

had a sound trial strategy for not objecting; and (2) the evidence of appellant’s guilt

independent of that deficiency “was conclusive of the offense charged.” Counsel appears

to suggest that appellant would be unable to prevail upon an ineffective assistance of

counsel claim on the basis of trial counsel’s failure to object. We agree.


       A claim of ineffective assistance of counsel is reviewed under the standard set out

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

that standard, a defendant must establish that: (1) counsel's performance was deficient

because it fell below an objective standard of reasonableness; and (2) a reasonable

probability sufficient to undermine confidence in the outcome existed that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. Rylander v.

State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003 ). 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.


       3
       The record reveals that appellant was charged with a felony, but was convicted of
a lesser included misdemeanor possession offense.

                                              3
1368, 131 L.Ed.2d 223 (1995). Any allegation of ineffective assistance of counsel 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). Generally,

the record on direct appeal will not be sufficient to show that counsel's conduct was so

deficient as to meet the first prong of the Strickland standard as the reasonableness of

counsel's choices often involves facts that do not appear in the record. See Mitchell v.

State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002).                Instead, an application for a

post-conviction writ of habeas corpus is usually the appropriate manner in which to raise

and develop claims based on ineffective assistance of counsel. Id.


       Here, it is possible, as counsel suggests, that the lack of an objection by trial counsel

to the admission of the evidence of appellant’s misdemeanor conviction, is consistent with

a theory of the case that “although [appellant] was a marijuana user, all the marijuana

found on the date in question should not be charged to him” and that “as he has admitted

to wrongs in the past, he would do the same now if one had occurred.” (Emphasis in

original). In any event, the record is insufficient to establish whether trial counsel’s conduct

was so deficient as to meet the first prong of the Strickland standard. Furthermore,

because there was overwhelming evidence of appellant’s guilt independent of trial

counsel’s failure to object, we cannot, on this record, presume appellant would prevail on

the second prong of that test either.




                                               4
       We have also made an independent examination of the entire record to determine

whether there are any other arguable grounds which might support this appeal. See

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have found no

non-frivolous issues and agree with counsel that the appeal is without merit. Currie v.

State, 516 S.W.2d 684 (Tex.Cr.App. 1974).


       Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the

trial court is affirmed.


                                                Don H. Reavis
                                                  Justice


Do not publish.




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