Opinion issued December 28, 2012




                                       In The

                              Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                              NO. 01-11-00307-CR
                          ———————————
                        FIDENCIO JAIME, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1272119



                         MEMORANDUM OPINION

      Appellant,   Fidencio   Jaime,     pleaded   guilty   without   an   agreed

recommendation on punishment to the offense of possession with intent to deliver
a controlled substance, namely, methamphetamine, weighing at least 400 grams.1

The trial court found appellant guilty and assessed his punishment at thirty-five

years’ confinement and a $100 fine. On appeal, appellant argues in four points of

error that he was denied effective assistance of counsel because his trial counsel:

(1) failed to present a timely motion for continuance, (2) failed to present

mitigation evidence at his sentencing hearing, and (3) failed to pursue rulings on

any pretrial motions, and because (4) the cumulative impact of his trial counsel’s

failures violated his constitutional right to effective assistance of counsel.

      We affirm.

                                     Background

      Appellant was indicted for possession with intent to deliver at least 400

grams of methamphetamine. On July 30, 2010, the trial court appointed Diana

Olvera to represent appellant in the trial court. On October 1, 2010, appellant

moved pro se to dismiss Olvera and to appoint new counsel to act on his behalf.

Appellant retained new counsel, and, on October 12, 2010, Paula Miller filed a

motion on appellant’s behalf asking that Miller and Robert A. Jones be substituted

for Olvera. That same day, the trial court granted Miller’s motion.




1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.112 (Vernon 2010).
                                           2
      On December 15, 2010, Miller filed more than twenty pretrial motions on

appellant’s behalf.2 The trial court did not rule on any of these motions.

      On January 20, 2011, appellant entered a guilty plea and signed and initialed

the written admonishments of the trial court. The trial court also admonished

appellant, on the record in open court, regarding appellant’s desire to waive his

right to a jury trial and to plead guilty. Appellant stated that he had enough time to

consult with his counsel, and he informed the trial court that he been treated for

depression. Miller told the trial court that appellant appeared competent to stand

trial, and the trial court found on the record that appellant was competent to stand

trial. The trial court also expressly admonished appellant that “filing a motion

requesting community supervision in no way guarantees or entitles you to a

probated sentence,” and it advised appellant on the record that the punishment



2
      Miller moved for production of information concerning the State’s witness; for
      production and inspection of evidence which may lead to exculpatory evidence; to
      allow the jury to assess punishment; to suppress illegally-seized evidence; to
      suppress appellant’s statement; for discovery and inspection of evidence; to
      designate the location of physical evidence; for disclosure of impeachment
      information; for disclosure of documents used before the trier of facts or used to
      refresh the witness’s memory; to view and record the videotape of appellant’s
      interrogation; to obtain a list of witnesses and their criminal histories; for
      discovery of corroborative evidence to accomplice testimony; and to require the
      State to reveal any agreement between itself and any prosecution witness that
      could conceivably influence testimony. Miller also filed eight motions in limine, a
      request under Texas Rule of Evidence 404(b) for notice of intent to offer evidence
      of extraneous conduct and a written objection to the admissibility of extraneous
      offenses, and a request for notice of the prosecution’s intent to use certified copies
      of official written instruments.
                                            3
range for the offense was between fifteen and ninety-nine years and a fine not to

exceed $250,000.

      The court reset appellant’s case to March 31, 2011 so that a presentence

investigation (“PSI”) could be completed. The trial court stated, “Anything that

you want the Court to consider in sentencing for this matter must be provided to

the PSI writer or to the Court no later than ten days before this sentencing date.

That would be March 23rd. If you bring it in on March 30th, it’s not going to be

considered.”

      On March 30, 2011, appellant’s counsel, Miller, moved for a continuance of

the PSI hearing, stating that “[d]efendant’s counsel has not received all information

requested by subpoenas and other requested information needed to adequately

prepare for PSI hearing in the interest of justice.” Miller attempted to present the

motion for continuance to the trial court on that same day, and the trial court

informed her that it would not hear the motion in the absence of the defendant and

opposing counsel and told counsel to present the motion at the hearing scheduled

for the following day.

      The trial court held the sentencing hearing on March 31, 2011. Appellant,

through his trial counsel, Miller, objected to the PSI report on the ground that the

report mistakenly stated that he was charged with possession of 1.9 grams of

marijuana in addition to methamphetamine. The trial court pointed out that the

                                         4
report “said they recovered 1.9 grams of marijuana. It doesn’t say he was charged

with it at all.” Appellant’s counsel also objected to portions of the offense report

contained in the PSI. In response, the trial court stated that appellant had failed to

provide a statement of the offense to the PSI writer, but he could testify at the

hearing to provide his version of the offense to the trial court. Appellant testified

that he wanted to “take full responsibility for his actions on the charge.” He also

testified regarding his “current health conditions,” including sleep apnea,

depression, and “[his] nerves and [his] heart.” He testified that if he were granted

probation, he would “stay away from problems like this” and stay away from

people “that are doing wrong things.”

      Appellant testified that he had two prior convictions for the possession and

sale of narcotics and that he had been arrested for injury to a child. He also

testified that he had served four years of his five-year probation sentence for

money laundering before this case arose.

      The trial court recounted appellant’s extensive criminal background,

including two previous convictions for possession of narcotics and arrests for drug

trafficking, driving while intoxicated, money laundering, injury to a child, assault

on a family member, and terroristic threat.          It assessed his punishment at

confinement for thirty-five years and a $100 fine.




                                           5
      After the trial court had pronounced appellant’s sentence, appellant’s

counsel presented the motion for continuance. The trial court held a hearing on the

record and asked appellant’s counsel “what efforts [she had] made since January

[to obtain the subpoenaed documents], because nothing [was] set forth in your

motion.” The trial court stated that the motion was “untimely presented” and

“unable to be considered.”

      Appellant’s counsel, Miller, filed appellant’s notice of appeal on March 31,

2011. That same day, Miller moved to withdraw from representing appellant, and

the trial court appointed appellate counsel to represent appellant. Appellant filed a

pro se motion for new trial on May 1, 2011. Appellant argued that “during the

hearing upon [his] motion for continuance, counsel brought to the trial court’s

attention several subpoenas . . . filed in January of 2011 requesting issuance of

compulsory process and production of” various medical records. He referenced

the trial court’s lack of “interest in a further delay of the PSI hearing” and its

“denial” of the motion for continuance. The motion for new trial argued, among

other issues, that the trial court erred in denying the motion for continuance,

thereby denying appellant the right to present a complete defense, including

presenting mitigating evidence of appellant’s mental condition. The motion for

new trial did not, however, assert ineffective assistance of trial counsel.




                                           6
      Attached as exhibits to the motion for new trial were a copy of the PSI

report, the applications for subpoenas obtained by Miller, written objections to the

PSI signed by Miller, and records indicating that appellant was seen in a health

clinic in June 2010, where he was diagnosed with schizophrenia and bipolar

disorder. The motion for new trial was overruled by operation of law.

                        Ineffective Assistance of Counsel

      In his first four points of error, appellant argues that he received ineffective

assistance of counsel during his sentencing.

      To make a showing of ineffective assistance of counsel, an appellant must

demonstrate that (1) his counsel’s performance was deficient, and (2) there is a

reasonable probability that the result of the proceeding would have been different

but for his counsel’s deficient performance. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064 (1984); Cannon v. State, 252 S.W.3d 342, 348–49

(Tex. Crim. App. 2008).        The appellant must prove ineffectiveness by a

preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010). “Failure of appellant to make either of the required showings of

deficient performance and sufficient prejudice defeats the claim of ineffective

assistance.” Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see

also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An




                                          7
appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.”).

      The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The second prong of Strickland requires the appellant to demonstrate

prejudice—“a reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.

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

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To

prevail, the appellant must provide an appellate record that affirmatively

demonstrates that counsel’s performance was not based on sound strategy. Mallett




                                          8
v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see Thompson, 9 S.W.3d at 813

(holding that record must affirmatively demonstrate alleged ineffectiveness).

      In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65

S.W.3d at 63. Because the reasonableness of trial counsel’s choices often involves

facts that do not appear in the appellate record, the Court of Criminal Appeals has

stated that trial counsel should ordinarily be given an opportunity to explain his or

her actions before a court reviews that record and concludes that counsel was

ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v.

State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

      The United States Supreme Court has reiterated the importance of an

adequate record in ineffective assistance cases, holding that ineffective assistance

of counsel claims may be brought in a collateral proceeding because “[w]hen an

ineffective-assistance claim is brought on direct appeal, appellate counsel and the

court must proceed on a trial record not developed precisely for the object of

litigating or preserving the claim and thus often incomplete or inadequate for this

purpose.” Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct. 1690, 1694

(2003). The Supreme Court reasoned:

      Under [Strickland], a defendant claiming ineffective counsel must
      show that counsel’s actions were not supported by a reasonable
      strategy and that the error was prejudicial. The evidence introduced at

                                         9
      trial, however, will be devoted to issues of guilt or innocence, and the
      resulting record in many cases will not disclose the facts necessary to
      decide either prong of the Strickland analysis. If the alleged error is
      one of commission, the record may reflect the action taken by counsel
      but not the reasons for it. The appellate court may have no way of
      knowing whether a seemingly unusual or misguided action by counsel
      had a sound strategic motive or was taken because the counsel’s
      alternatives were even worse. The trial record may contain no
      evidence of alleged errors of omission, much less the reasons
      underlying them. And evidence of alleged conflicts of interest might
      be found only in attorney-client correspondence or other documents
      that, in the typical criminal trial, are not introduced. Without
      additional factual development, moreover, an appellate court may not
      be able to ascertain whether the alleged error was prejudicial.

Id. at 505, 123 S. Ct. at 1694 (internal citations omitted).

      Appellant argues that his trial counsel was ineffective because she failed to

present mitigation witnesses or mitigation evidence in the punishment hearing,

failed to present a motion for continuance of the punishment hearing in a timely

manner, and failed to seek trial court rulings on her various pretrial motions.

Appellant argues that trial counsel:

      allowed [him] to enter an open plea.3 Then she filed subpoenas but
      did not obtain the requested documents. To compound that error,

3
      Appellant does not appear to challenge the effectiveness of his counsel in advising
      him regarding his decision to plead guilty. We note, however, that when, as here,
      the record reflects that a defendant was duly admonished by the trial court as to his
      rights and the consequences of his decision before entering a guilty plea, the
      admonishment constitutes a prima facie showing that the plea was knowing and
      voluntary, and the burden then shifts to the defendant to show that he entered a
      plea without understanding the consequences. See Martinez v. State, 981 S.W.2d
      195, 197 (Tex. Crim. App. 1998). The record is silent regarding trial counsel’s
      advice to appellant regarding his guilty plea beyond his statement on the record
      that he had adequate time to discuss his plea with her. Thus, appellant has failed
                                           10
      [Miller] did not properly and timely ask the judge to continue that
      hearing. Furthermore, [Miller] did not properly preserve any potential
      error in the judge’s denial of the motion for continuance.

      As the Court of Criminal Appeals has stated, “[T]rial counsel should

ordinarily be afforded an opportunity to explain [her] actions before being

denounced as ineffective.” Rylander, 101 S.W.3d at 111. Here, counsel did not

testify or provide an affidavit. Without more than the arguments made here by

appellant, we cannot determine whether trial counsel acted in accordance with a

reasonable strategy. See id.; Bone, 77 S.W.3d at 833; see also Massaro, 538 U.S.

at 504–05, 123 S. Ct. at 1694 (stating that appellate record is typically insufficient

to support ineffective assistance claim because it does not reflect reasons for

counsels acts or omissions); Mitchell, 68 S.W.3d at 642 (“The reasonableness of

counsel’s choices often involves facts that do not appear in the appellate record.”).

      Assuming, however, without deciding, that trial counsel’s performance was

deficient, appellant still cannot establish that there is a reasonable probability that

the result of the proceeding would have been different but for his counsel’s

deficient performance.    See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;



      to establish that any failure on the part of his trial counsel rendered his plea
      involuntary. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)
      (holding that we do not speculate regarding counsel’s trial strategy); Mallett v.
      State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (holding that appellant must
      provide appellate record that affirmatively demonstrates counsel’s performance
      was deficient); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)
      (holding that record must affirmatively demonstrate alleged ineffectiveness).
                                          11
Cannon, 252 S.W.3d at 348–49; see also Rylander, 101 S.W.3d at 110 (“Failure of

appellant to make either of the required showings of deficient performance and

sufficient prejudice defeats the claim of ineffective assistance.”).

      Appellant must “prove that there is a reasonable probability that, but for

counsel’s errors, the sentencing [fact-finder] would have reached a more favorable

verdict.” Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (quoting

Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005)). “It is not enough to

show that trial counsel’s errors had some conceivable effect on the outcome of the

punishment assessed.” Id. (citing Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).

Here, appellant essentially argues that presentation of the evidence of his mental

health conditions would have resulted in a more favorable sentence.          See id.

However, the record does not support this argument.

      In pronouncing his sentence, the trial court highlighted appellant’s extensive

criminal background, which included imprisonment for two prior drug offenses;

his current probation for money laundering; and his arrests for multiple other

crimes, such as driving while intoxicated, injury to a child, assault of a family

member, and terroristic threat.     Although appellant did not present extensive

evidence of his mental health, he did testify at the sentencing hearing regarding his

sleep apnea, depression, and problems with “[his] nerves and [his] heart.” The trial

court assessed his punishment at thirty-five years’ confinement and a $100 fine,

                                          12
which is in the lower end of the punishment range for the first-degree felony

offense of possession with intent to deliver at least 400 grams of

methamphetamine.      See TEX. HEALTH & SAFETY CODE ANN. § 481.112(f)

(providing that punishment range for possession of 400 grams or more of Penalty

Group 1 substance is imprisonment for life or for a term of between fifteen and

ninety-nine years and fine not to exceed $250,000) (Vernon 2010); see also id.

§ 481.102(6) (providing that methamphetamine is Penalty Group 1 substance)

(Vernon 2010). There is no evidence in the record to support the contention that

the trial court might have assessed a shorter sentence or a smaller fine had it been

aware that appellant had been diagnosed with mental health disorders.               See

Strickland, 466 U.S. at 693–94, 104 S. Ct. at 2067–68; see also Cash, 178 S.W.3d

at 818 (concluding that habeas corpus applicant did not establish prejudice when

finding that result of proceeding would have been different but for counsel’s errors

“would be based on pure conjecture and speculation”).

      Thus, appellant has failed to establish his claim of ineffective assistance of

counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Cannon, 252 S.W.3d

at 348–49; Rylander, 101 S.W.3d at 110.4


4
      Appellant further argues that the cumulative effect of these failures requires
      reversal “because the Court cannot be confident that the constitutional errors can
      be determined beyond a reasonable doubt not to have contributed to Appellant’s
      sentence.” Appellant cites Stahl v. State and Chamberlain v. State to support his
      contentions. However, neither of these two cases involved the cumulative effect
                                          13
                                      Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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




      of errors in a claim of ineffective assistance of counsel. See Stahl, 749 S.W.2d
      826, 831 (Tex. Crim. App. 1988) (holding that cumulative effect of outburst by
      murder victim’s mother and prosecutor’s misconduct during jury argument
      constituted reversible error); see also Chamberlain, 998 S.W.2d 230, 238 (Tex.
      Crim. App. 1999) (overruling appellant’s argument that cumulative effect of
      various errors in jury selection and admission of evidence, among others, required
      reversal and stating, “It is conceivable that a number of errors may be found
      harmful in their cumulative effect. But, we are aware of no authority holding that
      non-errors may in their cumulative effect cause error.”) (internal citation omitted).
      Appellant cites no authority, nor do we find any, indicating that we should apply
      any analysis beyond that required by Strickland.
                                           14
