                                  NO. 07-05-0041-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                 AUGUST 25, 2006
                         ______________________________

                          NICOLAS RIOS, JR., APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2004-407525; HONORABLE CECIL G. PURYEAR, JUDGE
                       _______________________________


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


                               MEMORANDUM OPINION


      Appellant, Nicolas Rios, Jr., entered a plea of guilty to the offense of driving while

intoxicated, third or more, and true to the enhancement paragraph, without a plea

agreement, and was sentenced to confinement in the Texas Department of Criminal

Justice for a period of twenty years. We affirm.
                           Factual and Procedural Background


       Appellant was stopped by a Texas Department of Public Safety trooper while driving

a car after the trooper observed appellant drive on the center stripe and on the shoulder

of the highway on more than one occasion. After stopping the vehicle, the trooper

proceeded to administer field sobriety tests on appellant. Upon completion of the testing,

appellant was arrested for driving while intoxicated.


       Appellant was appointed trial counsel. Appellant reached a plea agreement with the

State but failed to appear for the plea. Subsequently, the case was scheduled for trial, but

appellant failed to appear for trial and later was rearrested. Appellant then hired new trial

counsel. On the day of trial, appellant entered an open plea, pleading guilty to the indicted

offense and true to the enhancement portion of the indictment. After accepting appellant’s

plea, the trial court assessed punishment at confinement for twenty years. Appellant filed

a motion for new trial which the trial court overruled after an evidentiary hearing.1


       By one issue, appellant alleges that his plea of guilty was unknowingly and

involuntarily entered due to ineffective assistance of counsel.




       1
          At the motion for new trial hearing, appellant presented evidence regarding the
alleged ineffective assistance of trial counsel. The trial court did not permit all witnesses
to testify, however, appellant was allowed to present all of his witnesses by way of a bill of
exception. This evidence is before this court. Appellant has not complained about the
denial of a full evidentiary hearing on the motion for new trial.

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                                  Ineffective Assistance


       A complaint of ineffective assistance of counsel may be raised in a motion for new

trial. See Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). The granting or

denying of a motion for new trial is within the trial court’s discretion and, as such, is

reviewable for abuse of discretion.         State v. Gonzalez, 855 S.W.2d 692, 696

(Tex.Crim.App. 1993). To be successful in attacking a plea, appellant must show that

deficiencies caused the plea to be unknowing and involuntary. Rodriguez v. State, 899

S.W.2d 658, 666 (Tex.Crim.App. 1995). An appellant’s decision to plead guilty when

based upon erroneous advice of counsel is not done voluntarily and knowingly. Ex parte

Battle, 817 S.W.2d 81, 83 (Tex.Crim.App. 1991). The two prong test of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges

of guilty pleas based on ineffective assistance of counsel. Ex parte Adams, 707 S.W.2d

646, 649 (Tex.Crim.App. 1986). Under the first prong of the Strickland test, an appellant

must show that counsel's performance was deficient. Strickland, 466 U.S. at 687. "This

requires showing that counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. To be successful

in this regard, an appellant "must show that counsel's representation fell below an objective

standard of reasonableness." Id. at 688. Under the second prong, an appellant must

show that the deficient performance prejudiced the defense. Id. at 687. The appropriate

standard for judging prejudice requires an appellant to "show that there is a reasonable

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

have been different.” Id. at 694. “A reasonable probability is a probability sufficient to


                                             3
undermine confidence in the outcome.” Id. Appellant must prove both prongs of Strickland

by a preponderance of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712

(Tex.Crim.App. 2000). Appellate review of counsel’s representation is highly deferential

and presumes counsel’s actions fell within the wide range of reasonableness and

professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002).

Appellate courts look to the totality of the representation and the particular circumstances

of each case in evaluating the effectiveness of counsel. Ex parte Nailor, 149 S.W.3d 125,

130 (Tex.Crim.App. 2004). Any allegation of ineffective assistance of counsel must be

firmly founded in the record and the record must affirmatively demonstrate the alleged

ineffectiveness. Bone, 77 S.W.3d at 835. With this standard of review in mind, we now

turn to appellant’s contentions.


       Appellant contends that trial counsel’s investigation of the case was deficient

because he failed to speak to three possible witnesses who were passengers in the car

appellant was driving. It is appellant’s assertion that the failure to speak to the three

witnesses led to trial counsel’s failure to challenge the officer’s reasonable suspicion for

the stop. Specifically, the evidence adduced at the motion for new trial included one

witness’s testimony that denied appellant drove in the manner alleged by the officer.

Appellant’s theory further states that a motion to suppress would have led to the exclusion

of all of the officer’s testimony regarding appellant’s intoxication. Appellant cites this court

to Haynes v. State, 790 S.W.2d 824 (Tex.App.–Austin 1990, no pet.), to support his

position. However, Haynes is distinguishable on the facts. In Haynes, not only did trial




                                               4
counsel fail to talk to any of the witnesses, he did not even review the offense reports of

the police.


       In the present case, the record reveals that trial counsel admitted that he did not

speak to the witnesses. However, the record reveals that trial counsel did review all of the

State’s evidence and was convinced that there was no evidence that would warrant a

suppression motion being filed. At the time of the plea, the officer testified that he stopped

appellant after observing him driving on the center stripe and shoulder of the highway

because the officer needed to determine if the driver was tired, intoxicated, or otherwise

unable to safely drive the vehicle.       Thus, we conclude that the record does not

affirmatively demonstrate the alleged ineffectiveness of trial counsel.


       Even if we assume, arguendo, that the failure to file a motion to suppress was

deficient performance by trial counsel, it is still appellant’s burden to prove by a

preponderance of the evidence that the motion would have been granted. Jackson v.

State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). To meet his burden, appellant offered

the testimony of his prior appointed attorney. The appointed attorney testified that he had

not filed a motion to suppress prior to appellant hiring trial counsel, but that he had

intended to challenge the stop. During his testimony, the appointed counsel cited four

cases that he felt were germane to the decision to file a motion to suppress. Having

reviewed the referenced citations, we cannot say that a motion to suppress would have

been granted due to factual differences in those cases and the present case.2 The fact


       2
        The appointed attorney referenced State v. Cerny, 28 S.W.3d 796
(Tex.App.–Corpus Christi 2000, no pet.) (stop for failure to drive in single marked lane

                                              5
that a different counsel might have filed a motion to suppress or otherwise challenged the

stop does not satisfy appellant’s burden of proof.        There is still no showing, by a

preponderance of the evidence, that the motion, if filed, would have been granted.

Accordingly, appellant has not met this burden. Id.


       Appellant further contends that trial counsel allowed appellant to appear in court

wearing jail clothes, which appellant submits demonstrates that trial counsel was not

prepared to go to trial. However, the record reflects that appellant’s appearance in court

while wearing jail clothes was during conferences with trial counsel and prior to a jury being

impaneled. There is no effort to explain how the appearance of appellant in jail clothes,

during discussions with counsel about a possible plea and prior to a jury panel being

brought in, demonstrates trial counsel’s ineffective assistance. We cannot assume that,

had appellant elected for a trial, he would have been tried in his jail clothes. Again,

appellant has failed to meet his burden on this matter.          Tong, 25 S.W.3d at 712.

Accordingly, appellant’s issue is overruled. Having overruled appellant’s issue regarding

ineffective assistance of counsel, we cannot say that the denial of the motion for new trial

was an abuse of discretion.




requires the movement to be unsafe or dangerous and there was no such testimony); State
v. Arriaga, 5 S.W.3d 804 (Tex.App.–San Antonio 1999, pet. ref’d) (drifting in the lane not
sufficient for stop); Hernandez v. State, 983 S.W.2d 867 (Tex.App.–Austin 1998, pet ref’d)
(stop for failure to drive in single marked lane requires movement to be unsafe or
dangerous and there was no such testimony); State v. Tarvin, 972 S.W.2d 910
(Tex.App.–Waco 1998, pet ref’d) (driving on shoulder white line, without more, not
sufficient for stop).

                                              6
                                      Conclusion


      Having overruled appellant’s issue, the judgment of the trial court is affirmed.




                                         Mackey K. Hancock
                                              Justice



Do not publish.




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