                                        NUMBER 13-08-433-CR

                                      COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


STEVEN PEREZ                                                                                       Appellant,

                                                         v.

THE STATE OF TEXAS,                                                                                 Appellee.


                        On appeal from the 117th District Court of
                                Nueces County, Texas.


                                  MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Yañez and Garza
                 Memorandum Opinion by Justice Yañez

        Appellant, Steven Perez, pleaded "nolo contendere" to possession of a firearm by

a felon1 pursuant to a plea agreement with the State.2 By two issues, appellant contends


        1
            See T EX . P EN AL C OD E A N N . § 46.04 (Vernon Supp. 2009).

        2
          In its certification of defendant's right of appeal, the trial court granted appellant the right to appeal
his conviction.
that he was denied due process of law and that his trial counsel rendered ineffective

assistance. We affirm.

                                               I. BACKGROUND

        Appellant was charged with possession of a firearm by a felon in trial court cause

number 07-CR-1224-B, and, in a related case, appellant was charged with murder in trial

court cause number 07-CR-159-B.3 A jury found appellant guilty of murder, and appellant

was sentenced to sixty years' imprisonment. Subsequently, pursuant to a plea agreement

with the State, appellant pleaded "nolo contendere" to possession of a firearm by a felon.

        In exchange for appellant's plea, the State agreed to recommend to the trial court

a sentence of six years' confinement to run concurrently with the sentence imposed in the

murder case and "any sentence that may be imposed in Federal Cause No.

2: . . . 03CR278001."4 On June 9, 2008, the trial court found appellant guilty of possession

of a firearm by a felon, sentenced him to six years' confinement and followed the State's

recommendation that appellant's sentence run concurrently with sentences imposed in

cause number 07-CR-159-B and federal cause number 2:03-CR-278001.5 On June 24,

2008, appellant filed a motion for new trial and in arrest of judgment, which the trial court




        3
            Both of these charges were brought in state court.

        4
            According to the State, there was a "pending . . . federal probation revocation on that case."

        5
            The appendix of appellant's brief contains a copy of the judgm ent in federal cause num ber
2:03CR00278-001. However, it is not included in the appellate record in this case. "[A]n appellate court m ust
determ ine a case on the record as filed and cannot consider docum ents attached as exhibits or appendices
to briefs or m otions." Blank v. State, 172 S.W .3d 673, 675 n.1 (Tex. App.–San Antonio 2005, no pet.) (op.
on reh'g) (citing T EX . R. A PP . P. 34.1)); see Vanderbilt v. State, 629 S.W .2d 709, 717 (Tex. Crim . App. 1981).
Therefore, we are unable to consider this docum ent. See Pollan v. State, 612 S.W .2d 594, 596 (Tex. Crim .
App. 1981) (refusing to consider an affidavit attached to the appellant's brief because it was not introduced
at trial and not part of the record on appeal).

                                                         2
denied.6

                                                  II. DUE PROCESS

        By his first issue, appellant contends that he was denied due process of law

because of the State's "inability to fulfill the plea bargain agreement." Specifically,

appellant argues that "[n]either the prosecutor nor the Trial Court had the power to order

the federal court to run its pending sentence concurrent with the sentence in this

case . . . ."; therefore, the State was unable to fulfill its "promise to have the sentences run

concurrently."7

        "Preservation of error is a systemic requirement of every appeal."8 Generally, before

a party may complain on appeal, the record must show that the party made the complaint

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 trial court aware of the complaint . . . ."9 In this case, appellant did not complain




        6
           It appears that m any of appellant's com plaints in his m otion for new trial pertain to his m urder
conviction. Appellant m ade the following com plaints concerning his conviction of possession of a firearm by
a felon: (1) "[t]he judgm ent is invalid"; (2) "[d]efendant did not enter his plea knowing,[sic] intentionally and
voluntarily"; and (3) "[d]efendant was denied effective assistance of counsel." In his m otion for new trial,
appellant did not request withdrawal of his plea or allege that the State failed to fulfill the plea bargain
agreem ent. On appeal, appellant does not contend that his plea was involuntary.

        7
          W e note that there is nothing in the record showing what sentence appellant is serving or whether
he is receiving state credit while serving his federal sentence or vice versa. Therefore, the record does not
reveal whether the State has upheld its end of the bargain. See State v. Moore, 240 S.W .3d 248, 251-52
(Tex. Crim . App. 2007) ("Once a plea agreem ent is finalized and the trial court binds itself to the term s, both
the defendant and the prosecutor are entitled to the benefit of the agreem ent. At the sam e tim e, both the
defendant and the prosecutor are also bound to uphold their ends of the bargain.").

        8
            Moore v. State, 295 S.W .3d 329, 333 (Tex. Crim . App. 2009).

        9
         T   EX .   R. A PP . P. 33.1(a)(1)(A).

                                                        3
to the trial court that the State was unable or failed to fulfill the plea bargain agreement.10

Therefore, appellant failed to preserve any error for our review. We overrule appellant's

first issue.

                               III. INEFFECTIVE ASSISTANCE OF COUNSEL

        By his second issue, appellant contends that his trial counsel rendered ineffective

assistance of counsel "[b]ecause of his failure to raise the issue of the admissibility of [his]

confession and to advise appellant that his plea bargain could not be fulfilled."

A. Standard of Review and Applicable Law

        Ineffective assistance of counsel claims are evaluated under the two-part test

articulated by the United States Supreme Court in Strickland v. Washington.11 The

Strickland test requires the appellant to show that counsel's performance was deficient, or

in other words, that counsel's assistance fell below an objective standard of

reasonableness.12 Assuming appellant has demonstrated deficient assistance, he must

then show that there is a reasonable probability that, but for counsel's errors, the result

would have been different.13 In determining the validity of appellant's claim of ineffective

assistance of counsel, "any judicial review must be highly deferential to trial counsel and




        10
           See Moore, 295 S.W .3d at 333 (concluding that the appellant failed to preserve error by failing to
object that the trial court's additional conditions to a plea-bargain agreem ent were im proper); Bitterman v.
State, 180 S.W .3d 139, 144 (Tex. Crim . App. 2005) (providing that the appellant preserved his issue that the
State violated the plea bargain agreem ent "by bringing it to the trial court's attention as soon as the error could
be cured, in a m otion for new trial").

        11
          See Goodspeed v. State, 187 S.W .3d 390, 392 (Tex. Crim . App. 2005) (citing Strickland v.
W ashington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W .3d 808, 812 (Tex. Crim . App. 1999).

        12
             Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 687.

        13
             Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 694.

                                                         4
avoid the deleterious effects of hindsight."14

        The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence.15 Appellant must overcome the strong presumption that

counsel's conduct fell within the wide range of reasonable professional assistance and that

his actions could be considered sound trial strategy.16                     A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel.17 Counsel's effectiveness

is judged by the totality of the representation, not by isolated acts or omissions.18 "[U]nless

there is a record sufficient to demonstrate that counsel's conduct was not the product of

a strategic or tactical decision, a reviewing court should presume that trial counsel's

performance was constitutionally adequate 'unless the challenged conduct was so

outrageous that no competent attorney would have engaged in it.'"19

B. Analysis

        An allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.20 To show that trial counsel

        14
             Thompson, 9 S.W .3d at 813.

        15
             Id.

        16
          See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W .3d 839, 851 (Tex. App.–Corpus Christi
2006, no pet.).

        17
             State v. Morales, 253 S.W .3d 686, 696 (Tex. Crim . App. 2008).

        18
             Thompson, 9 S.W .3d at 813; Jaynes, 216 S.W .3d at 851.

        19
             Morales, 253 S.W .3d at 696-97.

        20
            Bone v. State, 77 S.W .3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W .3d at 814 (setting
out that "in the vast m ajority of cases, the undeveloped record on direct appeal will be insufficient for an
appellant to satisfy the dual prongs of Strickland"); see Jackson v. State, 877 S.W .2d 768, 771-72 (Tex. Crim .
App. 1994) (en banc) (stating that "we m ust presum e that counsel is better positioned than the appellate court
to judge the pragm atism of the particular case, and that he m ade all significant decisions in the exercise of
reasonable professional judgm ent" and that "[d]ue to the lack of evidence in the record concerning trial

                                                       5
was ineffective by failing to file a motion to suppress, appellant has to prove that the trial

court would have granted the motion.21 Appellant has presented no evidence to satisfy this

burden. Moreover, trial counsel may have decided not to file pre-trial motions as part of

his trial strategy.22 Here, the record is silent regarding trial counsel's reason for not filing

a motion to suppress. Therefore, appellant has not met his burden to prove ineffective

assistance of counsel by a preponderance of the evidence.23

            Next, appellant argues that trial counsel was ineffective because of his "failure to

recognize that the plea bargain's provision for concurrent sentences was impossible to

fulfill."        An essential requisite to successfully attacking a guilty plea on ineffective

assistance grounds is that the appellant must show that the alleged deficiencies caused

his plea to be unknowing and involuntary.24 In this case, appellant does not argue that the

alleged deficiencies of his trial counsel's representation caused his plea to be unknowing

and involuntary.             The burden is on appellant to provide a record that affirmatively

demonstrates the alleged ineffectiveness.25 Therefore, we conclude that appellant has not

met his burden to prove ineffective assistance of counsel by a preponderance of the

evidence.26 We overrule appellant's second issue.


counsel's reasons" for the alleged ineffectiveness, the court was "unable to conclude that appellant's trial
counsel's perform ance was deficient") (internal quotations om itted).

            21
                 Jackson v. State, 973 S.W .2d 954, 957 (Tex. Crim . App. 1998) (per curiam ).

            22
                 See Hammond v. State, 942 S.W .2d 703, 710 (Tex. App.–Houston [14th Dist.] 1997, no writ).

            23
                 See Thompson, 9 S.W .3d at 813.

            24
                 Rodriguez v. State, 899 S.W .2d 658, 666 (Tex. Crim . App. 1995) (en banc).

            25
                 Bone, 77 S.W .3d at 835; Thompson, 9 S.W .3d at 814; see Jackson, 877 S.W .2d at 771-72.

            26
                 See Thompson, 9 S.W .3d at 813.

                                                           6
                                      IV. CONCLUSION

        We affirm the trial court's judgment.




Do not publish.
TEX . R. APP . 47.2(b).
Delivered and filed the
8th day of July, 2010.




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