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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   No. 34,131

 5 JASON CHRISTOPHER MARTINEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Lisa B. Riley, District Judge

 9 Hector H. Balderas, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13   Jorge A. Alvarado, Chief Public Defender
14   Sergio Viscoli, Assistant Appellate Defender
15   David Henderson, Assistant Appellate Defender
16   Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION
 1 BUSTAMANTE, Judge.

 2   {1}   Jason Christopher Martinez (Defendant) appeals from the judgment and

 3 sentence convicting him of burglary, larceny, and criminal damage to property. [RP

 4 193] This Court’s notice of proposed disposition proposed to affirm Defendant’s

 5 convictions. Defendant filed a memorandum in opposition to the proposed disposition.

 6 We are not persuaded by Defendant’s arguments and affirm the judgment and

 7 sentence.

 8   {2}   Initially, we note that a party responding to this Court’s proposed disposition

 9 must point out specific errors in fact or law. See Hennessy v. Duryea,

10 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

11 held that, in summary calendar cases, the burden is on the party opposing the proposed

12 disposition to clearly point out errors in fact or law.”). In response to this Court’s

13 calendar notice, some of the factual information provided by counsel is attributed to

14 conversations with Defendant, and counsel has not indicated whether these facts were

15 actually before the district court. [MIO 1, 4] Unlike trial counsel, a Defendant is not

16 an officer of the court and is not bound by a duty of candor toward the tribunal.

17 Moreover, counsel does not point out whether any of the facts asserted are contrary

18 to those relied on by this Court in our notice of proposed disposition. We suggest that

19 inclusion of information that has not been asserted as being before the district court


                                              2
 1 is not an efficient use of counsel’s or this Court’s time, and is of little use in assessing

 2 the merits of the proposed disposition.

 3   {3}   Defendant asserts that his trial counsel arrived late for trial and was not present

 4 when the district court judge engaged in discussion with the jury panel when it

 5 became apparent that the judge was personally familiar with several prospective

 6 jurors. [MIO 1-2] This Court’s notice proposed to affirm because Defendant did not

 7 indicate whether or how the issue was preserved for review on appeal and he failed

 8 to meet his burden of showing how the district court erred. [CN 3] In response,

 9 Defendant states that because trial counsel did not witness these interactions, he did

10 not make a record or otherwise object to the proceedings. [MIO 2]

11   {4}   Because Appellant failed to demonstrate that the claim of judicial bias was

12 preserved at trial as required by Rule 12-213(A)(3) NMRA and the record fails to

13 contain evidence supporting such a contention, we affirm. See Trujillo v. City of

14 Albuquerque, 1993-NMCA-114, ¶ 22,116 N.M. 640, 866 P.2d 368 (agreeing with the

15 notion that a claim of judicial bias not made apparent in the record is not for appellate

16 review). Despite the additional information provided, Defendant still has not shown

17 bias or prejudice. See State v. Fernandez, 1994-NMCA-056, ¶ 16, 117 N.M. 673, 875

18 P.2d 1104 (“In the absence of prejudice, there is no reversible error.”).




                                                3
 1   {5}   Defendant also claims he was denied effective assistance of counsel because his

 2 attorney arrived late and failed to object, make a record, or request a mistrial or other

 3 relief, and that such errors constituted fundamental error. [MIO 2] However, the

 4 record before us is insufficient for us to address on direct appeal whether there is any

 5 merit to Defendant’s ineffective assistance claim. See State v. Arrendondo,

 6 2012-NMSC-013, ¶ 44, 278 P.3d 517 (declining to review an ineffective assistance

 7 claim on direct appeal, without prejudice to a defendant’s right to make an adequate

 8 record and seek relief in the context of a post-conviction habeas corpus proceeding).

 9   {6}   Defendant also continues to argue that counsel was ineffective for failing to

10 object to the admission of pictures of him posed deliberately in the same clothing as

11 the person pictured in the surveillance video. [MIO 4] While Defendant acknowledges

12 that case law does not support his argument that his constitutional right against self-

13 incrimination was violated, relying on State v. Johnson, 2004-NMCA-058, ¶ 14, 135

14 N.M. 567, 92 P.3d 13, he argues for the first time in his memorandum in opposition

15 that due to the suggestive nature of the photo, it was similar to a suggestive police

16 showup, which he asserts are generally excluded due to the high risk of

17 misidentification. [MIO 4-5] We construe Defendant’s argument as a motion to amend

18 the docketing statement and we deny the motion because Defendant does not indicate

19 whether the argument was raised below and made a part of the record. See State v.


                                               4
 1 Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91 (discussing the necessity

 2 for good cause to amend the docketing statement, which includes requiring that “the

 3 motion must show the new issue sought to be raised was either (a) properly preserved

 4 below or (b) allowed to be raised for the first time on appeal”), overruled on other

 5 grounds State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.

 6   {7}   To the extent Defendant continues to argue that it was ineffective assistance of

 7 counsel to not object to the photos, we affirm. This Court’s notice proposed to

 8 conclude that Defendant has not met his burden of demonstrating ineffective

 9 assistance of counsel because we could not say that objecting to the photos, which

10 were relevant, would have changed the result. See State v. Pettigrew,

11 1993-NMCA-095, ¶ 10, 116 N.M. 135, 860 P.2d 777 (“Photographs are the pictured

12 expressions of data observed by a witness. They are often more accurate than any

13 description by words, and give a clearer comprehension of the physical facts than can

14 be obtained from the testimony of witnesses.”) (internal quotation marks and citations

15 omitted)). Defendant did not point out specific errors in fact or law with the proposed

16 disposition. See Hennessy, 1998-NMCA-036, ¶ 24. Rather, Defendant argues given

17 that the first trial ended in a mistrial, the Court should find there exists a reasonable

18 probability that admitting the photos in evidence changed the outcome of the second

19 trial and therefore establishes the prejudice necessary to conclude there was


                                               5
 1 ineffective assistance of counsel. However, because the record is insufficient to

 2 establish whether defense counsel’s action was reasonable or if it caused prejudice,

 3 “instead of remanding the matter to the trial court, this Court prefers that these claims

 4 be brought under habeas corpus proceedings so that the defendant may actually

 5 develop the record with respect to defense counsel’s actions.” Arrendondo,

 6 2012-NMSC-013, ¶ 38.

 7   {8}    As to the remaining issues, Defendant continues to challenge the admission of

 8 the value of the stolen goods, adding habitual offender findings based on Defendant’s

 9 convictions in Texas, and running Defendant’s sentences consecutively. Because

10 Defendant did not point out any error in the law relied upon in the notice of proposed

11 disposition, we affirm. See Hennessy, 1998-NMCA-036, ¶ 24.

12   {9}    For all of the above reasons, and those stated in the notice of proposed

13 disposition, we affirm the judgment and sentence.

14   {10}   IT IS SO ORDERED.



15                                     _______________________________________
16                                     MICHAEL D. BUSTAMANTE, Judge

17 WE CONCUR:


18
19 JONATHAN B. SUTIN, Judge

                                               6
1
2 J. MILES HANISEE, Judge




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