


NUMBER 13-00-125-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________


CORNELIO CANTU,	Appellant,


v.

THE STATE OF TEXAS,	Appellee.

___________________________________________________________________


On appeal from the 105th District Court
of Nueces County, Texas.
___________________________________________________________________


O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and

Rodriguez

Opinion by Justice Rodriguez

	Appellant, Cornelio Cantu, pleaded guilty to aggravated assault.(1) 
Pursuant to a plea bargain, the trial court placed Cantu on ten years
deferred adjudication community supervision.  The State filed a motion
to adjudicate alleging Cantu violated the terms and conditions of his
community service probation.  At his adjudication hearing, Cantu
pleaded true to the allegations.  The trial court accepted Cantu's guilty
plea and imposed a ten year sentence.  Cantu's appeal complains of
ineffective assistance of counsel during the punishment phase of the
hearing.

	Before reaching the merits of Cantu's claim, we must first
determine whether this Court has jurisdiction to consider Cantu's
appeal.  The trial court adjudicated and sentenced Cantu on February
18, 2000.  Six days later Cantu filed an inmate communication form
wherein he expressed a desire to appeal his case, complaining of
ineffective assistance of counsel.  Cantu also requested new counsel. 
The trial court considered this written communication a notice of appeal
and appointed new appellate counsel.  We construe this communication
as a general notice of appeal, not effective to confer jurisdiction on this
Court.  See Tex. R. App. P. 25.2(b)(3)(C).(2)

	However, Cantu also filed a timely motion for new trial again
asserting inadequate representation during the punishment phase of
the hearing.  The motion for new trial was denied.  During the hearing
on the motion, Cantu asked the trial court for permission to appeal.  The
transcript of the hearing reveals that the court informed Cantu he did
not need its permission, that "You do whatever you want."  On May 10,
2000, within ninety days after sentence was imposed and, thus, before
the time for filing his notice of appeal had expired, Cantu filed an
amended notice specifically asserting that, by its statement, the trial
court granted Cantu permission to appeal.  See Tex. R. App. P. 26.2(a)(2)
(notice of appeal must be filed within 90 days after day sentence
imposed if motion for new trial filed).  The State has filed no response. 
Based on the facts before us, we conclude the trial court did grant
Cantu permission to appeal.  The extra-notice requirements of rule
25.2(b)(3) are therefore satisfied, and we have jurisdiction to address
this appeal.

	We next address the substantive issues raised in this appeal. 
Counsel filed a brief in compliance with Anders v. California, 386 U.S.
738, 744-45 (1967), and High v. State, 573 S.W.2d 807, 812 (Tex.
Crim. App. 1978).  In her brief, counsel discusses the record, reviews
the punishment proceeding and motion for new trial hearing, and
concludes there is no reversible error shown in the record, and that this
appeal is frivolous.  Counsel does, however, raise one arguable point of
error which we now address.  

	Cantu contends he received ineffective assistance of counsel at the
punishment phase of his adjudication hearing.  Specifically, Cantu
claims his counsel failed to properly investigate facts surrounding his
background and learning of witnesses that could have testified on
Cantu's behalf.

	To establish ineffective assistance of counsel, Cantu must
demonstrate from the record that (1) counsel's assistance was outside
the range of competence demanded of attorneys in criminal cases, and
(2) there is a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to
trial.  See Strickland v. Washington, 466 U.S. 668, 687 (1984));
Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999)
(applying Strickland's two-prong test to punishment phase).  A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.  See Strickland, 466 U.S. at 694; Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  The determination
regarding whether a defendant received effective assistance of counsel
must be made according to the facts of each case.  See Thompson, 9
S.W.3d at 812.  An appellate court looks to the totality of the
representation and the particular circumstances of the case in
evaluating the effectiveness of counsel.  See id.

	The appellant bears the burden of proving by a preponderance of
the evidence that counsel was ineffective.  See Thompson, 9 S.W.3d at
813.  The appellate court's review of counsel's performance must be
highly deferential.  See Strickland, 466 U.S. at 689.  There is a strong
presumption that counsel's conduct fell within the wide range of
reasonable professional assistance and constituted sound trial strategy. 
See id.  To defeat the presumption of reasonable professional
assistance, "any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness."  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim.
App. 1996).

	Among counsel's duties is that of making an independent
investigation of the facts of his client's case, although its scope may
fluctuate under varying circumstances.  See Butler v. State, 716 S.W.2d
48, 54 (Tex. Crim. App. 1986); see also McFarland, 928 S.W.2d at 502
(counsel has duty to make reasonable investigations or to make
reasonable decision that makes particular investigations unnecessary);
Rangel v. State, 972 S.W.2d 827, 838, n.8 (Tex. App.--Corpus Christi
1998, pet. ref'd) (counsel who has duty to seek and investigate
potential witnesses for guilt/innocence phase, should have same duty
during punishment phase).  As part of this duty, counsel has a
responsibility to seek out and interview potential witnesses.  See Ex
parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).

	Three witnesses testified at the motion for new trial hearing
regarding the effectiveness of trial counsel.  On direct examination,
Cantu's trial counsel, Jerry Dorsey, testified: (1) no witnesses were
called to testify at the hearing on the motion to adjudicate on Cantu's
behalf other than Cantu; (2) he had no recollection of Cantu providing
him with information regarding anyone who might testify on Cantu's
behalf; and (3) he did not remember speaking to Cantu's father, Cornelio
Cantu, Sr., concerning his ability to testify on Cantu's behalf.  On cross-examination, Dorsey testified that in an attempt to mitigate the
punishment assessed and possibly convince the trial judge to continue
his probation, his trial strategy at the adjudication hearing was for
Cantu to testify that the gun incident was accidental, not a drive-by
shooting, that he had a family, including a newborn son, and that he
was working.  Dorsey stated that Cantu never asked him to speak to his
father.  If Cantu had done so, Dorsey would have called him.  Neither
did Cantu ask Dorsey to postpone the hearing so that other witnesses
could be contacted.  Dorsey also testified that because Cantu pleaded
true to the violations at the adjudication hearing, only one of five officers
was called by the State to testify, thereby shortening its presentation.

	Cantu's father, Cantu, Sr., also testified at the hearing.  He stated
that had he been contacted, he would have been willing to testify. 
Cantu, Sr., testified he was aware his son was having financial
difficulties, due partially to the fact that Cantu's child was born only a
few days after Cantu was placed on community supervision.  Cantu,
Sr., said that his son had secured a job, and that, because it did not pay
well, he was looking for a second job.  When Cantu, Sr., learned his son
was not reporting, he encouraged him to do so but his son was afraid
his probation would be revoked and he would be placed in jail.  The
family was willing to help Cantu, particularly with his drug problem. 
Cantu lived with his mother, who also had a drug problem and
encouraged Cantu to join her in using drugs.  Drug usage would not be
tolerated at Cantu, Sr.'s, house.  Cantu, Sr., felt his son could have
succeeded if given another chance on probation, perhaps with some
substance abuse treatment.  On cross-examination, Cantu, Sr., stated
he had observed his son regularly using drugs and would have told this
to the judge.  He knew that drug usage constituted a violation of his
son's probation.

	Finally, Cantu testified on his own behalf.  Cantu stated he met
only briefly with Dorsey the day of his arraignment and one time at the
jail.  Dorsey asked him about the possession of the gun, but not about
the failure to report to his probation officer, to change his address, or to
pay his fees.  Dorsey did not ask him if there was anyone who was
willing to testify.  Had Dorsey asked, Cantu would have given him the 
names of his father, his wife, and his boss.  Cantu asked the court for
an extension of his probation.  Dorsey did not.  Cantu felt that he had
to argue the case himself, that he did not have the aid of an attorney. 
Cantu did not understand he was giving up his right to challenge the
proceedings.  On cross-examination, Cantu admitted he did not report
for the months indicated in the motion to adjudicate; he did not report
his change of address; and he possessed marijuana during his
probationary period.  He also testified he never told the court he did not
want to proceed with the motion to adjudicate, nor did he tell the court
there were witnesses he wanted to testify on his behalf.  Cantu
admitted he did not ask Dorsey to contact his dad, his wife, or his boss. 
He did not even know how his father would testify.  Cantu was able to
inform the court that he had a family, a job, and that he was working
regularly.  

	On appeal, counsel for appellant concludes that the foregoing
testimony shows that Dorsey erred in not investigating the facts
surrounding Cantu's background and learning of witnesses that could
have testified on Cantu's behalf.  However, counsel also concludes that
Cantu did not demonstrate the second prong of Strickland, that he failed
to produce evidence that had his trial counsel investigated further there
was a reasonable probability that the result of the proceeding would
have been different.

	The underlying offense for which Cantu was placed on deferred
adjudication was aggravated assault, a second degree felony.  The
punishment range for a second degree felony is no more than twenty
or less than two years confinement and a fine not to exceed $10,000. 
See Tex. Penal Code Ann		. §
12.33(a),
(b)
(Vernon
1994). 
The
court
assessed
a
period of
confinement
of
ten
years, a
"mid-range"
punishment.  Cantu
admitted
the
allegations in
the
motion to
adjudicate
were
true. 
Cantu
committed,
not
merely
"technical"
offenses,
i.e.,
failure to
pay
supervisory
fees,
but 
new
offenses
including
possession of
marijuana. 
Also,
Cantu
admitted
to
having
possession of
a
pistol.  He
testified
he
was
attempting to
sell it
to
buy
milk
and
diapers
for
his
newborn
son. 
While
Cantu
may
have
had
noble
motives
for
possessing the
gun,
such
possession
violated
the
terms of
his
community
supervision,
particularly
when he
was
on
probation
for
an
aggravated
offense.

	Additionally, Cantu's father testified that even when Cantu was on
probation, he continued to use drugs.  Cantu, Sr., had personally
observed Cantu take the drugs, not on just one occasion, but on two. 
Had Dorsey investigated and called Cantu's father to testify, the State
would have elicited the testimony that it did in the new trial hearing, to
wit: that Cantu purposefully failed to report and continued to use drugs
despite his father's overt and expressed disapproval, and despite the
fact that both actions violated the terms and conditions of his
community supervision.

	Accordingly, we conclude Cantu's one arguable point of error,
ineffective assistance of counsel due to failure to investigate, fails
because the record does not support a finding that the result of the
proceeding would have been different.  Indeed, Not only did Dorsey's
failure to investigate not have any deleterious effect on Cantu's defense,
it may actually have been helpful to Cantu in that potentially damaging
testimony was not brought before the court for its consideration when
it assessed Cantu's punishment.

	In Pension v. Ohio, 488 U.S. 75 (1988), the Supreme Court advised
appellate courts that upon receiving a "frivolous appeal" brief, they
must conduct "a full examination of all the proceeding[s] to decide
whether the case is wholly frivolous."  We have reviewed the record
and, finding nothing that would arguably support an appeal, agree with
counsel that the appeal is wholly frivolous.  See Stafford v. State, 813
S.W.2d 503, 509 (Tex. Crim. App. 1991).  

	Counsel provided Cantu with a copy of the brief and advised him
of his right to file a pro se brief.  Counsel requested an extension of
thirty days for Cantu to file his brief, should he desire to do so.  That
time has elapsed and no such response has been received by this Court. 
Accordingly, the judgment of the trial court is AFFIRMED.

	Additionally, in accordance with Anders, counsel has requested
permission to withdraw as counsel for Cantu.  See Anders, 386 U.S. at
744.  We grant Cantu's attorney's motion to withdraw.  Furthermore,
we order her to notify Cantu of the disposition of his appeal and of the
availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d
25, 27 (Tex. Crim. App. 1997).


								NELDA V. RODRIGUEZ

								Justice


Justice J. Bonner Dorsey not participating.


Publish.

Tex. R. App. P. 47.3.


Opinion delivered and filed

this 26th day of April, 2001.




1. See Tex. Pen. Code Ann. § 22.02(b) (Vernon 1994).
2. To invoke this court's jurisdiction over an appeal from a negotiated-guilty plea, a notice of appeal must expressly specify (1) the appeal is for a
jurisdictional defect; (2) the substance of the appeal was raised in writing and
ruled on before trial, or (3)  the trial court granted permission to appeal.  See
Tex. R. App. P. 25.2(b)(3).


