                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-386-CR


JAVIER MAYORGA                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Javier Mayorga received deferred adjudication pursuant to a

plea of guilty to a first-degree felony. He appeals from a judgment adjudicating

his guilt and sentencing him to thirty years’ confinement and asserts that his

trial counsel provided ineffective assistance. We affirm.




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           See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      In September 2005, Appellant pleaded guilty to the offense of aggravated

robbery with a deadly weapon, and the trial court ordered Appellant to pay a

$1,000 fine and placed him on deferred adjudication community supervision for

ten years. By signing the Written Plea Admonishment, Appellant waived “the

attendance and record of a court reporter” required by Rule 13.1 of the Texas

Rules of Appellate Procedure.

      On August 19, 2008, the State filed a petition to proceed to adjudication

and alleged Appellant violated his probation by possessing a criminal

instrument, failing to pay fines, and failing to report monthly as ordered by the

trial court. Appellant entered an open plea of “true” to “each and every act

alleged” and again waived “the attendance and record of a court reporter”

required by Rule 13.1 of the Texas Rules of Appellate Procedure. Following the

hearing, the trial court adjudicated Appellant’s guilt, revoked Appellant’s

community supervision, and sentenced him to thirty years’ imprisonment.

      Appellant did not file a motion for new trial but filed a pro se notice of

appeal on October 17, 2008. In an affidavit signed by Appellant and attached

to his brief, Appellant asserts his court-appointed trial counsel provided

ineffective assistance following the filing of the State’s Petition to Proceed to

Adjudication because his trial counsel:

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      •     failed to tell him that a plea bargain offer of six years’ imprisonment
            was only good for one day or would expire before the next court
            date;2

      •     advised him to plead “true” to the allegations and “take his
            chances” with an open plea to the judge; 3 and

      •     assured him that he was “highly likely” to have his community
            supervision reinstated. 4

                                 III. Discussion

      In his sole point, Appellant contends his trial counsel was ineffective for

failing to (1) ensure that the district attorney’s plea offer of six-years’

imprisonment would either remain open until the September 26, 2008 hearing

or (2) explain that the offer would expire prior to the hearing.




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        Appellant’s affidavit states that he told his attorney he wanted to
think about the six-year plea offer and would give an answer at the next court
setting. The affidavit also states that Appellant intended to accept the six-year
plea offer during the September 26, 2008 punishment hearing.
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         Appellant’s affidavit states that his attorney offered this advice after
Appellant learned at the September 26, 200, punishment hearing that the
district attorney rescinded the six-year plea offer and instead offered a fifteen-
year sentence.
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       Appellant’s affidavit further alleges that his attorney (1) did not cross-
examine the alleged victim of the 2005 aggravated robbery during the
punishment hearing and (2) failed to offer into evidence several letters of
recommendation from teachers at the Lincoln Tech school Appellant attended.

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      A. Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.

State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The standard for review

for ineffective assistance of counsel at the punishment phase is whether

appellant received reasonably effective assistance of counsel. Ex parte Walker,

794 S.W.2d 36, 37 (Tex. Crim. App. 1990) (per curiam).

      Failure of defense counsel to inform a criminal defendant of plea offers

made by the State is an omission that falls below an objective standard of

professional reasonableness, and the criminal defendant is prejudiced by the

missed opportunity of accepting the bargain and presenting it to the trial court

for consideration in sentencing. See Ex parte Lemke, 13 S.W.3d 791, 795–97

(Tex. Crim. App. 2000); Aldrich v. State, 296 S.W.3d 225, 243 (Tex.

App.—Fort Worth 2009, pet. ref’d).

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      In evaluating the effectiveness of counsel, we look to the totality of the

representation and the particular circumstances of each case. Thompson, 9

S.W.3d at 813. Review of counsel’s representation is highly deferential, and

the reviewing court indulges a strong presumption that counsel’s conduct fell

within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim. 5

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”    Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).        To overcome 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.” Id. (quoting Thompson, 9 S.W.3d at 813).




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        Ineffective assistance claims are usually best addressed by a post-
conviction writ of habeas corpus. See Thompson, 9 S.W.3d at 814 & n.6; Ex
parte Torres, 943 S.W.2d 469, 475–76 (Tex. Crim. App. 1997). But see Ex
parte Nailor, 149 S.W.3d 125, 131–32 (Tex. Crim. App. 2004) (holding that
specific allegations of deficient attorney performance that were rejected on
direct appeal are not cognizable on habeas corpus as a part of a larger
ineffective assistance of counsel claim when defendant does not offer additional
evidence to support that specific claim of deficient performance in habeas
proceeding).

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      B. The Record Does Not Support Appellant’s Claim

      Appellant claims his trial counsel was ineffective for failing to (1) ensure

that the district attorney’s plea offer of six-years’ imprisonment would either

remain open until the September 26, 2008 hearing or (2) explain that the offer

would expire prior to the hearing. Appellant points us to no evidence in the

record, and we find none, indicating that the State even made such a plea

offer.6   See Lemke, 13 S.W.3d at 795–96; see also Harvey v. State, 97

S.W.3d 162, 167 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating

that when there is not a “firm plea bargain offer,” courts have declined to find

counsel’s failure to inform the defendant deficient).     In fact, the only plea

bargain offer referenced in the record is the State’s offer of ten years’

imprisonment, which Appellant rejected on August 15, 2005. And we cannot

consider Appellant’s affidavit on appeal because it was not introduced to the

trial court and is not part of the appellate record. See Tex. R. App. P. 34.5,

34.6; Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)

(prohibiting an appellate court from considering factual assertions that are




      6
         Similarly, the record in this case is silent as to why Appellant's
counsel did not cross-examine the alleged victim of the 2005 aggravated
robbery during the punishment hearing and failed to offer into evidence several
letters of recommendation from teachers at the Lincoln Tech school Appellant
attended.

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outside the record and stating that a party cannot circumvent this prohibition

by submitting an affidavit for the first time on appeal).   Thus, there is no

evidence to rebut the presumption that Appellant's trial counsel acted

appropriately concerning the plea bargain with the State. Salinas, 163 S.W.3d

at 740; see Mallett, 65 S.W.3d at 62; Thompson, 9 S.W.3d at 813.           We

overrule Appellant’s claim of ineffective assistance of counsel.

                               IV. Conclusion

Having overruled Appellant’s sole point, we affirm the trial court’s judgment.




                                          ANNE GARDNER
                                          JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 25, 2010




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