                            NUMBER 13-09-00651-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


OSCAR MARTINEZ,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                            MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
           Memorandum Opinion by Chief Justice Valdez

      Appellant, Oscar Martinez, was charged by indictment with unlawful possession

of a firearm by a felon, a third-degree felony. See TEX. PENAL CODE ANN. § 46.04(a), (e)

(Vernon Supp. 2010). Without the benefit of a plea bargain, Martinez entered a plea of

―guilty‖ to the charged offense. The trial court accepted Martinez‘s plea, found him
guilty of the charged offense, and sentenced him to eight years‘ confinement in the

Institutional Division of the Texas Department of Criminal Justice.             By two issues,

Martinez argues that: (1) the stipulated evidence admitted against him is insufficient to

sustain his conviction; and (2) his trial counsel was ineffective. We affirm.

                                       I.      BACKGROUND

       On February 26, 2009, police were dispatched to 2726 South Padre Island Drive

in Corpus Christi, Texas, to investigate a report of shots being fired.              Police first

contacted Manuel Deleon who told them that he had heard shots fired near the

apartment located behind his house, where Martinez lived with Jesusa Garcia.1 Deleon

observed Martinez, who was walking from the rear of the apartment to the front, throw

something into the nearby sewer. Deleon asked Martinez what the noise was, and

Martinez told him that it was fireworks.         Police also spoke to another eyewitness,

Hipolito Gonzalez, who recalled seeing a dark Hispanic male shooting five rounds of

ammunition near the apartment where Martinez lived. Timothy Wright told police that

he saw a young Hispanic male shooting four or five rounds of ammunition near the

same apartment. Wright could only see the gunman‘s profile, but he did note that the

gunman was wearing a white shirt, had short, black hair, and appeared to be in his

twenties. Julie Murphy, another eyewitness, recalled hearing four or five gunshots as

she was about to go outside. When she looked out her door, Murphy saw a man

walking from a rear-area driveway from a house towards a city trash can. Murphy

thought the man was going to throw something in the trash can, but he refrained and

instead threw something in the sewer. Murphy described the man as a Hispanic male in


       1
        The nearby apartment from where the shots were fired is owned by Deleon, and he rented the
apartment to Garcia.

                                                2
his early twenties with short, dark hair, about 5‘9‖, and a thin-to-medium build. Murphy

also told police that the man was wearing blue jeans and a white shirt.

        After speaking to the various eyewitnesses, Corpus Christi police attempted to

speak with Martinez at the apartment. When police arrived, Martinez opened the door;

however, when he was asked to step outside, Martinez closed the door and refused to

speak with police. Corpus Christi police then contacted SWAT teams and hostage

negotiators for backup. After some time, Martinez surrendered to police. Murphy later

identified the man arrested—Martinez—as the same man who threw something down

the sewer. A search of the apartment did not yield a firearm; however, police found five

spent .357 casings in the nearby sewer. 2                 One of the reports prepared by the

responding police officers noted that Martinez told his mother that ―he wasn‘t gonna tell

us [police] where the weapon was.‖

        The State indicted Martinez with unlawful possession of a firearm by a felon.

See id. Without the benefit of a plea bargain, Martinez pleaded ―guilty‖ to the charged

offense and stipulated to the truth of the facts contained in the State‘s exhibits, which

included numerous police reports documenting the incident. The trial court accepted

Martinez‘s plea and found him guilty.               During the punishment phase, the State

introduced evidence of Martinez‘s prior convictions, all of which was admitted.3

Martinez‘s trial counsel argued that he should be sentenced to, at most, three years‘


        2
          Police tested Martinez‘s hands for residue of gun powder; however, the results of this test were
not included in the record.
        3
           Among Martinez‘s prior convictions included judgments indicating that he had been convicted
of: (1) second-degree-felony burglary of a habitation on November 9, 2000; (2) state-jail-felony burglary
of a building on November 15, 2000; (3) misdemeanor criminal mischief on November 6, 2000; (4) state-
jail-felony evading arrest with a motor vehicle on March 30, 2007; (5) misdemeanor assault on May 4,
2008; and (6) second-degree-felony indecency with a child on February 23, 2000.


                                                    3
confinement with credit for time served. However, the trial court sentenced Martinez to

eight years‘ confinement and certified Martinez‘s right to appeal. This appeal followed.

            II.      SUFFICIENCY OF THE EVIDENCE SUPPORTING MARTINEZ’S CONVICTION

       In his first issue, Martinez asserts that the stipulated evidence is insufficient to

prove beyond a reasonable doubt that: (1) he possessed a firearm; and (2) this offense

occurred less than five years from the date he had been released from prison on his

indecency-with-a-child conviction.

A. Applicable Law

       With regard to the sufficiency of the evidence supporting a defendant‘s plea of

guilty, the court of criminal appeals has stated the following:

              The United States Constitution does not require that the State
       present evidence in support of a guilty plea in Texas Courts. Article 1.15
       constitutes an additional procedural safeguard required by the State of
       Texas but not by federal constitutional law.[4] No trial court is authorized
       to render a conviction in a felony case, consistent with Article 1.15, based
       upon a plea of guilty without sufficient evidence to support the same.
       Evidence offered in support of a guilty plea may take many forms. The
       statute expressly provides that the defendant may consent to the proffer of
       evidence in testimonial or documentary form, or to an oral or written
       stipulation of what the evidence against him would be, without necessarily
       admitting to its veracity or accuracy; and such a proffer or stipulation of
       evidence will suffice to support the guilty plea so long as it embraces
       every constituent element of the charged offense.

              Alternatively, our case law has recognized that the defendant may
       enter a sworn written statement, or may testify under oath in open court,

       4
           Article 1.15 of the code of criminal procedure provides, in relevant part, that:

       No person can be convicted of a felony except upon the verdict of a jury duly rendered
       and recorded, unless the defendant, upon entering a plea, has in open court in person
       waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14;
       provided, however, that it shall be necessary for the [S]tate to introduce evidence into the
       record showing the guilt of the defendant and said evidence shall be accepted by the
       court as the basis for its judgment and in no event shall a person charged be convicted
       upon his plea without sufficient evidence to support the same.

TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005).

                                                       4
       specifically admitting his culpability or at least acknowledging generally
       that the allegations against him are in fact true and correct; and again, so
       long as such a judicial confession covers all of the elements of the
       charged offense, it will suffice to support the guilty plea. However, a
       stipulation of evidence or judicial confession that fails to establish every
       element of the offense charged will not authorize the trial court to convict.
       A conviction rendered without sufficient evidence to support a guilty plea
       constitutes trial error.

Menefee v. State, 287 S.W.3d 9, 13-14 (Tex. Crim. App. 2009) (internal footnotes,

citations, and quotation marks omitted). ―‗[A]n affirmation of the indictment as true and

correct will constitute a judicial confession sufficient to support a judgment of

conviction.‘‖ Id. at 16 n.30 (quoting Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim.

App. 1978)).

B. Discussion

       In this case, Martinez was charged with violating section 46.04(a) of the penal

code, which provides that:

       A person who has been convicted of a felony commits an offense if he
       possesses a firearm:

          (1) after conviction and before the fifth anniversary of the person‘s
              release from confinement following conviction of the felony or the
              person‘s release from supervision under community supervision,
              parole, or mandatory supervision, whichever date is later; or

          (2) after the period described in Subdivision (1), at any location other
              than the premises at which the person lives.

TEX. PENAL CODE ANN. § 46.04(a). Martinez stipulated to the evidence contained in

State‘s exhibit 1, which included all of the police reports pertaining to this incident. In

those reports, police described statements made by the various eyewitnesses—Deleon,

Murphy, Gonzalez, and Wright—who identified Martinez as the individual who shot a

gun four or five times outside his residence and then attempted to dispose of the gun‘s



                                            5
shell casing by throwing them into the sewer. Moreover, the State tendered copies of

the judgments for Martinez‘s prior convictions, which included, among others, a felony

conviction for indecency with a child. Thus, the evidence is sufficient to prove that

Martinez was a convicted felon and that he was in possession of a firearm on the

evening of February 26, 2009. Nevertheless, we must closely examine whether the

evidence satisfies the five-year time period prescribed in section 46.04(a)(1). See id. §

46.04(a)(1).

       The judgment used to support Martinez‘s conviction under section 46.04—the

indecency-with-a-child offense—reflects that Martinez was convicted on February 23,

2000, and that he received a five-year prison sentence with sixty-eight days of credit for

time served. It is not clear from the record before us when Martinez was released from

confinement on the indecency-with-a-child offense.      Nevertheless, it is of particular

importance that Martinez signed a judicial confession and stipulation which provided the

following:

              On this day in open Court, I, OSCAR MARTINEZ, waive my right
       against self-incrimination and hereby judicially confess that on or about
       FEBRUARY 26, 2009, in Nueces County, Texas, did then and there,
       having been convicted of the felony offense of INDECENCY WITH A
       CHILD on FEBRURY [sic] 23, 2000, in cause number 830884 in the
       263RD DISTRICT COURT of HARRIS County, Texas, entitled the State of
       Texas vs. OSCAR SALDANA Martinez; intentionally or knowingly possess
       a firearm before the fifth anniversary of my release from confinement or
       supervision under community supervision or parole or mandatory
       supervision following conviction of said felony.

              I hereby agree and stipulate that the facts contained in this
       instrument and its attached exhibits, if any, are true and correct.

(Emphasis in original.)   Clearly, in his judicial confession and stipulation, Martinez

specifically confesses to possessing a firearm before the fifth anniversary of his release



                                            6
for the indecency-of-a-child conviction.     And as noted above, such a confession is

sufficient to support the trial court‘s finding of guilt with respect to the five-year time

period prescribed in section 46.04(a)(1). See Menefee, 287 S.W.3d at 13-14, 16 n.30;

see also Potts, 571 S.W.2d at 182.

       Because the stipulation of evidence and Martinez‘s judicial confession addressed

every constituent element of the charged offense, we conclude that the evidence

supporting Martinez‘s guilty plea is sufficient. See Menefee, 287 S.W.3d at 13-14, 16

n.30; Potts, 571 S.W.2d at 182; see also Garza v. State, No. 13-09-178-CR, 2010 Tex.

App. LEXIS 2117, at **12-14 (Tex. App.–Corpus Christi Mar. 25, 2010 no pet.) (mem.

op., not designated for publication). Martinez‘s first issue is overruled.

                         III.   INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, Martinez contends that his trial counsel was ineffective

because counsel did not present any mitigating evidence at the punishment hearing.

The State counters that Martinez has failed to demonstrate that his trial counsel was

ineffective for failing to present any mitigation evidence because: (1) he did not file a

motion for new trial raising the issue; and (2) he does not explain on appeal what

witnesses and evidence were available and would have benefitted him at the

punishment hearing.

A. Applicable Law

       To establish ineffective assistance of counsel, Martinez must show:         (1) his

attorney‘s representation fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for his attorney‘s errors, the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,



                                             7
684 (1984); Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that

appellant must show a reasonable probability that, but for counsel‘s errors, the fact-

finder would have had a reasonable doubt as to appellant‘s guilt); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been

met is to be judged on appeal by the totality of representation, not by any isolated acts

or omissions.   Jaynes, 216 S.W.3d at 851.        Martinez has the burden of proving

ineffective assistance of counsel by a preponderance of the evidence. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d

401, 403 (Tex. Crim. App. 1984)).

      Our review of counsel‘s representation is highly deferential, and we will find

ineffective assistance only if Martinez overcomes the strong presumption that his

counsel‘s conduct fell within the range of reasonable professional assistance.      See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851.        The right to ―reasonably

effective assistance of counsel‖ does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). Moreover, the acts or omissions that form the basis of Martinez‘s

claims of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d

at 814; Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for

counsel‘s actions usually will not overcome the strong presumption of reasonable

assistance. Thompson, 9 S.W.3d at 813-14. To warrant reversal without affording

counsel an opportunity to explain her actions, ―the challenged conduct must be ‗so

outrageous that no competent attorney would have engaged in it.‘‖ Roberts v. State,




                                           8
220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005)).

B. Discussion

        At the outset of our analysis of Martinez‘s second issue, we note that Martinez

did not file a motion for new trial; thus, a hearing was not conducted to allow Martinez‘s

trial counsel an opportunity to explain her trial strategy.5                  See Smith v. State, 286

S.W.3d 333, 338 (Tex. Crim. App. 2009) (citing State v. Gonzalez, 855 S.W.2d 692, 695

(Tex. Crim. App. 1993) (plurality opinion)) (noting that the purpose of a hearing to

consider a motion for new trial is to decide whether to retry the case and, in the event

the motion is denied, to prepare a record for presenting issues on appeal). Given that a

silent record ordinarily will not overcome the strong presumption of reasonable

assistance, we will review Martinez‘s appellate complaint to determine whether trial

counsel‘s alleged failure to present any mitigating evidence during the punishment

hearing was ―so outrageous that no competent attorney would have engaged in it.‖ See

Roberts, 220 S.W.3d at 533; Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at

813-14.

        Texas courts have held that counsel‘s failure to present evidence at the

punishment hearing is irrelevant absent a showing that mitigating evidence was

available and that the defendant would have benefitted from the evidence. See Ex

parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (―To obtain relief on an

        5
          On appeal, Martinez argues that he could not file a motion for new trial because he was
appointed counsel more than thirty days after the judgment was signed. See TEX. R. APP. P. 21.4(a)
(providing that a motion for new trial must be filed within thirty days of the date the trial court imposes the
defendant‘s sentence in open court). In any event, we still consider Martinez‘s ineffective assistance
claim despite the silent record on counsel‘s actions because we must determine whether the challenged
conduct is so outrageous that no competent attorney would have engaged in it. See Roberts v. State,
220 S.W.3d 521, 533 (Tex. Crim. App. 2007); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005).

                                                      9
ineffective assistance of counsel claim based on an uncalled witness, the applicant

must show that [the witness] had been available to testify and that his testimony would

have been of some benefit to the defense.‖); King v. State, 649 S.W.2d 42, 44 (Tex.

Crim. App. 1983) (declining to find counsel ineffective for failing to call witnesses during

punishment where appellant did not demonstrate that the witnesses were available or

how he would benefit from their testimony); Rangel v. State, 972 S.W.3d 827, 835-36

(Tex. App.–Corpus Christi 1998, pet. ref‘d) (declining to find counsel ineffective where

counsel failed to call witnesses during the guilt-innocence phase because appellant

failed to show that there were witnesses available which could have provided helpful

testimony); see also Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App. 2005)

(stating that ―Strickland does not require defense counsel to investigate each and every

potential lead, or present any mitigating evidence at all . . . .‖).

       In the instant case, Martinez has not listed any witnesses or evidence that trial

counsel could have used as mitigating evidence during the punishment hearing, nor has

he explained how such evidence would have benefitted him during the punishment

hearing. See Ex parte White, 160 S.W.3d at 52; King, 649 S.W.2d at 44; Rangel, 972

S.W.3d at 835-36; see also Ex parte Woods, 176 S.W.3d at 226. Because Strickland

does not require trial counsel to present mitigating evidence and because Martinez has

not listed any witnesses or evidence that trial counsel could have used and how it would

have benefitted him during the punishment hearing, we cannot say that trial counsel‘s

alleged error was so outrageous that no competent attorney would have engaged in it.

See Ex parte Woods, 176 S.W.3d at 226; Ex parte White, 160 S.W.3d at 52; King, 649

S.W.2d at 44; Rangel, 972 S.W.3d at 835-36; see also Roberts, 220 S.W.3d at 533;



                                               10
Goodspeed, 187 S.W.3d at 392.               Thus, Martinez has not satisfied his burden in

demonstrating that trial counsel‘s representation was ineffective. 6 See Strickland, 466

U.S. at 684; Thompson, 9 S.W.3d at 813. Accordingly, we overrule Martinez‘s second

issue.

                                           IV.     CONCLUSION

         Having overruled both of Martinez‘s issues on appeal, we affirm the judgment of

the trial court.

                                                                ____________________
                                                                ROGELIO VALDEZ
                                                                Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
24th day of March, 2011.




         6
           It is noteworthy that, in his judicial confession and stipulation, Martinez stated that he was
―satisfied with [his] attorney‘s representation.‖

                                                   11
