                                                                                 PD-0206-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 4/1/2015 6:04:53 PM
                                                                 Accepted 4/2/2015 1:12:30 PM
                                 PD-0206-15                                       ABEL ACOSTA
                                                                                          CLERK

                   COURT OF CRIMINAL APPEALS OF TEXAS
                _______________________________________

                           JAMIE ALBERTO IBARRA,
                                  Appellant,

                                     VS.

                        THE STATE OF TEXAS,
                              Appellee.
__________________________________________________________________

  On Petition for Discretionary Review from the Fourteenth Court of Appeals in
   Cause No. 14-13-00337-CR, affirming the conviction in Cause No. 1287084,
               In the 174th District Court of Harris County, Texas
__________________________________________________________________

           APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                           ALEXANDER BUNIN
                                           Chief Public Defender
                                           Harris County, Texas

                                           BOB WICOFF
                                           Assistant Public Defender
                                           Harris County, Texas
                                           TBN 21422700
         April 2, 2015                     1201 Franklin, 13th floor
                                           Houston, Texas 77002
                                           Phone: (713) 368-0016
                                           Fax: (713) 368-9278
                                           bwicoff@pdo.hctx.net

                                           Counsel for Appellant
                         IDENTITY OF JUDGE, PARTIES AND COUNSEL


Trial Court Judge:                                               Hon. Ruben Guerrero
                                                                 174th District Court
                                                                 Harris County, Texas
                                                                 1201 Franklin Street, 19th floor
                                                                 Houston, Texas 77002

Parties to the Judgment:                                         Jamie Alberto Ibarra 1
                                                                 The State of Texas

Names and addresses of trial counsel (State):                    Gretchen Flader
                                                                 Claire Morneau
                                                                 Assistant District Attorneys
                                                                 Harris County, Texas
                                                                 1201 Franklin Street, 6th floor
                                                                 Houston, Texas 77002

Name and address of trial counsel (Defense):                     Michael Slider
                                                                 Attorney at Law
                                                                 1314 Texas Avenue, Suite 1200
                                                                 Houston, Texas 77002

Counsel on appeal for the State of Texas:                        Carly Dessauer
                                                                 Assistant District Attorney
                                                                 Harris County, Texas
                                                                 1201 Franklin Street, 6th floor
                                                                 Houston, Texas 77002

Counsel on appeal for the Appellant:                             Bob Wicoff
                                                                 Assistant Public Defender
                                                                 Harris County, Texas
                                                                 1201 Franklin Street, 13th floor
                                                                 Houston, Texas 77002




1
    Although the Appellant’s name is listed as “Jamie” on the indictment and in the judgment, his pro se
    motions reveal that his name is “Jaime.”
                                                     i
                                TABLE OF CONTENTS

                                                                                 PAGE

Identity of Judge, Parties and Counsel:                                           i

Table of Contents:                                                                ii

Index of Authorities:                                                             iv

Statement Regarding Oral Argument:                                                v

Statement of the Case:                                                            v

Statement of Procedural History:                                                  v

Grounds for Review:                                                               1

Ground for Review One
Eight months before trial, the Appellant requested through two written pro
se motions that his retained attorney be dismissed and that the trial court
“appoint the defendant a public defender.” In light of such actions by the
Appellant, did the Fourteenth Court of Appeals err in holding that the
Appellant failed to request a determination of his indigency?

Ground for Review Two
Under what circumstances, if any, is a trial court required to make an inquiry
into a defendant’s indigency?

Ground for Review Three
Did the Fourteenth Court of Appeals err in holding that the trial court’s
refusal to inquire into the Appellant’s indigency did not deprive the
Appellant his counsel of choice under the Texas and federal constitutions?

Argument Under Grounds for Review:                                                2

Prayer for Relief:                                                                13

Certificate of Service:                                                           13
                                           ii
                              TABLE OF CONTENTS

                                                     PAGE

Certificate of Compliance:                             14

Appendix (Ibarra v. State):                       appendix




                                     iii
                                           INDEX OF AUTHORITIES

                                                                                                                  PAGE
Cases

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) .................................................. 11

Ibarra v. State, No. 14-13-00337-CR, 2015 WL 293115 .............................................. passim
   (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.)

Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007)................................................. 10

U.S. v. Mason, 2012 WL 2680748 (5th Cir. 2012)(unpublished, per curiam)..................... 9

Wheat v. U.S., 486 U.S. 153 (1988) ...................................................................................... 12

Statutes and Rules

Tex. Penal Code Ann., sec. 12.42(d)………………………………………………… v

Tex. Penal Code Ann., sec. 22.02(a)(2) ..…….……………………………………… v

Tex. Penal Code Ann., sec. 22.02(b)(2)(B)…………………………………………… v

Tex. Code Crim. Proc. Ann., art. 1.051….…………………………………………… v

Tex. Code Crim. Proc. Ann., art. 26.04…………………………………………….                                                                       8

Tex. Code Crim. Proc. Ann., art. 46B.004( c ) ….…………………………………… 7

Tex. R. App. P. 44.2(b)…………………………………………………………… 14


Other Authority

George E. Dix & John M. Schmolesky, 42 Texas Practice and Procedure ........................... 8
   Sec. 29.40 (3rd ed. 2011)




                                                            iv
                    STATEMENT REGARDING ORAL ARGUMENT

      The Appellant requests oral argument, because the issue of when a trial court is

required to inquire into a defendant’s indigency is an important issue of state law that

has not been, but should be, decided by this Court. See Tex. R. App. P. 66.3(b).

                              STATEMENT OF THE CASE

      The Appellant was indicted in cause number 1287084 for Aggravated Assault

on a Public Servant, alleged to have occurred on or about November 30, 2010. The

indictment contained two enhancement paragraphs, thereby subjecting the Appellant

to a punishment range of 25-99 years (C.R. at 8); See Tex. Penal Code, §§ 22.02(a)(2),

22.02(b)(2)(B), 12.42(d). The jury found the Appellant guilty and assessed his

punishment at fifty (50) years confinement (C.R. at 149). A motion for new trial was

filed (C.R. at 164), but was overruled by operation of law.

                       STATEMENT OF PROCEDURAL HISTORY
      On January 22, 2015, in a published opinion, the Fourteenth Court of Appeals

affirmed the Appellant’s conviction. Ibarra v. State, No. 14-13-00337-CR, 2015 WL

293115 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.). This Court has

extended the time to file the Appellant’s Petition for Discretionary Review until April

1, 2015, which is the date that this document is being e-filed.




                                            v
                       GROUNDS FOR REVIEW
                     GROUND FOR REVIEW ONE
Eight months before trial, the Appellant requested through two written
pro se motions that his retained attorney be dismissed and that the trial
court “appoint the defendant a public defender.” In light of such actions
by the Appellant, did the Fourteenth Court of Appeals err in holding
that the Appellant failed to request a determination of his indigency?

                     GROUND FOR REVIEW TWO
Under what circumstances, if any, is a trial court required to make an
inquiry into a defendant’s indigency?

                    GROUND FOR REVIEW THREE
Did the Fourteenth Court of Appeals err in holding that the trial court’s
refusal to inquire into the Appellant’s indigency did not deprive the
Appellant his counsel of choice under the Texas and federal
constitutions?




                                  -1-
                         ARGUMENT UNDER GROUNDS FOR REVIEW

A. Statement of Facts Relative to Grounds for Review

          1. “Motion to Dismiss Defendant’s Attorney of Record Michael K.
              Slider and Appoint Defendant a Public Defender”

          On August 1, 2012, after nineteen (19) months in continuous custody2 and

more than eight (8) months before trial would take place, Appellant filed (by certified

mail to the clerk of the 174th District Court) a pro se “Motion to Dismiss Defendant’s

Attorney of Record Michael K. Slider and Appoint Defendant a Public Defender”

(Supp. C.R. at 5-7). According to the motion, Attorney Slider was hired twenty (20)

months earlier (which would have been around the time of the Appellant’s arrest in

late 2010). In his pro se motion, Appellant alleged the following:

             1) Slider had not had any contact with the Appellant in the seven (7)

      months preceding the filing of the motion;

             2) As of the date that the motion was filed (August of 2012), the only

      action taken by Slider in the year-and-a-half since he began representing the

      Appellant was to file a discovery motion;

             3) Slider told the Appellant’s family that he could not be fired unless the

      family hired another attorney;




2
    See Judgment, which lists time credit as “12/28/2010 to 4/11/2013.”



                                                 -2-
          4) Slider “told the Defendant that we do not have O.J. Simpson money to

   pay for experts on forensics and ballistics.”

      Appellant then concluded the motion by stating that he could not work with

Michael Slider, that he believed that he would not receive effective assistance of

counsel from Mr. Slider, and that he wanted a “Public Defender” to be appointed.

      This motion was ignored by the trial court.

      2. “Motion for Judge to Disqualify or Recuse Himself”

      On August 23, 2012, Appellant filed another pro se motion from jail, this one

entitled “Motion for Judge to Disqualify or Recuse Himself” (Supp. C.R. at 3-8).

Appellant averred in this motion that the trial court must have a bias against him

because the court was refusing to address his previous request to fire Michael Slider

and appoint a public defender to represent him. In this motion, the Appellant alleged

that when he was on the docket on August 20, 2012, he had requested of attorney

Slider that he be allowed to appear in front of the judge to present his motion to

dismiss Slider to have a public defender appointed instead. The motion also alleges

that the Appellant asked the bailiff of the 174th District Court, J.J. Turner, to ask the

judge if the Appellant could approach the bench to discuss the previous motion

(requesting appointment of a public defender). According to the later motion, Turner

did so, but the judge refused to allow the Appellant to be heard on the matter. Finally,




                                          -3-
the motion specifies 6 inmate witnesses who could attest to the Appellant’s attempts

to bring his motion in front of the trial court on August 20, 2012. 3

          This second pro se motion was denied by the trial court on October 30, 2012,

over two months after it was filed (Supp. C.R. at 7). This motion provided the second

complaint in a month that served to indicate to the trial court that the Appellant

wished to fire attorney Michael Slider and was asking the Court to appoint a public

defender to represent him.

          3. Pretrial hearing of April 3, 2014

          On April 3, 2014, the Appellant was allowed to address the trial court for the

first time. The following exchange took place between the Appellant and Judge Jay

Burnett, a visiting judge:

                 IBARRA: Sir, I would like to make a record. I’ve been for…since
          last July of last year, I’ve been trying to get Mr. Slider off my case. My
          family hired him. I’ve been trying to fire him by certified mail with a
          Motion to Dismiss to Judge Ruben Guerrero and that’s been ignored.
          And Mr. Slider has repeatedly showed up as my attorney. I believe I have
          a right of choice of counsel and I haven’t had it. I’ve been asking for Mr.
          Slider to remove himself from my case for different reasons. He’s been
          defective and ineffective in filing proper motions. And, you know, I’ve
          been here 24 - two years and four months already. And I’ve been asking
          for a speedy trial the whole time and I’ve been denied my right to a
          speedy trial.
                 THE COURT: Okay. And I do, however, regardless strongly
          suggest that you somehow work with your attorney on this, but that’s up
          to you.
                 IBARRA: No. I’ve been trying to work with my attorney for too
          long already. And on the record, he’s fired. My family has called him and


3
    The court of appeals opinion makes no mention of this motion in its analysis.
                                                  -4-
      fired him. Like I said, I sent him certified mail. I have certified receipt
      numbers where I sent the letters (II R.R. at 6-8).

      At this point, attorney Slider began questioning Ibarra:

            SLIDER: Okay, when I’ve made those trips, I actually talked to
      you about preparing the case for trial and going over the offense report
      and you always shouted. Get away, you’re fired. Correct.
            IBARRA: Since July, yes, sir.
            SLIDER: When we’re in court and I tried to speak to you in the
      holdover, you say the same thing: Get away, you’re fired. Correct?
            IBARRA: Yes, sir. (II R.R. at 8)

      The visiting judge took no action after the above testimony.

      4. Pretrial hearing of April 4, 2014

      The next day, attorney Michael Slider filed a “Motion to Withdraw as Counsel”

(Supp. C.R. at 14-15). In the motion, attorney Slider informed the Court that:

      1. Appellant failed to pay him his fee;

      2. He had a conflict with Appellant;

      3. He was not Appellant’s attorney of choice;

      4. Appellant had refused to talk with him since July of 2012;

      5. He conceded that: “The attorney cannot give this defendant effective

      representation under these circumstances and be effective at trial.”

      This motion was denied (Supp. C.R. at 16). The next day, attorney Slider filed a

motion stating that Appellant needed to be examined by a psychiatrist or medical

doctor because “He is refusing to speak to defense counsel, is talking about suicidal




                                          -5-
thoughts, cries and mumbles.” This motion was denied the day it was filed. (Supp.

C.R. at 17).

B. Appellant’s argument at the court of appeals, and that court’s opinion

       The Appellant complained that his right to appointed counsel under the United

States and Texas Constitutions, as well as under article 1.051 of the Texas Code of

Criminal Procedure, was violated by the trial court’s refusal to inquire of his

indigency, and in not then appointing counsel to replace his retained attorney.

       In responding to this complaint, the court of appeals replied:

       To the extent appellant complains that the trial court violated his rights
       under the United States Constitution and the Texas Constitution by
       failing to appoint counsel to represent him, that complaint lacks merit
       because a trial court does not have a duty to appoint counsel until the
       defendant shows he is indigent. See Gray v. Robinson, 744 S.W.2d 604, 607
       (Tex.Crim.App.1988). A trial court has no duty to appoint counsel when
       a defendant has “managed to retain counsel” or “has made no showing
       of indigency.” Id.; Easily v. State, 248 S.W.3d 272, 281 (Tex.App.–
       Houston [1st Dist.] 2007, pet. ref'd). Neither in his motion, nor in his
       pre-trial exchange with the trial court, did appellant claim to be indigent,
       and he made no showing that he was indigent. See Gray, 744 S.W.2d at
       607.

                     *                   *                    *

       Appellant also asserts that the trial court should have followed the
       dictates of Article 1.051(b), (c) and was required to appoint counsel to
       represent him. That statute provides in pertinent part as follows:

                  (b) ... “indigent” means a person who is not financially
               able to employ counsel. (c) An indigent defendant is
               entitled to have an attorney appointed to represent him....



                                             -6-
      Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court, although
      appellant requested appointment of counsel, he did not assert he was
      indigent, make any showing that he was indigent, or request a
      determination of indigency. A trial court does not have a duty to appoint
      counsel until the defendant shows he is indigent. See Gray, 744 S.W.2d at
      607; Easily, 248 S.W.3d at 281. Because appellant did not show he was
      indigent, the trial court was not required by Article 1.051 to appoint
      counsel to represent him, and thus the trial court did not err in failing to
      appoint counsel. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281.

      Appellant also contends that, after the trial court was made aware
      counsel was not his attorney of choice and had been fired and that
      appellant wanted the trial court to appoint counsel, it was the trial court's
      duty to inquire into whether appellant was indigent, that is, not
      financially able to employ counsel. The parties have not cited, and
      research has not revealed, any statute or legal authority addressing this
      issue. We conclude that appellant has not shown that the trial court
      erred in failing to inquire as to whether he was indigent. The trial court
      was not required to conduct an inquiry on its own motion as to whether
      appellant was indigent. See Whitehead v. State, 130 S.W.3d 866, 874
      (Tex.Crim.App.2004); Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at
      281. Ibarra v. State, No. 14-13-00337-CR, 2013 WL 177456, at *3-4 (Tex.
      App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.).

C.    Argument Under Grounds for Review

      When is a trial court under an obligation to inquire into whether a defendant is

indigent? Is raising the issue of indigency analogous to raising the issue of

competency, where a trial court is required to “determine by informal inquiry”

whether there is some evidence “from any source” that would suggest incompetency?

See Tex. Code Crim. Proc. Ann., art. 46B.004(c)? Or must a criminal defendant meet

specific, more stringent requirements to get the court’s attention when he is

requesting appointed counsel?


                                          -7-
      The court of appeals states in its opinion that it can find no statute or legal

authority that suggests that a trial court has such a duty when a defendant has fired his

counsel and wants a new lawyer. Opinion, at *4. With respect to the precise fact

situation presented here, the court may be correct, but Tex. Code Crim Proc. Ann.,

art. 26.04 (“Procedures for Appointing Counsel”) clearly anticipates scenarios where a

defendant can no longer afford retained counsel:

              (p) A defendant who is determined by the court to be indigent is
      presumed to remain indigent for the remainder of the proceedings in the
      case unless a material change in the defendant’s financial circumstances
      occurs. If there is a material change in financial circumstances after a
      determination of indigency or nonindigency is made, the defendant, the
      defendant's counsel, or the attorney representing the state may move for
      reconsideration of the determination.

      One authority has suggested that while the Code of Criminal Procedure does

not clearly provide for a hearing on indigency, such was likely the intent of the

Legislature:

      The Code of Criminal Procedure does not explicitly provide for a
      hearing on a defendant’s assertion of a right to appointed counsel.
      Undoubtedly, however, the legislature contemplated that defendants
      seeking representation would have a full opportunity to make their case
      for eligibility for appointed counsel and—if the matter was discretionary
      with the court—for a favorable exercise of that discretion.

      Whether the “hearing” must be one in which the defendant is entitled to
      introduce live testimony is less clear. Given the importance of the right
      to counsel, a trial judge certainly acts at considerable risk in denying
      counsel without such a full opportunity for the defendant to be heard.
      George E. Dix & John M. Schmolesky, 42 Texas Practice: Criminal
      Practice and Procedure sec. 29.40 (3rd ed. 2011).


                                          -8-
      In federal court, a situation such as presents itself in this case would require a

trial court to inquire into a defendant’s indigency. See U.S. v. Mason, 2012 WL 2680748

(5th Cir. 2012)(unpublished, per curiam)(District court was required by the Criminal

Justice Act (CJA) to inquire into defendant’s financial eligibility for appointment of

counsel after guilty plea and prior to sentencing, once defendant requested court-

appointed counsel and expressed concern that retained counsel did not want to spend

too much time with defendant because of defendant’s inability to pay promptly; case

would be remanded for district court to conduct inquiry and potentially appoint

counsel for new sentencing hearing).

      The Fourteenth Court of Appeals seems to rest its conclusion that the

Appellant’s indigency was not sufficiently raised in this case on the fact that he did not

specifically assert that he was indigent (“Neither in his motion, nor in his pre-trial

exchange with the trial court, did appellant claim to be indigent, and he made no

showing that he was indigent.” Ibarra, at *3).

      This conclusion overlooks the following:

      1) In terms of alerting the trial court to what he was requesting in his pro se

      motion of August 1, 2012, it must be remembered that the motion was entitled

      “Motion to Dismiss Defendant’s Attorney of Record Michael K. Slider, and

      Appoint Defendant a Public Defender” (emphasis added). When the court

      of appeals writes “appellant did not assert that he was indigent or submit proof


                                          -9-
that he was indigent,” the obvious question which arises is this: what else could

it mean when a defendant asks a court to “Appoint a Public Defender?”

2) In terms of what it takes to bring the matter of indigency to the attention of

the trial judge, when the court of appeals observes that “the appellant asked the

trial court to appoint a lawyer to represent him, but appellant did not assert that

he was indigent or submit proof that he was indigent,” such comment blithely

ignores the reality of pro se motions in criminal courts and especially pro se

motions challenging the effectiveness of one’s lawyer. The reality, of course, is

that the Appellant, confined to a wheelchair due to having been shot four times

by police officers (IX R.R. at 8-9), had by August of 2012 been in continuous

custody for nineteen (19) months and was confined in the holdover cell

whenever he went to court. As with any other pro se motion, getting oneself

heard by the trial court, especially regarding a matter like discharging your

lawyer, depends on either being very vocal with the guards (who may or may

not oblige you), or prevailing upon the lawyer you are complaining about to get

you brought out of the holdover and in front of the bench so that you can air

your grievances about him in front of everyone. Under any scenario, the

defendant is entirely subject to the whims of others as to whether he will have

any opportunity to “submit proof that he was indigent.”

3) When the court of appeals cites Robinson v. State, 240 S.W.3d 919 (Tex.

Crim. App. 2007) for the proposition that a trial court is free to disregard any
                                   - 10 -
         pro se motions presented by a defendant who is represented by counsel, it is

         squarely placing the Appellant in a Catch-22 situation: In order for the court to

         consider your motion to discharge your retained lawyer and have a public

         defender appointed to your case heard by the court, you need to submit proof

         of your indigency. However, good luck with that, because the trial court is not

         required to consider any pro se motion raising these issues.

         There is no reason whatsoever to believe that if the Appellant had filed a

motion with a sworn affidavit of indigency it would have garnered any more attention

than the one he filed, and there is every reason to believe that if the trial court had

only given the Appellant a brief hearing on his August 2012 motions, he would have

explained exactly what he meant by wanting the court to “appoint a public defender”

to his case. Perhaps he would have pursued one issue that was explicitly mentioned in

in his August 1, 2012 motion, and which clearly did relate to his financial ability to

defend himself, namely, counsel’s assertion that there was not enough money to hire

experts (“we do not have O.J. Simpson money to pay for expert witnesses.”). If

counsel told the Appellant that experts could not be afforded, then obviously, counsel

was under a misimpression regarding what steps were available if the Appellant could

not afford necessary experts. See Ex parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim. App.

2005).

         The Appellant’s pro se motion, by its very caption and by the Ake issue raised

within the motion, was adequate to put the trial court on notice that the Appellant’s
                                            - 11 -
indigency had become an issue. Indeed, the fact that the Appellant had, by the time he

filed his motion on August 1, 2012, been in custody for nineteen (19) months and was

confined to a wheelchair, should have lent some credence to the notion that he was

indigent, as his motion suggested.

       Finally, by denying the Appellant the option of firing the attorney that had been

chosen for him by his family, and determining whether he was eligible for a court-

appointed attorney, the trial court effectively denied the Appellant his counsel of

choice, in violation of the Sixth Amendment to the United States Constitution and

art. I, sec. 10 of the Texas Constitution. The essential aim of the Sixth Amendment is

“to guarantee an effective advocate for each criminal defendant rather than to ensure

that a defendant will inexorably be represented by the lawyer whom he prefers.”

Wheat v. U.S., 486 U.S. 153, 158-59 (1988). However, the Appellant was not

requesting a specific attorney over another. He was asking to discharge his attorney,

and then, due to his indigency, to be given any public defender that the trial court

decided to appoint.

       In conclusion, the court of appeals erred in holding that the trial court had no

obligation to investigate the Appellant’s indigency under these facts, which resulted in

the Appellant proceeding to trial with counsel who was not of his choosing, in

violation of the federal and state constitutions.




                                          - 12 -
                                PRAYER FOR RELIEF

       For the reasons stated above, the Appellant moves that this Court grant his

petition and reverse the judgment of conviction in this case, and remand the case for a

new trial.

                                                  Respectfully submitted,

                                                  Alexander Bunin
                                                  Chief Public Defender
                                                  Harris County Texas



                                                  /s/ Bob Wicoff
                                                  Bob Wicoff
                                                  Assistant Public Defender
                                                  Harris County Texas
                                                  1201 Franklin, 13th floor
                                                  Houston Texas 77002
                                                  (713) 274-6781
                                                  TBA No. 21422700

                                                  Counsel for Appellant

                              CERTIFICATE OF SERVICE

       I hereby certify that on April 1, 2015, a copy of the foregoing petition has been

served electronically on Alan Curry, who is the chief of the appellate division of the

Harris County District Attorney’s Office, through the efile system, and on the State

Prosecuting Attorney.



                                                  /s/ Bob Wicoff

                                         - 13 -
                          CERTIFICATE OF COMPLIANCE

     This petition complies with the type-volume limitations of Tex. R. App. Proc.

9.4(e) and 9.4(i). It contains 3,045 words printed in a proportionally spaced typeface

using Garamond 14 point font.



                                                 /s/ Bob Wicoff




                                        - 14 -
Ibarra v. State, --- S.W.3d ---- (2015)




                                          A P P E N D I X
                    Opinion in Ibarra v. State, No. 14-13-00337-CR,
         2015 WL 293115 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.)




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.   15
Ibarra v. State, --- S.W.3d ---- (2015)




                                                               [7]
                                                                  prosecutor’s comments during closing argument of
                     2015 WL 293115                            punishment phase regarding information related to
      Only the Westlaw citation is currently available.        defendant’s prior juvenile adjudications of delinquency
                        OPINION                                noted in JOT report were not outside scope of permissible
                Court of Appeals of Texas,                     argument.
                   Houston (14th Dist.

              Jamie Alberto Ibarra, Appellant                  Affirmed.
                              v.
                The State of Texas, Appellee

  NO. 14–13–00337–CR | Opinion filed January 22,
                    2015                                         West Headnotes (18)


Synopsis                                                        [1]
                                                                       Criminal Law
Background: Defendant was convicted in the 174th                         Withdrawal by Counsel
District Court, Harris County, of aggravated assault on
public servant. Defendant appealed.                                    Defendant was not denied his federal and state
                                                                       constitutional rights to counsel of his choice
                                                                       when trial court denied defense counsel’s
Holdings: The Court of Appeals, John Donovan, J., held                 motion to withdraw and refused to appoint
that:                                                                  counsel from public defender’s office, in trial
                                                                       for aggravated assault on public servant, despite
[1]
   defendant was not denied his federal and state                      multiple expressions of dissatisfaction with
constitutional rights to counsel of his choice;                        counsel and refusal to communicate with
                                                                       counsel; there was no indication that defendant
[2]
  trial court did not abuse its discretion in denying                  or his family took any steps to retain another
motion by defense counsel to withdraw;                                 attorney to represent defendant, despite
                                                                       opportunity to do so, defendant never informed
[3]
   trial court was not obligated under criminal procedure              trial court that he could no longer afford to
article to appoint counsel for defendant who made no                   retain lawyer, he did not express desire to
showing that he was indigent nor requested determination               represent himself, and he was not entitled to
of indigency;                                                          have counsel appointed absent showing that he
                                                                       was indigent. U.S. Const. Amend. 6; Tex. Const.
[4]
   trial court had no obligation under criminal procedure              art. 1, § 10.
article, upon learning of defendant’s dissatisfaction with
                                                                       Cases that cite this headnote
and alleged termination of his retained counsel, to sua
sponte inquire into defendant’s indigency;
[5]
    defendant was not prejudiced by defense counsel’s
failure to object to testimony of juvenile probation officer    [2]
                                                                       Criminal Law
about her interview with defendant when he was juvenile                  Choice of Counsel
and information contained in Juvenile Offense Tracking
(JOT) report;                                                          An element of the constitutional right to
[6]                                                                    assistance of counsel is the right of a defendant
    defendant’s statements, as juvenile, to juvenile                   who does not require appointed counsel to
probation officer during interview were not made in                    choose who will represent him; however, this
course of interrogation, within meaning of Family Code                 right is not absolute. U.S. Const. Amend. 6; Tex.
governing statements made during interrogation; and                    Const. art. 1, § 10.

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        Cases that cite this headnote
                                                                    Trial court did not abuse its discretion in
                                                                    denying motion by defense counsel to withdraw,
                                                                    in trial for aggravated assault of public servant,
                                                                    given counsel having filed motion to withdraw
[3]
        Criminal Law                                                less than one week prior to trial, length of time
          Choice of Counsel                                         that case had been pending, and defendant’s
                                                                    failure to take steps to retain another lawyer.
        A defendant has no right to be represented by an
        advocate who is not a member of the bar, an                 Cases that cite this headnote
        attorney whom he cannot afford or whom
        declines to represent him, or an attorney who
        has a previous or ongoing relationship with an
        opposing party. U.S. Const. Amend. 6; Tex.
                                                              [7]
        Const. art. 1, § 10.                                        Criminal Law
                                                                      Withdrawal by Counsel
        Cases that cite this headnote
                                                                    The trial court has discretion to determine
                                                                    whether counsel’s withdrawal should be
                                                                    granted, balancing the matters asserted with the
                                                                    potential for obstruction to the judicial process
[4]
        Criminal Law                                                or interference with the administration of justice.
          Choice of Counsel
                                                                    Cases that cite this headnote
        While there is a strong presumption in favor of a
        defendant’s right to retain counsel of choice, this
        presumption may be overridden by other
        important considerations relating to the integrity
                                                              [8]
        of the judicial process and the fair and orderly            Criminal Law
        administration of justice; nonetheless, when a                Indigence
        trial court unreasonably or arbitrarily interferes
        with the defendant’s right to choose retained               Trial court was not obligated under criminal
        counsel, its actions rise to the level of a                 procedure article to appoint counsel for
        constitutional violation. U.S. Const. Amend. 6;             defendant who made no showing that he was
        Tex. Const. art. 1, § 10.                                   indigent, nor requested determination of
                                                                    indigency. Tex. Crim. Proc. Code Ann. art.
        Cases that cite this headnote                               1.051(b, c).

                                                                    Cases that cite this headnote


[5]
        Criminal Law
          Indigence
                                                              [9]
                                                                    Criminal Law
        A trial court does not have a duty to appoint                 Indigence
        counsel until the defendant shows he is indigent.
        U.S. Const. Amend. 6; Tex. Const. art. 1, § 10.             Trial court had no obligation under criminal
                                                                    procedure article, upon learning of defendant’s
        Cases that cite this headnote                               dissatisfaction with and alleged termination of
                                                                    his retained counsel, to sua sponte inquire into
                                                                    defendant’s indigency, for purposes of
                                                                    defendant’s request for appointed counsel. Tex.
                                                                    Crim. Proc. Code Ann. art. 1.051.
[6]
        Criminal Law
          Withdrawal by Counsel                                     Cases that cite this headnote

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Ibarra v. State, --- S.W.3d ---- (2015)



                                                                      foreclosed because of an appellant’s inaction at
                                                                      trial. U.S. Const. Amend. 6; Tex. Const. art. 1, §
                                                                      10.
[10]
        Criminal Law                                                  Cases that cite this headnote
          Conduct of Trial in General

        On a claim of ineffective assistance of counsel
        where there is no record explaining the
                                                               [14]
        underlying reasons for counsel’s conduct, the                 Criminal Law
        reviewing court will not speculate about them.                  Presentation of evidence regarding sentencing
        U.S. Const. Amend. 6; Tex. Const. art. 1, § 10.
                                                                      Defendant was not prejudiced by defense
        Cases that cite this headnote                                 counsel’s failure to object to testimony of
                                                                      juvenile probation officer about her interview
                                                                      with defendant when he was juvenile,
                                                                      specifically about information contained in
                                                                      Juvenile Offense Tracking (JOT) report that she
[11]
        Criminal Law                                                  had reviewed prior to interview regarding his
          Presumptions and burden of proof in general                 involvement in robbery during which he had
                                                                      pointed gun at victim, and officer’s testimony
        The presumption that counsel’s actions were                   that it appeared to her that defendant had not
        reasonably professional and motivated by sound                taken robbery charge very seriously because gun
        trial strategy is not rebutted where the record is            had not been loaded, in alleged violation of
        silent as to counsel’s rationale for his trial                hearsay rules, as required to support claim of
        strategy. U.S. Const. Amend. 6; Tex. Const. art.              ineffective assistance of counsel, in punishment
        1, § 10.                                                      phase of trial for aggravated assault of public
                                                                      servant, given admission of defendant’s prior
        Cases that cite this headnote                                 convictions and admission of evidence from
                                                                      guilt phase of trial. U.S. Const. Amend. 6; Tex.
                                                                      Const. art. 1, § 10.

[12]
                                                                      Cases that cite this headnote
        Criminal Law
          Conduct of Trial in General

        An appellate court will not find ineffective
        assistance of counsel when the record is silent as     [15]
                                                                      Infants
        to counsel’s rationale for trial strategy unless                Interrogation and Investigatory Questioning
        counsel’s conduct was so outrageous that no
        competent attorney would have engaged in it.                  Defendant’s statements, as juvenile, to juvenile
        U.S. Const. Amend. 6; Tex. Const. art. 1, § 10.               probation officer during interview after officer
                                                                      reviewed Juvenile Offense Tracking (JOT)
        Cases that cite this headnote                                 report about robbery that he had been involved
                                                                      in were not made in course of interrogation,
                                                                      within meaning of Family Code statute
                                                                      providing that statements of child were not
[13]                                                                  inadmissible if statement did not stem from
        Criminal Law                                                  interrogation. Tex. Fam. Code Ann. §
          Counsel for accused                                         51.095(b)(1), (2).
        While the general rule is an alleged error must               Cases that cite this headnote
        be first brought to the attention of the trial court
        before it can be heard on appeal, an ineffective-
        assistance-of-counsel claim will generally not be

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Ibarra v. State, --- S.W.3d ---- (2015)



                                                             On Appeal from the 174th District Court, Harris
[16]
        Criminal Law                                         County, Texas, Trial Court Cause No. 1287084
          In particular prosecutions
                                                             Attorneys and Law Firms
        Prosecutor’s comments during closing argument
        of punishment phase regarding information            Bob Wicoff, Houston, TX, for Appellant.
        related    to    defendant’s     prior   juvenile
        adjudications of delinquency noted in Juvenile       Carly Dessauer, Houston, TX, for Appellee.
        Offense Tracking (JOT) reports were not outside
                                                             Panel consists of Chief Justice Frost and Justices
        scope of permissible argument, in sentencing for
                                                             Donovan and Brown.
        aggravated assault of public servant, where
        evidence of prior juvenile history was admitted
        and jury was asked to consider defendant’s
        criminal history in assessing punishment.

        Cases that cite this headnote                                                OPINION

                                                             John Donovan, Justice

                                                             *1 Appellant, Jamie Alberto Ibarra, appeals his conviction
[17]
        Criminal Law                                         for aggravated assault on a public servant, contending he
          Scope of and Effect of Summing up                  was denied his right to counsel of his choice, and he
                                                             received ineffective assistance of counsel. We affirm.
        Closing arguments are made to assist the jury in
        its analysis of the evidence presented at trial in
        order to reach a just determination.

        Cases that cite this headnote                                           I. BACKGROUND

                                                             According to the record evidence, in November 2010,
                                                             appellant arrived at the home of Martha Maldonado to see
                                                             her daughter, Michell Mares, with whom appellant
[18]
        Criminal Law                                         previously had a relationship. When Maldonado told
          Comments on Evidence or Witnesses                  appellant that Mares was not home, appellant continued
        Criminal Law                                         knocking on the door, insisting on seeing Mares. Because
          Inferences from and Effect of Evidence             appellant had exhibited harassing behavior in the past,
        Criminal Law                                         Maldonado called the police.
          Comments on frequency of offenses, and
        appeals for law enforcement                          When two police officers arrived at Maldonado’s home,
        Criminal Law                                         they observed appellant on the porch, using a cell phone.
          Rebuttal Argument; Responsive Statements           Appellant stood, removed a handgun from his pocket, and
        and Remarks                                          pointed it at his head. Both officers drew their weapons
                                                             and, while attempting to calm appellant, they moved near
        Jury argument may encompass a summation of           their patrol car to seek cover. Appellant refused to put
        the evidence, reasonable deductions which can        down his gun, and he ran away from the house, hiding
        be drawn from the evidence, answers to               behind a truck in a nearby parking lot. Backup officers
        opposing counsel’s argument, and a plea for law      arrived. Appellant stated he would not put the gun down
        enforcement.                                         unless he went down with it, and he fired the gun at an
                                                             officer who was moving to a secure location in the
        Cases that cite this headnote                        parking lot. The shot did not hit the officer. A police
                                                             SWAT team arrived, following appellant as he jumped
                                                             the fence of the parking lot and ran to another location,
                                                             breaking into a truck. Appellant was shot and injured after
                                                             pointing his gun at one of the SWAT team officers.


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Ibarra v. State, --- S.W.3d ---- (2015)



A jury found appellant guilty of the first-degree felony        four days prior to trial, which was heard by the trial court
offense of aggravated assault against a public servant,1        the same day. The trial court noted the case had been
and found two enhancement paragraphs to be true. The            pending for a very long time and was preferentially set,
jury assessed punishment at fifty years’ confinement.           made a finding that appellant refused to cooperate with
                                                                counsel, and denied the motion.

                                                                Appellant asserts here he was deprived of his
                                                                constitutional “right to counsel of his choice” because the
      II. COMPLAINTS REGARDING COUNSEL OF                       counsel his family hired was not of his choice, and the
               APPELLANT’S CHOICE                               trial court should have appointed different counsel.
[1]
  In his first issue and second issues, appellant contends
he was denied the right to counsel of his choice under the
United States Constitution and the Texas Constitution.          A. Complaint under the United States and Texas
                                                                Constitutions
About eight months before the case proceeded to trial in        [2] [3]
                                                                       The Sixth Amendment to the United States
April 2013, appellant filed a handwritten “Motion to            Constitution and the Texas Constitution guarantee a
Dismiss Defendant’s Attorney of Record, ... and Appoint         criminal defendant the right to have assistance of counsel.
Defendant a Public Defender,” alleging he “employed             See U.S. Const., amend. VI (providing, “In all criminal
[counsel] some 20 months previous to the date of the            prosecutions, the accused shall enjoy the right to a speedy
filing of this motion.” Appellant further asserted counsel      and public trial ... and to have the assistance of counsel
had failed to provide “reasonably effective assistance”         for his defense”); Tex. Const. art. I, § 10 (providing, “In
because appellant had no contact with counsel in the past       all criminal prosecutions the accused shall have a speedy
seven months, and that counsel had “taken no affirmative        public trial ... and shall have the right of being heard by
action to preserve and to protect the valuble (sic) rights of   himself or counsel or both....”); Tex. Code Crim. Proc.
the Defendant.” Appellant’s motion alleged counsel told         Ann. art. 1.05 (West, Westlaw through 2013 3d C.S.);
him, “we do not have O.J. Simpson money to pay for              Gonzalez v. State, 117 S.W.3d 831, 836–37
expert witnesses on forensic’s (sic) and ballistics.”           (Tex.Crim.App.2003). An element of this constitutional
Appellant did not notify the trial court he was indigent or     right to assistance of counsel is the right of a defendant
without the financial ability to obtain counsel. Appellant      who does not require appointed counsel to choose who
requested the trial court dismiss retained counsel and          will represent him. See United States v. Gonzalez–Lopez,
“appoint a new counsel/Public Defender to act in (sic)          548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d
behalf of Defendant.” The record does not contain an            409 (2006); Gonzalez, 117 S.W.3d at 836–37. But, this
order in which the trial court disposed of this motion. 2       right is not absolute. See Gonzalez–Lopez, 548 U.S. at
                                                                144, 126 S.Ct. at 2561; Gonzalez, 117 S.W.3d at 837; see
*2 The week prior to trial, appellant asked to make a           also Wheat v. U.S., 486 U.S. 153, 158–59, 108 S.Ct.
record to renew his complaints regarding counsel,               1692, 1697–98, 100 L.Ed.2d 140 (1988) (“[W]hile the
asserting (1) appellant had been asking for counsel to          right to select and be represented by one’s preferred
remove himself from the case, (2) appellant’s counsel had       attorney is comprehended by the Sixth Amendment, the
been “defective and ineffective in filing proper motions,”      essential aim of the Amendment is to guarantee an
and (3) appellant had been requesting but had been denied       effective advocate for each criminal defendant rather than
a right to a speedy trial, and he had not “been treated         to ensure that a defendant will inexorably be represented
fair.” Appellant complained he had been working with            by the lawyer whom he prefers.”). For example, a
retained counsel “for too long already” and “on the             defendant has no right to be represented by an advocate
record, he’s fired. My family has called him and fired          who is not a member of the bar, an attorney whom he
him.” Counsel questioned appellant who admitted there           cannot afford or whom declines to represent him, or an
had been numerous trial dates (over a dozen resets), he         attorney who has a previous or ongoing relationship with
had refused to speak with counsel for almost a year, he         an opposing party. See Gonzalez, 117 S.W.3d at 837.
had refused to sign trial reset forms, and he had
continually ordered counsel to “Get away, you’re fired.”        [4]
                                                                  While there is a strong presumption in favor of a
The trial court advised appellant to work with counsel and      defendant’s right to retain counsel of choice, this
confirmed retained counsel would continue to represent          presumption may be overridden by other important
appellant for purposes of trial.                                considerations relating to the integrity of the judicial
                                                                process and the fair and orderly administration of justice.
Counsel for appellant filed a written motion to withdraw        Id.; see also Gonzalez–Lopez, 548 U.S. at 152, 126 S.Ct.
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Ibarra v. State, --- S.W.3d ---- (2015)



at 2566–67 (stating “[w]e have recognized a trial court’s      court, did appellant claim to be indigent, and he made no
wide latitude in balancing the right to counsel of choice      showing that he was indigent. See Gray, 744 S.W.2d at
against the needs of fairness and against the demands of       607.
its calendar.”) (citations omitted); Ex parte Windham, 634
S.W.2d 718, 720 (Tex.Crim.App.1982) (listing factors to
be weighed in balancing defendant’s right to retained
counsel of choice against trial court’s need for prompt and    B. Complaint under the Texas Code of Criminal
efficient administration of justice). Nonetheless, when a      Procedure
                                                               [6]
trial court unreasonably or arbitrarily interferes with the        Under his second issue, appellant also complains the
defendant’s right to choose retained counsel, its actions      trial court erred in refusing to allow his counsel to
rise to the level of a constitutional violation. See           withdraw, not inquiring of his indigency, and not
Gonzalez, 117 S.W.3d at 837.                                   appointing counsel under Texas Code of Criminal
                                                               Procedure Article 1.051. See Tex. Code Crim. Proc. Ann.
*3 In the case under review, appellant’s family apparently     art. 1.051 (West 2014).
retained a lawyer on his behalf to represent him. In his
                                                               [7]
motion to dismiss, and at several hearings, appellant             We apply an abuse of discretion standard to determine
expressed dissatisfaction with this lawyer and a desire to     whether the trial court erred in denying appellant’s
terminate this lawyer’s representation of appellant. The       counsel motion to withdraw. King v. State, 29 S.W.3d
record also reflects that appellant refused on various         556, 566 (Tex.Crim.App.2000). If the ruling falls within
occasions to communicate with his lawyer about his case.       the “zone of reasonable disagreement,” we must affirm
Nonetheless, the record does not reflect that appellant or     the trial court. See Gonzalez, 117 S.W.3d at 836–37;
any other person on his behalf took any steps to retain        Hobbs v. State, 359 S.W.3d 919, 926 (Tex.App.–Houston
another lawyer to represent appellant. Appellant did not       [14th Dist.] 2012, no pet.). The trial court has discretion
request additional time to attempt to retain another           to determine whether withdrawal should be granted,
lawyer, nor did appellant state that he no longer could        balancing the matters asserted with the potential for
afford retained counsel. Appellant did not express any         obstruction to the judicial process or interference with the
desire to represent himself. Instead, appellant asked the      administration of justice. King, 29 S.W.3d at 566; see also
trial court to appoint a lawyer to represent him, but          Coleman      v.     State,    246     S.W.3d      76,     86
appellant did not assert that he was indigent or submit        (Tex.Crim.App.2008) (approving of denial of change in
proof that he was indigent. Appellant had an opportunity       counsel where delay in the administration of justice would
to retain a different lawyer, and appellant had no right to    have resulted). Appellant’s counsel filed a motion to
be represented by a court-appointed lawyer of his              withdraw less than a week before trial. Given the
choosing. See Gonzalez–Lopez, 548 U.S. at 151, 126 S.Ct.       proximity of the trial setting, the length of time the case
at 2565; Dunn v. State, 819 S.W.2d 510, 520                    had been pending, and appellant’s failure to take steps to
(Tex.Crim.App.1991); see also Robinson v. State, 240           retain another lawyer or submit proof of indigency, the
S.W.3d 919, 922 (Tex.Crim.App.2007) (holding a trial           trial court did not abuse its discretion in denying
court is free to disregard any pro se motions presented by     counsel’s motion to withdraw. See King, 29 S.W.3d at
a defendant who is represented by counsel). We conclude        566; Hobbs, 359 S.W.3d at 926–27.
that the trial court did not unreasonably or arbitrarily
                                                               [8]
interfere with appellant’s right to choose retained counsel.     Appellant also asserts that the trial court should have
See Gonzalez, 117 S.W.3d at 837–46.                            followed the dictates of Article 1.051(b), (c) and was
                                                               required to appoint counsel to represent him. That statute
[5]                                                            provides in pertinent part as follows:
  To the extent appellant complains that the trial court
violated his rights under the United States Constitution
and the Texas Constitution by failing to appoint counsel                   (b) ... “indigent” means a person
to represent him, that complaint lacks merit because a trial               who is not financially able to
court does not have a duty to appoint counsel until the                    employ counsel.” (c) An indigent
defendant shows he is indigent. See Gray v. Robinson,                      defendant is entitled to have an
744 S.W.2d 604, 607 (Tex.Crim.App.1988). A trial court                     attorney appointed to represent
has no duty to appoint counsel when a defendant has                        him....
“managed to retain counsel” or “has made no showing of
indigency.” Id.; Easily v. State, 248 S.W.3d 272, 281          Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court,
(Tex.App.–Houston [1st Dist.] 2007, pet. ref’d). Neither       although appellant requested appointment of counsel, he
in his motion, nor in his pre-trial exchange with the trial    did not assert he was indigent, make any showing that he
                                                               was indigent, or request a determination of indigency. A
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Ibarra v. State, --- S.W.3d ---- (2015)



trial court does not have a duty to appoint counsel until       behavior and were motivated by sound trial strategy.
the defendant shows he is indigent. See Gray, 744 S.W.2d        Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Thompson v.
at 607; Easily, 248 S.W.3d at 281. Because appellant did        State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Thus
not show he was indigent, the trial court was not required      “the defendant must overcome the presumption that,
by Article 1.051 to appoint counsel to represent him, and       under the circumstances, the challenged action ‘might be
thus the trial court did not err in failing to appoint          considered sound trial strategy.’ ” Thompson, 9 S.W.3d at
counsel. See Gray, 744 S.W.2d at 607; Easily, 248               812. The presumption is overcome only when evidence of
S.W.3d at 281.                                                  ineffective assistance is “firmly founded and affirmatively
                                                                demonstrated in the record.” Melancon v. State, 66
*4 [9]Appellant also contends that, after the trial court was   S.W.3d 375, 378 (Tex.App.–Houston [14th Dist.] 2001,
made aware counsel was not his attorney of choice and           pet. ref’d) (citing McFarland v. State, 928 S.W.2d 482,
had been fired and that appellant wanted the trial court to     500 (Tex.Crim.App.1996)). The totality of the
appoint counsel, it was the trial court’s duty to inquire       representation is the appropriate context; counsel is not to
into whether appellant was indigent, that is, not               be judged on isolated portions of his representation.
financially able to employ counsel. The parties have not        Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Our review
cited, and research has not revealed, any statute or legal      of counsel’s performance is highly deferential, beginning
authority addressing this issue. We conclude that               with the strong presumption counsel’s actions were
appellant has not shown that the trial court erred in failing   reasonably professional and motivated by sound trial
to inquire as to whether he was indigent. The trial court       strategy. See Jackson v. State, 877 S.W.2d 768, 771
was not required to conduct an inquiry on its own motion        (Tex.Crim.App.1994).
as to whether appellant was indigent. See Whitehead v.
                                                                [10] [11] [12] [13]
State, 130 S.W.3d 866, 874 (Tex.Crim.App.2004); Gray,                          Where there is no record explaining the
744 S.W.2d at 607; Easily, 248 S.W.3d at 281.                   underlying reasons for counsel’s conduct, we will not
                                                                speculate about them. Perez v. State, 56 S.W.3d 727, 731
Having rejected the arguments under appellant’s first and       (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d) (citing
second issues, we overrule these issues.                        Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.–Houston
                                                                [1st Dist.] 1996, no pet.)); see also Ex parte Varelas, 45
                                                                S.W.3d 627, 632 (Tex.Crim.App.2001).3 The presumption
                                                                is not rebutted where the record is silent as to counsel’s
                                                                rationale for his trial strategy. Perez, 56 S.W.3d at 732.
      II. CLAIM REGARDING INEFFECTIVE                           We will not find ineffective assistance unless counsel’s
            ASSISTANCE OF COUNSEL                               conduct was “so outrageous that no competent attorney
                                                                would have engaged in it.” Goodspeed v. State, 187
In his third issue, appellant contends he was denied            S.W.3d 390, 392 (Tex.Crim.App.2005).
effective assistance of counsel at the punishment phase of
the trial.

                                                                B. Analysis
                                                                *5 Appellant contends his counsel performed deficiently
A. Standard of review and applicable law                        in two respects: (1) by failing to object to the testimony of
To prevail on an ineffective-assistance claim, appellant        Cynthia Glenn, a juvenile probation officer for Harris
must establish (1) trial counsel’s representation fell below    County, and (2) failing to object to purportedly improper
the objective standard of reasonableness, based on              jury argument.
prevailing professional norms, and (2) there is a
reasonable probability that the result of the proceeding
would have been different but for counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668,            1. Failure to object to Glenn’s testimony
688–92, 104 S.Ct. 2052, 2065–2067, 80 L.Ed.2d 674               [14]
                                                                     Glenn testified that, in her role as a juvenile probation
(1984); see Hernandez v. State, 726 S.W.2d 53, 55–57            officer, she interviews juveniles to obtain a sense of their
(Tex.Crim.App.1986) (holding Strickland standard                family and school dynamic. She reviews the juvenile
applies to ineffective-assistance claims under Texas            offense tracing (“JOT”) reports to understand what
Constitution).                                                  occurred with the juveniles and what they understood.
                                                                She does not interview them about guilt or innocence. The
We indulge a strong presumption that counsel’s actions          interviews help determine if the juvenile should be
fell within the wide range of reasonable professional           certified as an adult relative to the charges.
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Ibarra v. State, --- S.W.3d ---- (2015)



                                                                            context of an interview. There was no suggestion of
In 1997, Glenn reviewed appellant’s JOT concerning a                        custodial interrogation. See Payne v. State, 579 S.W.2d
robbery in which he was involved. At that interview,                        932, 933 (Tex.Crim.App. [Panel Op.] 1979) (holding
Glenn learned appellant pointed a gun at someone to                         statements made when not in custody are admissible).
commit a robbery of a bicycle and other property.
Appellant stated on the day of the 1997 arrest he was
“high on marijuana” and had “drunk some alcohol.” Prior
to this arrest, appellant had been arrested for marijuana                   2. Failure to object to jury argument
possession. Appellant admitted he associated with the                       *6 [16]Lastly, appellant complains counsel failed to object
Barrio Denver Harbor Click gang. Glenn recalled                             during closing argument when the State mentioned
appellant did not appear to be taking the robbery charge                    information related to prior convictions in the juvenile
seriously; he stated the gun used in the robbery was not                    offense reports.
loaded, so it did not appear to Glenn that his actions were
                                                                            [17] [18]
serious or important to him.                                                       Closing arguments are made to assist the jury in its
                                                                            analysis of the evidence presented at trial in order to reach
First, appellant urges it was “elementary” that Glenn                       a just determination. See Temple v. State, 342 S.W.3d
could not “admissibly read” from a juvenile offense                         572, 602–603 (Tex.App.–Houston [14th Dist.] 2010),
report, and it was improper to allow testimony from her                     aff’d 390 S.W.3d 341 (Tex.Crim.App.2013). Jury
about her conversations with appellant. See Tex. R. Crim.                   argument may encompass a summation of the evidence,
App. Evid. 801, 802. Even if this testimony were                            reasonable deductions which can be drawn from the
improper and would have been excluded upon the                              evidence, answers to opposing counsel’s argument, and a
objection of appellant’s counsel, in light of evidence of                   plea for law enforcement. Id. (citing Brown v. State, 270
appellant’s prior convictions4 and the evidence offered in                  S.W.3d 564, 570 (Tex.Crim.App.2008)). The record
the guilt-innocence phase, which was also admitted in the                   reveals the prosecutor properly summarized the evidence
punishment phase,5 we conclude that appellant has not                       adduced at trial, asked the jury to consider appellant’s
shown that there is a reasonable probability that the result                criminal background in assessing punishment, and
of the punishment phase would have been different if this                   responded to opposing counsel’s argument. An attorney’s
testimony had not been admitted.                                            failure to object to proper argument cannot be ineffective
                                                                            assistance. See Richards v. State, 912 S.W.2d 374, 379
[15]
   Next, appellant contends counsel should have asked for                   (Tex.App.–Houston [14th Dist.] 1995, pet. ref’d).
a hearing to test the admissibility under Texas Family
Code Section 51.095 of appellant’s statements to Glenn.                     In summary, having rejected all of appellant’s ineffective-
See Tex. Fam. Code § 51.095(b)(1), (2) (West 2011).                         assistance claims, we overrule his third issue.
Statements of a child are not considered inadmissible if
the statement does not stem from an interrogation or, if                    We affirm the trial court’s judgment.
voluntary and they have a bearing on the credibility of the
child as a witness, or if recorded. See id. Appellant has
not shown these statements were inadmissible. Glenn’s
testimony suggests the statements were made in the

 Footnotes
1      See Tex. Penal Code Ann. §§ 22.01(a)(2), (b)(1); 22.02(a)(2), (b)(2)(B) (West 2011) (providing that person commits aggravated
       assault, as a first-degree felony, if he intentionally and knowingly threatens with imminent bodily injury a person the actor knows
       is a public servant, while the public servant is lawfully discharging an official duty, and the actor uses or exhibits a deadly
       weapon).
2      Appellant attempted to appeal the orders denying motions to recuse in Cause Nos. 14–12–01152–CR and 14–12–00152–CR, which
       we dismissed because they were interlocutory. In his appellate brief, appellant makes no complaint about them.
3      Appellant did not raise in his motion for new trial the ineffective-assistance claim. While the general rule is an alleged error must
       be first brought to the attention of the trial court before it can be heard on appeal, an ineffective-assistance claim will generally not
       be foreclosed because of an appellant’s inaction at trial. See Robinson v. State, 16 S.W.3d 808, 809 (Tex.Crim.App.2000).
4      1997 robbery (sentence of two years in TDC), 1999 misdemeanor possession of marijuana, and criminal trespass, 2000
       misdemeanor possession of marijuana, 2004 felony possession of over 400 grams of cocaine (sentence of 15 years in TDC), and

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        23
Ibarra v. State, --- S.W.3d ---- (2015)



         2011 misdemeanor trespass.
5        Evidence included appellant’s harassment of Maldonado, pointing his gun at and running away from police officers, disobeying
         their orders, firing his gun, and his inability or refusal to take advantage of numerous offers of second chances.




    End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Ibarra v. State, --- S.W.3d ---- (2015)




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