in Re: Erasmo Gonzalez ( 2002 )

NO. 07-02-0105-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 8, 2002

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IN RE ERASMO GONZALES, RELATOR

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Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

By this original proceeding, relator Erasmo Gonzales, an inmate proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Judge of the 69th District Court to set a hearing and rule on his "motion for leave to file for a writ of mandamus" against the District Clerk of Dallam County. For the reasons expressed herein, the petition for writ of mandamus must be denied.

Initially, we note that a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Holt v. F. F. Enterprises, 990 S.W.2d 756, 759 (Tex.App.-Amarillo 1998, no pet.). An original proceeding filed in this Court must comply with the requirements of Rule 52 of the Texas Rules of Appellate Procedure. Relator's petition is lacking in most of the mandatory requirements. Most importantly, it does not contain an appendix with a certified or sworn copy of the document showing the matter complained of, i.e., his motion for leave to file a writ of mandamus against the District Clerk of Dallam County.

When a motion is properly filed and pending before a trial court, the act of considering and ruling on that motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157 (Tex. 1992). However, the record before us consists only of relator's deficient "motion for leave to file for writ of mandamus." Relator has not established that after he filed his motion he requested a hearing and was refused one, nor that he took any action to alert the trial court that his motion had not yet been considered. See Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks. Id.

Accordingly, relator's petition for writ of mandamus is denied.

Don H. Reavis

Justice

Do not publish.

ormed of his rights, he entered an open plea of guilty, subjecting him to the full range of punishment available to the court. At the punishment phase, the State sought enhancement by introducing two prior convictions for felony possession. Appellant pleaded true to both convictions, and the court sentenced him to forty years confinement. Following the pronouncement, appellant waived his right to move for a new trial and his right to appeal. On June 15, 2004, he filed a pro se notice of appeal. Presented with trial counsel's motion to withdraw, this Court abated and remanded the case to the trial court to determine whether the withdrawal should be granted and whether appellant wished to proceed with the appeal. At the subsequent hearing, appellant was found to be indigent and was appointed new counsel for appeal.

By his Anders brief, counsel does not advance any arguable grounds for appeal. However, appellant contends in his pro se brief that the State's notice of intent to seek enhancement based on his prior convictions was untimely. We disagree. Prior convictions alleged as enhancements must be pleaded so as to provide the accused with notice that the State seeks to use these convictions for enhancement of punishment. See Brooks v. State, 957 S.W.2d 30, 31-34 (Tex.Cr.App. 1997). Although as is oftentimes preferred, such pleading need not be pled in the indictment. Id. at 34. Proper notice consists of "'a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein.'" Hollins v. State, 571 S.W.2d 873, 875 (Tex.Cr.App. 1978) (quoting Morman v. State, 127 Tex. Crim. 264, 75 S.W.2d 886 (1934)). Notice is presumptively reasonable if given at least ten days before trial. E.g., Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.). Here, the State's notice of intent to use appellant's prior felony possessions to obtain an enhanced sentence was filed and served on the parties on April 26, 2004. Appellant pleaded true to both convictions without objection at the punishment phase of trial on May 21, 2004. Therefore, we find that appellant had sufficient notice of the State's intent to use these previous convictions against him.

Appellant also claims he received ineffective assistance of counsel because trial counsel failed to inform him of his right to object to particular aspects of his case and did not inform him of the State's intent to use prior convictions against him. He also claims he was misled because counsel told him that she had prepared pretrial motions when, in fact, none were filed and because she promised him that he would only receive a ten year sentence.   

A claim of ineffective assistance of counsel is reviewed under the standard in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). Where, as here, the record on direct appeal is not sufficient to show that counsel's representation was so deficient as to meet the first prong of Strickland, appellant has failed to meet his burden to show that counsel's performance prejudiced his defense. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002).   

We have made an independent examination of the entire record to determine whether there are any arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).