Eloy Carl Cruz v. State ( 2004 )

NO. 07-04-0091-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 16, 2004
______________________________
ELOY CARL CRUZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 45,632-A; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following a plea of not guilty,1 appellant Eloy Carl Cruz was convicted by a jury of
possession of marijuana, and the trial court assessed a sentence of one year confinement
1
Appellant testified that although the marijuana on his person was his, he denied
having possession of the marijuana found in the sofa.
in a state jail facility. In presenting this appeal, counsel has filed an Anders2 brief in support
of a motion to withdraw. We affirm and grant the motion to withdraw.
In support of his motion to withdraw, counsel certifies that he has diligently reviewed
the record and, in his opinion, it reflects no reversible error or grounds upon which an
appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967). In the brief accompanying the motion to withdraw, counsel reviews
the indictment, pretrial proceedings, voir dire, evidence introduced at trial, arguments, jury
charge, objections made by trial counsel during the underlying proceedings, the
punishment hearing, sentencing, and the effectiveness of appellant’s trial counsel. He then
concludes the appeal is frivolous and without merit. In compliance with High v. State, 573
S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel discusses why, under the controlling
authorities, there is no error in the court's judgment. Counsel also shows that he has sent
a copy of the brief to appellant, and informed appellant that, in his view, the appeal is
without merit. In addition, counsel demonstrates that he notified appellant of his right to
review the record and file a pro se response if he desired to do so. Appellant has not
availed himself of that opportunity. Neither has the State favored us with a brief.
By his brief, counsel contends “an issue that needs to be addressed is whether the
Defense should have objected to the State’s comments while questioning Appellant in
2
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
regard to his prior conviction for a Class A misdemeanor possession of marijuana.”3
According to counsel, appellant’s trial counsel could have voiced a legitimate objection to
the State’s impeachment of appellant by that evidence. See Tex. R. Evid. 609(a) (providing
that evidence that the witness has been convicted of a crime shall be admitted if elicited
from the witness or established by public record but only if the crime was a felony or
involved moral turpitude). Counsel concludes, however, that: (1) trial counsel may have
had a sound trial strategy for not objecting; and (2) the evidence of appellant’s guilt
independent of that deficiency “was conclusive of the offense charged.” Counsel appears
to suggest that appellant would be unable to prevail upon an ineffective assistance of
counsel claim on the basis of trial counsel’s failure to object. We agree.
A claim of ineffective assistance of counsel is reviewed under the standard set out
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under
that standard, a defendant must establish that: (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness; and (2) a reasonable
probability sufficient to undermine confidence in the outcome existed that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. Rylander v.
State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003 ). Failure to make the required showing of
either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia
v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct.
3
The record reveals that appellant was charged with a felony, but was convicted of
a lesser included misdemeanor possession offense.
3
1368, 131 L. Ed. 2d 223 (1995). Any allegation of ineffective assistance of counsel 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). Generally,
the record on direct appeal will not be sufficient to show that counsel's conduct was so
deficient as to meet the first prong of the Strickland standard as the reasonableness of
counsel's choices often involves facts that do not appear in the record. See Mitchell v.
State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Instead, an application for a
post-conviction writ of habeas corpus is usually the appropriate manner in which to raise
and develop claims based on ineffective assistance of counsel. Id.
Here, it is possible, as counsel suggests, that the lack of an objection by trial counsel
to the admission of the evidence of appellant’s misdemeanor conviction, is consistent with
a theory of the case that “although [appellant] was a marijuana user, all the marijuana
found on the date in question should not be charged to him” and that “as he has admitted
to wrongs in the past, he would do the same now if one had occurred.” (Emphasis in
original). In any event, the record is insufficient to establish whether trial counsel’s conduct
was so deficient as to meet the first prong of the Strickland standard. Furthermore,
because there was overwhelming evidence of appellant’s guilt independent of trial
counsel’s failure to object, we cannot, on this record, presume appellant would prevail on
the second prong of that test either.
4
We have also made an independent examination of the entire record to determine
whether there are any other 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). We have found no
non-frivolous issues and agree with counsel that the appeal is without merit. Currie v.
State, 516 S.W.2d 684 (Tex.Cr.App. 1974).
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.
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