Ricarte Gonzalez v. State ( 2006 )

NO. 07-06-0253-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 27, 2006 ______________________________

RICARTE G. GONZALEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-436822; HONORABLE BRADLEY S. UNDERWOOD, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Ricarte G. Gonzalez, appeals his conviction for indecency with a child and sentence of incarceration in the Institutional Division of the Texas Department of Criminal Justice for a period of 15 years, and fine of $3,000. We dismiss for lack of jurisdiction.

Following jury trial, appellant was convicted of indecency with a child and sentence was imposed on March 22, 2006. Appellant timely filed a Motion for New Trial on April 21, 2006. As such, appellant's notice of appeal was due by June 20, 2006. See Tex. R. App. P. 26.2. Appellant filed his notice of appeal on June 23, 2006. Appellant has not filed a motion for extension of time to file notice of appeal in this cause.

Texas Rule of Appellate Procedure 26.2 requires a notice of appeal to be filed within 30 days after sentence is imposed unless the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a). If the defendant timely files a motion for new trial, the notice of appeal is due within 90 days of the imposition of sentence. Id. While the Rules of Appellate Procedure do not establish the jurisdiction of courts of appeals, the Rules do provide procedures which must be followed to invoke a court's jurisdiction over a particular appeal. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). If the jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to act is as absent as if it did not exist and the appeal will be dismissed for lack of jurisdiction. See State v. Riewe, 13 S.W.3d 408, 413-14 (Tex.Crim.App. 2000); Olivo, 918 S.W.2d at 523. An untimely notice of appeal is insufficient to invoke an appellate court's jurisdiction to address the merits of the appeal and the court can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).

As appellant's notice of appeal was untimely, this court's jurisdiction has not been invoked. Accordingly, we dismiss this appeal for lack of jurisdiction.

Mackey K. Hancock

Justice

Do not publish.

ring is a statutory right that can be waived. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). Appellant did not lodge an objection complaining that he was denied a separate punishment hearing. Nor does his motion for new trial contain a ground on that basis. ⁽¹⁾ By his motion for new trial, Appellant only alleged that the verdict was contrary to the law and evidence. Use of a motion for new trial to preserve error is limited to those rare cases where a defendant is not afforded an opportunity to object to the lack of a hearing. See Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992) (denying the defendant an opportunity to object by revoking probation and imposing sentence in one declaration). Here, Appellant was given an opportunity to present evidence, but did not. See Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999). Point of error one is overruled.

By his second and final point, Appellant complains that his trial counsel was ineffective in not filing a motion to dismiss for violation of his right to a speedy trial. We disagree. A claim of ineffectiveness 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 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.CrimApp. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). In other words, a defendant must demonstrate by a preponderance of the evidence that the deficient performance prejudiced his defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 814, citing Strickland, 466 U.S. at 700.

The adequacy of defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissions of trial counsel. Id. Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Crim.App. 1993). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). See also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). See also Thompson, 9 S.W.3d at 813-14. However, where the alleged derelictions are errors of omission outside of the record rather than errors of commission revealed in the trial record, collateral attack may be the vehicle by which to develop a detailed record of the alleged ineffectiveness. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003). See generally Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1694 155 L. Ed. 2d 714 (2003) (stating that when a claim of ineffectiveness is raised on direct appeal, a trial record is usually not developed for establishing such a claim).

At the time Appellant filed his Motion for Speedy Trial, he indicated that one witness had moved to Nebraska and he had no way to communicate with her, and a second witness had changed her number and he had no way to contact her. He alleges on direct appeal that those witnesses would have provided favorable testimony; however, he did not specify in his motion for speedy trial that the witnesses would have offered relevant and material testimony for his defense and that due diligence was exercised in locating the witnesses. This would have satisfied the prejudice prong of the Barker balancing test applied in assessing violations of the Sixth Amendment right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L. Ed. 2d 101 (1972) (holding that an accused's allegation that he was denied the right to a speedy trial requires the balancing of four factors, to-wit: (1) length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused to determine whether his right to a speedy trial was violated). See also Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App. [Panel Op.] 1982).

Moreover, the mere failure of counsel to file appropriate pretrial motions is not categorically deemed ineffective assistance. Passmore v. State, 617 S.W.2d 682, 685 (Tex.Crim.App. 1981). This rule applies to a motion to dismiss based on an allegation of a lack of a speedy trial. See Martinez v. State, 824 S.W.2d 688, 690 (Tex.App.-El Paso 1992, pet. ref'd).

As previously noted, in his motion for new trial, Appellant only alleged that the verdict was contrary to the law and evidence. He did not include a ground on ineffective assistance of counsel nor provide an affidavit from his trial counsel explaining his motivation for not filing a motion to dismiss. Without a record explaining counsel's actions, Appellant has not overcome the presumption that counsel's tactics were sound trial strategy. See Jaile v. State, 836 S.W.2d 680, 687 (Tex.App.-El Paso 1992, no pet.) (explaining that counsel's failure to move for dismissal for a speedy trial violation may have been strategic hoping that the complainant's memory would falter). Point of error two is overruled.

Accordingly, the trial court's judgment is affirmed.

Patrick A. Pirtle

Justice

Do not publish.

1. To preserve error on the lack of a punishment hearing, a defendant must timely request such a hearing, object to the lack of one, or timely file a motion for new trial based on that omission and specify the evidence he would have presented at the punishment hearing. Lopez v. State, 96 S.W.3d 406, 413-14 (Tex.App.-Austin 2002, pet. ref'd).