Ruben Ramos v. State ( 2000 )

NUMBER 13-98-580-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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RUBEN RAMOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

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

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

A jury found appellant, Ruben Ramos, guilty of aggravated robbery, and the trial court assessed his punishment at seven years imprisonment. By a single point of error, appellant contends he was denied effective assistance of counsel at the punishment phase of the trial. We affirm.

A. Background and Procedural History

On March 19, 1998, appellant was indicted for aggravated robbery. At trial, evidence was presented that on or about November 14, 1997, appellant entered a Times Market convenience store, obtained an orange soda and took it to the counter. Appellant paid for the drink, and when the manager, George Espinosa, opened the cash register to give appellant his change, appellant demanded the money in the register. The demand made by appellant was done at gunpoint and he threatened to kill Espinosa if he did not comply. Appellant took the money, some cigarettes, two rings, and a watch from Espinosa. As he left the store, appellant told Espinosa that he would come back and kill him if he called the police. On October 21, 1998, the jury found appellant guilty of aggravated robbery. Appellant elected to have the judge assess punishment and was sentenced to confinement for seven years.

B. Ineffective Assistance of Counsel

In his single point of error, appellant contends he was denied effective assistance of counsel because his trial counsel failed to file a sworn application for community supervision. Specifically, appellant argues that his counsel (1) failed to introduce evidence of appellant's lack of a criminal record and (2) failed to advise his client to elect to have the jury assess punishment since the jury could have recommended community supervision if a sworn affidavit for community supervision had been filed.

The standard of review for ineffective assistance of counsel was set out in Strickland v. Washington. 466 U.S. 668, 687 (1984); Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992); Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App. 1992); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The Strickland standard applies to ineffective assistance of counsel at both the guilt-innocence and punishment phases of the proceedings. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). A defendant seeking relief must demonstrate (1) that counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55; Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989); Lozada-Mendoza v. State, 951 S.W.2d 39, 42 (Tex. App.--Corpus Christi 1997, no pet.). A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). Whether this standard has been met is to be judged by "the totality of the representation." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).

Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689; Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994).

The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded and if the record affirmatively demonstrates counsel's alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980). In determining whether trial counsel rendered deficient performance, we employ a strong presumption that counsel's conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).

Consistent with Strickland, we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992); Moffatt v. State, 930 S.W.2d 823, 826-27 (Tex. App.--Corpus Christi 1996, no pet.). The record must contain evidence of counsel's reasoning, or lack thereof, to rebut that presumption. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The constitutional right to counsel does not mean errorless counsel or counsel judged ineffective by hindsight. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985).

Performance of counsel cannot generally be adequately examined based on a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). A proper review should focus on a record specifically targeting the conduct of trial counsel. Id. Such a record is best developed during a hearing on application for writ of habeas corpus or motion for new trial. Id.; see Jackson, 877 S.W.2d at 772 (Baird, J., concurring). To find that trial counsel was ineffective based on a record silent as to why trial counsel conducted the trial as he did, such as the one before us, would call for speculation, which we are not permitted to do. See id.; Lozada-Mendoza, 951 S.W.2d at 44. Only in rare and egregious circumstances would a record on direct appeal suffice to rebut the presumption of sound trial strategy. Kemp, 892 S.W.2d at 115; see Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex. Crim. App. 1991) (counsel's failure to request instruction on law of accomplice witness testimony constitutes ineffective assistance of counsel according to Strickland standard); Alaniz v. State, 937 S.W.2d 593, 596 (Tex. App.--San Antonio 1996, no pet.) (record reflected counsel was ineffective for allowing venire person who had been struck to become a member of jury without objection).

Appellant contends his trial counsel was ineffective because he did not advise appellant of the possibility that the jury could recommend community supervision and the requirement of filing a sworn motion so that he would be eligible for community supervision.

In its discussion of jury recommended community supervision, article 42.12 of the code of criminal procedure provides:

a defendant is eligible for community supervision under this section only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant's motion is true.

Tex. Code Crim. Proc. Ann. art. 42.12, § 4(e) (Vernon Supp. 2000).

It appears from the record that appellant had no prior criminal record.⁽¹⁾ If appellant had filed a sworn motion and elected to have the jury assess punishment, the jury may have recommended that appellant be placed on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(a), (b) (Vernon Supp. 2000). In contrast, when appellant elected to have the judge impose punishment, the judge could not place appellant on community supervision because judge ordered community supervision does not apply when a defendant is adjudged guilty of aggravated robbery. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (a)(1)(F) (Vernon Supp. 2000).

The record in this case is devoid of trial counsel's reasoning for suggesting that the judge assess punishment. It may be a situation where counsel suggested that the jury assess punishment and appellant preferred that the judge do so. Given that there is no affidavit from trial counsel indicating the reasons for the election of the judge to assess punishment, to deem counsel's conduct as ineffective would call for speculation, which we are not permitted to do. Contra Ex parte Canedo, 818 S.W.2d 814 (Tex. Crim. App. 1991) (trial counsel found to be ineffective when his affidavit established that his mistaken belief that applicant was eligible for shock probation caused him to erroneously advise his client that the trial court should assess punishment).

After reviewing the entire record, we hold that counsel's representation was not so inadequate as to fall below an objective standard of reasonableness under the prevailing professional norms since the record is devoid of any evidence reflecting the veracity of appellant's allegations. Therefore, we overrule appellant's sole point of error.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

the 17th day of August, 2000.

1. While there is nothing in the record concretely establishing any prior convictions, numerous references are made to a prior instance of appellant being found with a marijuana cigarette in his pocket. Trial counsel states, "I don't even think he was even found guilty of that."