NUMBER 13-06-087-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
A jury convicted appellant, Michael Martinez, of criminal mischief and sentenced him to two years' imprisonment. Appellant complains the trial court erroneously denied his motion for change of venue. We affirm. (1)
Discussion
Appellant contends he was denied his right to a fair trial due to the trial court's error in denying his motion for change of venue. A trial court's denial of a motion for change of venue is reviewed for abuse of discretion. (2) A trial court's decision concerning venue will not be disturbed so long as it was within the realm of reasonableness given the facts presented to the trial court. (3)
Article 31.03(a) of the Texas Code of Criminal Procedure provides
(a) A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted. . . . (4)
At a pre-trial hearing, appellant presented his motion for change of venue to the court. Appellant's motion was supported by affidavits from two witnesses. However, the record does not reveal that the motion was supported by appellant's own affidavit as required by article 31.03. The omission of appellant's own affidavit renders the motion fatally defective. (5) When a motion is not in the proper form, a trial court does not abuse its discretion in denying it. (6) Thus, we conclude that appellant's motion for change of venue is defective, and the trial court did not err in denying it.
Conclusion
We overrule appellant's point of error and affirm the judgment of the trial court.
LINDA REYNA YAÑEZ, Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this
the 14th day of June, 2007.
Tuesday, June 26, 2007
How can a jury find appellant guilty if he "pled guilty"?
Send this document to a colleague Close This Window
NUMBER 13-05-156-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONATHAN BRIDGES, Appellant,
v.
THE STATE OF TEXAS , Appellee.
On appeal from the 105th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
Appellant, Johnathan Bridges, pled guilty to the offense of possession of cocaine. A jury found appellant guilty and sentenced him to fifteen months' imprisonment. Appellant, through five issues, contends that he received ineffective assistance of counsel. We affirm. (1)
Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different but for the deficiency. (2) The first prong of the Strickland test requires that the appellant show that counsel's performance fell below an objective standard of reasonableness. (3) Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel's representation fell below professional standards. (4) The second prong requires that the defendant show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (5) Under the first prong, however, a reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (6) Any allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness. (7)
Discussion
Appellant asserts he received ineffective assistance of counsel as a result of counsel's failure to (1) file a motion to suppress evidence, (2) obtain rulings on appellant's pretrial motions, (3) obtain a ruling on counsel's motion to withdraw, and (4) set a hearing on appellant's motion for new trial. In his fifth issue, appellant asserts that his counsel's ineffectiveness is further evidenced by counsel's own admission to ineffective assistance of counsel.
We begin by addressing appellant's fifth issue, wherein appellant complains that his counsel was ineffective by his own alleged admission to that effect in a motion for new trial. In the motion, appellant's counsel stated: "The Defendant's basis for a new trial is that he was provided with ineffective assistance of counsel. Defense Counsel files this motion on his clients [sic] behalf in order to protect the Defendant's appellate rights and asks that New Counsel be appointed to represent Mr. Bridges on appeal." The State contends that appellant's counsel "filed the motion alleging ineffective assistance as a ground in order to preserve his client's rights, he made no general or specific admissions that he was, in fact, ineffective in his representation." We agree. Because the motion does not constitute an admission and has no significance to the present allegations of ineffective assistance of counsel, appellant's fifth issue is overruled.
In issues three and four, appellant asserts that his counsel was ineffective in his post-judgment conduct. Appellant contends that this ineffectiveness delayed the appointment of new counsel, and that this delay left appellant's newly appointed counsel with little time to prepare for a hearing on appellant's motion for new trial.
With regard to post-judgment conduct, this Court has held that when the record does not show that trial counsel withdrew or was replaced by new counsel after sentencing, there is a rebuttable presumption that trial counsel continued to effectively represent the accused during the time for filing a motion for new trial. (8) The facts presented to us do not rebut this presumption. There is no evidence to show that counsel had abandoned appellant, or that appellant was not counseled by his attorney regarding the merits of a motion for new trial. Furthermore, appellant admits in his brief that he was given a hearing on his motion for new trial, but that "since Appellant could not be brought back in time from the State Jail Facility the hearing was held and said motion died by operation of law." We thus find that appellant has not presented this Court with any evidence to show that his counsel was ineffective, nor has appellant shown how any alleged ineffectiveness could have conceivably harmed him since appellant missed his hearing through no fault of his counsel. In light of appellant's inability to satisfy both prongs of the Strickland test, issues three and four are overruled.
In issues one and two--failure to file a motion to suppress and obtain rulings on pretrial motions--appellant complains of matters that occurred before his plea of guilty. A defendant who knowingly and voluntarily pleads guilty without a plea bargain agreement waives all nonjurisdictional defects that occurred before the entry of the plea. (9) Ineffective assistance of counsel is a nonjurisdictional defect. (10) An attack upon a guilty plea based on a claim of ineffective assistance of counsel will succeed only if appellant shows that his attorney's alleged deficiencies caused his plea to be unknowing and involuntary. (11)
We first note that to prevail on a claim of ineffective assistance based on counsel's failure to file a motion to suppress, appellant has to prove that the trial court would have granted the motion. (12) Appellant has presented no evidence to satisfy this burden. Second, the failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. (13) Appellant has not rebutted this possibility with regard to his counsel's decision not to file a motion to suppress. Lastly, appellant makes no contention that any of his trial counsel's deficiencies rendered his plea unknowing or involuntary. There is no evidence that appellant would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. We find that the judgment of guilt was rendered independent of, and is not supported by, the alleged ineffective assistance of counsel claimed by appellant. Appellant has thus failed to satisfy both prongs of the Strickland test; accordingly, issues one and two are overruled.
Conclusion
We affirm the trial court's judgment.
LINDA REYNA YAÑEZ,
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed
this the 14th day of June, 2007.
1. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
2. Strickland v. Washington, 466 U.S. 668, 687 (1984).
3. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
4. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
5. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
6. Strickland, 466 U.S. at 689.
7. Thompson, 9 S.W.3d at 813.
8. Jones v. State, 39 S.W.3d 691, 693 (Tex. App.-Corpus Christi 2001, no pet.).
9. Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003).
10. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994).
11. Santos v. State, 877 S.W.2d 15, 17 (Tex. App.-Dallas 1994, no pet.).
12. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).
13. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.).
NUMBER 13-05-156-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONATHAN BRIDGES, Appellant,
v.
THE STATE OF TEXAS , Appellee.
On appeal from the 105th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
Appellant, Johnathan Bridges, pled guilty to the offense of possession of cocaine. A jury found appellant guilty and sentenced him to fifteen months' imprisonment. Appellant, through five issues, contends that he received ineffective assistance of counsel. We affirm. (1)
Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different but for the deficiency. (2) The first prong of the Strickland test requires that the appellant show that counsel's performance fell below an objective standard of reasonableness. (3) Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel's representation fell below professional standards. (4) The second prong requires that the defendant show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (5) Under the first prong, however, a reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (6) Any allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness. (7)
Discussion
Appellant asserts he received ineffective assistance of counsel as a result of counsel's failure to (1) file a motion to suppress evidence, (2) obtain rulings on appellant's pretrial motions, (3) obtain a ruling on counsel's motion to withdraw, and (4) set a hearing on appellant's motion for new trial. In his fifth issue, appellant asserts that his counsel's ineffectiveness is further evidenced by counsel's own admission to ineffective assistance of counsel.
We begin by addressing appellant's fifth issue, wherein appellant complains that his counsel was ineffective by his own alleged admission to that effect in a motion for new trial. In the motion, appellant's counsel stated: "The Defendant's basis for a new trial is that he was provided with ineffective assistance of counsel. Defense Counsel files this motion on his clients [sic] behalf in order to protect the Defendant's appellate rights and asks that New Counsel be appointed to represent Mr. Bridges on appeal." The State contends that appellant's counsel "filed the motion alleging ineffective assistance as a ground in order to preserve his client's rights, he made no general or specific admissions that he was, in fact, ineffective in his representation." We agree. Because the motion does not constitute an admission and has no significance to the present allegations of ineffective assistance of counsel, appellant's fifth issue is overruled.
In issues three and four, appellant asserts that his counsel was ineffective in his post-judgment conduct. Appellant contends that this ineffectiveness delayed the appointment of new counsel, and that this delay left appellant's newly appointed counsel with little time to prepare for a hearing on appellant's motion for new trial.
With regard to post-judgment conduct, this Court has held that when the record does not show that trial counsel withdrew or was replaced by new counsel after sentencing, there is a rebuttable presumption that trial counsel continued to effectively represent the accused during the time for filing a motion for new trial. (8) The facts presented to us do not rebut this presumption. There is no evidence to show that counsel had abandoned appellant, or that appellant was not counseled by his attorney regarding the merits of a motion for new trial. Furthermore, appellant admits in his brief that he was given a hearing on his motion for new trial, but that "since Appellant could not be brought back in time from the State Jail Facility the hearing was held and said motion died by operation of law." We thus find that appellant has not presented this Court with any evidence to show that his counsel was ineffective, nor has appellant shown how any alleged ineffectiveness could have conceivably harmed him since appellant missed his hearing through no fault of his counsel. In light of appellant's inability to satisfy both prongs of the Strickland test, issues three and four are overruled.
In issues one and two--failure to file a motion to suppress and obtain rulings on pretrial motions--appellant complains of matters that occurred before his plea of guilty. A defendant who knowingly and voluntarily pleads guilty without a plea bargain agreement waives all nonjurisdictional defects that occurred before the entry of the plea. (9) Ineffective assistance of counsel is a nonjurisdictional defect. (10) An attack upon a guilty plea based on a claim of ineffective assistance of counsel will succeed only if appellant shows that his attorney's alleged deficiencies caused his plea to be unknowing and involuntary. (11)
We first note that to prevail on a claim of ineffective assistance based on counsel's failure to file a motion to suppress, appellant has to prove that the trial court would have granted the motion. (12) Appellant has presented no evidence to satisfy this burden. Second, the failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. (13) Appellant has not rebutted this possibility with regard to his counsel's decision not to file a motion to suppress. Lastly, appellant makes no contention that any of his trial counsel's deficiencies rendered his plea unknowing or involuntary. There is no evidence that appellant would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. We find that the judgment of guilt was rendered independent of, and is not supported by, the alleged ineffective assistance of counsel claimed by appellant. Appellant has thus failed to satisfy both prongs of the Strickland test; accordingly, issues one and two are overruled.
Conclusion
We affirm the trial court's judgment.
LINDA REYNA YAÑEZ,
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed
this the 14th day of June, 2007.
1. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
2. Strickland v. Washington, 466 U.S. 668, 687 (1984).
3. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
4. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
5. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
6. Strickland, 466 U.S. at 689.
7. Thompson, 9 S.W.3d at 813.
8. Jones v. State, 39 S.W.3d 691, 693 (Tex. App.-Corpus Christi 2001, no pet.).
9. Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003).
10. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994).
11. Santos v. State, 877 S.W.2d 15, 17 (Tex. App.-Dallas 1994, no pet.).
12. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).
13. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.).
Friday, June 08, 2007
Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?
Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?
And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."
WATT about all of the other cases?
How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?
----
CONFESSING ERROR
By EDWARD LAZARUS
----
First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities.
"courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases."
And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."
WATT about all of the other cases?
How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?
----CONFESSING ERROR
By EDWARD LAZARUS
----
Friday, Jun. 16, 2000
Earlier this month, Vincent Saldano, one of the 468 inmates on Texas' death row, had his death sentence vacated. This development was duly reported in the press. But accounts of Saldano's good fortune uniformly failed to appreciate what makes his reprieve truly newsworthy and potentially a landmark.
Saving Saldano: Texas Confesses Error
![[Illustration]](http://writ.news.findlaw.com/images/illustrations/e-chair_cropped.jpg) | |
Saldano was not freed from the prospect of execution by the actions of a court or even, as occasionally happens, by the clemency of a governor. His death sentence was erased because Texas, through its newly created office of the solicitor general, "confessed error" in his case -- that is, it admitted, despite defeating Saldano's initial appeals in court, that his death sentence was illegally obtained. Quite simply, this never happens, either in Texas or in the dozens of other states with active death penalty laws. It is thus worth pausing to consider the value and potential implications of Saldano's case as well as the notion of confessing error.
Saldano had received a death sentence in part due to profoundly troubling testimony by a state expert witness at the sentencing phase of his trial. The expert, a clinical psychologist named Walter Quijano, suggested that Saldano should be executed because, as an Hispanic, he posed a special risk of future dangerousness to society. To support this astonishing conclusion, the expert pointed out that Hispanics make up a disproportionately large amount of Texas' prison population.It does not take a tenured professor of constitutional law to realize that linking racial identity with a propensity for violence was not only bizarre but also a violation of the equal protection clause. Indeed, that it should take a confession of error by the state to correct this problem highlights at least two problems in the current administration of the death penalty. First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities. The same flaw identified in Saldano's case infects at least seven other Texas capital cases. Second (and perhaps even more distressing), courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases. After all, before the state's confession of error, Saldano had lost all of his appeals.
Under these circumstances, one might think that confessions of error would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses error in two or three criminal cases every year -- even though it is a safe bet that federal prosecutions, conducted by better trained lawyers with greater supervision, are less likely to contain obvious legal errors than their state counterparts. As the Supreme Court recognized when endorsing the practice in 1942, "the public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess error in death penalty cases (even though courts overturn roughly two-thirds of all death sentences as legally infirm) -- and some states candidly admit that their policy is never to confess error.
Mutual Distrust
Why? One crucial and usually overlooked factor is the deep antagonism that has grown up over time between state death penalty prosecutors and the death penalty abolitionist lawyers who seek to foil them in every case. The abolitionists, prosecutors know all too well, never concede that their clients deserve the death penalty or that the death penalty was legally imposed -- no matter how flimsy their arguments in a given case. Rather, they use every procedural and substantive trick in the book to delay executions.
There can be no denying that such abolitionist tactics have angered and frustrated state prosecutors. And one response to these understandable emotions has been for prosecutors to mirror the fight-to-the-bitter-end approach of their opponents.
The problem with this reciprocation, however, is simply that the ethical duties of prosecutors and defense attorneys are vastly different. Defense attorneys are duty-bound to scratch and claw to win for their clients. Prosecutors, by contrast, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of error -- knowing when to fold them, as it is known -- establish credibility. They create trust in the system, a sense that someone is being careful and exercising sound judgment, that extends far beyond any single case. And that can make a world of difference for someone like me, who is not morally opposed to the death penalty but skeptical of how it is imposed.
Death Penalty Politics
In addition, the reluctance of state prosecutors to confess error is a clear reflection of how politics affects the death penalty. Up until now, anyway, undoing a death sentence was akin to political suicide for an elected district attorney or state attorney general, or for any state official with ambitions for re-election or higher office. And yet the willingness of Texas' new solicitor general to confess error in the Saldano case suggests a possible turning point. With the current groundswell of death penalty opposition based on the possibility of executing an innocent person, elected officials may now find some advantage in approaching capital cases (even those where innocence is not an issue) with a greater degree of care and honesty.
case will start a broad trend. But there is reason to believe that the tide is indeed turning. On June 9, Texas Attorney General John Cornyn announced the results of an investigation into other death penalty cases involving testimony by state expert Walter Quijano. Cornyn acknowledged that Dr. Quijano had provided testimony in six other death penalty cases similar to his improper testimony in the Saldano case. Cornyn's staff has advised defense lawyers for the six inmates now on death row that his office will not oppose efforts to overturn their sentences based on Quijano's testimony. In response, a pessimist might note that Texas is appealing a ruling in another capital case that the defendant received inadequate counsel -- when, indisputably, his lawyer slept through much of the trial. But doing the right thing has a contagious quality to it. Or at least so we can hope. Edward Lazarus, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.
Subscribe to:
Posts (Atom)