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Benavides v. State

Court of Appeals of Texas, Fourth District, San Antonio
Mar 2, 2005
No. 04-03-00324-CR (Tex. App. Mar. 2, 2005)

Opinion

No. 04-03-00324-CR

Delivered and Filed: March 2, 2005. DO NOT PUBLISH.

Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-3817, Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.

Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.


MEMORANDUM OPINION


Appellant Ruben Benavides entered an open plea of no contest to the offense of aggravated assault of a public servant. At the hearing on punishment, the trial court found Benavides guilty, found the repeat offender allegation true, and sentenced Benavides to twenty-five years confinement. On appeal, Benavides contends he received ineffective assistance of counsel. We affirm the trial court's judgment. In two issues, Benavides contends he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10. Benavides faults his counsel for several omissions. In his principal complaint, Benavides contends his counsel's failure to properly advise him of the appropriate range of punishment rendered his plea involuntary under article 26.13 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-2005). Benavides also complains of his counsel's failure to file pretrial motions, adequately review the evidence against him, and adequately prepare for trial.

Standard of Review

To establish ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that: 1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and 2) there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003) (citing Strickland v. Washington, 466 U.S. 668, 691 (1984)). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The Strickland standard applies to claims of ineffective assistance both during the guilt/innocence and punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999). As a reviewing court, we cannot speculate as to the reasons why trial counsel acted as he did; rather, we must be highly deferential and presume trial counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Any allegations of ineffectiveness must be firmly founded in the record, and the appellant must prove he was denied a fair trial based on the totality of the representation, not by isolated instances or by only a portion of the trial. Id. at 835; Harling v. State, 899 S.W.2d 9, 12 (Tex.App.-San Antonio 1995, pet. ref'd). In assessing whether a defendant has met both prongs of Strickland, we are limited to the facts of the case. Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-814. A silent record usually cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. Jackson, 877 S.W.2d at 771.

Discussion

In his principal complaint on appeal, Benavides asserts that his counsel's failure to advise him of the appropriate range of punishment rendered his plea involuntary. Article 26.13(a)(1) of the Code of Criminal Procedure provides that "[p]rior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of . . . the range of punishment attached to the offense." Tex. Code Crim. Proc. Ann. art. 26.13(a)(1). The purpose of this article is to assure that the defendant does not plead guilty without a full understanding of the charges against him and the consequences of his plea. Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App. 1980). Where the record shows that a defendant has received the admonishment on range of punishment, it constitutes prima facie evidence that the plea was knowing and voluntary. See Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App. 1985). The burden then shifts to the defendant to prove that he did not understand the consequences of his plea. Id. On November 19, 2003, the day before the plea hearing, the State filed notice of its intent to seek repeat offender status, i.e., that in the event Benavides was found guilty of the charged offense and was found to be a repeat offender, the punishment range would be fifteen to ninety-nine years imprisonment. Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2004-2005). Benavides asserts that had his counsel informed him the state was seeking to introduce evidence of his prior felony conviction to enhance his punishment, he would not have entered a plea to the charged offense. Benavides does not state how the outcome would have been different; he faced the same prospects for punishment regardless of whether he chose to plead no contest or go to trial. Presumably, Benavides expects the jury would have assessed a punishment less than twenty-five years. However, we do not reach a harm analysis because we do not agree that Benavides' counsel was deficient. In this case, the charging indictment alleged the offense of aggravated assault against a public servant. Tex. Pen. Code Ann. § 22.02(b)(2) (Vernon Supp. 2004-2005). Under the Penal Code, aggravated assault against a public servant is a first degree felony, punishable by five to ninety-nine years imprisonment. See id.; Tex. Pen. Code. Ann. § 12.32(a) (Vernon 2003). The record reflects that the trial court orally admonished Benavides as to this range of punishment, and Benavides stated he understood the range of punishment. Benavides also received written admonishments that stated the five to ninety-nine year range of punishment, and informed the court he had reviewed them with his counsel before signing them. After testifying he understood the consequences of entering his plea, Benavides plead no contest to the charged offense. Thus, the record reflects that the trial court properly admonished Benavides on the punishment range for the charged offense, the only allegation to which he entered a plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1); Wright v. State, 499 S.W.2d 326, 327 (Tex.Crim.App. 1973) (a trial court is required under article 26.13 to admonish the defendant in a felony case as to the range of punishment which could be inflicted under the plea). We conclude that Benavides has failed to meet his burden of establishing his counsel's deficiency where the record reflects that he received the proper admonishments under article 26.13 of the Code of Criminal Procedure. The record is insufficient to support the remainder of Benavides' ineffective assistance claims. Benavides did not file a motion for new trial. Because no ineffective assistance claim was advanced, no hearing was conducted to review defense counsel's strategy In the absence of a properly developed evidentiary record which adequately reflects the motives behind counsel's inaction, it is extremely difficult to prove that counsel's performance was deficient. Rylander, 101 S.W.3d at 110-11. To conclude that the representation by Benavides' counsel was deficient without a proper record exploring his defense counsel's strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. Without evidence in the record to both establish deficiency and rebut the presumption of reasonable assistance, Benavides is unable to satisfy the first prong of Strickland. See Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (the record on direct appeal is often particularly inadequate to reflect the failings of trial counsel when errors complained of are errors of omission). We conclude Benavides has failed to overcome the strong presumption that his counsel performed in a reasonably professional manner. See id. at 833; Thompson, 9 S.W.3d at 813-14. Therefore, we overrule Benavides' two issues. The judgment of the trial court is affirmed.


Summaries of

Benavides v. State

Court of Appeals of Texas, Fourth District, San Antonio
Mar 2, 2005
No. 04-03-00324-CR (Tex. App. Mar. 2, 2005)
Case details for

Benavides v. State

Case Details

Full title:RUBEN BENAVIDES, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Mar 2, 2005

Citations

No. 04-03-00324-CR (Tex. App. Mar. 2, 2005)