Opinion
No. 04-03-00293-CR.
Delivered and Filed: March 3, 2004. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-1524, Honorable Bert Richardson, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice (concurring in judgment only), Catherine STONE, Justice and Paul W. GREEN, Justice.
MEMORANDUM OPINION
Appellant Matthew Fuentes was charged by indictment with the offense of intoxication assault. Pursuant to a plea bargain, Fuentes pled nolo contendere and was sentenced to eight years' imprisonment and a $1000 fine. He now appeals in three issues. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex.R.App.P. 47.1 for the following reasons:
1. In his third issue, Fuentes argues that Texas Rule of Appellate Procedure 25.2(b)(3) is unconstitutional as applied to his situation. Under the current version of the appellate rules an appeal is permitted in plea bargained cases where the trial court has given permission. Tex.R.App.P. 25.2(a)(2), (d); See Daniels v. State, 110 S.W.3d 174 (Tex. App.-San Antonio 2003, no pet.). The trial court here has, indeed, granted permission for Fuentes's appeal. Fuentes's motion for permission to appeal, however, does not include the issue of the constitutionality of Texas Rule of Appellate Procedure 25.2(b)(3). Under the current rule, Fuentes may not appeal that which he does not have the trial court's certification to appeal.Even if Fuentes was able to appeal this issue under the current Rules of Appellate Procedure, Rule 25.2(b)(3) is inapplicable to him and, therefore, can not be unconstitutional as applied. We overrule Fuentes's third issue. 2. In his first issue, Fuentes contends his plea was involuntary and in violation of his federal due process rights. As a condition to the plea agreement, the State agreed to remain silent with regard to Fuentes's application for community supervision. Fuentes claims the State breached this agreement by cross-examining himself and several other witnesses at the sentencing hearing. As stated above, a defendant in a criminal case may appeal only after getting the trial court's permission to appeal. Tex.R.App.P. 25.2(a)(2), (d). As with the issue of constitutionality, Fuentes's motion for permission to appeal does not seek permission to appeal the issue of voluntariness of his plea. In fact, the motion specifically states that he understands that he is "precluded from raising a claim challenging the voluntariness of his plea on appeal" and believes he has "a separate, valid issue" he can raise. In addition, there is no evidence that the State failed to follow the terms of the plea agreement. The plea agreement mandated that the range of punishment be between 2 and 10 years, with a fine of up to $10,000. As stated above, Fuentes received an eight year sentence and a $1000 fine. In addition, the plea mandated that the State make no recommendation as to Fuentes's application for community supervision. The State presented no recommendation to the trial court and only cross-examined Fuentes and his two character witnesses. We overrule Fuentes's first issue. 3. Finally, in his second issue, Fuentes argues he received ineffective assistance of counsel. Specifically, he contends his trial counsel should have objected to the State's allegedly improper conduct at his sentencing hearing. In order to prevail on an ineffective assistance of counsel claim, an appellant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) prejudice, that is, a reasonable probability that, but for trial counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 2002). It is an appellant's burden to overcome the presumption that the counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689. The appellant must prove, by a preponderance of the evidence, that his counsel's performance fell outside the wide range of reasonable professional assistance. Id.; Thompson, 9 S.W.3d at 813. Because the record is silent as to the reasons why Fuentes's counsel chose to act as he did, we can not speculate as to why counsel did so. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994); Davis v. State, 930 S.W.2d 765, 769 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). Fuentes has failed to show either that his counsel's actions fell below an objective standard of reasonableness or that, but for the alleged errors, the result of his sentencing hearing would have been different. See Strickland, 466 U.S. at 687-88, 694. Fuentes's second issue is overruled. The judgment of the trial court is affirmed.
Fuentes was granted permission by the trial court to appeal this issue. Tex.R.App.P. 25.2(a)(2), (d).