Opinion
No. 04-04-00565-CR
Delivered and Filed: May 4, 2005. DO NOT PUBLISH.
Appeal from the 381st Judicial District Court, Starr County, Texas, Trial Court No. 96-CR-159, Honorable John A. Pope, III, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The sole issue presented in this appeal is whether Vicente Resendez was denied effective assistance of counsel because his trial counsel failed to introduce evidence that he had no prior felony convictions in support of his sworn motion for probation. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex.R.App.P. 47.4. To prevail on a claim of ineffective assistance of counsel, Resendez must first show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). In addition, Resendez must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. The same standard of review applies to both the guilt-innocence and the punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. 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. Id. at 814. A defendant is eligible for probation when a jury imposes punishment "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. 2004-2005). Before the issue of probation may be submitted to the jury, however, a sworn motion must have been timely filed and record evidence must support the defendant's eligibility for probation by establishing that the defendant has not previously been convicted of a felony. Beyince v. State, 954 S.W.2d 878, 880 (Tex.App.-Houston [14th Dist.] 1997, no pet.). In this case, Resendez failed to bring forward any sworn evidence in the record establishing that he was eligible for probation through a motion for new trial or otherwise. Without such evidence, this court cannot determine whether trial counsel's failure to elicit evidence during the punishment phase was "a mere mistake, part of a more egregious omission, or the result of the unavailability of evidence establishing [Resendez's] eligibility for probation." Beyince, 954 S.W.2d at 880; see also Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App. 1981). Furthermore, the jury in this case assessed punishment at twenty-two years imprisonment which would have precluded the jury from considering the motion for probation. See Mercado, 615 S.W.2d at 228 (holding jury would not have considered motion for probation where punishment was assessed at seventeen years imprisonment); Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(1) (Vernon Supp. 2004-2005) (making defendant ineligible for probation if sentenced to a term of imprisonment that exceeds years). Accordingly, Resendez's ineffective assistance complaint is not firmly founded in the record and is overruled. The trial court's judgment is affirmed.
The State suggests that record evidence could not have been presented at trial because Resendez had absconded during trial; however, this suggestion ignores that evidence that a defendant has not previously been convicted of a felony is available through sources other than the defendant. See Trevino v. State, 577 S.W.2d 242 (Tex.Crim.App. 1979) (wife's testimony that she had known husband since he was ten and that he had not been convicted of a felony during that time was sufficient to require submission of a charge on probation).