Ricardo Diego Fuentes v. The State of Texas--Appeal from 182nd District Court of Harris County

Opinion issued September 14, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01 04 01018 CR

RICARDO DIEGO FUENTES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 971121

MEMORANDUM OPINION ON

PETITION FOR DISCRETIONARY REVIEW

We withdraw our previous opinion and judgment that issued August 3, 2006. See Tex. R. App. P. 50. We substitute the following opinion in its stead.

Appellant, Ricardo Diego Fuentes, pleaded guilty to aggravated sexual assault of a child, and the trial court assessed his punishment at confinement for 16 years. See Tex. Pen. Code Ann. 22.021(a)(1)(B)(iii) (Vernon Supp. 2005). In his sole point of error, appellant argues that he received ineffective assistance of counsel.

We affirm.Discussion

Appellant pleaded guilty to aggravated sexual assault of a child without an agreed recommendation as to punishment. Following a pre-sentence investigation report that contained numerous character reference letters from family and friends, the trial court sentenced appellant to 16 years in prison.

Ineffective Assistance of Counsel

In his sole point of error, appellant argues that he received ineffective assistance of counsel because (1) the State s 10-year plea bargain had not been communicated to him and (2) his trial counsel did not present any live witnesses during the punishment phase of trial.

To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel s representation fell below an objective standard of reasonableness, based on prevailing professional norms and (2) the result of the proceeding would have been different but for trial counsel s deficient performance. Strickland v. Washington, 466 U.S. 668, 687 92, 104 S. Ct. 2052, 2064 67 (1984); see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume that counsel s actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant argues that he received ineffective assistance of counsel because

it seems obvious that there was some kind of glitch in communications that prevented appellant from receiving the 10 year offer he otherwise would have accepted. . . . The case should be remanded to allow appellant an opportunity to accept the 10 year offer if that offer was lost due to ineffective assistance of counsel. . . . In the alternative, the case may need to be remanded for a new hearing on punishment. . . . The substance of unsubpoenaed defense witness testimony is suggested by letters from Appellant s wife and family members that are attached to the presentence report. . . . Appellant should be afforded a hearing at which he may offer testimony of the neglected witnesses as well as proof of how his attorney s communications or lack thereof may have caused Appellant to forego the 10 year offer.

Appellant s allegations of ineffective assistance of counsel are not supported by the record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (stating that allegations of ineffective assistance must be firmly supported in record). Appellant did not file a motion for new trial; therefore, the record is silent as to why appellant did not have any live witnesses testify during the punishment phase of trial. Notwithstanding the absence of live witnesses to testify during the punishment phase of trial, the pre-sentence investigation report contained character reference letters from appellant s mother, father, wife, and aunt, as well as a number of friends. Thus, counsel presented the trial court with favorable character evidence of appellant.

The record further reflects that appellant sought a 10-year plea bargain, but the State was only willing to offer 11 years. Thus, the record does not support appellant s statement that there was a breakdown in communication regarding whether or not Appellant would accept the 10 year plea offer.

To find appellant s trial counsel ineffective on the basis of the record before this Court would require us to speculate, which we will not do. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. Houston [1st Dist.] 1996, no pet.). Accordingly, appellant has not met the first prong of Strickland. See Strickland, 466 U.S. at 688 92, 104 S. Ct. at 2064 67.

We overrule appellant s sole point of error.

Abatement

Appellant argues that this case should be abated for a hearing on the ineffective assistance claims made the basis of this appeal. Appellant does not contend that he did not have counsel after punishment and thus is effectively asking for an out-of-time motion for new trial to develop the record. See Pettway v. State, 4 S.W.3d 390, 391 (Tex. App. Houston [1st Dist.] 1999, no pet.). Appellant has previously filed a motion to abate this appeal, which we denied. We likewise decline his request to abate this appeal because the issues he seeks to develop can properly be raised in a post-conviction writ of habeas corpus. See id.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Alcala, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).