Jesse Torres v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-99-00517-CR

Jesse TORRES,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 98CR1954

Honorable Pat Priest, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: August 30, 2000

AFFIRMED

Appellant Jesse Torres was convicted of aggravated assault with a deadly weapon. He pled true to repeater allegations. The trial court imposed a sentence of eighteen years confinement in the Texas Department of Criminal Justice Institutional Division. On appeal, appellant's court-appointed attorney filed an Anders brief (1), and appellant exercised his right to file his own pro se brief. (2) Although we construe appellant's brief liberally, we hold that his issues on appeal are without merit and affirm the judgment of the trial court.

Discussion

Appellant and the complainant Jimmy Serenil were cousins. One evening a fight erupted between the two and Serenil was shot in the chest. Multiple witnesses including the appellant's father testified that they saw the two fighting immediately prior to the shooting. Police officers investigating the scene apprehended appellant hiding behind a baby crib in a house nearby the shooting. Several officers testified that appellant had multiple cuts on his face and was bleeding near his eye.

In two issues on appeal, appellant argues he received ineffective assistance of counsel. We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 686, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance, a defendant must demonstrate that: (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Whether a defendant has received ineffective assistance of counsel is to be judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

In his first allegation of ineffective assistance of counsel, appellant alleges Serenil committed perjury at trial. Appellant asserts that the police report and Serenil's testimony reflect differing versions of where the appellant fled after the assault. Although it is somewhat unclear from his brief, it seems that appellant claims his counsel erred in preventing him from submitting written objections to Serenil's testimony. We recognize that these differing versions raise the issue of witness credibility, a determination for the jury alone to decide. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)(recognizing that jury as trier of fact assesses the credibility of witnesses and the weight of their testimony). The jury was free to believe Serenil when he testified that it was appellant who chased him down the street and shot him. See Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.-San Antonio 1994, pet. ref'd)(acknowledging that jurors are empowered to draw reasonable inferences from basic facts to ultimate facts).

Even assuming Serenil committed perjury on the issue of the direction in which appellant fled, evidence in the record from multiple witnesses supports that appellant was the shooter. Eyewitness testimony from various witnesses as well as from investigative officers who arrived at the scene support the jury finding. From the wealth of evidence in the record, and from appellant's failure to demonstrate that but for the alleged perjury, the result of the trial would have been different, we overrule appellant's first issue.

Appellant's second claim for ineffective assistance concerns counsel's failure to call appellant's girlfriend as a witness. Although appellant objects to the absent testimony, he makes no effort to explain the substance of the missing testimony. Again, even if we assume counsel erred in omitting the testimony, in light of the overwhelming incriminating evidence, appellant fails to demonstrate a different result would have occurred. Accordingly, we overrule appellant's second issue.

Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. Counsel mailed a copy of the brief to appellant and advised him of his right to proceed as a pro se in his appeal. See Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.-San Antonio 1997, no pet.). We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Furthermore, we grant counsel's motion to withdraw. See id. at 86.

Catherine Stone, Justice

DO NOT PUBLISH

1. Appellant's attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserted that there were no meritorious issues to raise on appeal. We commend counsel for his exhaustive brief which exceeds the requirements of an Anders brief which, at a minimum, must contain references to the record, citations to authority, and legal analysis. High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).

2. After the case was submitted and appellant and his counsel filed their respective briefs, appellant filed a motion to amend his brief and obtain additional copies of the appellate record. We overrule appellant's request because he fails to make any substantive showing of need for the additional copies. In any event, the issue is moot post-submission.