Lorenzo Juarez v. The State of Texas--Appeal from 274th Judicial District Court of Guadalupe County

No. 04-99-00559-CR

Lorenzo JUAREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 274th Judicial District Court, Guadalupe County, Texas
Trial Court No. 98-1052-CR
Honorable Gary Steel, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 11, 2000

AFFIRMED IN PART, DISMISSED FOR LACK OF JURISDICTION IN PART

Lorenzo Juarez pled guilty to three counts of aggravated sexual assault of a child and was sentenced to twenty years imprisonment pursuant to his plea agreement with the State.

Appellant's court-appointed appellate attorney filed a brief in which he states that he has conducted a professional review of the record and concluded that there are no arguable issues to be raised on appeal. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Juarez was provided with a copy of the brief and informed of his right to review the record and file his own brief. See Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.- San Antonio 1996). Juarez then filed a pro se brief on his own behalf. We will review the issues raised by Juarez in his pro se brief.

Texas Rule of Appellate Procedure 25(2)(b)(3) limits our jurisdiction over appeals from plea-bargained convictions. See Luna v. State, 985 S.W.2d 128, 129-30 (Tex. App.-San Antonio 1998, pet ref'd). When the punishment assessed does not exceed the punishment recommended, the rule requires notices of appeal to either: (1) specify that the appeal is for a jurisdictional defect, (2) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (3) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3)(A-C). In this case, the trial court assessed punishment in accordance with the prosecutor's recommendations. Because Juarez only filed a general notice of appeal he has failed to satisfy the requirements of Texas Rule of Appellate Procedure 25(2)(b)(3). Therefore, the only grounds on which Juarez can appeal are grounds based on jurisdictional defects or the voluntariness of his plea. See Luna, 985 S.W.2d at 130.

In his pro se brief, which we construe liberally, Juarez raises several issues on appeal. (1) We do not have jurisdiction to entertain Juarez's complaints regarding custodial interrogation, illegal polygraph, unlawful restraint and detention, ineffective assistance of counsel, inaccuracies in the reporter's or clerk's records, judicial conduct, or double jeopardy. See Tex. R. App. P. 25.2(b)(3). All issues we do not have jurisdiction to consider are dismissed.

Juarez also asserts that the ineffectiveness of trial counsel rendered his plea involuntary. While we do not have jurisdiction to consider claims of ineffective assistance of counsel, to the extent the ineffective assistance may have rendered Juarez's plea of guilt involuntary, we need to address it. See Guzman v. State, 993 S.W.2d 232, 237 (Tex. App.-San Antonio 1999, pet. ref'd), cert. denied, 120 S. Ct. 1174 (2000).

In order to attack a guilty plea on the ground of ineffective assistance of counsel, the defendant must show that the plea of guilty was unknowingly and involuntarily made. See Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App.1986) (orig. proceeding); Gonzales v. State, 963 S.W.2d 844, 848 (Tex. App.-San Antonio 1998). A guilty plea is not voluntary if it results from the ineffective assistance of counsel. See Gonzales, 963 S.W.2d at 848. Accordingly, the constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel's performance was reasonably competent, rendering a defendant effective representation during the plea bargain process. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App.1991); Gonzales, 963 S.W.2d at 848.

In evaluating a claim of ineffective assistance of counsel arising out of the plea process, we must apply the Strickland test, which requires that the defendant demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App.1986). These two prongs must be established by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App.1985). Accordingly, the allegation of ineffective assistance must be firmly founded and affirmatively demonstrated in the record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.1996); Brown v. State, 974 S.W.2d 289, 292 (Tex. App.-San Antonio 1998, pet. ref'd). Furthermore, we must indulge in a strong presumption that the counsel's conduct was reasonable. See Strickland, 466 U.S. at 689.

Juarez's argument is without merit and fails under the first prong of the Strickland test. The record from the plea hearing shows that Juarez's counsel, James Sims, sent another attorney, Veryl Brown, to stand in for him at the plea proceeding. This was done with Juarez's permission. The record demonstrates that the performances of both Brown and Sims were reasonably competent. The range of punishment for the crimes Juarez was charged with ran from 5 to 99 years imprisonment and a fine of up to $10,000. Under the terms of the plea bargain, Juarez received a 20 year sentence. At the hearing on the plea bargain agreement, Juarez stated that he fully consulted with his attorney, Sims, as well as with the stand-in attorney, Brown, regarding the consequences of his guilty plea, and that he understood all the consequences of the plea. Further, Brown stated on the record that Juarez was mentally competent to stand trial. Because the record does not demonstrate that counsel's performance rendered Juarez's guilty plea involuntary, we overrule his argument that his plea was involuntary. (2)

We have reviewed the record, the pro se brief and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed and counsel's motion to withdraw is granted. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.-San Antonio 1997).

Karen Angelini

Justice

DO NOT PUBLISH

1. Juarez makes numerous references in his brief to facts that are not in the record before this court, nor is there any indication the facts were presented to or considered by the trial court in making its rulings. We cannot consider factual assertions in briefs that are not supported by the record. See Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996); Miranda v. State, 813 S.W.2d 724, 738 (Tex. App.-San Antonio 1991, pet. ref'd).

2. Sims was not the first attorney to represent Juarez in this cause of action. Juarez also complains on appeal about the ineffective assistance of his first attorney, W. David Friesenhahn. As we stated previously, we do not have jurisdiction to entertain ineffective assistance issues except to the extent that ineffective assistance rendered Juarez's plea involuntary. See Guzman v. State, 993 S.W.2d 232, 237 (Tex. App.-San Antonio 1999, pet. ref'd), cert. denied 120 S. Ct. 1174 (2000). The record reflects that Friesenhahn had withdrawn and was substituted by another attorney several months before Juarez pled guilty. Juarez makes no argument that Friesenhahn's conduct rendered his plea involuntary, and for that reason we only consider the conduct of Sims and Brown with respect to this issue.