Patrick Edward Rocha v. The State of Texas--Appeal from 216th Judicial District Court of Kendall County

MEMORANDUM OPINION

No. 06-00056-CR

Patrick Edward ROCHA,

Appellant

v.

The STATE of Texas ,

Appellee

From the 216th Judicial District Court, Kendall County, Texas

Trial Court No. 4231

Honorable Stephen B. Ables , Judge Presiding

Opinion by: Catherine Stone , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: October 4, 2006

AFFIRMED

Patrick Rocha appeals his conviction for aggravated assault with a deadly weapon. Rocha waived a jury trial and entered an open guilty plea. The trial court sentenced Rocha to 12 years confinement. The trial court also made an affirmative finding that Rocha used or exhibited a deadly weapon, a knife, during the commission of the offense. On appeal, we must decide whether: (1) Rocha's guilty plea was involuntary; (2) Rocha's punishment violates the cruel and unusual punishment clause of the United States Constitution; and (3) Rocha was denied effective assistance of counsel.

Voluntariness of Guilty Plea

In his second issue, Rocha argues that his guilty plea was involuntary because he was not aware of the consequences of his guilty plea or the range of punishment for his offense. Article 26.13 of the Texas Code of Criminal Procedure sets out the admonishments the trial court must give to the defendant prior to accepting a plea of guilty. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2006). The admonishments may be given either orally or in writing. Id. at (d). If the admonitions are given by the trial court in writing, the court "must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea." Id. When a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing that the defendant's guilty plea was entered knowingly and voluntarily. Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.--Dallas 1997, pet. ref'd). The defendant then has the burden to affirmatively show he was not aware of the consequences of his plea and that he was misled or otherwise harmed by the admonishments of the court. See Tex. Code Crim. Proc. Ann. art. 26.13(c).

The record in this case contains the trial court's written admonishments signed by Rocha, his attorney, the prosecutor, and the judge. The document indicates that Rocha was aware of the range of punishment for the offense, understood the consequences of a plea of guilty, and understood the written admonishments. The trial court's written admonishments therefore substantially complied with article 26.13. See Kirk, 949 S.W.2d at 771. Other than Rocha's bare assertions, nothing in the record shows that Rocha was unaware of the consequences of his guilty plea or that he was harmed or misled by the admonishments given. Thus, we conclude Rocha's complaint in this regard lacks merit. (1)

Cruel and Unusual Punishment

In his fourth issue, Rocha argues his punishment violates the cruel and unusual punishment clause of the Eighth Amendment of the United States Constitution. See U.S. Const. amend. VIII. Rocha specifically claims the punishment is not proportionate to his offense because of the lack of gravity of the offense and the harshness of the punishment. Rocha, however, has waived this complaint.

For error to be preserved for appeal, the record must show Rocha made a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1) ("As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context."). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.--Texarkana 2002, no pet.); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). When his sentence was announced, Rocha did not object to the sentence as violating his constitutional rights. Nor did he raise the argument in a post trial motion. (2) Accordingly, Rocha has not preserved this issue for appellate review.

Ineffective Assistance of Counsel

In his first and third issues, Rocha alleges he was denied effective assistance of counsel. The United States and Texas Constitutions guarantee the right to reasonably effective counsel. U.S. Const. amend. VI; Tex. Const. art. I, 10. To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall 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. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812.

On review, we give great deference to counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). We look to the totality of the representation at trial, not isolated acts or omissions of counsel in hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The defendant's burden is even more difficult when, as in this case, the defendant does not file a motion for new trial asserting ineffective assistance of counsel. Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);

Thompson, 9 S.W.3d at 813-14.

On appeal, Rocha notes numerous instances where defense counsel was allegedly defective in his representation. Although Rocha filed a motion for new trial, he did not raise his ineffective assistance of counsel claims in that motion. Nor did he develop a record that might otherwise have supported his claims. Rocha simply cannot overcome the strong presumption that counsel rendered adequate assistance of counsel in this instance. Rocha's contention of ineffective assistance of counsel is therefore overruled.

Conclusion

The judgment of the trial court is affirmed

Catherine Stone , Justice

Do Not Publish

1. See id. Rocha requests this court to abate the appeal and to order the trial court to conduct a hearing on the issue of voluntariness of his guilty plea so that he may further develop his claim. Rocha's request to abate the appeal is denied.

2. Rocha's motion for new trial merely alleges "[t]he trial court committed material errors calculated to injure the rights of the accused, to wit: vital testimony was omitted."