Jackson, Ray Allen v. The State of Texas--Appeal from 9th District Court of Waller County

Affirmed and Opinion filed May 23, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00994-CR

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RAY ALLEN JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 00-06-10273

M E M O R A N D U M O P I N I O N

Appellant entered a plea of no contest, without an agreed recommendation as to punishment, to the felony offense of driving while intoxicated. Appellant waived a pre-sentence investigation report, and on July 13, 2001, the trial court sentenced him to confinement for ten years, probated for ten years, and assessed a fine of $2,500.

Appellant was represented by retained counsel on appeal, who filed a brief in which, after reviewing the record, he concluded that the appeal is wholly frivolous and without merit, purportedly under the authority of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). The Anders procedural safeguards are not applicable, however, to an appellant who is represented by a retained attorney. See Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

Appellant=s counsel filed a motion to withdraw, which the Court granted, after assuring his compliance with Texas Rule of Appellate Procedure 6.5. The Court ordered the Anders brief stricken and gave appellant thirty days to obtain new counsel to file a brief on his behalf or to file a pro se brief. Appellant requested and received and extension of time to file his brief. On May 6, 2002, appellant filed a pro se brief in which he asserts one point of error alleging ineffective assistance by his trial counsel.

The two pronged test for claims of ineffective assistance of counsel is set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.1986). To prove ineffective assistance of counsel, appellant must show that (1) his counsel=s representation fell below an objective standard of reasonableness and (2) there exists a reasonable probability that, but for his counsel's unprofessional errors, the outcome would have been different. Hernandez, 726 S.W.2d at 57. Any judicial review of an ineffective assistance claim must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

In his pro se brief, appellant asserts that his trial counsel was ineffective in failing to inform him of a plea bargain offer made after appellant had initially been charged with a misdemeanor offense, before the grand jury returned a felony indictment. He asserts that a defendant has the right to be informed about plea bargain offers as part of his participation in the decision-making process surrounding his defense, citing Ex Parte Wilson, 724 S.W.2d 72, 74 (Tex. Crim. App. 1987).

The record is devoid of any indication of a plea bargain offer. In addition, no motion for new trial was filed, and consequently, no hearing was held in which a record of appellant=s claim could be developed. When a motion for new trial has not been filed in a case, there is a rebuttable presumption that the filing of the motion was considered by the appellant and rejected. Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000). Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record is best developed by an application for a writ of habeas corpus or a motion for new trial. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). For example, in Wilson, cited by appellant, the ineffective assistance claim was substantiated through an evidentiary hearing on an application for writ of habeas corpus. 724 S.W.2d at 73. In the absence of support in the record, appellant has not met his burden to establish ineffective assistance of counsel. Accordingly, we overrule appellant=s sole point of error.

Moreover, we have reviewed the entire record on appeal and agree with appellant=s former appellate attorney that the appeal lacks merit. Appellant entered a plea of no contest, and the record reflects that appellant was fully admonished of the consequences of his plea pursuant to Article 26.13 of the Texas Code of Criminal Procedure. The sentence imposed is within the statutory range of punishment, and the record reflects no jurisdictional errors. Accordingly, we affirm the judgment of the trial court.

PER CURIAM

Judgment rendered and Opinion filed May 23, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do not publish C Tex. R. App. P. 47.3(b).