Garcia, Alejandro v. The State of Texas--Appeal from 338th District Court of Harris County

 Opinion of June 12, 2003, Withdrawn, Affirmed and Memorandum Opinion filed October 2, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00993-CR

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ALEJANDRO GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris  County, Texas

Trial Court Cause No. 918,281

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

Appellant entered a plea of not guilty to the offense of aggravated assault with a deadly weapon. He was convicted and the trial court assessed punishment at twenty years in the Institutional Division of the Texas Department of Criminal Justice.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a response in which he raises three issues. Appellant contends (1) his trial counsel was ineffective in that he failed to properly examine the State=s evidence and present evidence on appellant=s behalf; (2) he was denied effective assistance of counsel during the time period to file a motion for new trial; and (3) the trial court erred in not charging the jury with instructions on defense of property. We affirm.

Background

On the day of the offense, appellant and his companions, Eric Esparza and Sonia Watkins, arrived at appellant=s apartment to find that it had been burglarized. According to Ms. Watkins, no one was in the apartment at the time of their arrival. Appellant and Esparza then ran toward a parking lot with knives in their hands. Appellant and Esparza approached a group of men in another parking lot, knives in hand, and demanded to know who had burglarized appellant=s apartment.

Lorenzo Seals, the maintenance man for the apartment complex, was working in his office when someone called him to the parking lot to address the disturbance. When Seals approached appellant, he told appellant he was the maintenance man and asked appellant what he could do to help. Appellant then grabbed Seals=s shirt and began to drag Seals to his apartment. Seals released appellant=s grasp and accompanied appellant to the apartment. As Seals began to look at the door to determine how the burglars had obtained entry, appellant and Esparza began to hit Seals. As Seals tried to get away from the apartment, appellant drew his knife and stabbed Seals in the leg. Seals then ran out of the apartment and yelled for someone to call an ambulance. At that time, a police officer arrived and told appellant and Esparza to drop their weapons. Appellant and Esparza did not drop their weapons until other officers arrived and approached them at gunpoint.

Ineffective Assistance of Counsel

In his first issue, appellant contends his trial counsel=s representation was ineffective in that counsel failed to properly examine the State=s evidence and present evidence on appellant=s behalf. Appellant contends that prior to trial, he gave his attorney offense reports to be used in the cross-examination of the State=s witnesses, but his attorney did not use the reports.

To succeed on his complaint, appellant must demonstrate both objectively deficient performance by his attorney and a reasonable probability of prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 1052, 2064-65 (1984). In analyzing the assistance of counsel, we begin with the strong presumption that counsel was competent. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant bears the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what he did. Id. Because an ineffectiveness claim must be firmly founded in the record, appellant cannot meet this burden if the record does not specifically focus on the reasons for the conduct of trial counsel. Thompson, 9 S.W.3d at 813. Generally, counsel should be given the opportunity to explain his actions before being condemned as unprofessional and incompetent. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

Here, appellant contends he gave offense reports to counsel to be used in the cross-examination of the State=s witnesses. Appellant contends counsel was ineffective in failing to use those reports. The record before us is silent regarding why counsel failed to use the reports; there was no motion for new trial, nor was counsel given an opportunity to explain himself. The use of certain evidence during cross-examination is a matter of trial strategy. From this trial record, one could conclude there were legitimate and professionally sound reasons for counsel=s conduct or one could speculate there were not. This is not one of those rare cases in which the evidence overcame the presumption that counsel=s inaction was part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 713 (Tex. Crim. App. 2000). Appellant=s first issue is overruled.

In his second issue appellant contends he was denied effective assistance of counsel during the thirty-day time period for filing a motion for new trial. A defendant may file a motion for new trial no later than thirty days after the date on which the trial court imposes or suspends the sentence in open court. Tex. R. App. P. 21.4. A defendant has the right to counsel during the time limit for filing a motion for new trial. Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The defendant=s court appointed attorney Ashall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record.@ Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2003); see also Ward v. State, 740 S.W.2d 794, 796 (Tex. Crim. App. 1987) (Ait is abundantly clear that an appointed attorney=s legal responsibilities do not magically and automatically terminate at the conclusion of the trial@). When the defendant=s trial counsel does not withdraw from representation after sentencing and is not replaced by new counsel, a rebuttable presumption exists that trial counsel continued to effectively represent the defendant during the time for filing a motion for new trial. Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (op. on reh=g). Because there is nothing in the record to suggest that appellant=s counsel withdrew from representation or that he was replaced with new counsel, we presume that trial counsel continued to effectively represent appellant during the time for filing a motion for new trial.

Appellant points out that he filed a notice of appeal and request for appellate counsel on the date of his sentence. These facts, however, do not rebut the presumption that appellant was represented by counsel or that counsel=s representation of him was effective. Oldham, 977 S.W.2d at 362-63. Appellant has failed to overcome the presumption that he was represented by counsel during the period after sentencing. Appellant=s second issue is overruled.

Jury Charge

In his third issue, appellant contends the trial court erred in not charging the jury with an instruction on the defense of property. After both sides rested, the trial court held a charge conference in which the State and appellant made objections to the charge and requested instructions to be included in the charge. Appellant asked for a charge on defense of a third person and the trial court granted appellant=s request.

Error relating to the jury charge may be preserved by asserting either an objection or a requested charge. Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Objections and special requested instructions must both be submitted in writing or dictated to the court reporter before the charge is read to the jury. Tex. Code Crim. Proc. arts. 36.14 & 36.15. The harm standard where a defendant may obtain reversal by showing egregious harm from charge errors to which no objection was made does not apply to a trial court=s failure to submit defensive instructions. Posey v. State, 966 S.W.2d 57, 60-64 (Tex. Crim. App. 1998). Therefore, an appellant can obtain a reversal for the omission of a defensive instruction only where an objection or special requested instruction is submitted at trial. Id. Because appellant neither requested, nor objected to the lack of, an instruction on defense of property, he has not preserved error. Appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 2, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).