Isaac David Quintanilla v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00197-CR

Issac David QUINTANILLA,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 99-CR-2084-A

Honorable Sam Katz, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: March 7, 2001

AFFIRMED

Appellant, Issac David Quintanilla, pled no contest to sexual assault of a child. In return for his plea, the State recommended a maximum of twelve years confinement and agreed to take into consideration another case pending against appellant. The trial court accepted the plea bargain.

Appellant's court-appointed appellate attorney filed a brief containing a professional evaluation of the record and asserting there are no arguable grounds to be advanced. Counsel concluded that the appeal was without merit. Appellant was informed of his right to review the record, and counsel provided appellant with a copy of the brief and advised him of his right to file a pro se brief. Appellant filed a brief alleging ineffective assistance of counsel and that his plea was coerced. Because we find that appellant did not meet his burden of showing either that his counsel was ineffective or that his plea was involuntary, we affirm.

Ineffective Assistance of Counsel

Appellant contends his trial counsel was not effective because counsel did not (1) obtain responses to "Motions filed," (2) make known certain discrepancies in the evidence, (3) properly advise him about his appeal, and (4) file "the Defendant's briefs."

To prevail on this point of error, appellant has the burden to prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., his assistance fell below an objective standard of reasonableness; and (2) appellant was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

Appellant does not identify the "Motions filed" or "Defendant's briefs" about which he complains. Appellant does not provide any argument beyond his conclusory assertions. We will not substitute speculation for a properly developed record supported by legal authority. Appellant asserts he was not informed of his rights on appeal. Appellant had appointed counsel at trial and a different appointed counsel on appeal. Appellate counsel timely filed a brief that met the requirements of Anders v. California, 386 U.S. 738 (1967). As for discrepancies in the evidence, the State introduced into evidence affidavits, witness statements, police reports, laboratory reports, and other documents. Appellant and his trial counsel signed the consent to stipulation of testimony in which appellant agreed to the introduction of the evidence and agreed the evidence was true and correct.

We conclude that the record does not support appellant's contentions that he received ineffective assistance of counsel.

Involuntary Plea

Appellant asserts his plea was not voluntary because he was coerced by the State; he was afraid of receiving a longer sentence and not being able to see his daughter again; and he was under duress from his attorney.

When considering the voluntariness of a guilty plea, we must examine the entire record. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). A defendant who attests during the initial plea hearing that his plea is voluntary bears a "heavy burden" to prove in a subsequent hearing that he entered the plea involuntarily. Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd).

Appellant signed the court's admonishment form in which he attested that he had "not been threatened, coerced or placed in fear by any person to induce [him] to enter [his] plea." The judge signed the document indicating his belief that appellant's plea was "not induced by improper persuasion." Trial counsel signed a separate waiver form acknowledging that appellant understood his rights and had "intelligently and voluntarily" waived his rights to be free from self-incrimination, to compulsory process, and to confront and cross-examine the witnesses against him. Upon receiving appellant's plea papers, the judge asked appellant whether he understood that by signing the admonishments he was giving up his right to a trial by jury, to remain silent, and to confront and question witnesses. Appellant stated he understood and that he gave up those rights voluntarily.

We conclude that appellant has not met his "heavy burden" of proving that his plea was involuntary.

The judgment of the trial court is affirmed. Furthermore, we grant the motion to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

Tom Rickhoff, Justice

DO NOT PUBLISH