Eliseo Lopez v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00286-CR

Eliseo LOPEZ,

Appellant

v.

The STATE of Texas,

Appellee

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

Trial Court No. 99-CR-1135

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, Eliseo Lopez, pled no contest to indecency with a child. A plea bargain with the State called for no more than a ten-year sentence, and the State opposed any form of community supervision. After considering the pre-sentence investigation report, the trial court accepted appellant's plea and sentenced him to seven years confinement. Appellant had retained counsel at trial and a different appointed counsel on appeal.

Appellant's court-appointed appellate attorney filed a brief that met the requirements of Anders v. California, 386 U.S. 738 (1967), 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 involuntary. 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.

DISCUSSION

Appellant contends his counsel was not effective, he was forced to "keep his mouth shut under threat of contempt" and a longer sentence, his counsel and the prosecutor had an agreement "through a 'secret meeting of the minds,'" and evidence favorable to him was withheld.

To prevail on an ineffective assistance of counsel claim, 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.

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).

A motion for new trial was not filed, and, on appeal, appellant does not identify the evidence favorable to him that was withheld by the State. 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. At the sentencing hearing, appellant admitted he touched the two minor girls.

We conclude that the record does not support appellant's contentions that his trial counsel was ineffective or 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