Robert Lara v. The State of Texas--Appeal from 81st Judicial District Court of Wilson County

No. 04-00-00190-CR
Robert LARA,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 99-07-123-CRW
Honorable Pat Priest, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 2, 2001

AFFIRMED

Robert Lara appeals the judgment convicting him of burglary of a habitation with intent to commit theft and sentencing him to thirty years imprisonment. We withdraw our opinion and judgment dated April 4, 2001 and substitute the opinion and judgment issued today. We affirm.

Factual and Procedural Background

According to Lara's co-defendant, Salvador Limon, on the morning of February 13, 1999, Limon and Lara were riding around the country drinking beer. Lara, who was driving, decided to pull up to the home of Kenneth Talley. After knocking on the door and determining Talley was not home, Lara took a tire tool and smashed a sliding glass door. Lara entered the home and later exited, taking with him a number of rifles and a television.

Discussion

In his first and second points of error, Lara complains his trial counsel prevented him from pleading guilty, which he contends constitutes ineffective assistance of counsel and a denial of his right to due process. Had he been permitted to plead guilty, Lara argues, he might have received a lesser punishment. The record indicates Lara at one time wanted to plead guilty. However, when given the opportunity to plead to the charges against him in open court, Lara unequivocally pleaded not guilty. Lara has thus not demonstrated that his trial counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). Nor has he demonstrated he was deprived of the right to due process guaranteed by the Texas and United States Constitutions. See U.S. Const. amend. V, XIV; Tex. Const. art. I, 19; Tex. Code Crim. Proc. Ann. art. 1.04 (Vernon 1997). We therefore overrule Lara's first two points of error.

In his third point of error, Lara contends the trial court abused its discretion in failing to conduct an evidentiary hearing on his motion for new trial. A trial court errs in denying an evidentiary hearing on a timely filed motion for new trial raising a matter outside the record and upon which relief could be granted. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). However, "[t]he motion must ... be supported by affidavit specifically showing the truth of the grounds of attack." King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000). Here, Lara filed a motion alleging generally that he "received ineffective assistance of counsel." He supported his motion with his own affidavit alleging his trial counsel was ineffective in several respects. None of these allegations warranted a hearing. (1)

In his fourth point of error, Lara contends the trial court erred in finding the enhancement allegation in paragraph IV to be true because the conviction was not final. Paragraph IV alleged Lara was convicted in Bexar County in 1988 for unauthorized use of a vehicle. The face of the judgment has the typed notation "DEFENDANT TO APPEAL." When the State seeks to prove a prior conviction for enhancement purposes, it must show the conviction was final before the commission of the charged offense. Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App. 1990). The State

met its burden here. As stated in the April 30, 1990 judgment revoking Lara's probation in Cause No. W-86-05-051-CR, the 1988 judgment "became final during the period of this probation." We therefore overrule Lara's fourth point of error and affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. Most of Lara's allegations of ineffective assistance were plainly determinable from the record, i.e., whether his trial counsel was ineffective because he failed to file a writ of habeas corpus seeking dismissal of the charges because of pre-indictment delay, when in fact both a motion to set aside the indictment for failure to afford Lara his constitutional right to a speedy trial and an application for a writ of habeas corpus seeking release because of delay under article 17.151 of the Texas Code of Criminal Procedure were presented to and heard by the trial court; whether his trial counsel was ineffective for not urging a motion to quash the purportedly defective indictment; whether his trial counsel should have moved for a mistrial; and whether his trial counsel was ineffective for asking him within the hearing of the jury if a picture depicted the guns he had stolen.

Lara also alleged his trial counsel ignored his statements that his bail was excessive. However, even if true, this allegation does not raise even the possibility that the outcome of Lara's trial would have been different but for his counsel's deficient performance. Lara also alleges his trial counsel failed to ask his co-defendant, Salvador Limon, if he had made a deal with the State in exchange for his testimony, if he had a criminal background, if he was a police informant, or if he was on drugs when he gave his statement to the police. However, there is no evidence as to what Limon's answers might have been. Equally immaterial is whether Lara's counsel failed to challenge the district attorney's statement that Lara drove in and out of the crime scene.

Finally, Lara alleged his trial counsel did not put on evidence regarding his job and family, as Lara requested. In fact, however, Lara's trial counsel questioned him at the punishment hearing regarding his employment. And his affidavit does not indicate that questions regarding his family would have been material.