Joe Etuarte (Ytuarte) Gamez v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00377-CR

Joe Etuarte (Ytuarte) GAMEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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

Trial Court No. 2002-CR-7330

Honorable Pat Priest, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 2, 2005

AFFIRMED

Defendant Joe Etuarte Gamez was convicted of possession of heroin with intent to deliver and sentenced to ninety-nine years confinement. Defendant filed a pro-se motion for new trial, which was later amended by his newly appointed appellate counsel. The trial court denied the motion without a hearing. On appeal, defendant contends his trial counsel was ineffective and the trial court abused its discretion by refusing to hold a hearing on his motion for new trial. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Defendant was arrested by San Antonio police officers in his home pursuant to a search warrant. Officers entered defendant s residence where they found defendant and a guest sitting on a bed. Officers found sixty balloons of heroin on a table next to the bed. Defendant was arrested and later charged by indictment with possession with intent to deliver a controlled substance, in an amount greater than four grams but less than two hundred grams. Defendant pled not guilty. The jury returned a verdict of guilty and found true an allegation of enhancement. Defendant s motion for new trial was timely filed and properly presented to the trial court. In his motion, defendant asserts he received ineffective assistance of counsel when his trial counsel: (1) did not object to comments and testimony of witnesses; (2) made improper remarks during closing argument; (3) failed to bring defendant s physical condition to the jury s attention; (4) never filed any motions; (5) was working against him and with the District Attorney; and (6) had a conflict of interest with him as to his confiscated property.

HEARING ON MOTION FOR NEW TRIAL

Defendant argues the trial court erred in failing to conduct a hearing on his motion for new trial. Specifically, defendant contends he was entitled to a hearing because his motion raised matters not determinable by the record. We review a trial court s denial of a hearing on a motion for new trial for abuse of discretion. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002); Bouldin v. State, 100 S.W.3d 355, 356 (Tex. App. San Antonio 2002, no pet.). The purpose of such a hearing is to allow a defendant an opportunity to develop matters raised in his or her motion. Martinez, 74 S.W.3d at 21. However, the right to a hearing on a motion for new trial is not absolute. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993); Bouldin, 100 S.W.3d at 356. A defendant is not entitled to a hearing on a motion for new trial unless a sufficiently detailed, verified motion or accompanying affidavit raises matters not determinable from the record upon which the accused could be entitled to relief. See Reyes, 849 S.W.2d at 816; Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Rodriguez v. State, 82 S.W.3d 1, 2 (Tex. App. San Antonio 2001, pet. dism d). To be sufficient to entitle the defendant to a hearing, the motion for new trial and accompanying affidavit need not establish a prima facie case for a new trial. Wallace, 106 S.W.3d at 108 (quoting Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994)). Rather, the affidavit must merely reflect that reasonable grounds exist for holding that such relief could be granted. Wallace, 106 S.W.3d at 108 (quoting Martinez, 74 S.W.3d at 22).

In his motion for new trial, defendant asserts trial counsel did not object to testimony of witnesses and never filed any motions. However, the record reveals counsel did object to the testimony of the San Antonio police officers and defendant s parole officer. The record further reveals trial counsel filed several motions, including a motion for continuance and a motion to require disclosure of the informant s identity. On the other hand, defendant does not indicate which motions counsel should have, but did not, file. Nor does he indicate which testimony was objectionable. Accordingly, these contentions are conclusory and the trial court did not abuse its discretion in refusing to hold a hearing on these issues.

Defendant next claims trial counsel made remarks during closing argument that harmed his case, such as the drugs did belong to the defendant and that San Antonio was very fortunate to have councilmen that wanted to clean the city of homeless people. Our review of the record shows these statements were not made by counsel. In closing, trial counsel states:

It s interesting we have a councilman today that wants to pass an ordinance to get [mentally ill] people off the streets, to not allow them to panhandle. What kind of intolerant society do we live in that we just want to throw these people away...It s outrageous to me.

....

Mr. Gamez uses drugs, we know that, the officers told you that...he has this horrible life because he can t shake that addiction and he doesn t have the money to do it. If he has the drugs to share with other people I ll bet he is sharing them with people like himself, that can t shake [the addiction] any more than he can.

Because defendant s complaint about trial counsel s remarks was determinable from the record and the trial court could have concluded that no reasonable grounds for relief existed, the trial court did not abuse its discretion in refusing to hold a hearing on these complaints. See Reyes, 849 S.W.2d at 816.

Finally, defendant claims trial counsel was working with the District Attorney against him, there was a conflict of interest with trial counsel as to defendant s confiscated property, and trial counsel failed to raise his physical condition to the jury. However, defendant fails to state how his counsel and the District Attorney were working against him or any facts that would support this contention. Defendant also fails to detail his conflict of interest claim and why raising the issue of his physical condition would have helped him at trial. These contentions are insufficiently detailed and conclusory in nature; therefore defendant s motion for new trial did not put the trial court on notice that reasonable grounds existed to believe counsel s representation may have been ineffective. See Jordan, 883 S.W.2d at 665. Accordingly, the trial court did not abuse its discretion in refusing to hold a hearing on these complaints.

INEFFECTIVE ASSISTANCE OF COUNSEL

For the first time on appeal, defendant asserts he received ineffective assistance of counsel when his trial counsel failed to challenge, by motion to suppress, the search warrant and the reasonableness of the officers no-knock entry. However, defendant has not pointed to any place in the record showing that counsel s failure to file this motion was due to ineffective assistance rather than trial strategy. When the appellate record contains no evidence of the reasoning behind trial counsel s action, the reviewing court cannot conclude that counsel s performance was deficient because such determination would be based on speculation. Weeks v. State, 894 S.W.2d 390, 391-92 (Tex. App. Dallas 1994, no pet.). Here, the record does not reveal the reason counsel did not file a motion to suppress this issue. To find that trial counsel was ineffective based on the record before us would call for speculation, which we will not do. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Defendant also claims that counsel was ineffective because he failed to challenge whether the search warrant was supported by sufficient information to establish probable cause. The record shows counsel did not file a pre-trial motion to suppress, but it also reveals counsel objected to the search warrant and the attached affidavit at trial. Specifically, trial counsel challenged the warrant on two grounds: (1) it was invalid on its face because the date of execution line was blank; and (2) the attached affidavit was hearsay. We will not speculate as to why counsel did not challenge the search warrant for lack of probable cause. Id. at 771.

CONCLUSION

We overrule defendant s issue on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH