Dominic P. Venzor v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00808-CR

Dominic P. VENZOR,

Appellant

v.

The STATE of Texas ,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 1999-CR-1380

Honorable Philip A. Kazen , Jr., Judge Presiding

Opinion by: Alma L. L pez , Chief Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: July 19, 2006

AFFIRMED

Dominic P. Venzor appeals the trial court's judgment revoking his probation and sentencing him to forty-five years imprisonment. In his sole issue on appeal, Venzor argues he received ineffective assistance of counsel when his trial attorney failed to object to the severity of the sentence. We overrule Venzor's issue and affirm the judgment of the trial court.

Background

In 1999, Venzor pled nolo contendere to the charge of aggravated sexual assault of a child. The trial court deferred an adjudication of guilt and granted Venzor probation for a period of ten years. In 2005, the State filed a motion to enter an adjudication of guilt and to revoke probation. Venzor pled true to the allegation that he failed to comply with the instructions of his court-ordered sex offender treatment program. Although the State recommended five years' imprisonment, the trial court sentenced Venzor to forty-five years' confinement. Counsel did not object to the punishment at the hearing, but counsel did timely file a motion for new trial claiming that the sentence was disproportionate to the offense. The trial court did not rule on the motion, and it was overruled by operation of law.

Discussion

A defendant may argue on appeal that the sentence imposed against him was disproportionate to the offense committed, provided that error is properly preserved. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.-Texarkana 2002, no pet.). Although Venzor's counsel did not orally object at the hearing, he did timely file a motion for new trial. However, it appears that counsel failed to present the motion to the trial court, and it was subsequently overruled by operation of law. Tex. R. App. P. 21.8(c). To properly present a motion for new trial, the defendant must give the trial court actual notice that he timely filed a motion for new trial and request a hearing on the motion. Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).

On appeal, Venzor argues that trial counsel was ineffective for failing to object to or otherwise preserve error with regard to the severity of the punishment. We review a claim of ineffective assistance of counsel by the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). To reverse a conviction on the grounds of ineffective assistance of counsel, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In evaluating counsel's effectiveness, we look to the totality of the representation and the particular circumstances of each case. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and any judicial review must be highly deferential to trial counsel to avoid the deleterious effects of hindsight. Id. Any allegation of ineffectiveness must be firmly founded in the record. Id. The defendant's burden is even more difficult when, as in this case, the defendant did not develop a record in the trial court for the purpose of establishing an ineffective assistance of counsel claim. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Here, the record does not contain a specific explanation for counsel's decision not to object to the sentence or his failure to present the motion for new trial to the trial court. We cannot speculate as to counsel's possible strategies from a silent record. See Jackson, 877 S.W.2d at 771. A motion for new trial is often filed exclusively to extend the appellate time limits. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Tex. R. App. P. 26.2(a); 35.2(b). Accordingly, we must overrule Venzor's issue on this direct appeal. Venzor may, however, pursue his ineffective assistance claim via an application for writ of habeas corpus which must be filed in the trial court. See Thompson, 9 S.W.3d at 814-15; Tex. Code Crim. Proc. Ann. art. 11.07, 3(b) (Vernon 2005) (providing that an application for writ of habeas corpus after final conviction in a felony case must be filed with the clerk of the court in which the conviction being challenged was obtained).

Conclusion

Because the record is silent regarding counsel's decision not to object to the sentence and his failure to present the motion for new trial to the trial court, we cannot say that Venzor has met his burden of showing that counsel's representation fell below an objective standard of reasonableness. Accordingly, Venzor's issue is overruled, and the judgment of the trial court is affirmed.

Alma L. L pez , Chief Justice

DO NOT PUBLISH