JOSE LUIS MORENO RANGEL v. THE STATE OF TEXAS--Appeal from 93rd District Court of Hidalgo County

NUMBER 13-02-567-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

JOSE LUIS MORENO RANGEL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

This is an appeal of the trial court s decision granting the State s motion to revoke appellant Jose Luis Rangel s community supervision. In three issues, appellant asserts the trial court s decision is improper as (1) the State failed to exercise due diligence in filing the motion to revoke and in serving appellant with capias; (2) the doctrine of estoppel should apply to preclude introduction of evidence of his prior positive drug tests; and (3) appellant s counsel was ineffective. We affirm.

I. Factual and Procedural Background

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite the facts here except as necessary to advise the parties of the Court s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

1. Due Diligence

In his first issue, appellant asserts the State failed to exercise due diligence in filing its motion to revoke and in serving appellant with capias. However, the record does not show and appellant admits he did not raise this issue in the trial court. Thus, the issue is not properly before this Court. See Mulder v. State, 707 S.W.2d 908, 914-15 (Tex. Crim. App. 1986); Wade v. State, 83 S.W.3d 835, 837-38 (Tex. App. Texarkana 2002, no pet.). We accordingly overrule appellant s first issue. //

2. Estoppel

In his second issue, appellant asserts the estoppel doctrine should apply to prevent the State from introducing evidence of his prior positive drug tests for marijuana and cocaine. However, appellant failed to provide citation to authority demonstrating application of the estoppel doctrine in a criminal context. Thus, appellant has waived his right to our review of this issue. See Tex. R. App. P. 38.1(h) ( Brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Lockett v. State,16 S.W.3d 504, 505 n.2 (Tex. App. Houston [1st Dist.] 2000, pet. ref'd) (holding that conclusory statement supported by neither argument nor authority presents nothing for review). We accordingly overrule appellant s second issue.

3. Ineffective Assistance of Counsel

In his final issue, appellant asserts he was denied his Sixth Amendment right to effective assistance of counsel. Appellant s contention is based on his trial counsel s failure to (1) object to the admission of evidence regarding his prior positive drug tests; (2) object to admission of evidence of his conviction in another state; and (3) properly raise the due diligence issue.

Standard of Review

We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). It is appellant's burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our review of counsel's representation is highly deferential and presumes counsel's actions fell within a wide range of reasonable professional assistance. See Mallett, 65 S.W.3d at 63. It is appellant's burden to prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is generally underdeveloped and cannot adequately reflect the failings of trial counsel. See Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App. Houston [14th Dist.] 2001, pet. ref'd.). Therefore, it is critical that the defendant make the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic. See Thompson, 9 S.W.3d at 814; McCullough,116 S.W.3d at 92. This kind of record is best developed in a hearing on a motion for new trial, or by application for a writ of habeas corpus. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam); McCullough, 116 S.W.3d at 92. Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814.

Analysis

In the instant case, the record does not contain any evidence of the strategy and methods involved concerning counsel s actions at trial. Thus, we must assume that trial counsel's actions fell within the wide range of reasonable professional assistance and/or sound trial strategy. See id. We therefore overrule appellant s third issue. //

III. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 7th day of April, 2005.