Accordingly, the trial court shall provide trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of couns

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-67,812-01 & -02 EX PARTE MICHAEL LAFFERY, Applicant ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. 06-CR-0436-H & 05-CR-4440-H IN THE 347TH DISTRICT COURT FROM NUECES COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery, aggravated robbery, and two counts of credit card abuse. He was sentenced to imprisonment for ten years, thirty years, and two one-year terms. He did not appeal his convictions. Applicant contends, among other things, that his trial counsel rendered ineffective assistance because she failed to advise him of his appellate rights. Trial counsel submitted an affidavit to the trial court. Based on that affidavit and the record, the trial court has entered findings of fact and conclusions of law recommending that relief be denied. We believe, however, that the record is not adequate to resolve whether trial counsel was ineffective. The record indicates that, despite Applicant pleading guilty without recommendations from the State, trial counsel signed certifications stating that Applicant's cases were plea bargains and that, as a result, he had no rights to appeal. We believe that trial counsel should have the opportunity to explain in a second affidavit why she signed these certifications and whether, despite her signatures on these certifications, she specifically told Applicant he could appeal his convictions. Accordingly, the trial court shall provide trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall then make further findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether her deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief. These applications will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: August 22, 2007 Do not publish

Once again 13th COAppeals violates the US Consitution's Sixth Amendment

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NUMBER 13-06-501-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ROBERT S. SALINAS, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 28th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Justice Benavides Appellant Robert Salinas claims that he received ineffective assistance from his trial counsel when counsel failed to (1) present and obtain rulings from the trial court on filed motions and (2) secure a witness through subpoena. We disagree and affirm the judgment of the trial court. I. Factual Background On February 2, 2006, Robert Salinas was indicted for aggravated sexual assault of a child, a first degree felony, and indecency with a child by touching, a second degree felony. Tex. Penal Code Ann. § 22.021(a) (Vernon 2007); Tex. Penal Code Ann. § 21.11 (Vernon 2007). Salinas's counsel, during the course of trial preparation, filed the following motions: (1) a Motion for Discovery and Inspection of Evidence, (2) a Motion for Discovery of Punishment Evidence, (3) a Motion for Production of Favorable Evidence, and (4) a Motion for Production of Witness Statements after Direct Examination. Although trial counsel filed these motions, he did not present any of the motions to the trial court or obtain rulings on them. During the trial, no dispute arose over any discovery matters which would have related back to the pretrial motions filed. At trial, Salinas sought to have a witness testify on his behalf who did not appear. Salinas's trial counsel did not secure the witness through subpoena. Trial counsel stated that the witness's testimony would only last five to ten minutes, but did not otherwise expound upon the substance of the testimony. Trial counsel then requested, and was granted, an extra ten minutes to wait for the witness to appear, but she never did. After the recess, the defense rested. Salinas's counsel did not make a record of what the witness would have said or why her testimony would have changed the outcome of the trial. Salinas was convicted on both counts on August 8, 2006. He received sentences of fifty years and twenty years, respectively, in the Texas Department of Criminal Justice Institutional Division. The district court ordered the sentences to run concurrently. Salinas now appeals his conviction, arguing that his trial counsel was ineffective. II. Standard of Review When evaluating claims of ineffective assistance of counsel, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim App. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). In order to overcome this presumption, an appellant 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 professional errors the trial result would have been different. Strickland, 466 U.S. at 688. A "reasonable probability" means a probability sufficient to undermine confidence in the outcome. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The defendant bears the burden of proving both elements of an ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.). III. Analysis The acts or omissions complained of in an ineffective assistance of counsel appeal must appear on the record, and a silent record providing no explanation for counsel's conduct is insufficient to overcome the presumption of reasonableness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). It is "critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic." Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.-Houston [1st Dist.] 2006, no pet.). An appropriate record, including counsel's reasons for his actions, is generally prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. Batiste, 2006 Tex. App. LEXIS 8822, at *19-20. "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Absent an opportunity for the attorney to explain his actions, an appellate court should not "find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). This presumption of reasonable professional judgment which we extend to trial counsel means that we may not speculate about the reasons that trial counsel did not file a particular motion. Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd). It is possible, for instance, that trial counsel may simply have decided that the presentation of a particular motion would have been frivolous. Id. If there is no explanation for trial counsel's actions in the record, then we must presume that counsel was better positioned than the appellate court to judge the pragmatism of the decision. Ex parte Okere, 56 S.W.3d 846, 856 (Tex. App.-Dallas 2001, no pet.). Similarly, an appellate court is also barred from revisiting trial counsel's failure to subpoena a witness unless there is an explanation in the record as to what the testimony of the witness would have established. Id. Lacking an offer of proof or any other evidence that would provide such an explanation, a court has no basis for evaluating whether there was a reasonable probability that the outcome of the trial would have been different had the witness been subpoenaed and testified. See Reese v. State, 905 S.W.2d 631, 635-36, 638 (Tex. App.-Texarkana 1995, pet. ref'd). To do so would be mere speculation on our part. Salinas argues that his counsel's failure to present four motions and subpoena a specific witness constituted ineffective assistance of counsel. The record is silent, however, as to any explanation for counsel's actions in either situation. With no explanation of the motivation behind counsel's decisions, we find that Salinas has failed to overcome the strong presumption of reasonable assistance extended to trial counsel. Salinas has not shown that his counsel's actions fell below an objective standard of reasonableness or that but for these actions the outcome of his trial would have been different. Strickland, 466 U.S. at 687. IV. Conclusion The judgment of the district court is AFFIRMED. _________________________ GINA M. BENAVIDES, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 23rd day of August, 2007.

Texas Appeals Judges house keeping as usual~ probative value to substantially outweigh the prejudicial effect lies within the "zone of reason......

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NUMBER 13-05-786-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG SAMMY ROACH, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Nueces County, Texas MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Rodriguez Appellant, Sammy Roach, was charged and convicted of driving while intoxicated, third offense. Tex. Penal Code Ann. § 49.04 (Vernon 2006). A jury found appellant guilty, and the trial court sentenced appellant to seven years' imprisonment. On appeal, appellant raises the issue of whether the trial court erred in admitting evidence of appellant's prior convictions. The State raises two additional issues: (1) whether appellant timely filed his notice of appeal to provide this Court with jurisdiction; and (2) whether and to what extent appellant preserved his right to appeal the admissions. We affirm. I. Jurisdiction On August 23, 2005, appellant was convicted and sentenced. After sentencing, appellant expressed his desire to appeal. No written notice of appeal was filed within the 90 day time limit. See Tex. R. App. P. 26.2(a)(2) (Vernon 2003) (providing that notice of appeal must be filed within 90 days of the date sentence is imposed). On September 2, 2005, however, appellant signed an affidavit of indigency requesting that counsel be appointed for appeal. Ordinarily, the law requires that a convicted person file a notice of appeal in writing with the clerk. Tex. R. App. P. 25.2(b), (c) (Vernon 2003) (providing that notice of appeal must be timely filed with the trial court clerk). The notice must show the person's desire to appeal from the judgment or other appealable order. Id. However, in Cantu v. State, 46 S.W.3d 421, 423-24 (Tex. App.-Corpus Christi 2001, no pet.), this Court recognized a limited exception. See id. In Cantu, we concluded that rule 25.2 is satisfied when: (1) the appellant orally expresses to the trial court his desire to appeal, and the trial court gives permission; and (2) the appellant files a form requesting counsel and expressing his desire to appeal. Id. In this case, on two occasions after appellant was sentenced he personally requested the trial court to "proceed to appeal." See id. The trial court responded by stating "that's fine" or "all right." See id. Appellant also filed his affidavit of indigency requesting counsel and expressing his desire to appeal. See id. The requirements of rule 25.2(c), in light of Cantu, were thus satisfied. We conclude that this Court has jurisdiction over appellant's appeal. II. Admissibility of Prior Convictions At trial, during cross-examination of appellant, the State requested a hearing outside the presence of the jury to discuss the admissibility of appellant's prior convictions for the purpose of impeaching appellant's testimony. Appellant had three theft convictions occurring between 1992 and 1993 (1) and an aggravated assault conviction in 1982. Appellant's counsel stated that he "believe[d] the theft convictions aren't permissible for impeachment at this time" and that he "d[id] not believe that the aggravated assault is an impeachable crime." The trial court disagreed with both statements and decided that "[i]f it's a felony, it can be used for impeachment." At that point, the trial court asked if there were objections. Appellant's counsel responded, "No." The trial resumed with the State questioning appellant. Appellant's counsel objected to the State's questions regarding his prior theft convictions on grounds that "any prior convictions have to be within ten years." (2) The State supported the admissibility of the evidence on grounds of moral turpitude, and the trial court overruled appellant's objection. Without objection, the State then proceeded to ask appellant about his conviction for aggravated assault. Based on the above, we conclude appellant preserved his objection to evidence regarding the theft convictions, but not as to the conviction for aggravated assault. See Tex. R. App. P. 33.1(a) (to preserve appellate review, an objection must be timely and state the grounds for the ruling "with sufficient specificity to make the trial court aware of the complaint, unless specific grounds were aware from the context"); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (providing that one of the two general policies for sufficiently specific objections is that a specific objection will provide the trial court the basis for the objection so that the trial court may rule on it). A. Evidence of Theft Convictions By his sole issue on appeal, appellant contends that the trial court erred by allowing the State to introduce evidence of appellant's remote prior convictions. At trial, appellant objected on grounds of remoteness--that the crimes occurred more than ten years before the trial. See Tex. R. Evid. 609(b). On appeal, appellant argues that the probative value of admitting the evidence does not substantially outweigh its prejudicial effect. The State contends appellant has waived error because his objection at trial does not comport with his argument on appeal. See Tex. R. App. P. 33.1(a). We disagree. Rule 609(b) provides that when an objection to the remoteness of a prior conviction is raised, the trial court conducts a balancing test to determine whether the probative value of evidence of a conviction occurring more than ten years prior to trial substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). On appeal, when reviewing the issue of remoteness, "[we] may presume that the trial judge conducted the balancing test, which need not be shown in the record." Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.). Thus, while appellant's argument on appeal uses the more specific balancing language, we conclude it comports with his general remoteness objection and is properly before us on appeal. B. Applicable Law and Standard of Review In determining whether the probative value of the evidence substantially outweighed the prejudicial effect, see Tex. R. Evid. 609(a), (b), we must weigh the following factors: "(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue." Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) (en banc); see Hankins v. State, 180 S.W.3d 177, 180-81 (Tex. App.-Austin 2006, pet. ref'd) (applying Theus factors to a rule 609(b) issue); Polk v. State, 865 S.W.2d 627, 630-31 (Tex. App.-Fort Worth 1993, pet. ref'd) (same). We presume that the trial court, in this case, conducted the balancing test. Bryant, 997 S.W.2d at 676. "The determination of the admissibility of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." Theus, 845 S.W.2d at 876. In fact, we must accord the trial court "wide discretion" in weighing the factors. Id. at 881. C. Analysis The theft convictions occurred in 1992 and 1993, but the record does not show any confinement. Thus, we must assume that the convictions (and confinements) occurred more than ten years before this trial. Rule 609(b) therefore applies. Regarding the first Theus factor, "[t]he impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice." Theus, 845 S.W.2d at 881. Theft is a crime of deception and moral turpitude, and thus weighs in favor of the evidence being admitted. Bryant, 997 S.W.2d at 676. Therefore, appellant's past theft convictions weigh in favor of admissibility. The temporal proximity of a crime "will favor admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law." Theus, 845 S.W.2d at 881 (citing United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977) (stating that Court has held that convictions have more probative value as they become more recent)). Appellant's theft convictions occurred approximately thirteen years before trial; therefore, they cannot be considered proximate. See Tex. R. Evid. 609(b). This factor weighs against admissibility of the evidence. If the past crime and the charged crime are similar, then a jury might be more likely to "convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense." Theus, 845 S.W.2d at 881. In this case, appellant's prior theft convictions are not similar to his current charge of DWI. Theft is a crime of deception, see White v. State, 21 S.W.3d 642, 647 (Tex. App.-Waco 2000, pet. ref'd), while DWI is a crime of strict liability with no regard to appellant's mental state. See, e.g., Aguirre v. State, 22 S.W.3d 463, 476 (Tex. Crim. App. 1999); Ex parte Weise, 23 S.W.3d 449, 453 (Tex. App.-Houston [1st Dist.] 2000), rev'd on other grounds, 55 S.W.3d 617, 621 (Tex. Crim. App. 2001). The dissimilarity between the two types of crimes demonstrates a low prejudicial effect, and thus weighs in favor of admissibility of evidence of the theft convictions. The last two factors are related and often analyzed together because "both depend on the nature of a defendant's defense and the means available to him of proving that defense." Theus, 845 S.W.2d, at 881. "When the case involves the testimony of only the defendant and the State's witnesses, . . . the importance of the defendant's credibility and testimony escalates. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility." Id. At trial, appellant served as the defense's only witness. Thus, these two factors weigh in favor of admissibility. Because four of the five factors weigh in favor of admissibility, we find that determining the probative value to substantially outweigh the prejudicial effect lies within the "zone of reasonable disagreement." Id. The trial court did not abuse its discretion in admitting evidence of the theft convictions. Thus, we overrule appellant's sole issue. III. Conclusion Accordingly, we affirm the judgment of the trial court. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 23rd day of August, 2007. 1. We note that the State, on one occasion, referred to the convictions as occurring between 1991 and 1992. The one year difference, however, does not affect our analysis. 2. Appellant did not cite an evidentiary rule; however, it is assumed to be rule 609(b), the time limit subsection under impeachment by evidence of a conviction of a crime. Tex. R. Evid. 609(b).