Rachel Diaz v. State — freecase.ai

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Rachel Diaz v. State

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NO. 07-04-0576-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B MARCH 2, 2005 ______________________________ RACHEL DIAZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 49,392-D; HONORABLE DON R. EMERSON, JUDGE _______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Rachel Diaz was convicted of aggravated robbery. Sentence was imposed on November 1, 2004. Appellant filed a timely motion for new trial on November 30, 2004, and a notice of appeal on December 10, 2004. See Tex. R. App. P. 21.4(a), 26.2(a). Appellant has filed a motion to dismiss the appeal asserting that the trial court granted her motion for new trial on December 20, 2004. Attached to the motion to dismiss is a copy of the trial court's order granting the motion for new trial. The State did not file a response. We cannot grant the motion to dismiss as one under Rule of Appellate Procedure 42.2(a) because it is not personally signed by appellant. We will, however, treat it as a motion to dismiss the appeal for want of jurisdiction. When the trial court grants a motion for new trial, it restores the case to its position before the former trial. Tex. R. App. P. 21.9. Because there is no conviction to be appealed, we have no jurisdiction to consider appellant's appeal. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex.App.-Dallas 1996, no pet.). Accordingly, we dismiss the appeal for want of jurisdiction. James T. Campbell Justice Do not publish. 07, section 3 of the Texas Code of Criminal Procedure. At the conclusion of the testimony, the State offered three exhibits which were admitted after the trial court granted defense counsel a running objection based on her earlier objection. Defense counsel also informed the court that she had "agreed to stipulate that Mr. Lynch was indeed the same Brian Lynch as contained within the adjudication." The court accepted the stipulation subject to and without waiving counsel's prior objection based on Rules 403 and 404. Appellant first contends he was denied a fair and impartial trial because the trial court permitted the State to introduce into evidence during the punishment hearing a misdemeanor conviction without prior identification of the same. We disagree. In order to preserve a complaint for appellate review, a timely and specific objection must be made and followed by an adverse ruling. Tex. R. App. P. 33.1(a); Martinez v. State, 91 S.W.3d 331, 335-56 (Tex.Cr.App. 2002). Defense counsel stipulated to appellant's identity for prior convictions and her objection to admission of the prior offenses was based on Rules 403 and 404 of the Texas Rules of Evidence. As the State points out, no mention of the exhibit for the misdemeanor conviction was even mentioned during closing argument. Further, as raised in appellant's second point of error, trial counsel failed to object to the introduction of the misdemeanor conviction. Thus, appellant's first point contention is not preserved for review. By his second point, appellant contends he was denied effective assistance of counsel because trial counsel failed to make a timely objection to the introduction of a misdemeanor conviction. We disagree. A claim of ineffective assistance of counsel during the punishment phase is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (1) Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In other words, appellant must demonstrate that the deficient performance prejudiced his defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). The adequacy of defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissions of trial counsel. Id. Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). Generally, the record on direct appeal will not be sufficient to show that counsel's conduct was so deficient as to meet the first prong of the Strickland standard as the reasonableness of counsel's choices often involves facts that do not appear in the record. See Mitchell, 68 S.W.2d at 642. Instead, an application for a post-conviction writ of habeas corpus is usually the appropriate manner in which to raise and develop claims based on ineffective assistance of counsel. Id. Although a motion for new trial was filed, no hearing was held in which appellant could have presented evidence as to why defense counsel did not object to the admission of the misdemeanor conviction. The record neither demonstrates counsel's motive for not objecting nor does it explain whether her silence was sound trial strategy. Thus, appellant did not overcome the presumption that counsel's conduct fell within the wide range of reasonable and professional representation. Moreover, the State was prepared to introduce testimony to establish appellant's identity on the prior convictions. Point of error two is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish. 1. The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999).