Oscar Rene Silguero v. State

NUMBER 13-01-860-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG OSCAR RENE SILGUERO, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 332nd District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion by Justice Yañez A jury found appellant, Oscar Rene Silguero, guilty of aggravated kidnapping[1] and manslaughter[2] in connection with the death of Orlando Jaregui. The jury assessed punishment at thirty years= imprisonment and a $10,000 fine and twenty years= imprisonment and a $10,000 fine, respectively. In twenty-six issues,[3] appellant complains generally that: (1) he was deprived of his Sixth Amendment right to counsel during a critical stage of trial, the period for filing a motion for new trial; (2) the trial court erred in denying his motion for new trial and in failing to hold an evidentiary hearing on the motion; (3) the trial court erred in failing to give an accomplice witness instruction; (4) he was denied effective assistance of counsel with respect to (a) the filing of his motion for new trial, (b) his trial counsel=s failure to request an accomplice witness instruction, and (c) his trial counsel=s introduction of the testimony of two accomplice witnesses, each of whom provided corroboration for the other=s testimony; (5) the evidence is legally insufficient to support his convictions; and (6) the trial court erred in denying his motion to suppress evidence. We affirm. The record contains the trial court=s certification that this Ais not a plea-bargain case, and the defendant has the right of appeal.@[4] I. Appellant=s Motion for New Trial A. Assistance of Counsel In issues one through eleven, appellant complains he was deprived of counsel during a Acritical stage@ of the criminal proceeding against him, specifically, during the time period for filing a motion for new trial. The State responds that appellant was, in fact, represented by counsel during the period for filing a motion for new trial. We agree with the State. 1. Relevant Procedural History At trial, appellant was represented by retained counsel, Manuel Trigo, Jr., and appointed counsel, Daniel Reyes. Appellant=s sentence was imposed on October 23, 2001. Reyes filed a motion to withdraw as appellant=s appointed counsel on October 29, 2001. At a hearing on November 16, 2001, Trigo appeared with appellant and told the court he had advised appellant of his right to appeal Awith reference to these two cases in which he was found guilty as charged on the two different cases by a jury of his peers . . .@ After appellant advised the court that he wished to appeal, Trigo presented a Notice of Appeal and a Motion for New Trial[5] to be filed by appellant Apro se.@ The trial court directed the bailiff to file-stamp the documents and place them in appellant=s file. Trigo also told appellant that he (Trigo) had requested permission to withdraw from the case; appellant agreed and stated that he was satisfied with Trigo=s services. The trial found appellant indigent, stated its intention to appoint appellate counsel, and granted Trigo permission to withdraw from the case. On November 19, 2001, the trial court denied appellant=s Apro se@ motion for new trial and granted Reyes=s motion to withdraw. On December 20, 2001, the trial court appointed appellate counsel.[6] 2. Applicable Law An appointed attorney's legal responsibilities do not terminate at the conclusion of trial.[7] Thus, trial counsel, whether appointed or retained, has the duty, obligation, and responsibility to advise his client concerning the meaning and effect of the judgment rendered, the right to appeal, and the necessity of filing a notice of appeal and other steps required to pursue appeal, as well as to offer his professional judgment regarding possible grounds for appeal, their merit, and the advantages and disadvantages of appeal.[8] There is a presumption that appellant was represented by counsel and that counsel acted effectively.[9] If appellant claims he was not represented during the critical thirty days following judgment, the record must establish this.[10] 3. Analysis Here, the record reflects that appellant was, in fact, represented during the time for filing a motion for new trial. Trigo, appellant=s retained counsel, prepared and filed, on appellant=s behalf, a Apro se@ motion for new trial. Appellant argues (and the State concedes) that because the trial court allowed both of appellant=s attorneys to withdraw on November 19, 2001, and the thirty-day period for filing a motion for new trial did not expire until November 22, 2001,appellant was without counsel for three days: November 20th, 21st, and 22nd. Appellant contends that his Apro se@ motion for new trial Ashould have raised at least in part a claim of ineffective assistance of counsel; but such issue would have created a conflict of interest for his trial attorneys in the preparation and argument of the same.@ Appellant argues that the filing of appellant=s Apro se@ motion for new trial Acomplaining about jury misconduct but not any ineffective assistance of his trial counsel@ rebuts the presumption that appellant was effectively assisted by counsel during the entire thirty-day period for filing a motion for new trial. We disagree. When a motion for new trial is not filed in a case, there is a rebuttable presumption that it was considered by the appellant and rejected.[11] Here, there is no evidence to show that appellant was interested in filing a motion for new trial based on ineffective assistance of counsel. Moreover, appellant=s statement at the November 16, 2001 hearing that he was satisfied with Trigo=s services suggests appellant was not interested in filing a motion for new trial on the basis of any alleged ineffective assistance by Trigo. With regard to appellant=s Aconflict of interest@ allegation, appellant argues that this Court Ashould be concerned with the possible conflict of interest of retained and appointed counsel.@ Appellant argues that Aretained counsel has a financial and inherent conflict of interest in having to counsel his indigent client as to the manner and means of asserting defense counsel=s own ineffectiveness at trial.@ However, appellant=s brief contains no citations to authority or to the record in support of this argument. Accordingly, we conclude he has waived this sub-issue.[12] Although appellant was without counsel for three days of the period for filing a motion for new trial, the trial court denied appellant=s motion for new trial on the same day his appointed counsel was allowed to withdraw. A defendant may file an amended motion for new trial without leave of the court only if the amended motion is both timely and filed before the court overrules any preceding motion for new trial.[13] The overruling of a preceding motion or amendment terminates the time during which amendments are allowed.[14] Thus, even if the trial court had appointed appellate counsel on November 19, 2001, such counsel would not have been able to file an amended motion for new trial. We conclude that appellant was not harmed by the trial court=s failure to appoint appellate counsel on November 19, 2001.[15] We hold appellant was not deprived of counsel at any period during which he could have filed a viable motion for new trial. We overrule appellant=s first eleven issues. B. Ineffective Assistance In various issues and sub-issues,[16] appellant argues he was denied effective assistance of counsel regarding his motion for new trial. 1. Applicable Law Strickland v. Washington,[17] sets forth the standard of review for effectiveness of counsel.[18] Strickland requires a two‑part inquiry.[19] The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness.[20] Second, the defendant must further prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.[21] A reasonable probability is a probability sufficient to undermine confidence in the outcome.[22] The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case.[23] An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness.[24] The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.[25] There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.[26] To defeat the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@[27] Generally, the record on direct appeal will be insufficient to show that counsel=s representation was so deficient as to meet the first part of the Strickland standard.[28] 2. Analysis In a sub-issue, appellant suggests that he received ineffective assistance because his Apro se@ motion for new trial was filed Aonly as to count two.@ According to appellant, he did not receive effective advice concerning whether to file a motion for new trial as to count one. However, appellant=s motion requests a new trial on the basis of Ainsufficiency of evidence and jury misconduct.@ Thus, the substance of the motion requests a new trial and does not limit its application to a particular count.[29] Moreover, at the hearing, appellant=s counsel referred to appellant=s right to appeal Awith reference to these two cases.@ We reject appellant=s argument that the motion for new trial was restricted to count two. Accordingly, insofar as appellant claims ineffective assistance on grounds that the motion was limited to count two, we overrule appellant=s sub-issue. In issue twenty-one, appellant argues he was denied effective assistance of counsel when his counsel failed to timely present his motion for new trial. However, appellant cites no authority or references to the record in support of this argument. Therefore, we conclude he has inadequately briefed this sub-issue.[30] Even if the issue were properly before us, we conclude appellant=s argument is without merit. APresentment@ requires only that a new-trial movant actually deliver the motion for new trial to the trial court or otherwise bring it to the actual notice of the trial court.[31] The record reflects that the motion for new trial was specifically brought to the attention of the trial court at the November 16, 2001 hearing. We overrule issue twenty-one. In another sub-issue, appellant complains he was denied effective assistance of counsel because the Afacially plausible@ allegation of jury misconduct in his Apro se@ motion for new trial was not properly supported with a factual affidavit. Appellant complains that the trial court would have been required to hold a hearing if the motion had been properly supported by a factual affidavit. However, appellant points to no evidence that jury misconduct occurred or that a hearing would have resulted in a new trial on the basis of jury misconduct. Appellant therefore fails to meet either prong under Strickland.[32] We overrule appellant=s sub-issue. In issue seventeen, appellant contends his trial counsel was ineffective for failing to request an instruction that Aco-defendants@[33] Joe Daniel Perez and Ricardo Blanco were accomplice witnesses. In issue twenty-three, appellant argues the trial court erred in failing to give the accomplice witness instruction. In issue eighteen, appellant contends that counsel was ineffective because he introduced evidence sufficiently corroborating the testimony of Perez and Blanco. However, appellant has not provided a single reference to the record in support of these arguments. Accordingly, he has inadequately briefed these issues.[34] We conclude appellant has failed to establish that he was deprived of effective assistance of counsel. We overrule issues twelve through twenty-one, twenty-three, twenty-four, and twenty-five. II. Legal Insufficiency In issue twenty-two, appellant contends the evidence was legally insufficient to support his convictions. However, appellant has failed to include any citations to the record in support of his argument. Accordingly, he has inadequately briefed the issue.[35] We overrule the issue. III. Motion to Suppress In his twenty-sixth issue, appellant contends the trial court erred in denying his motion to suppress evidence of a firearm, ammunition, and an ammunition box seized from his bedroom. The State contends that appellant=s father consented to the search of his [the father=s] residence where the items were found. Although the residence belonged to his father, appellant argues that his father could not legally give consent to search appellant=s bedroom. The record contains a AConsent to Search@ form executed by appellant=s father. Although appellant argues his father could not legally consent to the search of appellant=s bedroom, we conclude that appellant has failed to provide references to the record in support of his contention. Accordingly, appellant has inadequately briefed his argument that the consent form executed by his father was invalid.[36] We overrule appellant=s twenty-sixth issue. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 30th day of November, 2005. [1] See Tex. Pen. Code Ann. ' 20.04 (Vernon 2003). [2] See Tex. Pen. Code Ann. ' 19.04 (Vernon 2003). Appellant was charged with capital murder, but was convicted of the lesser-included offense of manslaughter. [3] In the interest of clarity, we have organized appellant=s issues into categories of related issues and will address sub-issues within each category as appropriate. [4] See Tex. R. App. P. 25.2(a)(2). [5] Both documents were captioned ACause No. CR-3219-99-F (Count 2).@ The motion for new trial alleged, without elaboration or explanation, Ainsufficiency of evidence and jury misconduct.@ Attached to the motion was appellant=s affidavit, which stated only that the Aallegations of fact@ contained in the motion were true and correct. [6] The trial court appointed Mark Alexander as appellate counsel. On February 19, 2002, the trial court allowed Alexander to withdraw and allowed appellant=s present retained counsel, Joseph Connors, to substitute. [7] Oldham v. State, 977 S.W.2d 354, 362 (Tex. Crim. App. 1998) (citing Ward v. State, 740 S.W.2d 794, 796-97 (Tex. Crim. App. 1987)). [8] Id. (citing Axel v. State, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988)). [9] Id. [10] See id. at 362‑63 (holding fact that appellant filed a pro se notice of appeal and appellate counsel was appointed sixty‑two days after judgment is insufficient to rebut presumption that appellant was represented during critical period). [11] Id. at 363. [12] See Tex. R. App. P. 38.1(h) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record). [13] See Tex. R. App. P. 21.4(b); Starks v. State, 995 S.W.2d 844, 846 (Tex. App.BAmarillo 1999, no pet.). [14] Starks, 995 S.W.2d at 846. [15] See Tex. R. App. P. 44.2(b). [16] In issues twelve through sixteen, nineteen, twenty, twenty-four, and twenty-five, appellant argues generally that he received ineffective assistance of counsel because counsel failed to inform him of reasonable grounds for filing a motion for new trial and failed to file a Ameaningful@ motion for new trial as to both counts. In issue 21, he argues counsel was ineffective for failing to timely present his motion for new trial to the trial court. [17] Strickland v. Washington, 466 U.S. 668, 687 (1984). [18] See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). [19] Id. [20] Id. [21] Id. [22] Id. [23] Id. [24] Id. [25] Id. at 813. [26] Id. [27] McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). [28] Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). [29] See State v. Dickerson, 864 S.W.2d 761, 764 (Tex. App.BHouston [1st Dist.] 1993, no pet.) (noting that the effect of a motion is determined by its contents and purpose, rather than by its caption). [30] See Tex. R. App. P. 38.1(h) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record). [31] See Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). [32] See Thompson, 9 S.W.3d at 812. [33] Although appellant refers to Blanco and Perez as Aco-defendants,@ the record reflects that appellant was tried alone. [34] See Tex. R. App. P. 38.1(h) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record). [35] See id. [36] See id.