Ex Parte: Felipe Gutierrez, Jr.

NUMBER 13-03-711-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG EX PARTE: FELIPE GUTIERREZ, JR. On appeal from the 139th District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion by Justice Yañez Appellant, Felipe Gutierrez, Jr., appeals from the trial court's order denying his petition for writ of habeas corpus and ordering his extradition to Ohio. By a single issue, appellant contends he was denied effective assistance of counsel in the presentation of his petition because (1) counsel failed to properly raise the issue of identity and (2) no hearing was held to contest the governor's warrant for extradition. We affirm the trial court's order denying appellant's petition for writ of habeas corpus and authorizing extradition. Background A Texas Governor's Warrant ordering appellant's arrest was issued following an extradition request from Ohio charging appellant with complicity in drug trafficking. On or about August 20, 2003, (1) appellant filed a petition for writ of habeas corpus challenging his arrest and extradition to Ohio pursuant to the Uniform Criminal Extradition Act ("the Act") (2) on grounds of identity. On August 25, 2003, the trial court held a hearing on appellant's petition for writ of habeas corpus. (3) The trial court found that the Texas Governor's Warrant and supporting documentation presented by the State met the requirements of the Act, denied appellant's writ of habeas corpus, and ordered his extradition to Ohio. (4) Following a hearing on September 10, 2003, the trial court set a $10,000 appeal bond and ordered electronic monitoring of appellant. This appeal followed. Applicable Law If the governor has signed a governor's warrant granting extradition, a trial court entertaining an application for writ of habeas corpus may decide only four issues: (1) whether the extradition documents are facially in order; (2) whether the applicant has been charged with a crime in the demanding state; (3) whether the applicant is the person named in the demand for extradition; and (4) whether the applicant is a fugitive. (5) Additionally, an accused may raise the issue of his mental competency to consult with counsel. (6) A governor's warrant which is regular on its face is sufficient to make a prima facie case authorizing extradition. (7) Once the governor's warrant is shown to be regular on its face, the burden shifts to the petitioner to show that (1) the warrant was not legally issued, (2) it was issued on improper authority, or (3) the recitals in it are inaccurate. (8) In order to prevail on a claim of ineffective assistance of counsel, appellant must 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 appellant and but for the deficiency, a reasonable probability exists that the result of the proceeding would have been different. (9) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (10) The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. (11) An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness. (12) There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. (13) To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." (14) In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. (15) Analysis Appellant contends his counsel was ineffective because he "failed to properly place the issue of identity before the Court" and because no extradition hearing was conducted. Specifically, appellant contends his writ of habeas corpus was not verified and failed to contain an affidavit challenging identity. We consider appellant's contentions together. Although appellant contends his counsel was ineffective for "fail[ure] to request or insist on a hearing to contest the extradition/governor's warrant," the record reflects otherwise. At the August 25, 2003 hearing before the Honorable Leticia Hinojosa, appellant's counsel told the court: Actually, Judge, we have already had this hearing before Judge Homer Salinas, then had it reset, the case was heard Friday of last week [August 22, 2003], Judge, and then the court pulled the file and brought it up over here. Judge, previously, I had filed a Writ of Habeas Corpus contesting the Governor's Warrant and, of course, at this point the court would either grant or deny my writ. The parties then discussed the charges against appellant and issues relating to an appeal bond. Shortly thereafter, the following exchange occurred: [Appellant's counsel]: He's [appellant] been in custody for 19 days and he was served the Governor's Warrant the last time we were in court- [State]: I don't know. [Appellant's counsel]: -- 10 or 12 days ago and-- at this point the only thing I had left was to file my Application for Writ of Habeas Corpus which I did basically stating one of the four procedural grounds is that he's not the defendant that they're seeking. [Court]: Well, then isn't it your burden to show. [Counsel]: Well, may we approach, Judge? (At the bench, off the record) [Court]: Motion is denied and we'll set it for hearing in 11 days for a - 11 days and at that time I'll decide whether to grant an appeal bond. [State]: Thank you, Judge. [Counsel]: Thank you, Judge. Appreciate it. [Bailiff]: Motion denied? [Court]: Motion denied. (Emphasis added) The clerk's record contains an "Order Denying Writ of Habeas Corpus and Authorizing Extradition" dated August 25, 2003, signed by Judge Leticia Hinojosa. It states that a hearing was held on appellant's petition for habeas corpus, that appellant and his counsel were present, and that the requisites of the Act have been met. It orders appellant to be extradited to Ohio, but notes "after Sept. 9, 2003 unless appeal bond granted." As noted, the trial court granted a $10,000 appeal bond and ordered electronic monitoring on September 10, 2003. We conclude that although the record is unclear as to what occurred on August 22, 2003, before Judge Homer Salinas, (16) it unequivocally reflects that a hearing on appellant's petition for writ of habeas corpus was held on August 25, 2003. To raise the issue of identity, an accused must deny under oath that he is the person named in the warrant. (17) As outlined above, after appellant's counsel told the trial court that he raised the issue of identity in his writ of habeas corpus, an unrecorded bench conference occurred; immediately thereafter, the trial court denied appellant's "motion." We will sustain a charge of ineffective assistance of counsel only if the record proves counsel was ineffective. (18) Here, the record does not contain an explanation for why an unrecorded bench conference was held or what was discussed by the parties. Appellant has failed to meet the second prong of Strickland: that but for his counsel's alleged ineffectiveness, the result of the proceeding would have been different. (19) We overrule appellant's sole issue and affirm the trial court's denial of appellant's petition for writ of habeas corpus. LINDA REYNA YAÑEZ, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 17th day of August, 2006. 1. Although the record contains appellant's petition for writ of habeas corpus, the file-date stamp is illegible. 2. See Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon Supp. 2005). 3. See id. § 10. 4. See id. § 3. 5. Ex parte Potter, 21 S.W.3d 290, 294 (Tex. Crim. App. 2000). 6. Id. at 296. 7. Ex parte Kronhaus, 410 S.W.2d 442, 443 (Tex. Crim. App. 1969); Ex parte Rodriguez, 943 S.W.2d 97, 99 (Tex. App.-Corpus Christi 1997, no pet.). 8. Ex parte Cain, 592 S.W.2d 359, 362 (Tex. Crim. App. 1980); Rodriguez, 943 S.W.2d at 99. 9. See Strickland v. Washington, 466 U.S. 668, 687 (1980). 10. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). 11. See id. at 813. 12. Id. 13. See Davis v. State, 930 S.W.2d 765, 767 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). 14. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). 15. See Thompson, 9 S.W.3d at 813-14. 16. At a status hearing ordered by this Court on February 10, 2005, appellant's appellate counsel advised the trial court that "there may be one other transcript that we cannot track down from Judge Homer Salinas." 17. Ex parte Hearing, 125 S.W.3d 778, 782 (Tex. App.-Texarkana 2004, no pet.) (quoting Hanks v. State, 113 S.W.523, 525 (Tex. App.-Houston [1st Dist.] 2003, no pet.)). 18. See McFarland, 928 S.W.2d at 500. 19. See Strickland, 466 U.S. at 687, 694.