Bob Clifton, Individually and d/b/a Watchdog Society of Denton v. Mark A. Burroughs--Appeal from 16th District Court of Denton County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 02-08-00404-CV

Case Date: 12/23/2008

Plaintiff: Joey Martinez

Defendant: The State of Texas--Appeal from 399th Judicial District Court of Bexar County

Preview:Joey Martinez v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-06-00500-CR Joey MARTINEZ, Appellant v. The STATE of Texas, Appellee From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CR-4347 Honorable Juanita A. Vasquez-Gardner, Judge Presiding Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: March 14, 2007

AFFIRMED

Defendant, Joey Martinez, entered an open plea of nolo contendere to the offense of possession of a controlled substance. The trial court assessed punishment at seven years' confinement. In a single issue on appeal, defendant argues he received ineffective assistance of counsel. We affirm.

ANALYSIS On appeal, defendant asserts trial counsel's ineffectiveness rendered his plea involuntary. Defendant complains trial counsel incorrectly believed the motion to quash the indictment had been improperly denied by the trial court, and based on this misunderstanding of the law, counsel then advised defendant to enter a plea of nolo contendere. Defendant contends he waived his right to a jury trial based on counsel's erroneous advice. We review defendant's claim of ineffective assistance of counsel according to the well-established two-step analysis articulated in Strickland v. Washington. 466 U.S. 688 (1984). An attorney representing a criminal defendant must have a firm command of the governing law before he can render reasonably effective assistance of counsel. See Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim. App. 1978). However, "'a defendant's claim that he was misinformed by counsel, standing alone, is not enough for us to hold his plea was

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involuntary.'" Rivera v. State, 952 S.W.2d 34, 36 (Tex. App.--San Antonio 1997, no pet.) (quoting Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App--Houston [1st Dist.] 1996, pet. ref'd)). Such a claim must be clearly supported by the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Here, no motion for new trial was filed and no post-trial evidentiary hearing was held regarding defendant's ineffective assistance of counsel claim; therefore, our review is limited to the trial record. However, the trial record is silent regarding the communication defendant alleges occurred between himself and his attorney. Without information in the record before us, we would be improperly speculating that defendant's plea of nolo contendere was based solely on his trial counsel's belief that the motion to quash was wrongly denied. See Thompson, 9 S.W.3d at 814. Accordingly, we conclude defendant has not met his burden of establishing trial counsel's representation fell below an objective standard of reasonableness. CONCLUSION We overrule defendant's sole issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice DO NOT PUBLISH

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