Lafayette S. Archie v. Texas Department of Criminal Justice, Institutional Division, et al.--Appeal from 24th District Court of De Witt County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2005 » Lafayette S. Archie v. Texas Department of Criminal Justice, Institutional Division, et al.--Appeal from 24th District Court of De Witt County

State: Texas

Court: Texas Northern District Court

Docket No: 13-04-00562-CV

Case Date: 10/13/2005

Plaintiff: Lafayette S. Archie

Defendant: Texas Department of Criminal Justice, Institutional Division, et al.--Appeal from 24th District Cou

Preview:Victor Alberto Alvizu v. State of Texas--Appeal from
262nd District Court of Harris County
No. 04-00-00647-CR
Victor Alberto ALVIZU,
Appellant
v.
STATE of Texas,
Appellee
From the 262nd Judicial District Court, Harris County, Texas
Trial Court No. 9419449
Honorable Mike Anderson, Judge Presiding
Memorandum Opinion
Opinion by: Paul W. Green, Justice
Sitting: Phil Hardberger, Chief Justice
Paul W. Green, Justice
Karen Angelini, Justice
Delivered and Filed: March 13, 2002
AFFIRMED
Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in
this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:
1. We hold we have jurisdiction to consider Alvizu's appeal regarding his counsel's effectiveness during the
punishment hearing following his adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp.
2002) (providing that "[a]fter an adjudication of guilt, all proceedings, including assessment of punishment,
pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication
of guilt had not been deferred").
2. We overrule Alvizu's first issue because he fails to present evidence demonstrating defense counsel's advice to reject
the State's offer of nine years imprisonment and proceed to trial for a punishment determination was not sound trial
strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (stating the defendant must overcome the
presumption that counsel's challenged action might be considered sound trial strategy); see Garcia v. State, 57 S.W.3d
436, 440 (Tex. Crim. App. 2001) (stating the defendant has the burden of rebutting the presumption of "sound trial
strategy" by presenting evidence that trial counsel's conduct fell outside the range of reasonable professional
assistance).
3. We overrule Alvizu's second issue because he fails to present evidence demonstrating he was harmed by defense
counsel's failure to independently investigate the facts and law applicable to Alvizu's case. Strickland v. Washington,
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466 U.S. 668, 691 (1984) (stating a decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to trial counsel's judgments); McFarland v. State, 928 S.W.2d
482, 501 (Tex. Crim. App.1996) (holding a conviction will not be reversed for defense counsel's failure to investigate
unless the consequence is that the only viable defense available to the accused is not advanced and there is a
reasonable probability that, but for counsel's failure to advance the defense, the result of the proceeding would have
been different), disavowed in part on other grounds, Moseley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App.
1998).
The judgment is affirmed.
PAUL W. GREEN,
JUSTICE
DO NOT PUBLISH
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