IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 7, 2006
______________________________
DAVID CRUZ SANCHEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY;
NO. A3067-0602; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
ON MOTION TO DISMISS
__________________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant David Cruz Sanchez, by and through his attorney, has filed a motion to dismiss this appeal because he no longer desires to prosecute it. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.2(a) and dismiss the appeal. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.
Brian Quinn
Chief Justice
Do not publish.
well have been used by the jury in determining not only the risk of death confronting the victim but also the gravity of appellant's crime. This is especially so when that evidence is coupled with other evidence indicating that appellant shot his victim when her back was turned and as she tried to run away. The gravity to depravity of the crime are indeed relevant factors which a jury could consider in assessing punishment.
So too can it be said that evidence of the extensive blood loss served to discredit appellant's contention that the shooting was accidental and that he did not intend to hurt the woman (i.e. his girlfriend). Indeed, the jury could have concluded that had the shooting been accidental, appellant would have attempted to render her aid rather than simply leave as the victim cried and bled from the wound.
In short, the clothing was admissible and its admission did not serve only to inflame the minds of the jurors. Consequently, we hold that the trial court did not abuse its discretion in admitting the items.
Issue Two - Effectiveness of Counsel
Next, appellant contends that he received ineffective assistance of counsel. This purportedly occurred when his trial attorney incorrectly informed appellant that appellant could eschew appearing as a witness yet personally make a closing argument. The inaccurate advice allegedly resulted in appellant being "prevented from providing any statement or testimony." We overrule the issue.
We need not discuss the pertinent standard of review for it is well-settled and amply described in Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We refer the litigants to that opinion.
Next, though the record discloses that defense counsel informed the trial court that appellant wished to make part of the closing argument, nothing of record illustrates what appellant's counsel actually told appellant about his ability to do so. Nor does evidence of record illustrate that appellant would have testified at trial had he known that his attorney's supposed advice was wrong. This is problematic because authority requires the supposed misconduct of counsel to be "firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d at 813.
Similarly absent is evidence suggesting that defense counsel either would have encouraged or dissuaded appellant from testifying irrespective of whether the trial court allowed appellant to participate in the closing argument. Indeed, one cannot doubt that influencing a defendant to remain silent during trial is an oft used trial strategy. It could well be that appellant never intended to testify, but rather, wanted a way to speak to the jury while avoiding the rigors of cross-examination. In other words, the defendant and his attorney may have been engaging in a strategic maneuver hoping all the while to do that which they knew they could not. Yet, whatever the case may be, we are left only to speculate on the matter given the dearth of evidence in the record before us. And, because of that missing evidence, we have no choice but to overrule the issue.
Having overruled each issue, we affirm the trial court's judgment.
Brian Quinn
Justice
Do not publish.