In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-082 CR
NO. 09-03-083 CR
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DOMENIQUE FELIMON CUELLAR, Appellant
V.
THE STATE OF TEXAS, Appellee
Jasper County, Texas
Trial Cause Nos. 9317JD and 9332JD
Domenique Felimon Cuellar waived his right to a jury trial and pleaded guilty to two charges of arson. The court assessed punishment in each case at twenty years of confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court certified that Cuellar has the right of appeal. Because the two issues raised on appeal do not present reversible error, we affirm the trial court's judgment.
Issue one urges that the trial court failed to admonish Cuellar on the applicable punishment range. He refers only to a lack of oral admonishment. The trial court admonished Cuellar in writing, as provided by statute. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989). Joined by his counsel, Cuellar signed the written acknowledgments that are required when the admonishments are provided in writing rather than orally. Id. Before taking Cuellar's plea, the trial court asked Cuellar if he understood all of the papers he had already signed. Cuellar informed the court that he did understand the documents and had signed them voluntarily. The statutory admonishments, including the applicable punishment range, are included in the plea memoranda.
Furthermore, "substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989). During the plea hearing, Cuellar stated on the record that he understood the punishment range was 2 to 20 years of imprisonment. The record demonstrates Cuellar was actually aware of the punishment range and he did not attempt to withdraw his plea at any time prior to perfecting appeal. We find no error. Issue one is overruled.
The appellant's second issue raises a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" the result of the proceeding would have been different but for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The purpose of this two-pronged test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result.
The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable.
Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001)(footnotes omitted).
Cuellar complains that trial counsel filed notice of appeal without first filing motions for new trial to challenge the trial court's imposition of sentences disproportionate to the crimes. On appeal, Cuellar argues trial counsel should have used a motion for new trial hearing to contrast the appellant's sentence with the sentences subsequently given to his two co-defendants. (1) Just as the constitutionality of the appellant's sentence was not raised and presented in a motion for new trial proceeding, neither was trial counsel's effectiveness. There is not a scintilla of evidence that supports a disproportionate sentencing claim. Claims of ineffective assistance must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Id. at 836. Cuellar would have this Court speculate not only upon counsel's reasons for not raising the issue in the trial court, but also upon the merits of the issue of disproportionate sentencing. An intermediate appellate court cannot engage in such conjecture without committing error. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Issue two is overruled. The judgment is affirmed.
AFFIRMED.
PER CURIAM
Submitted on August 27, 2003
Opinion Delivered September 3, 2003
Do Not Publish
Before McKeithen, C.J., Burgess and Gaultney, JJ.
1. The State notes the co-defendants were placed on deferred adjudication
community supervision, and therefore have not been sentenced.