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NUMBER 13-04-523-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EX PARTE: ROMAN VALVERDE PERALES
On appeal from the County Court at Law No. 1
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Garza
Memorandum Opinion by Justice Yañez
Roman Valverde Perales appeals pro se the trial court=s denial of the relief sought in his application for writ of habeas corpus. In a single issue, appellant contends the trial court erred in denying relief because he received ineffective assistance of counsel. We affirm the trial court=s order.
Background
A jury convicted appellant of misdemeanor driving while intoxicated (DWI). The trial court assessed punishment at 180 days= confinement in the Victoria County Jail, probated for one year, and a $500.00 fine. On direct appeal, appellant generally contended the trial court erred (1) in denying his motion to suppress, (2) in allowing testimony that lacked proper foundation, (3) in instructing the jury as to the legality of appellant=s stop, (4) in finding appellant guilty, and (5) in denying his motion for instructed verdict. He also argued the evidence was legally and factually insufficient to show a traffic law violation. This Court overruled each of appellant=s issues and affirmed the trial court=s judgment.[1] The court of criminal appeals refused appellant=s petition for discretionary review.[2]
On August 26, 2004, appellant filed an application for writ of habeas corpus collaterally attacking his conviction.[3] In the application, appellant complained he received ineffective assistance of counsel at trial. The trial court reviewed the application and attached affidavit of appellant=s trial counsel. The trial court found there were no controverted material facts, determined no hearing was required, and denied the application. This appeal ensued.
The trial court has certified that this Ais not a plea-bargain case, and the defendant has the right of appeal.@[4]
In a single issue, appellant contends he was denied effective assistance of counsel because counsel failed to request jury instructions (1) requiring the jury to find he was speeding beyond a reasonable doubt before it could consider the offense of speeding as evidence, and (2) Alimiting the jury=s consideration of the extraneous traffic offenses evidence the State introduced against him to the particular theory of relevance as to the context of the arrest only.@ The State responds that (1) the charge properly included a beyond-a-reasonable-doubt instruction regarding the allegation appellant was speeding and (2) the jury was required to consider whether appellant was speeding because he attacked the legality of the stop at trial. The State also contends appellant has not shown that he was harmed.
Standard of Review
In a habeas corpus proceeding, the applicant has the burden to prove his claims by a preponderance of the evidence.[5] In reviewing the trial court's ruling on an application for writ of habeas corpus, we view the facts in the light most favorable to the ruling.[6] We afford almost total deference to the trial court's determination of historical facts that are supported by the record, especially when the court's fact findings are based on an evaluation of credibility and demeanor.[7] We afford the same level of deference to a trial court's ruling on an application of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.[8] We review de novo mixed questions of law and fact that do not involve credibility and demeanor evaluations.[9] We will uphold the trial court's ruling absent an abuse of discretion.[10]
Applicable Law
Strickland v. Washington,[11] sets forth the standard of review for effectiveness of counsel.[12] Strickland requires a two‑part inquiry.[13] The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness.[14] Second, the defendant must further prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.[15] A reasonable probability is a probability sufficient to undermine confidence in the outcome.[16]
The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case.[17] An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness.[18]
The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.[19] There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.[20] To defeat the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@[21] Generally, the record on direct appeal will be insufficient to show that counsel=s representation was so deficient as to meet the first part of the Strickland standard.[22]
Article 11.072 of the code of criminal procedure, which governs appellant's habeas corpus, provides that an application may not be filed under this article if the applicant could obtain the requested relief by means of appeal.[23] Claims of ineffective assistance are appealable.[24] However, direct appeal is often an inappropriate forum in which to bring claims of ineffective assistance.[25] Therefore, out of an abundance of caution, we will address appellant=s claims.
Analysis
An appellant must support a claim of ineffective assistance of counsel with evidence.[26] Where an appellant=s claim of ineffective assistance of counsel is based upon a failure of counsel to request jury instructions, and the evidence consists of an uncontroverted affidavit from the lawyer who represented him at trial that the failure to request those instructions was not the result of a reasoned trial strategy, then appellant received ineffective assistance of counsel if it would have been error for the trial court to have refused a proper request.[27]
The record contains an affidavit from appellant=s trial counsel, in which he states that he failed to request jury instructions (1) requiring the jury to find beyond a reasonable doubt that appellant was speeding and (2) limiting the jury=s consideration of the evidence of appellant=s speeding to the purpose of showing the context of appellant=s arrest. The affidavit further states that counsel=s failure to request the instructions was Aan oversight@ and Awas not the result of trial strategy.@
With regard to appellant=s complaint that his counsel was ineffective for failing to request a beyond-a-reasonable-doubt instruction regarding the speeding allegation, we conclude that the charge did properly instruct the jury that it must find that appellant was speeding beyond a reasonable doubt. The charge stated, in pertinent part,
You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted, however, to make a temporary investigative detention of a motorist if the officer has reasonable suspicion that some activity out of the ordinary is or has occurred, that the person detained is connected with such activity and that there is some indication that the activity is related to a crime or a criminal offense. Now, bearing in mind these instructions, if you find from the evidence that on the occasion in question the defendant, ROMAN VALVERDE PERALES, was not speeding in a public road or highway immediately preceding his stop and detention by the police officer involved herein, or you have a reasonable doubt thereof, then such stopping of the accused would be illegal, and if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard the testimony of the officer relative to his stopping the defendant and his conclusions drawn as a result thereof and you will not consider such evidence for any purpose whatsoever.
Appellant also complains his counsel was ineffective for failing to request an instruction limiting the jury=s consideration of the evidence concerning the allegation of speeding to the purpose of showing the context of the stop.
In Hammock v. State,[28] the court of criminal appeals held that a defendant is not entitled to a jury instruction limiting consideration of evidence unless he makes a contemporaneous request at the time the evidence is first admitted.[29] The record before us does not contain a reporter=s record. Appellant=s counsel=s affidavit does not state that he requested a limiting instruction at trial limiting the jury=s consideration of the evidence regarding the allegation appellant was speeding. Because appellant has not established that he requested a limiting instruction when the evidence concerning the speeding allegation was first introduced, the evidence was admitted for all purposes and a limiting instruction was not warranted.[30] Accordingly, the trial court was not required to include a limiting instruction in the jury charge.[31] Because appellant has not shown he was entitled to a limiting instruction, his counsel was not ineffective for failing to request such an instruction.[32]
We overrule appellant=s sole issue and AFFIRM the trial court=s order denying appellant the relief sought by his application 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 8th day of June, 2006.
[1] See Perales v. State, 117 S.W.3d 434, 436 (Tex. App.BCorpus Christi 2003, pet. ref=d).
[2] In re Perales, 2004 Tex. Crim. App. LEXIS 577 (Tex. Crim. App. Mar. 31, 2004).
[3] See Tex. Code Crim. Proc. Ann. art. 11.072 (Vernon 2005).
[4] See Tex. R. App. P. 25.2 (a)(2).
[5] See Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003) (per curiam).
[6] See id. at 819.
[7] Id.
[8] See id.
[9] See id.
[10] Id.
[11] Strickland v. Washington, 466 U.S. 668, 687 (1984).
[12] See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at 813.
[20] Id.
[21] McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
[22] Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
[23] See Tex. Code Crim. Proc. Ann. art. 11.072, ' 3(a) (Vernon 2005).
[24] Thompson, 9 S.W.3d at 813-14.
[25] See id. at 814 n.5.
[26] McFarland, 928 S.W.2d at 500.
[27] Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001).
[28] Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001).
[29] See id.; see also Reyes v. State, 69 S.W.3d 725, 741 (Tex. App.BCorpus Christi 2002, pet. ref=d).
[30] See Hammock, 46 S.W.3d at 895 .
[31] Id. (citing Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005)).
[32] See Ex parte Varelas, 45 S.W.3d at 632.