Rubio v. Estelle

• Decision Date: 18 October 1982
• Docket Number: No. 81-1550,81-1550
• Citation: 689 F.2d 533
• Parties: Elva RUBIO, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, and Mark White, Attorney General of the State of Texas, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 533

689 F.2d 533

Elva RUBIO, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, and Mark White, Attorney General of

the State of Texas, Respondents-Appellees.

No. 81-1550

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 1982.

Glen H. Shelton, El Paso, Tex., for petitioner-appellant.

Maury Hexamer, Asst. Atty. Gen., Austin, Tex., W. Barton Boling, Asst. Atty. Gen., El Paso, for respondents-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, REAVLEY and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Elva Rubio was convicted by a jury on September 13, 1977, for possession of heroin. Her punishment was enhanced to life imprisonment by virtue of two previous felony convictions, one state and one federal.

The appellant filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Her petition was referred to a United States Magistrate, who recommended denial. The appellant objected to the report, and the United States District Court for the Western District of Texas, Judge Hudspeth, issued a memorandum opinion and order accepting the magistrate's recommendation. Appellant has timely appealed that decision to this court.

The pertinent facts of the case presented at trial show that on August 16, 1976, narcotics officers with the El Paso, Texas Police Department made a controlled heroin "buy" from the appellant. A confidential informant made connection with the appellant at an El Paso cafe and was told by her that she was willing to sell him one-half ounce of heroin. The appellant made a telephone call and then got into an undercover car with the informant and other members of the surveillance team. After a drive to another El Paso bar, during which appellant discussed openly the heroin she would sell, appellant received $100 in pre-recorded government funds from one of the police officers. She went inside the bar, accompanied by the informant, and exited shortly thereafter. In full view of the surveillance team members, appellant handed a "tinfoil-type" package to the informant. A subsequent chemical analysis of the contents of the package revealed that it was heroin.

The appellant alleges in her petition for relief that her constitutional rights were violated by the court in the state trial in numerous respects.

Appellant contends that the trial court denied her due process of law and the right of confrontation by failing to appoint an interpreter sua sponte. Appellant alleges that there were indications in the communications between the court and appellant of limited understanding of the English language or possession of a hearing impediment. Moreover, appellant alleges that there was no clear evidence in the record to show that she possessed an understanding of the English language.

Based on the record, however, it appears that the appellant did have an understanding of the English language. Viewed in its entirety, the record fails to support any allegation of a constitutional violation. Appellant's reliance on Baltierra v. State, 586 S.W.2d 553 (Tex.Cr.App.1979) (en banc), is misplaced. Appellant clearly had sufficient command of English to have requested an interpreter. In the absence of a showing that the trial court was apprised of a language disability, no prejudice has been shown.

Appellant's second contention in her petition is that the trial court denied her due process of law by overruling her trial counsel's motion to withdraw as attorney of record. A hearing was held in state court on the motion and the state and defense counsel were given the opportunity to be heard. The state court denied the motion based on this hearing. In view of this opportunity to present the motion and in view of the fact that defense counsel stated on the day of the trial that he was ready for trial, there does not appear to be any constitutional violation. There is no fundamental right to counsel of one's choice. Representation by counsel not of one's choosing does not, in itself, deprive one of effective assistance of counsel, United States v. Gray 565 F.2d 881 (5th Cir. 1978); United States v. Harrelson, 477 F.2d 383 (5th Cir. 1973) cert. denied, 414 U.S. 847, 94 S.Ct. 133, 38 L.Ed.2d 95 (1973).

Appellant contends further that her counsel was ineffective in that he failed, inter alia, to defend her vigorously at trial, to object to extraneous and inadmissible testimony and prosecution argument, to request a charge on the issue of entrapment, and to call her and the confidential informant as witnesses.

Pursuant to this court's ruling in Daniels v. Maggio, 669 F.2d 1075, 1977 (5th Cir. 1982) and Boyd v. Estelle, 661 F.2d 388, 389-90 (5th Cir. 1981), the petitioner in a habeas corpus proceeding bears the burden of showing an identifiable lapse on the part of counsel and some actual, adverse impact upon the fairness of her trial resulting from that lapse. The right to counsel pursuant to the sixth amendment requires, not errorless counsel or counsel judged so by hindsight, but counsel...