Aranda v. State, No. 2-08-119-CR (Tex. App. 2/5/2009)

• Decision Date: 05 February 2009
• Docket Number: No. 2-08-120-CR.,No. 2-08-119-CR.,2-08-119-CR.,2-08-120-CR.
• Parties: DANIEL ELI ARANDA A/K/A DANIEL ARANDA, Appellant, v. THE STATE OF TEXAS, State.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

DANIEL ELI ARANDA A/K/A DANIEL ARANDA, Appellant, v. THE STATE OF TEXAS, State.

No. 2-08-119-CR.

No. 2-08-120-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: February 5, 2009.

Do Not Publish. Tex.R.App.P. 47.2(b).

Appeal from the 213th District Court of Tarrant County.

Panel: LIVINGSTON and McCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior Justice, Retired, Sitting by Assignment).

MEMORANDUM OPINION¹

TERRIE LIVINGSTON, Justice.

Introduction

Appellant Daniel Eli Aranda a/k/a Daniel Aranda appeals his two convictions for aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2003).² In one point, appellant contends that his trial counsel was per se ineffective by failing to request a reporter's record. We affirm.

Background Facts

In 2002, a Tarrant County grand jury issued two indictments against appellant; each indictment charged him with attempted capital murder and aggravated robbery. The indictments alleged that in February 2002, appellant shot two individuals with a gun while committing robbery.

In February 2003, after the State waived the attempted capital murder charges and the trial court properly gave written admonishments,³ appellant entered judicial confessions, waived his constitutional and statutory rights, and pled guilty to the two aggravated robbery charges. The trial court deferred adjudication of appellant's guilt and placed him on community supervision for seven years. Among the terms of his community supervision, the trial court required appellant to commit no further offenses, avoid illegal use of controlled substances (and submit to testing and out-patient treatment related to such substances), and report monthly to the Tarrant County community supervision office.⁴

In June 2005, the State filed petitions to proceed to the adjudication of appellant's aggravated robbery charges, alleging that appellant had violated the terms of his community supervision by using cocaine,⁵ failing to complete out-patient treatment, and failing to report. In November 2005, while aided by his trial attorney, Jeremy Baker, appellant pled true to the allegations in the State's petitions.⁶ The trial court determined that the State's allegations were true, found appellant guilty of the aggravated robberies, and sentenced him to ten years' confinement.

Appellant initially neglected to file a notice of appeal; however, in November 2006, appellant filed an application for a writ of habeas corpus in the trial court, contending that Baker provided him with ineffective assistance during his adjudication proceeding. Specifically, appellant asserted that Baker⁷ refused to return his phone calls, misinformed him about his potential sentence upon revocation, failed to prepare or discuss appellant's defense, failed to prepare witnesses for the hearing on the State's petitions, and failed to file a notice of appeal.⁸

In February 2008, the trial court entered an order recommending that the Court of Criminal Appeals should grant appellant an out-of-time direct appeal and that it should then dismiss appellant's habeas claims as premature. On March 5, 2008, the Court of Criminal Appeals accepted the trial court's recommendations and ordered that appellant could appeal. Ex parte Aranda, Nos. AP-75,860, AP-75,861, 2008 WL 644058, at *1 (Tex. Crim. App. Mar. 5, 2008). Appellant timely perfected these appeals.

In March 2008, appellant requested the court reporter to prepare a reporter's record of the proceedings related to the hearing on the State's petitions to adjudicate. In June 2008, we received a note from the court reporter stating that he did not make a record of those proceedings; we notified the parties that no reporter's record is available.

Ineffective Assistance of Counsel

In his sole point, appellant argues that Baker provided him with ineffective assistance by failing to request a record of the hearing on the State's petitions to adjudicate, which denies him a meaningful appeal. An appellant may raise a claim of ineffective assistance of counsel at a punishment hearing after the trial court adjudicates guilt.⁹ See Grammer v. State, 268 S.W.3d 774, 777 (Tex. App.-Waco 2008, pet. filed).

To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation¹⁰ and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair and reliable trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.

If the case law evaluating counsel's conduct is unclear or unsettled, appellant is not entitled to relief. See Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998). Also, where the record is not sufficiently developed to allow us to do more than speculate as to the strategies of counsel, we cannot sustain an ineffective assistance claim. See Downs v. State, 244 S.W.3d 511, 515 (Tex. App.-Fort Worth 2007, pet. ref'd).

A court reporter must generally make a full record of all proceedings. Tex. R. App. P. 13.1; see Velazquez v. State, 222 S.W.3d 551, 556 (Tex. App.-Houston [14th Dist.] 2007, no pet.).¹¹ However, to preserve error related to a court reporter's failure to do so, a defendant must object. Valle v. State, 109 S.W.3d 500, 508-09 (Tex. Crim. App. 2003); Velazquez, 222 S.W.3d at 556-57; Brossette v. State, 99 S.W.3d 277, 285 (Tex. App.-Texarkana 2003, pet. dism'd) (holding that the appellant forfeited his complaint about the reporter's failure to record the trial court's reading of a jury charge because of a failure to object). Appellant concedes that he was required to object to the exclusion of a record, and he also concedes that there is no indication he did so or that he exercised due diligence in requesting that a record be made. See Cheek v. State, 65 S.W.3d 728, 730 (Tex. App.-Waco 2001, no pet.) (explaining the requirement of due diligence in requesting a reporter's record). He claims, however, that Baker's failure to make such an objection or exercise such diligence amounted to per se ineffective assistance because it deprived him of an opportunity to evaluate possible errors at trial, therefore robbing him of a meaningful appeal.

In Gonzales v. State, the Houston (First District) Court of Appeals resolved an appellant's claim that his trial counsel was ineffective because he failed to request that a record be made of voir dire. 732 S.W.2d 67, 68 (Tex. App.-Houston [1st Dist.] 1987, no pet.). The court noted that the appellant alleged no specific harm from his counsel's action other than failure to preserve a possible error. Id. The court then refused to hold that "failure to request recordation of voir dire is per se ineffective assistance of counsel requiring reversal because harm has not been shown, and an appellate court cannot speculate as to what may or may not have transpired at trial."¹² Id.

Similarly, in Lopez v. State, the appellant contended that her counsel's performance was deficient for failing to request transcription of voir dire. 838 S.W.2d 758, 760 (Tex. App.-Corpus Christi 1992, no pet.). The Corpus Christi Court of Appeals held that "[w]ithout more, we do not believe failure to request transcription of voir dire is ineffective assistance of counsel per se. Some injury resulting from the failure to request transcription must be raised by appellant on appeal." Id.; see Reyna v. State, 434 S.W.2d 362, 364 (Tex. Crim. App. 1968) (explaining that there is no reversible error where an "appellant fails to specify any error to which the transcription of the court reporter's notes . . ....