COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

EX PARTE: JESUS TORRES , Appellant. '

' ' ' ' ' No. 08

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- 00 33 0

- CR

Appeal from the 243rd Judicial District Court of El Paso County , Texas (TC# 20060D01655

- 243

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O P I N I O N Jesus Torres appeals the trial court’s denial of his post

- conviction application for writ of habeas corpus. Finding no error, w e affirm

.

FACTUAL AND PROCEDURAL BACKGROUND On December 28, 2005, Appellant stopped a t a traffic check point and was cited for not having his driver’s license or proof of insurance

. Appellant ’s wif e and son were followin g in another vehicle . A t the checkpoint , Appellant’s wife was detained for involvement in possible drug activity . As a result, t he police took custody of Appellant’s son, but released him to Appellant’s mother

- in

- law

. As a result , A ppellant returned to the scene to learn more about the detention of his family, but police instructed him to leave

. As Appellant drove away , the police learned that there were outstanding warrants for his arrest , and they proceeded to follow , stop , and
arrest Appellant. The police conducted an inve ntory of Appellant’s vehicle and found cocaine
in side the vehicle

. Appellant was indicted by a grand jury for cocaine possession in a quantity of four grams or more but less than 200 grams. On September 19, 2006, A ppellant ’s attorney f iled a motion to2

suppress the evidence and a hearing was set on November 16, 2006

. In November, Appellant continued the heari ng, filed a motion to substitute counsel , and Daniel Anchondo ente red as substitute counsel for Appellant

. The suppression hearin g was last set for March 29, 2007. O n that date, a new setting was scheduled indicating a plea/judge’s conference to take place in April
2007. There was no evidence in the record indicating why the suppression motion was not going to be heard. In April, the plea/

judge’s conference was reset for July 23, 2007. On July 23, 2007, a s part of a plea bargain, Appellant ple a d ed guilty to the charged offense and the State sought deferred adjudication for a period not to exceed ten years

. T he trial court admonished Appellant, accepted hi s plea, deferred adjudication, and placed Appellant on community supervision for
seven years. In 2010 , upon facing removal proceedings, Appellant filed for habeas corpus relief. In his writ, Appellant alleged that he receive d ineffective assistance o f counsel because Anchondo , his second attorney , failed to file a motion to suppress the cocaine

. The State responded that Appellant failed to establish Anchondo’s ineffective assistance because the record showed that a motion to suppress had previousl y been filed and remained pending. The State also argued that Appellant could not prove that his motion to suppress would have been granted because the evidence was obtained when Appellant was detained and arrested for outstanding warrants. The trial court denied Appellant’s application for habeas relief , and found that Appellant failed to
prove in effective assistance of co unsel because his first attorney’s motion to suppress had been pending at the time he ple a d ed guilty . Th is appeal followed. DISCUSSION In three issues on appeal, Appellant contends that the trial court abused its discretion by3

failing to adequately addres s the merits of his ineffective assistance of counsel claim . Appellant complains Anchondo rendered ineffective assistance of counsel because : (1) An chondo fail ed to move to suppress the cocaine as the product of an illegal traffic stop; (2) Anchondo fail ed to move to suppress the cocaine as the product of an illegal search of his vehicle; and (3) Anchondo fail ed to move to suppress the cocaine based on the police’s unlawful detention of Appellant’s son at the police checkpoint on the day in question

. Und er Issue One, Appellant also asserts two sub

- arguments that : (1) the denial of his writ was error because the motion to suppress filed by his first attorney was generic and global ; and (2) the denial of his writ was error because Anchondo rendered ineffec tive assistance when he failed to schedule a hearing on th e pending motion to
suppress . Standard of Review
An applicant seeking post

- conviction habeas corpus relief bears the burden of establishing by a preponderance of the evidence that the facts would e ntitle him to relief. Ex p arte Richardson , 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We apply an abuse of discretion standard when review ing a trial court’s decision to grant o r deny habeas relief , and we review the evidence in the light most favorable to the trial court’s ruling

. Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 200 6). We give almost total deference to the trial court’s determination of
the historical facts, particularly when the fact find ings are based on an evaluation of credibility an d demeanor. Ex p arte Peterson , 117 S.W.3d 80 4, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex p arte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007). If the trial court’s ruling on mixed question s of law and fact turns on an evaluation of credibility and demeanor, we afford that same level of total deference. Id

. If the resolution of those mixed q uestions of law and fact depend on an application of legal standards our review is de novo

. Id

.4 Preservation of Error To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the
court aware of the complaint. TEX

. R. AP P. P . 33.1. In Issue One, Appellant asserts two sub

- arguments : (1) that the trial court erred in denying habeas relief as t o all three grounds asserted in h is writ because the motion to suppress filed by his first attorney w as generic and global ; and (2) even if the motion to suppress filed by his first attorney was adequate, the trial court’s denial of his writ was erroneous because Anc hondo rendered ineffec tive assistance of counsel because he did not sc hedule a hearing on the motion. Because the record d oes not show that Appellant objected to the inadequacy of the motion to suppress filed by his first attorney or that he argu ed to the trial court that Anchondo rendered ineffective assistance of counsel for failing to schedule a hearing on the pending motion, he failed to preserve his complaints for our review.
See TEX. R. AP P. P . 33.1 ; see Ex p arte Jones , No. 2

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- 388

- CR, 200 8 WL 3185168 , at * 10 (Tex. App.

– Fort Worth Aug

. 07 , 200 8 , pet. ref’d ) (mem. op., not designated for publication) ( finding that a ppellant failed to preserve issues for appellate review because the arguments were never presented to or considered by the trial court ). Ineffective Assistance of Counsel To prevail on a claim of ineffective assistance of counsel, Appellant must satisfy a two

- prong
test by a preponderance of evidence showing that: (1) his attorney ’s performance was deficient ; and that (2) his attorney ’s deficient performance deprived him of a fair trial

. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Chandler , 182 S.W.3d 350, 353 (Tex. Crim. App. 2005). Under the first prong, the attorney ’s performance must5

be shown to have fallen below an object ive standard of reasonableness. Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Namely, Appellant must prove that his attorney’s conduct f ell below the professional standard

. Mitchell v. State , 68 S.W.3d 64 0, 642 (Tex. Crim. App. 2002). Under the second prong, Appellant must establish that there is a reasonable probability that but for his attorney’s deficient performance , the outcome of his case would have been different.
See Strickland , 466 U.S. at 694; Thompson , 9 S.W.3d at 812. “Reasonable probability” is that which is “ sufficient to undermine confidence in the outcome

. ” Strickland , 466 U.S. at 694 ; Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998)

. Appellant also bears the burden of proving that his motion to suppress would have been granted. See Jackson , 973 S.W.2d at 957 (defendant claiming ineffective assistance of counsel by attorney’s failure to file motion to
suppress had to prove motion would have been granted ); Roberson v. State , 852 S.W.2d 508,
510

- 12 (Tex. Crim. App. 1993) ( an attorney will not be found ineffective for failing to assert a pretrial motion unless defendant can show that the motion had merit and that a ruling on the motion would have changed the outcome ). If the two

- pronged test is not satisfied the ineffective assistance of counsel claim is defeated

. Rylander v. State , 101 S.W.3d 107, 110

- 11 (Tex. Crim. App. 2003). On review, we presume that the att orney’s representation fell within the wide range of reasonable and professional a ssistance

. Mallett v. State , 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (quoting Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) )

. Accordingly, ineffective assistance claims must be firmly found in the record, and the record must affirmatively show the alleged ineffectiveness. Mallett , 65 S.W.3d at 63 (quoting Thompson , 9 S.W.3d at 814). When the record is silent and does not provide an explanation for the attorney’s conduct , the strong6

presumption of reaso nable assistance is not overcome

. Rylander , 101 S.W.3d at 110

- 11. We do not engage in speculation to find ineffective assistance when the record is silent as to an attorney ’s strategy at trial. Robinson v. State , 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Here, the record reflects that Appellant’s first attorney filed a mot ion to suppress evidence and that it was set to be heard on November 16, 2006

. T he trial court granted Appellant’s motion to continue the suppression hearing

. During this time, Appellant hir ed Anchondo as substitute counsel

. The motion was last set fo r a hearing on March 29, 2007 and A nchondo had notice of the pending motion to suppress. We note that the record reflects that no hearing was held and no ruling was ever made on the pending motion to suppress. I nstead on March 29, 2007, the last date a hearing was set , the case was re set for a plea/judge’s conference

. On July 23, 2007 , Appellant ple a d ed guilty to possession of coca ine as part of a plea bargain and received seven years of community supervision. The record before us on appeal shows that Appellant’s ineffective assistance claim is not firmly founded in the record. T he record is silent as to Anchondo’s strategy or reas oning for not filing a second motion or for not obta ining a ruling on the pending motion to suppress

. The record reflects that App ellant did not file an affidavit from Anchondo. Consequently, w e do not know what advice Anchondo rendered to Appellant befo re or during the plea/judge’s conference. T he record merely shows that a motion to suppress was filed, the suppression hearing was continued ,

no hearing was ever held, no ruling was made on the motion , and A ppellant entered a guilty plea as the result of a plea bargain

. Based on this evidence, we decline to find that Anchondo engaged in conduct that fell below an objective standard of reasonableness

. See Rylander , 101 S.W.3d at 111 (noting that “trial counsel should ordinarily be afforded an o pportunity to explain his actions before bein g denounced as ineffective”).7

Because the record fails to affirmatively demonstrate the alleged ineffective assistance of counsel and b ecause Appellant has failed to carry his burden of establishing ineffective assistance of counsel , we overrule Issues One, Two, and Three. See Rylander , 101 S.W.3d at 110

- 11; Mallet t , 65 S.W.3d at 59; Jackson , 973 S.W.2d at 957

. CONCLUSION
W e affirm the trial court’s denial of habeas corpus relief

.

GUADALUPE RIVERA, Justice April 25, 2012 Before McClure, C.J., Rivera, J., and Antcliff, J. ( Do Not Publish)