Opinion issued July 3, 2003

In The

Court of Appeals

For The

First District of Texas

NOS. 01-02-00797-CR

                                                          01-02-00798-CR

ANTHONY JOEL CASAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause Nos. 899400 and 899420

MEMORANDUM OPINION

          Anthony Joel Casas, appellant, pleaded guilty to two counts of aggravated robbery. The trial court assessed punishment at 75 years’ confinement in each case. In two points of error, appellant complains of ineffective assistance of counsel during the punishment phase of his trial. We affirm.

Facts

Indictments

          Appellant was charged with two separate offenses of aggravated robbery. The first indictment, Cause Number 899400, accused appellant of intentionally and knowingly threatening and placing Mary Lozano in fear of imminent bodily injury and death while using a knife in the course of committing a theft. The second indictment, Cause Number 899420, accused appellant of intentionally and knowingly threatening and placing Angie Smith in fear of imminent bodily injury and death while using a knife in the course of committing a theft.

          Appellant pleaded guilty without a plea bargain as to sentencing. The guilty plea provided for a pre-sentence investigation (PSI) report and hearing to determine appellant’s sentence.

Pre-sentence Investigation Hearing 

          Smith, Lozano, Officer Lorenzo Verbitskey, and appellant testified at the PSI hearing. Smith testified that, as she was putting grocery bags into her car, appellant jumped on her back, put one hand over her eyes, and stabbed her in the back. Appellant asked her for her purse and kept stabbing her. Smith was scared for her life. She began screaming, and other people in the parking lot came to her aid. As the people came closer, appellant ran to his car. As he was getting into his car, appellant pulled off the ski mask he was wearing, turned around, and got into the car.

          Lozano testified that, when she was walking to the bus stop to go to work, appellant, who was standing near a parked car, started coming toward her and began hitting her. Appellant took her purse and put it in the front seat of his car. Lozano grabbed at appellant’s pant leg as he turned to get into his car and brought him to the ground. Appellant turned and hit Lozano again, then drove off. Lozano feared for her life. She learned later at the hospital that appellant had stabbed her.

          Verbitskey testified about the knife blade found at the crime scene where Lozano had been robbed. No evidence was recovered that aided or assisted in determining who attacked Lozano.

          Appellant testified that he did attack both Smith and Lozano, but that he did not remember the details because he was on drugs at the time. Appellant testified that both of his parents had spent time in prison for drugs. He also testified that he needed counseling to manage his anger.

          After reviewing the PSI report and hearing the foregoing witnesses, the court sentenced appellant to 75 years’ confinement in each case, with the sentences to run concurrently. Appellant was appointed new counsel for his appeal. Appellant filed a motion for new trial in which he argued that evidence tending to show his innocence was withheld, he received ineffective assistance of counsel, and his pleas were involuntary.

Hearing on the Motion for New Trial

          The trial court denied appellant’s motion for new trial at the hearing on the basis of affidavits filed with the court. These included appellant’s affidavit and the controverting affidavits of Robert Scott, appellant’s trial counsel, and Janis Barnard, the pre-sentence investigator.

          Appellant claimed, in the affidavit attached to his motion, (1) that he did not make a meaningful choice as to whether he should have a PSI hearing, thereby making his plea of guilty involuntary; (2) he asked his trial attorney, Scott, to get a “cap” on his sentence, but Scott did not tell the district attorney about that request; (3) Scott did not pursue a motion to suppress appellant’s confession, even though appellant told Scott he was under the influence of narcotics and had been beaten (by someone other than the police) prior to providing his statement; and (4) Scott was not prepared at the sentencing hearing because he did not visit appellant in jail and ignored the list of references appellant provided.

          In his controverting affidavit, Scott stated that he had spoken with appellant about the punishment range for the offenses. He reviewed the State’s file and was familiar with the facts. Appellant was very cooperative with Scott and never denied his guilt. Appellant maintained his guilt and did not want to go to trial. Scott explained appellant’s options to him, and appellant chose to have a PSI hearing to assess punishment. Scott stated that there was never any discussion about a “cap” on appellant’s punishment with appellant, and therefore that information was not conveyed to the district attorney. Scott talked to appellant about appellant’s confession, and appellant never indicated that the confession was anything but voluntary. Appellant never mentioned that he had been under the influence of narcotics while giving his statement or that he had been beaten prior to giving the statement. Scott informed appellant of the purpose of the PSI hearing and what it entailed. He also explained to appellant that he needed information from him about his background. Appellant never gave any such information to Scott, and Scott never received any information from elsewhere that could be included in the PSI report. Appellant reviewed the final report and made no corrections or additions to it.

          Barnard, the pre-sentence investigator, stated in her affidavit that she clearly informed appellant he should submit references or character letters from friends and family and that it was his responsibility to do so. She gave appellant her mailing address and facsimile number and told him that she would accept the letter by mail, facsimile, or in person. She gave the same information to Scott. She never received any letters from appellant or from any friends or family members.

Ineffective Assistance of Counsel

          In two points of error, appellant argues that he was denied effective assistance of counsel during the punishment phase of his trial and that the cumulative effects of his attorney’s errors resulted in ineffective assistance of counsel. Specifically, appellant complains that he was not given the opportunity to make a voluntary choice between trial and a PSI hearing; that he asked Scott to get a “cap” on his sentence; that his confession was involuntary and Scott should have sought a motion to suppress; and that Scott ignored a list of character references appellant provided and was not prepared for the PSI hearing.

          To show ineffective assistance of counsel, an appellant must demonstrate (1) that counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms and (2) that, but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A “reasonable probability” is defined as a probability sufficient to undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). It is an appellant’s burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). An appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. 466 U.S. at 697, 104 S. Ct. 2069; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

          We must look to the “totality of the representation and the particular circumstances of each case” in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. In so doing, we recognize the strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. As the Supreme Court observed;

It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To defeat 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.” McFarland, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The appellant must prove his claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d at 843. Here, the record does not affirmatively show ineffectiveness by a preponderance of the evidence with respect to any of the grounds alleged by appellant. Therefore, appellant has not met the burden of the first prong of Strickland.

          Accordingly, we overrule appellant’s first point of error. Because we have determined that none of the four claims of ineffective assistance of counsel are meritorious individually, they cannot cumulatively constitute ineffectiveness. See Calixto v. State, 66 S.W.3d 505, 513 (Tex. App.—Austin 2001, pet. ref’d). We overrule appellant’s second point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Hedges, Nuchia, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).