No. 05-03-01083-CR
Opinion Filed March 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-31486-QS. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice LANG.
Adrian Perez Silva appeals his conviction for aggravated sexual assault. After finding appellant guilty, a jury assessed punishment at seventeen years confinement. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant did not file a pro se response, but he did file several letters written in Spanish requesting appointment of different, Spanish-speaking appellate counsel. One of appellant's letters, filed on June 8, 2004, is accompanied by an English translation and expands upon appellant's complaints about his case. In the June 8, 2004 letter, appellant complains about appellate counsel's representation, questions the credibility of the State's evidence, contends he was denied community supervision improperly, and challenges the length of his sentence. In the interest of justice, we will consider appellant's English-language translation of his June 8, 2004 letter as his pro se response to counsel's brief.
Background
During the trial, the victim testified that appellant, his cousin, had raped him several times about five years previously while appellant was living with the victim's family. The victim, who was thirteen years old at the time of trial, testified he told his parents about the offenses after he exposed himself to a younger cousin and became concerned that he might be homosexual. The victim did not mention exposing himself to his younger cousin in his interview with police or in a videotaped forensic interview. Furthermore, the younger cousin contradicted the victim's account by testifying the victim had touched his penis and placed the victim's penis on his body. The victim, however, denied the suggestion that he had accused appellant in order to divert attention from his transgression against his younger cousin. Factual Sufficiency Of The Evidence
Appellant first contends he is innocent and he accuses the victim and the victim's parents of concocting the allegations against him to cover up the victim's own misconduct with the younger cousin. As evidence of the victim's ulterior motive and lack of credibility, appellant points to the victim's failure, during the videotaped forensic interview, to disclose his own wrongdoing to investigators. Appellant questions why the jury did not put more credence in the younger cousin's testimony contradicting the victim's account of the incident. We interpret appellant's complaint as attacking the factual sufficiency of the evidence. In reviewing the factual sufficiency of evidence to support a verdict, we review all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Cognizant of the jury's role and unique position, we must defer to the jury's determinations, particularly those determinations involving the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). Our authority to disagree with the jury's determinations is limited to situations "when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. The jury assessed the weight and credibility of the evidence suggesting that the victim had an ulterior motive for accusing appellant. See id. The jury's determination to convict appellant in spite of this evidence does not raise a factual insufficiency issue on appeal. See, e.g., Casey v. State, No. 03-03-00030-CR, 2004 WL 2732240 (Tex.App.-Austin 2004, no pet.) (rejecting factual sufficiency challenge to aggravated sexual assault conviction despite evidence suggesting victim had motive to lie about the offense); Matthews v. State, 152 S.W.3d 723 (Tex.App.-Tyler 2004, no pet.) (concluding evidence not factually insufficient where jury convicted defendant despite evidence casting doubt on three victims' veracity). Thus, we overrule appellant's factual insufficiency ground. Effect of Immigration Status
Appellant next contends that unlike most first-time offenders, he was not offered community supervision because of his status as an illegal Mexican immigrant. During his punishment phase testimony, appellant admitted he is an illegal alien. Sibhan Dominy, an agent with the Immigration and Naturalization Service, testified, without objection, that aliens convicted of aggravated sexual assault and placed on community supervision would be deported immediately. Persons convicted of crimes have no fundamental right to receive community supervision. Flores v. State, 904 S.W.2d 129, 130 (Tex.Crim.App. 1995). Contrary to appellant's assertion, there is no automatic or customary offer of community supervision to first-time offenders. Instead, the jury exercised discretion in determining whether to recommend to the trial judge that appellant be placed on community supervision. See Tex. Code Crim. Proc. Ann. Art. 42.12, § 4 (a) (Vernon Supp. 2004-05). Nothing in the record reveals appellant would have been placed on community supervision if he had been a United States citizen. Thus, appellant's speculation about the basis for his punishment does not raise an arguable issue for appeal. Length Of The Sentence
In addition to his complaint about not receiving community supervision, appellant also contends his seventeen-year sentence is excessive for a first-time offender. Appellant did not complain about his sentence either at the time it was imposed or in a motion for new trial. Accordingly, he has failed to preserve error. Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Moreover, the punishment assessed lies within the proper punishment range and, therefore, is not unconstitutionally cruel and unusual punishment. Id. Thus, we overrule appellant's sentencing issue. Ineffective Assistance Of Counsel
Finally, appellant contends he received ineffective assistance of appellate counsel because counsel filed an Anders brief, did not obtain an acquittal for appellant, and did not "even checked [sic] all that was said in the jury." Appellant has a constitutional right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Ward v. State, 740 S.W.2d 794, 796 (Tex.Crim.App. 1987). We judge the effectiveness of appellate counsel under the same standard governing the effectiveness of trial counsel. Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex.Crim.App. 2001); Williams v. State, 946 S.W.2d 886, 903-04 (Tex.App.-Waco 1997, no pet.). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Appellant's complaints about appellate counsel lack merit. Because we conclude, as counsel did, that this appeal is frivolous and without merit, counsel's decision to file an Anders brief and move to withdraw does not constitute deficient performance. Likewise, appellant's incredulousness that the jury could believe the State's witnesses and convict him does not raise an appealable issue. The jury's deliberations are not recorded for inclusion in the record on appeal. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 202-03 (Tex.Crim.App. 2003) (explaining rationale for secrecy of jury deliberations). The record does not reveal the extent of counsel's investigation, if any, into the jury deliberations nor does it suggest that such an inquiry would lead to arguable issues for appeal. See Thompson, 9 S.W.3d at 813-14. Thus, appellant has not shown either that appellate counsel's performance fell below an objective standard of reasonableness or that he suffered any harm. See Strickland, 466 U.S. at 687, 694. We conclude appellant's final ground does not present an arguable issue. We have reviewed the record, counsel's brief, and appellant's letter of complaint. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.