Paul Joaquin Ponce v. the State of Texas

                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo
                                    ________________________

                                        No. 07-22-00024-CR
                                    ________________________


                              PAUL JOAQUIN PONCE, APPELLANT

                                                V.

                                THE STATE OF TEXAS, APPELLEE



                              On Appeal from the 47th District Court
                                       Potter County, Texas
                 Trial Court No. 065591-A-CR, Honorable John B. Board, Presiding 1


                                        December 20, 2022

                                    MEMORANDUM OPINION
                     Before QUINN, C.J. and PARKER and YARBROUGH, JJ.

       Paul Joaquin Ponce appealed his conviction for aggravated assault of a child. The

court so convicted him after originally deferring the adjudication of his guilt, granting the

State’s motion to adjudicate guilt, finding him guilty, and levying sentence. Two of the

three issues before us concern the purported violation of appellant’s right to counsel.


       1   Sitting by assignment.
Through the third, appellant contends the record is incomplete which warrants reversal.

We affirm.

       Issue One and Two—Constitutional Right to Counsel of Choice

       Via his first two issues, appellant posits that the trial court violated his right to

counsel of choice under both the Texas and United States Constitutions. It purportedly

did so after the attorney appellant hired (Combs) appeared at the hearing on the State’s

motion to adjudicate guilt while another from the same firm appeared at the later

sentencing hearing. The second attorney, Balderrama, explained to the court that he was

there because original counsel, Combs, had a conflict with his schedule. The trial court

acknowledged knowing of the conflict and proceeded with the hearing, in which hearing

Balderrama argued on behalf of appellant. So proceeding allegedly violated appellant’s

constitutional right to counsel of his choice. We overrule the issue.

       The appellate record contains no evidence supporting appellant’s assertion that

Combs’ “appearance was neither waived nor consented to” or “[a]ppellant neither

requested substitution of counsel, consented to his retained lawyer’s absence, nor waived

the presence of his retained lawyer.” In other words, he contends that he did not agree

to Balderrama’s appearance on his behalf. Oddly, though, appellant never objected to

Balderrama’s appearance or the absence of Combs.

       It has long been true that we do not review contentions which depend upon factual

assertions outside the record. Janecka v. State, 

 (Tex. Crim. App.

1996); Cantrell v. State, No. 06-13-00086-CR, 

, at *5 (Tex.

App.—Texarkana Oct. 10, 2013, no pet.) (mem. op., not designated for publication).

Indeed, factual assertions in a brief unsupported by evidence of record cannot be



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accepted as fact. Gray v. State, No. 08-11-00001-CR, 

, at *4

(Tex. App.—El Paso July 15, 2021, pet. dism’d) (mem. op., no designated for publication).

That is what we have here.         Evidence illustrating whether appellant requested a

substitution of counsel, consented to his retained attorney’s absence, or formally waived

the presence of his retained attorney appears nowhere in the record. Appellant simply

utters statements without evidentiary basis appearing of record.

       On the other hand, the record illustrates that Balderrama appeared, mentioned

why he was there, indicated the firm at which he worked (which was the same as Combs’),

proffered argument to the court on behalf of appellant, and closed with “I don’t think you

will have an issue with our client again.” (Emphasis added). All the while, appellant said

nothing as Balderrama clearly acted for him. So, whether it is because the lack of

evidentiary basis underlying the complaint or appellant’s failure to voice a timely objection

to Combs’ absence and Balderrama’s presence, the complaint is beyond our review at

this juncture. See Malcom v. State, 

 (Tex. Crim. App. 1982) (stating

that if a defendant is displeased with his attorney he must bring the matter to the court’s

attention); Pilgram v. State, No. 01-19-00027-CR, 

, at *9-10

(Tex. App.—Houston [1st Dist.] July 21, 2020 no pet.) (mem. op., not designated for

publication) (stating the same).

       Issue Three—Entitlement to New Hearing

       Through his third issue, appellant argues that he is entitled to a new hearing

because a presentence report was omitted from the record and could not be found. Yet,

we abated and remanded the cause to the trial court to investigate the matter. It held a

hearing and heard relevant testimony. The transcription of that hearing is part of the



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appellate record, as are the trial court’s findings of fact and conclusions of law. They

reveal that no formal presentence report was developed or considered by the trial court.

The latter simply reviewed various documents and a video in lieu of such a report.

Furthermore, all three items are part of the supplemented appellate record. We afforded

appellant opportunity to consider them and file an amended or supplemental brief

addressing them or some issue related to them. He eschewed the opportunity. Given

these circumstances, we reject his complaint about missing records requiring reversal

and overrule the issue.

      The trial court’s judgment is affirmed.




                                                            Brian Quinn
                                                            Chief Justice


Do not publish.




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