State v. Telles, 973 P.2d 845 (N.M. Ct. App. 1998). · Go Syfert
Search
State v. Telles, 973 P.2d 845 (N.M. Ct. App. 1998). Cases Citing This Book View Copy Cite
205 citation events (202 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Quintana (nmctapp, 2012-09-25)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (rule) State v. Quintana
N.M. Ct. App. · 2012 · confidence medium
We also proposed to hold that the stop was not pretextual. 16 In his memorandum in opposition, Defendant fails to rebut the observations and 17 analysis contained in our notice of proposed summary disposition but instead makes 18 a cursory claim that his trial counsel was somehow ineffective in failing to challenge 19 the evidence. [MIO 2] However, Defendant acknowledges that any potential 2 1 ineffective claims are not supported by the record, and thus we do not consider them. 2 [MIO 2] See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 3 (stating that “[w]ithout a reco…
examined Cited "see" State v. Lopez (3×)
N.M. Ct. App. · 2024 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (holding that without a record, we cannot consider claims of ineffective assistance of counsel on direct appeal).
examined Cited "see" State v. Robles (3×)
N.M. Ct. App. · 2024 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“Without a record, we cannot consider [the d]efendant’s claim of ineffective assistance of counsel on direct appeal.”). {7} Nevertheless, based on the limited record before us and to the extent we understand Defendant’s arguments regarding why his counsel was ineffective, we conclude that Defendant has not made a prima facie showing that his trial counsel was ineffective.
examined Cited "see" State v. Clayton (3×)
N.M. Ct. App. · 2022 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (holding that without a record on appeal, this Court cannot consider claims of ineffective assistance of counsel, and the proper avenue of relief is a post-conviction proceeding).
examined Cited "see" State v. Parker (3×)
N.M. Ct. App. · 2019 · signal: see · confidence high
See generally State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“This Court cannot evaluate matters outside of the record.”).
examined Cited "see" State v. Parker (3×)
N.M. Ct. App. · 2019 · signal: see · confidence high
See generally State v. Telles, 6 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“This Court cannot evaluate 7 matters outside of the record.”).
discussed Cited "see" State v. Saenz, Jr. (2×)
N.M. Ct. App. · 2018 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 12 P.2d 845 ; State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 13 (stating that “[t]his Court has expressed its preference for habeas corpus proceedings 14 over remand when the record on appeal does not establish a prima facie case of 15 ineffective assistance of counsel”); State v. Turner, 2017-NMCA-047, ¶ 39 , 396 P.3d 16 184 (“Because many of [the defendant’s] alleged failures are based on facts that are 17 not of record, [the d]efendant’s ineffective assistance of counsel claim is likely more 18 a…
examined Cited "see" State v. Gee (3×)
N.M. Ct. App. · 2017 · signal: see · confidence high
See State v. Telles, 3 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 4 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has 5 expressed its preference for habeas corpus proceedings over remand when the record 6 on appeal does not establish a prima facie case of ineffective assistance of counsel”); 7 see also State v. Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 776 (“A 8 record on appeal that provides a basis for remanding to the trial court for an 9 evidentiary hearing on ineffective assistance of counsel is rare.
examined Cited "see" State v. Lee (3×)
N.M. Ct. App. · 2017 · signal: see · confidence high
See 2 State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 . 3 {7} Defendant’s last argument on appeal is that the docketing statement should be 4 amended to include the argument that his first degree kidnapping conviction is not 5 supported by substantial evidence. [MIO 1, 11-12] We deny Defendant’s motion.
examined Cited "see" State v. Montoya (3×)
N.M. Ct. App. · 2017 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 15 126 N.M. 593 , 973 P.2d 845 (holding that without a record, we cannot consider claims 16 of ineffective assistance of counsel on direct appeal).
examined Cited "see" State v. Wood (3×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State 6 v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 7 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has 8 expressed its preference for habeas corpus proceedings over remand when the record 9 on appeal does not establish a prima facie case of ineffective assistance of counsel”); 10 see also State v. Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 776 (“A 11 record on appeal that provides a basis for remanding to the trial court for an 12 evidentiary hearing on ineffective assistance of counsel is rare.
discussed Cited "see" State v. Morgan (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Telles, 1999- NMCA-013, ¶ 25, 126 N.M. 593 , 973 P.2d 845 (holding that without any record, we cannot consider claims of ineffective assistance of counsel on direct appeal).
examined Cited "see" State v. Morgan (6×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (holding that without any record, we cannot consider claims of ineffective assistance of counsel on direct appeal).
examined Cited "see" State v. McDaniel (3×)
N.M. Ct. App. · 2015 · signal: see · confidence high
See 7 State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Rickard, 8 1994-NMCA-083 , ¶ 14, 118 N.M. 312 , 881 P.2d 57 (stating that the Court of Appeals 9 will not review matters that are not of record), rev’d in part on other grounds, 1994- 10 NMSC-111, 118 N.M. 586 , 884 P.2d 477 .
discussed Cited "see" State v. Gonzalez (2×)
N.M. Ct. App. · 2015 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 11 845 (rejecting a claim of ineffective assistance based on counsel’s alleged failure to 12 investigate).
discussed Cited "see" State v. Cortez (2×)
N.M. Ct. App. · 2014 · signal: see · confidence high
See generally State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 3 P.2d 845 (holding that without a record, we cannot consider claims of ineffective 4 assistance of counsel on direct appeal).
discussed Cited "see" State v. Maes (2×)
N.M. Ct. App. · 2013 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 13 N.M. 593 , 973 P.2d 845 (“Without a record, we cannot consider [a d]efendant’s claim 14 of ineffective assistance of counsel on direct appeal. [The d]efendant’s proper avenue 15 of relief is a post-conviction proceeding that can develop a proper record.” (citation 16 omitted)); see also State v. Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 776 17 (“A record on appeal that provides a basis for remanding to the [district] court for an 18 evidentiary hearing on ineffective assistance of counsel is rare.
examined Cited "see" State v. Garcia (3×)
N.M. Ct. App. · 2013 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 9 973 P.2d 845 (“Without a record, we cannot consider [a d]efendant’s claim of 10 ineffective assistance of counsel on direct appeal. [A d]efendant’s proper avenue of 11 relief is a post-conviction proceeding that can develop a proper record.” (citation 12 omitted)); see also State v. Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 776 13 (“A record on appeal that provides a basis for remanding to the [district] court for an 14 evidentiary hearing on ineffective assistance of counsel is rare.
discussed Cited "see" State v. Santillano
N.M. Ct. App. · 2012 · signal: see · confidence high
See Telles, 1999-NMCA-013, ¶ 25 (declining to consider 3 the defendant’s claim of ineffective assistance of counsel where the record did not 4 contain evidence of the counsel’s alleged failures). 5 The District Court’s Evidentiary Ruling Regarding Detective Batts’s Testimony 6 Detective Allen Batts was involved in the investigation of this case.
examined Cited "see" State v. Nesbit (3×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State 16 v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (stating that 17 “[w]ithout a record, we cannot consider Defendant’s claim of ineffective assistance 18 of counsel on direct appeal”). 5 1 Despite the lack of evidence in the record, Defendant urges us to remand for an 2 evidentiary hearing concerning his allegations. [MIO 9] He claims that, despite the 3 lack of evidence, failure to remand would not comport with judicial economy given 4 that his appeal is already before this Court, citing to Varela v. State, 115 N.M. 586 , 5 588, 855 P.2d 1050, 1052 (1993), in su…
discussed Cited "see" State v. Martinez (2×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 4 1 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 2 927 P.2d 31 (stating that “[t]his Court has expressed its preference for habeas corpus 3 proceedings over remand when the record on appeal does not establish a prima facie 4 case of ineffective assistance of counsel”); see also State v. Baca, 1997-NMSC-059 , 5 ¶ 25, 124 N.M. 333 , 950 P.2d 776 (“A record on appeal that provides a basis for 6 remanding to the trial court for an evidentiary hearing on ineffective assistance of 7 counsel is rare.
examined Cited "see" State v. Tyler (3×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. Telles, 3 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (stating that “[w]ithout a record, 4 we cannot consider Defendant’s claim of ineffective assistance of counsel on direct 5 appeal”). 6 Defendant urges this Court to consider his ineffective assistance claim and 7 remand for an evidentiary hearing because this appeal is already before the Court. 8 [DMIO 4-5] He claims it would not comport with judicial economy to require 9 collateral proceedings in this case, citing to Varela v. State, 115 N.M. 586, 588 , 855 10 P.2d 1050, 1052 (1993), in support of his contention. …
examined Cited "see" State v. Lyster (3×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. 12 Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (recognizing that matters 13 outside of the record cannot be reviewed on appeal).
examined Cited "see" State v. Mohar (3×)
N.M. Ct. App. · 2012 · signal: see · confidence high
See State v. 14 Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (stating that “[w]ithout 15 a record, we cannot consider Defendant’s claim of ineffective assistance of counsel 16 on direct appeal”). 17 Despite the lack of evidence in the record, Defendant urges us to assign this 18 matter to the general calendar or to remand for an evidentiary hearing concerning his 3 1 allegations. [MIO 4] He claims that, despite the lack of evidence, failure to remand 2 would not comport with judicial economy given that his appeal is already before this 3 Court, citing to Varela v. State, 11…
discussed Cited "see" State v. Williams (2×)
N.M. Ct. App. · 2011 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 2 845 .
examined Cited "see" State v. Williams (3×)
N.M. Ct. App. · 2011 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 4 126 N.M. 593 , 973 P.2d 845 (refusing to consider a claim that counsel was ineffective 5 because the issue was not raised below and relied on matters outside the record). 6 There is no factual support for Defendant’s other arguments regarding 7 ineffective assistance.
examined Cited "see" State v. Bustamante (3×)
N.M. Ct. App. · 2011 · signal: see · confidence high
See State v. Telles, 8 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (stating that without a record, 9 we cannot consider a defendant’s claim of ineffective assistance of counsel on direct 10 appeal).
examined Cited "see" State v. Segura (3×)
N.M. Ct. App. · 2011 · signal: see · confidence high
See State 19 v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 . 15 1 CONCLUSION 2 For the foregoing reasons, we affirm. 3 IT IS SO ORDERED. 4 _______________________________ 5 JAMES J.
examined Cited "see" State v. Gonzales (4×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See 19 State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (filed 1998) 8 1 (stating that “[w]ithout a record, we cannot consider [a d]efendant’s claim of 2 ineffective assistance of counsel on direct appeal”). 3 Defendant next asserts that trial counsel was ineffective because he failed to 4 move for a change of venue on the grounds that Ms. Hern’s father was a former judge 5 in the city where the crimes occurred.
discussed Cited "see" State v. Duncan (2×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 15 , 126 N.M. 593 , 973 P.3d 845 (filed 15 1998) (stating that where a defendant has failed to invoke a ruling by the trial court 16 on an issue raised on appeal, the issue is not preserved).
examined Cited "see" State v. Gutierrez (3×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See State v. Telles, 16 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 17 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has 18 expressed its preference for habeas corpus proceedings over remand when the record 19 on appeal does not establish a prima facie case of ineffective assistance of counsel”). 5 1 In response to our second notice, Defendant agrees, upon consultation with trial 2 counsel, that there is no evidence of the plea that will appear in the record and that he 3 can raise this matter in habeas proceedings.
examined Cited "see" State v. Diaz (3×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013 , 9 ¶ 25, 126 N.M. 593 , 973 P.2d 845 (filed 1998); State v. Martinez, 1996-NMCA-109 , 10 ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has expressed its 11 preference for habeas corpus proceedings over remand when the record on appeal 12 does not establish a prima facie case of ineffective assistance of counsel”). 13 For these reasons, we hold that no abuse of discretion exists in the district 14 court’s decision not to conduct a hearing on Defendant’s motion to withdraw his plea. 15 As the district court presided over the change of …
examined Cited "see" State v. Ickstadt (3×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; 13 State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that 14 “[t]his Court has expressed its preference for habeas corpus proceedings over remand 15 when the record on appeal does not establish a prima facie case”). 16 CONCLUSION 17 For these reasons, we deny Defendant’s motion to amend the docketing 18 statement and affirm. 19 IT IS SO ORDERED. 4 1 ___________________________________ 2 RODERICK T.
discussed Cited "see" State v. Morgan (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 5 845 ; State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating 6 that “[t]his Court has expressed its preference for habeas corpus proceedings over 7 remand when the record on appeal does not establish a prima facie case”). 8 CONCLUSION 9 For these reasons, we deny Defendant’s motion to amend the docketing 10 statement and affirm. 11 IT IS SO ORDERED. 12 13 MICHAEL E.
discussed Cited "see" State v. Osby (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 12 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 13 927 P.2d 31 (stating that “[t]his Court has expressed its preference for habeas 14 corpus proceedings over remand when the record on appeal does not establish a 15 prima facie case”). 16 CONCLUSION 17 For these reasons, we affirm. 18 IT IS SO ORDERED. 19 4 1 2 MICHAEL E.
examined Cited "see" State v. Ruiz (3×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Telles, 14 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 15 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has 16 expressed its preference for habeas corpus proceedings over remand when the 17 record on appeal does not establish a prima facie case of ineffective assistance of 18 counsel”); see also State v. Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 19 776 (“A record on appeal that provides a basis for remanding to the trial court for 10 1 an evidentiary hearing on ineffective assistance of counsel is rare.
examined Cited "see" State v. D Hoffman (3×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State 10 v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 11 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has 12 expressed its preference for habeas corpus proceedings over remand when the record 13 on appeal does not establish a prima facie case of ineffective assistance of counsel”). 14 Accordingly, we deny Defendant’s motion to amend the docketing statement.
examined Cited "see" State v. G Camacho (3×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See 7 generally State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 8 (“Without a record, we cannot consider [the d]efendant’s claim of ineffective 9 assistance of counsel on direct appeal.”). 10 Nothing appears in the record to substantiate Defendant’s speculation that 11 fingerprint analysis could have had an impact on the outcome at trial. [MIO 6] As a 12 consequence, counsel’s failure to pursue this line of inquiry cannot be relied upon to 13 establish a prima facie case of ineffective assistance.
examined Cited "see" State v. Jensen (3×)
N.M. Ct. App. · 2005 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that "[t]his Court has expressed its preference for habeas corpus proceedings over remand when the record on appeal does not establish a prima facie case of ineffective assistance of counsel"); see also Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 776 ("A record on appeal that provides a basis for remanding to the trial court for an evidentiary hearing on ineffective assistance of counsel is rare.
examined Cited "see" State v. Jensen (3×)
N.M. Ct. App. · 2005 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 ; State v. Martinez, 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating that “[t]his Court has expressed its preference for habeas corpus proceedings over remand when the record on appeal does not establish a prima facie case of ineffective assistance of counsel”); see also Baca, 1997-NMSC-059, ¶ 25 , 124 N.M. 333 , 950 P.2d 776 (“A record on appeal that provides a basis for remanding to the trial court for an evidentiary hearing on ineffective assistance of counsel is rare.
examined Cited "see" State v. Gutierrez (3×)
N.M. Ct. App. · 2003 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 4 , 126 N.M. 593 , 973 P.2d 845 ; State v. Carrasco, 1996-NMCA-114 , ¶ 33, 122 N.M. 554 , 928 P.2d 939 , aff'd and rev’d in part on other grounds, 1997-NMSC-047 , 124 N.M. 64 , 946 P.2d 1075 . {8} Our Supreme Court has explained the parameters and nature of our review where impermissible prosecutorial comment on silence has been alleged but error was not preserved: Notwithstanding the lack of a timely objection at trial, an appellate court will apply the doctrine of fundamental error and grant review of certain categories of prosecutorial misconduct th…
examined Cited "see" State v. Plouse (6×)
N.M. Ct. App. · 2003 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“Without a record, we cannot consider Defendant’s claim of ineffective assistance of counsel on direct appeal.”); State v. Hosteen, 1996-NMCA-084 , ¶ 6, 122 N.M. 228 , 923 P.2d 595 (recognizing that remand is limited to those cases whose records on appeal establish a prima facie case of ineffective assistance of counsel). 1.
examined Cited "see" State v. Martinez (3×)
N.M. Ct. App. · 2001 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“This Court cannot evaluate matters outside of the record.”); State v. Paul, 82 N.M. 619, 621 , 485 P.2d 375, 377 (Ct.App.1971) ("The facts which are necessary to present a question for review by the appellate court are those facts established by the record and any fact not so established is not before us on appeal.”).
discussed Cited "see" Telles v. Mondragon (2×)
10th Cir. · 2001 · signal: see · confidence high
See State v. Telles, 126 N.M. 593 , 973 P.2d 845 (Ct.App.1998).
examined Cited "see" State v. Coffin (3×)
N.M. · 1999 · signal: see · confidence high
See State v. Telles, 1999-NMCA-013, ¶ 26 , 126 N.M. 593 , 973 P.2d 845 .
discussed Cited "see, e.g." State v. Sloan (2×)
N.M. · 2019 · signal: see also · confidence low
Cf. State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition . . . .”); see also State v. Telles, 1999-NMCA- 013, ¶ 25, 126 N.M. 593 , 973 P.2d 845 (“This Court cannot evaluate matters outside of the record.”).
examined Cited "see, e.g." State v. Gray (3×)
N.M. Ct. App. · 2016 · signal: see, e.g. · confidence low
See, e.g., State v. Telles, 1999-NMCA-013, ¶ 21 , 126 N.M. 593 , 973 P.2d 845 . {19} We agree with Defendant.
examined Cited "see, e.g." State v. King (3×)
N.M. · 2015 · signal: see also · confidence low
See also State v. Telles, 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“[The] proper avenue of relief [from ineffective assistance of counsel] is a post-conviction proceeding that can develop a proper record.”).
examined Cited "see, e.g." State v. King (3×)
N.M. · 2015 · signal: see also · confidence low
See also State v. Telles, 2 1999-NMCA-013, ¶ 25 , 126 N.M. 593 , 973 P.2d 845 (“[The] proper avenue of relief 3 [from ineffective assistance of counsel] is a post-conviction proceeding that can 4 develop a proper record.”).
discussed Cited "see, e.g." State v. Anaya (2×)
N.M. · 2015 · signal: see also · confidence low
Ordinarily, such claims are heard on petition 8 1 for writ of habeas corpus . . . .”); see also State v. Telles, 1999-NMCA-013, ¶ 25 , 126 2 N.M. 593 , 973 P.2d 845 (“Defendant’s proper avenue of relief [from ineffective 3 assistance of counsel] is a post-conviction proceeding that can develop a proper 4 record.”).
STATE of New Mexico, Plaintiff-Appellee,
v.
Samuel O. TELLES, Defendant-Appellant
18091.
New Mexico Court of Appeals.
Jul 8, 1998.
973 P.2d 845
Tom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee., Adam G. Kurtz, Albuquerque, for Appellant.
Apodaca, Donnelly, Bosson.
Cited by 68 opinions  |  Published

OPINION

APODACA, Judge.

{1} Defendant appeals his convictions and sentences after a jury trial. He was found guilty of homicide by vehicle (DWI) and great bodily injury by vehicle (DWI) in violation of NMSA 1978, § 66-8-101 (1991). He raises six issues on appeal: (1) comments by law enforcement officers on Defendant’s post-arrest, post-Miranda, silence in response to the prosecutor’s direct examination constituted reversible error, (2) the trial court erred by excluding testimony regarding the victims’ blood alcohol level and drug use, (3) testimony regarding the victims’ injuries was unfairly prejudicial and violated Defendant’s substantive rights, (4) the trial court improperly sentenced Defendant, (5) defense counsel’s failure to call a witness constituted ineffective assistance of counsel, and (6) these errors cumulatively deprived Defendant of substantial rights. Unpersuaded by Defendant’s arguments, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} One evening in February 1996, after leaving a bar, Defendant drove his vehicle home southbound on Highway 28, south of Las Cruces. Defendant testified that he wanted to pass the vehicle in front of him. To view oncoming traffic, Defendant stated that he would drive his car to the left, close to or slightly into the northbound lane. In doing so, Defendant collided with a motorcycle on which the driver and a passenger were riding. The collision killed the passenger and caused the driver to lose his leg. We incorporate additional facts in our discussion of the issues.

II. DISCUSSION

A. Prosecutorial Comment On Defendant’s Right To Remain Silent

{3} Defendant argues that the trial court committed reversible error because it failed to grant a mistrial when the prosecutor intentionally elicited impermissible comments on Defendant’s right to remain silent from law enforcement witnesses. On direct examination, the prosecutor asked Deputy Pirtle the following questions concerning his investigation of the collision:

Prosecutor: When you were at the scene of the collision, did you approach [Defendant] as part of your investigation?
Deputy Pirtle: Yes, I did.
Prosecutor: And when you approached him, did you notice anything about him?
Deputy Pirtle: When I approached [Defendant], he was in the back of Deputy Mendez’ police car. I opened the back door to speak with [Defendant]. As I opened the door the first thing I observed was the strong odor of an alcoholic beverage coming from within the back portion of the vehicle. [Defendant] looked up at me, I observed that he had bloodshot and watery eyes. I told [Defendant] why he was under arrest and [Defendant] didn’t say anything to me.

Defendant also complains of the prosecutor’s questioning of Deputy Mendez:

Prosecutor: Were you present when [Defendant] was notified that [the passenger] had died?
Deputy Mendez: Yes, I was.
Prosecutor: What was his reaction? Defense counsel: Objection, irrelevant. Trial court: Overruled.
Deputy Mendez: When he was told about it, he had no reaction. He didn’t say anything, he just went back to sleep.

{4} Objections to prosecutorial comments on the right to remain silent are not necessary for appellate consideration of this issue. See State v. Carrasco, 1996-NMCA-114, ¶ 33, 122 N.M. 554, 928 P.2d 939, aff'd, and rev’d in part on other grounds, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075. Impermissible prosecutorial comment on the right of a defendant to remain silent generally will result in reversal of a defendant’s conviction. See Carrasco, 1996—NMCA-114, ¶ 33, 122 N.M. 554, 928 P.2d 939.

{5} The State argues that we should apply the abuse of discretion standard of review here because Defendant appeals from denial of his motion for a mistrial on this issue. See State v. Price, 104 N.M. 703, 707, 726 P.2d 857, 861 (Ct.App.1986). Defendant, however, does not posture his appeal in this manner. He asks this Court to determine whether the alleged prosecutorial comment constitutes plain error. See State v. Lara, 88 N.M. 233, 235, 539 P.2d 623, 625 (Ct.App.1975). Our evidentiary rule and case law supports Defendant’s contention on the appropriate standard of review. See Rule 11-103(D) NMRA 1998 (“Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”); State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993) (holding that plain error doctrine applies to evidentiary matters); State v. Hennessy, 114 N.M. 283, 286, 837 P.2d 1366, 1369 (Ct.App.1992) (holding that prosecutorial questioning concerns the presentation of evidence), overruled on other grounds by Lucero, 116 N.M. at 453-54, 863 P.2d at 1074-75.

{6} In evaluating allegedly improper prosecutorial comments, we examine the manifest intent and character of the language. See State v. Isiah, 109 N.M. 21, 24, 781 P.2d 293, 296 (1989), overruled on other grounds by Lucero, 116 N.M. at 453-54, 863 P.2d at 1074-75. We determine whether the jury would naturally and necessarily understand it as a comment on Defendant’s invocation of his right to remain silent. See Isiah, 109 N.M. at 24, 781 P.2d at 296. To deduce the manifest intention prompting the remarks, we consider the context of the statement and the natural and necessary impact on the jury. See id.

{7} First, we evaluate the prosecutor’s questioning of Deputy Pirtle on direct examination. The prosecutor asked Deputy Pirtle about various field sobriety tests administered in DWI cases. Then the prosecutor focused on Deputy Pirtle’s investigation of the accident. She asked Deputy Pirtle what he noticed about Defendant at the scene of the collision. We hold that this question was not plain error.

{8} In Isiah, 109 N.M. at 24-25, 781 P.2d at 296-97, our Supreme Court held that questions intended to determine the defendant’s demeanor and mental state, in challenging an insanity defense, were not reversible error. The defendant’s mental state and degree of culpability were at issue in Isiah. See id. Here, Defendant’s intoxication was at issue. See § 66-8-101 (defining the offenses of homicide and great bodily injury by vehicle while driving under the influence of intoxicating liquor). The prosecutor’s question sought to elicit indicators of Defendant's intoxication and was not a comment on Defendant’s silence. See Carrasco, 1996— NMCA-114, ¶ 37, 122 N.M. 554, 928 P.2d 939 (holding that questions concerning defendant’s behavior and attitude following arrest were not a direct comment on his post-arrest right to remain silent).

{9} Next we evaluate the prosecutor’s direct examination of Deputy Mendez. The prosecutor questioned Deputy Mendez about his investigation of the accident, administration of sobriety tests to Defendant, arrest of Defendant, and Defendant’s blood sample. Then she asked Deputy Mendez about Defendant’s reaction to the motorcycle passenger’s death. Deputy Mendez testified that Defendant had no reaction and went back to sleep. The State contends that this question concerned the influence of alcohol on Defendant and established a narrative of events.

{10} We agree with the State that the inquiry concerning Defendant’s reaction was not a prosecutorial comment on his silence. The.line of questioning sought to prove that Defendant was under the influence of alcohol. Officer Mendez testified about Defendant’s impaired movements, the odor of alcohol, and Defendant’s slurred and slow speech. Additionally, Officer Mendez testified concerning Defendant’s admission of drunkenness, failure of the sobriety test, profanity, and blank stare. Somnolence is also an influence of alcohol. Consequently, we hold that this question did not constitute plain error.

{11} Even if we were to assume arguendo that the comments complained of constituted a direct comment on Defendant’s right to remain silent, the State presented overwhelming evidence against Defendant to the trial court. Prejudicial effect of the prosecutorial query concerning Defendant’s reaction to the passenger’s death would be minimal in comparison. See Isiah, 109 N.M. at 25, 781 P.2d at 297; see also State v. Molina, 101 N.M. 146, 147, 679 P.2d 814, 815 (1984). For these reasons, we do not believe that the question requires reversal. See Isiah, 109 N.M. at 25, 781 P.2d at 297.

B. Exclusion Of Blood-Alcohol Evidence Of Driver And Passenger

{12} Driver contends that the trial court abused its discretion by excluding evidence of the motorcycle driver’s and passenger’s blood alcohol. “ ‘An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.’ ” State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (quoting State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)). We determine whether the trial court’s ruling is clearly untenable or not justified by reason. See Woodward, 121 N.M. at 4, 908 P.2d at 234.

{13} All relevant evidence is admissible, and irrelevant evidence is not admissible. See Rule 11-402 NMRA 1998. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence .” Rule 11-401 NMRA 1998.

{14} The motorcycle driver had a .05 blood alcohol concentration. At trial, an expert testified that there was no observable impairment to perhaps a slight and moderate judgment risk at this level. Additionally, there would be no lag in reaction time nor any effect on perception or memory. The trial court excluded evidence concerning the driver’s alcohol consumption because “it would not be relevant to any issue in this matter.” We agree and hold that the trial court did not abuse its discretion in excluding evidence of the driver’s blood alcohol level.

{15} Apparently, the trial court did not rule on the admissibility of the passenger’s blood alcohol concentration. The State filed a motion in limine to exclude this evidence. At the motion hearing, the trial court stated it would hear evidence concerning the matter outside the presence of the jury to determine relevancy. At trial, however, defense counsel did not seek to admit evidence concerning the passenger’s blood alcohol. Consequently, Defendant did not preserve this issue for review because he did not invoke a ruling by the trial court. See Rule 12-216(A) NMRA 1998; State v. Pennington, 115 N.M. 372, 380, 851 P.2d 494, 502 (Ct.App.1993) (holding that defendant waived claim by never requesting a further evidentiary hearing).

{16} Even if Defendant had preserved the issue of the passenger’s blood alcohol concentration, we would affirm the trial court’s ruling declaring its inadmissibility. See Rule 11-402 (providing that irrelevant evidence is not admissible). The State prosecuted Defendant for homicide by vehicle (DWI) and great bodily injury by vehicle (DWI). The passenger’s blood alcohol level did not bear on any fact of consequence to the determination of these charges. See § 66-8-101 (defining the crimes of homicide by vehicle (DWI) and great bodily injury by vehicle (DWI)); Rule 11-401 (defining relevant evidence).

{17} In arguing the relevancy of the motorcycle driver’s and passenger’s blood alcohol, Defendant relies on Buffett v. Vargas, 1996-NMSC-012, ¶¶ 8-18, 121 N.M. 507, 914 P.2d 1004 (holding that trial court did not err in admitting blood-alcohol evidence of driver and passenger). We distinguish Buffett from this case because Buffett was a civil ease involving comparative negligence. The criminal charges against Defendant did not involve concepts of comparative negligence. See § 66-8-101.

C. Admission Of Testimony Regarding Injuries

{18} Defendant challenges the trial court’s admission of testimony concerning the victims’ injuries. The standard of review for this issue is also abuse of discretion. See Woodward, 121 N.M. at 4, 908 P.2d at 234.

{19} Defendant argues this evidence was irrelevant because there was no dispute concerning the “necessary element of great bodily harm or death caused by the accident.” See Rules 11^101, -402. Defendant stipulated that the driver sustained great bodily harm. The State, however, still had to prove that * Defendant caused the driver’s great bodily injury and the passenger’s death by the unlawful operation of a motor vehicle. See § 66-8-101. The testimony was relevant to these issues. See Rule 11-401.

{20} Defendant also contends that the prejudicial effect of the testimony outweighed its probativeness. We disagree. The testimony presented evidence of the driver’s and the passenger’s injuries and indicated that the passenger’s injuries eventually caused her death. Consequently, we hold that the trial court did not abuse its discretion in admitting this testimony.

D. Defendant’s Sentence

{21} Defendant argues that the trial court improperly enhanced his sentence based on two prior convictions for driving under the influence of intoxicating liquor (DWI). See § 66-8-101(D). We review de novo this question of law concerning statutory construction. See State v. Cleve, 1997-NMCA-113, ¶ 5, 124 N.M. 289, 949 P.2d 672.

{22} Pursuant to Section 66-8-101(D), the trial court enhanced Defendant’s sentence by four years on both convictions. According to Defendant, the commission of each prior DWI used for enhancement must occur after the conviction of the preceding DWI. See Koonsman v. State, 116 N.M. 112, 114, 860 P.2d 754, 756 (1993). The cases Defendant relies on, however, concern habitual offender sentencing and not Section 66-8-101. See id.; State v. Linam, 93 N.M. 307, 309, 600 P.2d 253, 255 (1979).

{23} The plain meaning of Section 66-8-101, we believe, does not evince a legislative intent to adopt the crime-conviction, crime-conviction sequence for its enhancement purposes. See State v. Riddall, 112 N.M. 78, 80, 811 P.2d 576, 578 (Ct.App.1991) (holding that in statutory interpretation, the appellate court should give the legislative wording its plain meaning).

{24} Defendant additionally argues that his current convictions arose out of a single act. Consequently, he asserts the separate enhancement and the consecutive terms for each count are double jeopardy. Our Court has previously rejected Defendant’s argument. See State v. Harris, 101 N.M. 12, 19-20, 677 P.2d 625, 632-33 (Ct.App.1984). As a result, we affirm Defendant’s sentence.

E. Assistance Of Counsel

{25} Defendant asserts that his trial counsel was ineffective because of counsel’s failure to investigate and call a specific known witness. Defendant did not raise this issue below and cites to matters outside of the record. This Court cannot evaluate matters outside of the record. See State v. Rickard, 118 N.M. 312, 317, 881 P.2d 57, 62 (Ct.App.), aff'd and rev’d on other grounds, 118 N.M. 586, 884 P.2d 477 (1994). Without a record, we cannot consider Defendant’s claim of ineffective assistance of counsel on direct appeal. See Rickard, 118 N.M. at 317, 881 P.2d at 62. Defendant’s proper avenue of relief is a post-conviction proceeding that can develop a proper record. See id.

F. Cumulative Error

{26} Because we have found no error, there is no cumulative error. See State v. Armijo, 1997-NMCA-080, ¶37, 123 N.M. 690, 944 P.2d 919.

III. CONCLUSION

{27} We conclude that there was no prosecutorial comment on Defendant’s right to remain silent and that the trial court did not abuse its discretion in excluding evidence of the motorcycle driver’s and the passenger’s blood alcohol concentrations. We also hold that the admission of testimony concerning the driver’s and passenger’s injuries was not an abuse of discretion and that the trial court lawfully sentenced Defendant. Finally, we determine that Defendant’s claim for ineffective assistance of counsel is not properly before this Court and that there was no cumulative error. We therefore affirm Defendant’s convictions and sentences.

{28} IT IS SO ORDERED.

DONNELLY and BOSSON, JJ., concur.