Gonzalez v. State

In Gonzalez v. State, 994 S.W.2d 369 (Tex. App.--Waco 1999, no pet.), the Waco court determined that the "clear language" of Rule 33.1(a) prevented a similarly situated appellant from raising an ineffective assistance of counsel claim for the first time on appeal. See id. at 373. The Gonzalez court noted the general axiom that, "'in most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim.'" Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)). It then concluded that the proper mechanism to develop the record in the ineffective assistance of counsel context was to present the argument to the trial court in a motion for new trial under Texas Rule of Appellate Procedure 21. Gonzalez, 994 S.W.2d at 373-74. The Gonzalez court held that by failing to present the claim to the trial court in such a manner, the appellant was procedurally barred from raising the issue on appeal. Gonzalez, 994 S.W.2d at 374.