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NUMBER 13-04-195-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
OSCAR MORENO A/K/A OSCAR ANGUIANO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION[1]
Before Justices Yañez, Castillo, and Garza
Memorandum Opinion by Justice Castillo
Appellant Oscar Moreno plead guilty to the charge of aggravated robbery.[2] The trial court imposed a life sentence at the Texas Department of Criminal JusticeBInstitutional Division. By one point of error, Moreno asserts that the trial court abused its discretion in denying his motion for new trial.
I. RELEVANT FACTS
Moreno entered an open plea of guilty. The State adduced evidence at the punishment hearing. Angela Garcia testified that, on September 17, 2003, she was at work at a convenience store. Moreno regularly patronized the store and knew Garcia by her first name. Moreno and two other persons entered the store at approximately 12:30 a.m., looked around, purchased some items, and left. Approximately one hour later Moreno returned. Moreno called her over on the pretext that water was on the floor. She complied. He then cut her throat and left the store. Another witness identified him as the man leaving the store immediately before Garcia emerged, injured. Garcia sustained an injury from the middle part of her neck to the right back side of her neck. Documents evidencing Moreno's judicial confession, prior criminal history, written admonishments, and the pending motion to revoke felony community supervision were admitted in evidence and are part of the record. The trial court pronounced sentence on the aggravated robbery offense in this case and, after revoking community supervision, on the pending aggravated assault case. The judgment in this case shows that the trial court exercised its discretion and ordered the sentences to run concurrently.
Moreno filed a motion for new trial asserting ineffective assistance of counsel on grounds that trial counsel (1) promised him that, with an open plea, the trial court would not assess a life sentence, and (2) did not allow him to testify. The trial court convened an evidentiary hearing.
A. Moreno's Testimony
Moreno testified that trial counsel visited him in jail twice during the approximate six-month period of representation. During the initial visit, the two discussed Moreno's version of the events, and trial counsel told him he was "looking at a lot of time." Moreno requested discovery and did not receive it. The two did not discuss possible defenses. Prior to the April 7 hearing when Moreno pled guilty, they discussed trial by bench or jury. Moreno testified that trial counsel told him to let the trial court sentence him. Trial counsel did not advise him that he could plead guilty and let the jury assess punishment. The following colloquy ensued on direct examination:
Q: Whose recommendation was it for you to plead guilty and let the Court assess punishment?
A: Well, I told the judge that I was guilty because [trial counsel] told me that I wouldn't get a life sentence on it, and I believed him.
Q: Why would he tell you that you would not get a life sentence?
A: I don't know. I believed him because I know that he has been a lawyer for a while already.
Q: Okay. Are you telling this Court that you pledByou went into an open plea because [trial counsel] promised you that you would not get a life sentence; is that correct?
A: Yes, sir.
Moreno admitted he knew the range of punishment for aggravated robbery. He stated that trial counsel asked him if he knew, and Moreno told him he already knew. Moreno told trial counsel he wanted to testify and was told "no," without a reason. Had he testified, Moreno would have given his version of the events and apologized to the victim. Moreno stated it was trial counsel's decision, not his, that he not testify.
On cross-examination, Moreno admitted he did not know why trial counsel would make a promise that a life sentence would not be assessed. Moreno explained, "At first I didn't know why he was telling me that, but then I believed him because I know that he's been a lawyer for a while, . . . and that's why I" decided to "go with that." If he had not relied on trial counsel, Moreno would have "gone to a jury trial." The following ensued:
Q: You don't think that slicing somebody's throat for $5 and two cartons of cigarettes might have inflamed them enough to give you a life sentence?
A: You can't never tell with a jury.
Q: Right. But you know they would have found you guilty, right?
A: Oh, I know that, because I know I did it, you know what I mean. . .
Q: And I bet I probably would have gotten in information about your previous conviction, right? . . . The jury would have found out that just a couple of years ago you smashed somebody's face in with a brick, right?
A: Yes, ma'am. . . . I don't think they would have given me five years, but I don't think they would have given me a life sentence either. . . .
Q: Okay. Do you have anything to base that on?
A: No.
Moreno further testified that trial counsel whispered to him the refusal to allow him to testify. He probably would not have been sentenced to life because he would have testified, "I know what I did was wrong, you know what I mean. I know I did it, you know what I mean. I never said I never did it, you know what I mean." Allowed an additional opportunity to state what he would have testified to, Moreno stated, "I don't know." He admitted that during the three times he appeared in court, he did not complain to the trial court about trial counsel. He admitted that the outcome of the proceedings "probably" would not have been different.
B. Trial Counsel's Testimony
The State called trial counsel to testify. He testified that he represented Moreno on both the aggravated robbery charge and the motion to revoke community supervision pending at the time. A practicing attorney for twenty-five years with extensive jury and bench trial experience, trial counsel testified he was "always prepared" to try the case to a jury, and he informed Moreno he was prepared to try the case. Moreno declined and decided to plead guilty. He denied he promised Moreno he would not receive a life sentence on his open plea. His practice is to warn criminal defendants that they are subject to the full range of punishment on an open plea. He makes it clear that the trial court is free to set any punishment. He testified, "I would not have ever made that sort of an assertion or promise or anything like that to any defendant that I've ever represented." Trial counsel further testified that he "had every possible discussion that needed to be had with Mr. Moreno as to what his specific rights were as far as a trial by jury, a trial by judge, subpoenaing witnesses, picking a jury, everything." He explained the bifurcated system to Moreno. He testified that, had Moreno told him he wanted to testify, trial counsel would have advised against it, explaining that his practice is to advise against it, make a record of his advice against the client's testifying (even in open plea proceedings), and proceed according to his client's wish. But, he testified, Moreno did not state he wished to testify.
On cross-examination, trial counsel testified he advised Moreno that juries may be less sympathetic in a violent crime case. He denied telling Moreno the trial court would probably assess a sentence less than life. In this case, the trial court was aware of Moreno's criminal history because of other cases and a motion to revoke pending in the same court. Trial counsel testified he advised Moreno of the consequences of his testifying and reiterated that he did not prevent Moreno from testifying. Counsel testified that Moreno did not tell him he wanted to testify.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Under Strickland v. Washington, a defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel's conduct "fell below an objective standard of reasonableness,"[3] and (2) this incompetence caused the defendant prejudice.[4] Ex parte McFarland, 2005 Tex. Crim. App. LEXIS 740, *12 (Tex. Crim. App. 2005)(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); Mallett v. State, 65 S.W.3d 59, 62‑63 (Tex. Crim. App. 2001); see Salinas v. State, 2005 Tex. Crim. App. LEXIS 741, *11‑*12 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett, 65 S.W.3d at 63. To overcome 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." Thompson v. State, 9 S.W.3d 808, 813‑14 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
III. STANDARD OF REVIEWBMOTION FOR NEW TRIAL
While the ultimate question of prejudice under Strickland is to be reviewed de novo, the trial court should be afforded deference on any underlying historical fact determinations. Johnson v. State, 2005 Tex. Crim. App. LEXIS 818, *42‑*43 (Tex. Crim. App. May 25, 2005). When no express fact findings are made by the trial court, as is the case with rulings on motions for new trial, appellate courts should "impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record." Id. The trial court is granted wide latitude in exercising the decision to grant or deny a motion for new trial, and in the absence of an abuse of discretion, an appellate court should not reverse. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).
IV. DISCUSSION[5]
By his sole issue, Moreno claims that he was denied the effective assistance of counsel on three grounds. He asserts trial counsel (1) failed to timely communicate with him for trial preparation, (2) promised a result that was not likely attainable, and (3) did not allow him to testify.
A. Timely Communication
Moreno asserts that trial counsel met with him two times in a six-month period and, thus, denied him the opportunity to confer with counsel and develop strategy for trial.[6] The sole testimony regarding the number of times trial counsel and Moreno was Moreno's that they met twice at the jail.[7] Moreno also testified that trial counsel gave him the opportunity to relay his own version of the events, and he complied. Trial counsel testified that he advised Moreno of all facets of a jury and non-jury trial, his assessment of the severity of the case, and the range of punishment. Trial counsel testified he was prepared to try the case to a jury, but Moreno decided to plead guilty. In denying the motion for new trial, the trial court could have reasonably concluded that (1) because counsel was trial-ready, Moreno preempted counsel's strategy by his decision to plead guilty, and (2) with twenty-five years of trial experience, trial counsel's meeting twice with his client was adequate in a case involving an eye-witness who survived a violent attack. On these facts, we cannot conclude that the complained-of conduct is objectively deficient. The first prong of Strickland is, thus, not met.
B. Promise of an Unlikely Result
Moreno asserts that trial counsel promised him that he would not receive a life sentence if sentenced by the trial court. Trial counsel denied promising Moreno a sentence less than life; he denied any promise as against his common practice. Implicit in the trial court's ruling is that it disbelieved Moreno and believed trial counsel.[8] Moreover, implicit in the trial court's ruling is that, given the severity of the attack, aggravated by Moreno's criminal history including a violent attack on another woman, any rational trier of fact, including a jury, would have assessed a life sentence. Thus, even assuming that Moreno met the first Strickland prong, Moreno must prove by a preponderance of the evidence that a promise, if any, or his reliance on the promise caused him prejudice. Moreno admitted to committing the offense, admitted a jury would not assess five years, and speculated that a jury would not assess a life sentence.[9] We conclude that Moreno did not demonstrate there is reasonable probability that, absent the complained of error, the sentencer would have assessed punishment at less than life imprisonment. Thus, the second prong of Strickland is not met.
C. Denial of Right to Testify
The right to testify is recognized as a "fundamental" constitutional right. See Johnson, 2005 Tex. Crim. App. LEXIS 818, at *34. "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." Id.; Salinas v. State, 2005 Tex. Crim. App. LEXIS 741, *11‑*12 (Tex. Crim. App. May 18, 2005) (citing Harris v. New York, 401 U.S. 222, 225 (1971)); Maddox v. State, 613 S.W.2d 275, 280 (Tex. Crim. App. 1980) (recognizing that attorney has duty to protect client's right to testify). Defense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant. Johnson, 2005 Tex. Crim. App. LEXIS 818, at *32. Because imparting that information is defense counsel's responsibility, Strickland provides the appropriate framework for addressing an allegation that the defendant's right to testify was denied by defense counsel. Id.
Moreno testified that trial counsel denied him the right to testify. If allowed to testify, he would have apologized to the victim and, essentially, would have accepted responsibility for the offense. When allowed an additional opportunity to state what he would have testified to, he stated he did not know. Trial counsel testified he provided Moreno, essentially, his professional assessment of the consequences of Moreno's testifying. He denied he prevented Moreno from exercising his right to testify.
By its ruling, aside from credibility determinations, the trial court could have concluded that Moreno's proffered testimony was duplicitous of evidence already before the trial court. Other than an apology to the victim, Moreno did not articulate any other potential testimony. Even assuming Moreno reasonably believed he was denied the right to testify, a reasonably competent attorney might well advise a client in Moreno's position not to testify for reasons not established in the record.[10] Moreno's proffered testimony was wholly dependent on his credibility and was already before the trial court in court documents admitted as exhibits. A reasonably competent attorney might have concluded that testimony of his extraneous criminal conduct, certain to arise in cross-examination, would be more prejudicial than helpful to Moreno. See Johnson, 2005 Tex. Crim. App. LEXIS 818 at *41. We cannot conclude that trial counsel's conduct fell below an objective standard of reasonableness. Thus, the first prong of Strickland is not met.
V. CONCLUSION
Viewing the evidence as Strickland instructs, we conclude that the trial court did not abuse its discretion in denying Moreno's motion for new trial on grounds he was denied effective assistance of counsel. Moreno did not establish by a preponderance of the evidence that (1) his trial counsel's performance fell below an objective standard of reasonableness or (2) caused him prejudice. We overrule Moreno's sole issue. We affirm the ruling of the trial court.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this 7th day of July, 2005.
[1] See Tex. R. App. P. 47.2 & 47.4.
[2] See Tex. Pen. Code Ann. _ 29.03 (Vernon 2003). The indictment alleged that Moreno intentionally, knowingly or recklessly caused bodily injury to Garcia by stabbing her with a deadly weapon, while in the course of committing theft of property.
[3] To prevail on these "ineffective assistance" claims, the defendant must satisfy both prongs of the Strickland test. See Ex parte McFarland, 2005 Tex. Crim. App. LEXIS 740, *18‑*19 (Tex. Crim. App. May 18, 2005). First, he must prove that his counsel's conduct was objectively deficient. Id. In assessing this, we look to see if counsel was acting as "a reasonably competent attorney" would under the circumstances. Id. The defendant has the burden of proof and must overcome a "strong presumption that counsel's performance fell within the wide range of reasonable professional assistance." Id. This highly deferential review is employed to avoid "the distorting effect of hindsight." Id. Thus, applicant must show that his attorneys made "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id.
[4] He must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ex parte McFarland, 2005 Tex. Crim. App. LEXIS 740 at *18‑*19. The Supreme Court has defined this "reasonable probability" as a "probability sufficient to undermine confidence in the outcome." Id.
[5] We assume, without deciding, that Moreno preserved error for appeal. Tex. R. App. P. 33.1.
[6] The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. Tex. R. App. P. 38.1(e).
[7] We observe that Moreno admitted on cross-examination that he appeared in court at least three times.
[8] The record shows that the trial court revoked Moreno's community supervision for aggravated assault on a woman by striking her head with a brick, and, coupled with the aggravated robbery in this case involving another attack on another woman, the trial court could have reasonably concluded that Moreno was merely dissatisfied with the sentence. In addition to the two felonies before the trial court, documents admitted at the plea proceeding show Moreno was previously convicted for deadly conduct, delivery of cocaine, and possession of cocaine.
[9] We will not base a finding of ineffectiveness on speculation. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.BHouston [1st Dist.] 1996, no pet.).
[10] At one point during his testimony, trial counsel testified he would not disclose certain information because of the attorney-client privilege.