Affirmed and Memorandum Opinion filed September 4, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-06-00369-CR
____________
MOHAMMAD ADEL RAZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 980,304
M E M O R A N D U M O P I N I O N
Appellant, Mohammad Adel Raza, pleaded guilty to aggravated robbery and was sentenced by the trial court to twelve years= confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. '' 29.02(a)(2), 29.03(a)(2). In a single issue, appellant contends the trial court erred in denying his motion for new trial based on ineffective assistance of counsel. We affirm.
Factual and Procedural Background
A Harris County grand jury indicted appellant for aggravated robbery. The indictment alleged appellant exhibited a firearm during the course of committing theft of property owned by Saeed Hussein (AComplainant@) and intentionally and knowingly placed Complainant in fear of imminent bodily injury and death.
On January 24, 2006, appellant pleaded Aguilty@ to the offense of aggravated robbery, without an agreed sentence recommendation, and requested a pre-sentence investigation report (APSI@). The trial court admonished appellant of the consequences of his plea orally and in writing, withheld a finding of guilt, and ordered appellant=s case reset for a PSI report. After a punishment hearing, the trial court found appellant guilty and assessed punishment at confinement for twelve years.
On April 13, 2006, appellant filed a motion for new trial alleging he received ineffective assistance of counsel. In his motion, appellant argued his trial counsel=s performance was deficient because counsel failed to investigate, subpoena witnesses, or pursue the defensive strategy chosen by appellant, and because counsel promised appellant he would receive probation if appellant entered a plea of guilty. Five affidavits were attached to appellant=s motion.[1] The trial court conducted a hearing on appellant=s motion for new trial on June 6, June 8, and June 27, 2006. Three witnesses testified at the hearing: George Reyes (appellant=s trial counsel), Hamid Hussein (the Complainant=s brother), and Angela Weltin (the prosecuting attorney). The trial court denied appellant=s motion on June 27, 2006. This appeal followed.
Discussion
In his single issue on appeal, appellant argues he received ineffective assistance of counsel at trial because his counsel failed to conduct an adequate factual investigation. Therefore, appellant contends, the trial court erred in denying his motion for new trial.
I. Standards of Review
A. Motion for New Trial
We review the denial of a motion for new trial for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). The test for abuse of discretion Ais not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.@ State v. Herndon, 215 S.W.3d 901, 907B08 (Tex. Crim. App. 2007). We do not substitute our own judgment for the trial court=s judgment. Charles, 146 S.W.3d at 208. We review the evidence in the light most favorable to the trial court=s ruling and presume that all reasonable findings that could have been made against the losing party were so made. See id. Only when no reasonable view of the record could support the trial court=s ruling do we conclude that the trial court abused its discretion by denying the motion for new trial. Id.
B. Ineffective Assistance of Counsel
In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 813. When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
II. Analysis
Appellant claims his counsel rendered ineffective assistance by allegedly failing to conduct an adequate investigation. Specifically, appellant argues his counsel failed to properly interview fact witnesses, including appellant, appellant=s brother, and the Complainant, regarding appellant=s defensive theory. Appellant further contends his counsel failed to investigate the likelihood of the Complainant appearing to testify in court.
A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). A breach of the duty to investigate may result in a finding of ineffective assistance Awhere the result is that any viable defense available to the accused is not advanced.@ Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). In defining the duty to investigate, the United States Supreme Court has stated that Acounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments.@ Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
Turning to the facts of this case, the record shows appellant=s trial counsel had sufficient communication with appellant to understand appellant=s defensive theory and formulate a trial strategy. In his affidavit, appellant testified that when he hired his trial counsel, appellant told counsel that the Complainant fabricated the allegation of aggravated robbery as retribution for non-payment of a debt owed by appellant to the Complainant. At the hearing on appellant=s motion for new trial, counsel testified that he understood appellant=s defense and planned to pursue it at trial. Counsel testified:
I had picked up this case on or about August >05 and had this case and [a] considerable amount of resets for quite some time, so I pretty much knew everything in the district attorney file because they had given me everything. I knew the defense, a defense strategy I had up my sleeve regarding Mr. Raza=s case and basically it was . . . Mr. Hussein=s word against Mr. Raza as far as I was concerned. Mr. Raza had worked for Mr. Hussein for a while. Mr. Raza continued to adamantly sustain [sic] his innocence and that=s what I was going to do to try to convince the jury B Mr. Raza is here to defend himself because he was not guilty on this case and the evidence they had was regarding a disgruntled complaining witness because Mr. Raza had not paid him. I had my strategy planned also on Mr. Hussein. Mr. Hussein was forced to come to court. He didn=t want to come over here and testify against Mr. Raza.
The record further demonstrates that counsel interviewed the Complainant prior to the time of trial and obtained pertinent information. At the hearing on appellant=s motion for new trial, counsel testified he called the Complainant and spoke to him regarding appellant=s case. Counsel testified: AI asked him the million dollar question. I asked him if it was true that Mr. Raza had held him up at gunpoint and robbed him of his money. . . . He said [appellant] did.@ Counsel also asked the Complainant if he was planning to appear in court and testify against appellant, and the Complainant stated that he was not. Counsel testified he was planning to ask the Complainant questions regarding appellant=s debt, if the Complainant appeared and testified at trial.
Counsel testified he did not interview appellant=s brother, Shobi Raza. However, counsel testified he spoke to appellant regarding his brother=s anticipated testimony. Appellant told counsel that Shobi Raza paid money to the Complainant as satisfaction for appellant=s debt. Photocopies of stubs from money orders allegedly used to pay the Complainant were present in counsel=s file. Based on our review of Shobi Raza=s affidavit testimony, we find that his testimony was of limited value to appellant=s defense because, at most, it could establish the existence of a debt owed by appellant to the Complainant.
Counsel testified that part of his strategy was to progress to trial and see if the Complainant appeared to testify. If the Complainant appeared, counsel planned to pursue appellant=s defensive theory that the Complainant fabricated the allegation of aggravated robbery as retribution for appellant=s non-payment of a debt owed to the Complainant. When the Complainant appeared in court, counsel approached the Complainant and inquired about his intentions. The Complainant stated he was planning to testify that appellant robbed him at gunpoint. Appellant asked counsel what his options were, and counsel told appellant he could try the case, enter into a plea bargain with the State, or enter a plea of guilty and request a PSI report. Appellant chose to enter a plea of guilty and request a PSI report.
Based on counsel=s actions, we do not conclude that counsel=s performance was deficient. The investigation conducted by appellant=s trial counsel was reasonable under the circumstances and the trial court did not abuse its discretion in denying appellant=s motion
for new trial. Accordingly, we overrule appellant=s issue and affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed September 4, 2007.
Panel consists of Justices Anderson, Frost, and Mirabal.[2]
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Affidavits of the following persons were attached to appellant=s motion: 1) appellant, 2) Shobi Raza (appellant=s brother), 3) Hamid Hussein (the Complainant=s brother), 4) Roland Moore (appellant=s first attorney), and 5) Anthony Muharib (appellant=s second attorney). At the time of appellant=s guilty plea, appellant was represented by George Reyes. Reyes was the third attorney to represent appellant in this case.
[2] Former Justice Margaret G. Mirabal sitting by assignment.