In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00317-CR
________________________
TIPHINIE BETH AGUILAR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 64th District Court
Castro County, Texas
Trial Court No. A3452-1206; Honorable Ed Self
April 10, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Tiphinie Beth Aguilar, pled guilty in open court to taking a prohibited
substance, namely marihuana, into a correctional facility1 and was sentenced by a jury
to ten years confinement and fined $2,500. In a single issue, she asserts on appeal that
the trial court erred by failing to grant her Motion for a New Trial because evidence
1 See TEX. PENAL CODE ANN. § 38.11(b) (West 2011). An offense under this section is a third
degree felony. Id. at 38.11(g).
presented showed her trial counsel failed to obtain a court-ordered investigator to
procure certain character witnesses and similarly failed to secure the testimony of a
mitigation expert. We affirm.
BACKGROUND
In 2012, an indictment issued alleging Appellant intentionally or knowingly took a
controlled substance, marihuana, into the Castro County Jail, a correctional facility. In
April 2013, she elected to have her punishment assessed by a jury. In July, she
stipulated to evidence establishing she committed the offense alleged in the indictment,
executed a waiver of certain rights, judicially confessed to the offense, and pled guilty in
open court. After finding her guilty, the jury assessed her sentence at ten years
confinement and a fine of $2,500.
In her Motion for a New Trial and at a hearing on that motion in August of 2013,
Appellant asserted her counsel was ineffective for failing to obtain from the court access
to an investigator to secure certain character witnesses and/or a mitigation expert to
testify on her behalf. In September, the trial court denied the motion and this appeal
followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
Because ineffective assistance of counsel claims involve mixed questions of law
and fact that often contain subsidiary questions of historical fact, some of which may
turn upon the credibility and demeanor of witnesses, Riley v. State, 378 S.W.3d 453,
458 (Tex. Crim. App. 2012) (quoting Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim.
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App. 1999)), an appellate court should review the trial court’s rulings on the matter for
an abuse of discretion, reversing only if the trial court’s ruling was clearly erroneous and
arbitrary, such as when no reasonable view of the record could support the trial court’s
ruling. Odelugo v. State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014) (citing Riley, 378
S.W.3d at 457).
We examine ineffective assistance of counsel claims by the standard enunciated
in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674
(1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim.
App. 1986). Appellant has the burden to show by a preponderance of evidence both
that (1) trial counsel’s performance was deficient in that it fell below the prevailing
professional norms and (2) the deficiency prejudiced the defendant, that is, but for the
deficiency, there is a reasonable probability that the result of the proceedings would
have been different. See Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010)
(citing Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). Counsel’s
conduct is viewed with great deference. Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). Any 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 812.
Here, we ask whether there is a reasonable probability that the jury would have
had a reasonable doubt as to Appellant’s sentence if an investigator had secured the
presence of the character witnesses and they had testified in Appellant’s favor, and a
mitigation expert had appeared and also testified favorably for Appellant. In King v.
State, 649 S.W.2d 42 (Tex. Crim. App. 1983), the appellant asserted ineffective
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assistance of counsel, in part, because counsel failed to call witnesses to testify on his
behalf. There, the Court of Criminal Appeals stated that the “failure to call witnesses at
the guilt-innocence and punishment stages is irrelevant absent a showing that such
witnesses were available and appellant would have benefit[ed] from their testimony.” Id.
at 44.
At the hearing on Appellant’s motion, there was no showing there were available
character witnesses to be located by an investigator or that Appellant would have
benefitted from either their testimony or the testimony of a mitigation expert. In addition,
we have reviewed the record and are not convinced Appellant would have benefitted
from an investigator’s services in locating character witnesses or the testimony of a
mitigation expert and do not see a reasonable probability that their testimony would
have changed the result of the proceeding. Accordingly, Appellant’s issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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