In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00137-CR
TIMOTHY BRYAN GARZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1245376D, Honorable Mollee Westfall, Presiding
January 14, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant was convicted of assault causing bodily injury against a family member
and placed on deferred adjudication for five years. The State filed a motion to
adjudicate appellant guilty after he committed another assault against the same victim in
violation of the terms and conditions of his community supervision. After a hearing, he
was found guilty and sentenced to ten years confinement. He now appeals that
conviction contending 1) the trial court abused its discretion in finding he violated his
probation, and 2) he received ineffective assistance of counsel. We affirm the
judgment.
Background
Via its motion to adjudicate, the State alleged that appellant ―on or about the 29 th
day of June, 2012, in the County of Tarrant and State of Texas, did then and there
intentionally or knowingly cause bodily injury to Melanie Ruiz, a member of the
defendant’s family or household, or a person whose relationship is, or whose
association with defendant has been, a continuing dating relationship of a romantic or
intimate nature, by pushing or forcing her to the floor with his hand, or by squeezing her
neck with his hand." According to the evidence, Ruiz had lived with appellant off and on
for several years, and he had fathered their daughter.
At the time of the incident, Ruiz and appellant were not living together. However,
she called appellant to come to her house, had second thoughts about the matter, and
withdrew the invitation. Apparently, the father of her child was also the subject of a
protective order barring him from being in Ruiz' presence. He came over anyway and
refused to leave when directed to do so. This resulted in appellant entering the abode
through its bathroom window. Thereafter, appellant and Ruiz began arguing. At some
point, he grabbed her arms, hit and punched her, pushed her to the ground with his
hands, and choked her until she momentarily blacked out. He relented and began to
apologize. Yet, the assault began anew and resulted in appellant gaining possession of
Ruiz' keys and cell phone. At that point, she went to her bedroom and fell asleep.
Mention of the assault was not made until several days later when Ruiz was
arrested at a party after falsely identifying herself to officers there present. Apparently,
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she was the subject of an outstanding warrant. At that point, she decided to inform the
officers of appellant's attack, and photographs were taken of various bruises and
scratches that Ruiz claimed he inflicted upon her.
Issue One - Insufficient Evidence
Appellant initially contends that the evidence supporting the decision to
adjudicate guilt was insufficient. Furthermore, it was insufficient not because none was
proffered but rather because the person who provided it could not be believed. We
overrule the issue.
At a hearing on a motion to adjudicate guilt, the trial court is the trier of fact and
the arbiter of the credibility of the witnesses. Johnson v. State, 386 S.W.3d 347, 350
(Tex. App.—Amarillo 2012, no pet.); Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.—
Fort Worth 2000, pet. ref’d). In other words, it is free to choose who to believe. That
authority is inherent in assessing whether the trial court abused its discretion, the latter
being the applicable standard of review. Johnson v. State, 386 S.W.3d at 350.
Obviously, the trial court opted to believe Ruiz' testimony as outlined above, and we
cannot disturb its decision to do so.
In sum, there is of record ample testimony satisfying the State's obligation to
prove, by a preponderance of the evidence, the allegation in its motion to adjudicate
guilt. The trial court's decision to grant that motion and adjudicate guilt has sufficient
evidentiary support.
Issue Two - Ineffective Assistance of Counsel
Next, appellant claims he received ineffective assistance of counsel. We overrule
the issue.
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To succeed, appellant was obligated to prove not only that his counsel’s
performance was deficient but that the deficiency prejudiced him. Perez v. State, 310
S.W.3d 890, 892-93 (Tex. Crim. App. 2010). And, prejudice is established by showing
that there is a reasonable probability of a different result had the ineffectiveness not
occurred. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Both prongs
are elements to the claim, and both must be addressed by the claimant.
Here, appellant focused his attack on the purported deficiencies in the conduct of
his trial attorney. Yet, no effort was taken to analyze or describe how there existed a
reasonable probability of a different result but for that conduct. Again, it is not enough
to show deficient performance; the claimant must also illustrate prejudice. This
deficiency alone warrants the denial of his contention. Mathis v. State, 67 S.W.3d 918,
927 (Tex. Crim. App. 2002) (overruling a claim of ineffective assistance simply because
the complainant made no effort to address the element of prejudice).
We further note that despite the rather extensive criticism levied upon trial
counsel by appellant and his new attorney, trial counsel was never afforded the
opportunity to defend, explain, or otherwise justify his conduct. This circumstance too
bodes in favor of rejecting the claim via this direct appeal. See Menefield v. State, 363
S.W.3d 591, 593 (Tex. Crim. App. 2012) (refusing to find counsel's performance
ineffective simply because neither the State nor trial counsel were afforded opportunity
to explain why trial counsel failed to object to the only evidence of guilt, which evidence
was clearly inadmissible).
That trial counsel pursued a defense found objectionable by his appellate
replacement is also insufficient basis to deem his conduct defective. See Cueva v.
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State, 339 S.W.3d 839, 877 (Tex. App. – Corpus Christi 2011, pet. ref’d) (holding that
counsel is not ineffective because he pursued what another lawyer considers to be poor
trial strategy). Thus, trial counsel's effort to show that appellant was not at Ruiz’ home
on the night in question (and thereby vitiate Ruiz' credibility) rather than try to prove she
sought to induce him into violating a protective order is of no consequence.
The allegation that trial counsel's cross-examination of a witness should have
been conducted in a different way also does not rebut the presumption that counsel's
efforts fell within the wide range of reasonable professional assistance. Ex parte
McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Trial counsel may have had
a reason to forego certain avenues of examination that may have served to discredit
Ruiz while pursuing others.
Finally, appellant's characterization of trial counsel as someone ignorant of the
law fails to achieve the desired goal as well. It may well be that the trial court sustained
various evidentiary objections levied against the manner in which counsel was
examining Ruiz or that trial counsel mistakenly suggested that the State was obligated
to prove appellant and Ruiz were in a current dating relationship. Appellant
nevertheless failed to explain how the outcome would have differed had those purported
mistakes not occurred.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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