NUMBER 13-11-00301-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TIMOTHY MENDOZA A/K/A “TIMO”, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Timothy Mendoza a/k/a "Timo" challenges his convictions for murder
and engaging in organized criminal activity. See TEX. PENAL CODE ANN. § 19.02(b)
(West 2011), § 71.02(a)(1) (West Supp. 2011). By two issues, Mendoza argues that:
(1) the trial court erred in denying his motion for mistrial; and (2) he received ineffective
assistance of counsel at trial. We affirm.
I. Background
Mendoza was indicted for murder and engaging in organized criminal activity in
connection with his alleged participation in the stabbing death of John Gilbert Licon in
January 2006. Mendoza pleaded not guilty to both counts, and his case was tried to a
jury. The State introduced the testimony of fourteen witnesses at trial; Mendoza
presented no witnesses. During the guilt-innocence phase of the trial, the State also
played a tape recording of Mendoza's statement to the police. Although the State made
assurances to Mendoza's counsel that discussions of Mendoza's prior convictions and
prison time had been redacted from the taped statement, the audio played to the jury
included conversation between Mendoza and the police about his prior incarcerations.
After the close of evidence and arguments by counsel, the jury returned a guilty verdict as
to both counts.
A day after the jury returned its verdict but before the hearing on punishment
commenced, Mendoza filed a motion for mistrial and a motion for new trial, arguing that
the improperly redacted tape that contained references to Mendoza's time in prison
prejudiced the jury. The trial court denied both motions. The trial court then held a
hearing on punishment and assessed Mendoza's sentences at life imprisonment for both
counts, with the sentences ordered to run concurrently. This appeal followed.
II. Motion for Mistrial
By his first issue, Mendoza argues that the trial court erred in denying his motion
for mistrial because the State's failure to redact the portions of Mendoza's taped
statement regarding his prison time incurably prejudiced the jury. In general, we review
a trial court's ruling on a motion for mistrial for abuse of discretion. Wead v. State, 129
2
S.W.3d 126, 129 (Tex. Crim. App. 2004) (citations omitted). But to preserve error, the
motion for mistrial must be timely and specific. See Griggs v. State, 213 S.W.3d 923,
(Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004));
see also TEX. R. APP. P. 33.1(a). "A motion for mistrial is timely only if it is made as soon
as the grounds for it become apparent." Griggs, 213 S.W.3d at 927 (citations omitted);
see Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994) (citation omitted).
Here, Mendoza failed to object and move for a mistrial when the grounds for the motion
became apparent, i.e., at the time the State played the unredacted audio tape of
Mendoza's statement to police. Mendoza's motion for mistrial, filed a full day after the
jury returned its guilty verdict, was too late to preserve any error in the trial court's
admission of the tape. Mendoza's first issue is overruled.
III. Ineffective Assistance of Counsel
By his second issue, Mendoza argues that he received ineffective assistance of
counsel that prejudiced his case because his trial counsel failed to adequately investigate
the case and "create any reasonable trial strategy" and, as a result, the State's evidence
appeared to the jury to be "overwhelming."
To establish ineffective assistance of counsel, Mendoza must show that: (1) his
attorney's representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for his attorney's errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 684
(1984); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).
Our review of counsel's representation is highly deferential, and we will find ineffective
assistance only if Mendoza rebuts the strong presumption that his counsel's conduct fell
3
within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at
689; Jaynes, 216 S.W.3d at 851. Mendoza must prove ineffective assistance of counsel
by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).
To prove that counsel's performance fell below the reasonableness standard, "the record
must contain evidence of counsel's reasoning, or lack thereof." Moreno v. State, 1
S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd).
Usually, the trial record will not be sufficient to establish an ineffective assistance
of counsel claim. Thompson, 9 S.W.3d at 813–14; Kemp v. State, 892 S.W.2d 112, 115
(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This is true because, normally, a
record is silent with regard to counsel's decision-making processes, and therefore,
appellant often cannot rebut the presumption that counsel's performance was the result of
sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813
S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In the case of
such a silent record, "the challenged conduct must be 'so outrageous that no competent
attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.
App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Here, the details of trial counsel's investigation and other preparation for trial, or
alleged lack thereof, are not apparent from the trial record. The trial record in this case is
undeveloped as to the alleged failings of Mendoza's trial counsel and does not contain
sufficient information to permit us to fairly evaluate the merits of Mendoza's ineffective
assistance allegations on appeal. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.
App. 2007); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Neither can we
4
conclude from the record before us that trial counsel's actions were so outrageous that no
competent attorney would have engaged in them. See Roberts, 220 S.W.3d at 533.
Without evidence in the record of trial counsel's decision-making process and
strategy, we cannot conclude that Mendoza has overcome the strong presumption that
his trial counsel provided professional, objectively reasonable assistance. See
Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because Mendoza did not
establish that his trial counsel's performance fell below an objectively reasonable
standard, he has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855.
His second issue is overruled.
IV. Conclusion
We affirm the judgments of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of June, 2012.
5
Timothy Mendoza A/K/A "Timo" v. State
Combined Opinion