Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00085-CR
Cody James LORENZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 12-0259-CR
Honorable W.C. Kirkendall, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: June 11, 2014
AFFIRMED
Appellant Cody James Lorenz entered an open plea to the offense of felony murder and
elected to have the trial court assess punishment. The trial court sentenced Lorenz to confinement
for fifty years in the Texas Department of Criminal Justice—Institutional Division. Lorenz raises
one issue on appeal, contending he received ineffective assistance of counsel. We affirm the trial
court’s judgment.
04-13-00085-CR
BACKGROUND
Lorenz ran a red light and struck a vehicle driven by Amber Rollins as she proceeded
through an intersection. Rollins died as a result of the collision. After the incident, Lorenz’s blood
was drawn and it was determined he was intoxicated, having a blood alcohol level of .17 — more
than twice the legal limit. The parties stipulated to the blood alcohol level, and stipulated that
Lorenz had two prior convictions for driving while intoxicated (“DWI”).
Lorenz was indicted for the offense of felony murder — the underlying felony was DWI.
Although the State need not prove a particular mental state to obtain a conviction for murder
committed in the course of committing felony DWI, see Lomax v. State, 233 S.W.3d 302, 304, 311
(Tex. Crim. App. 2007), Lorenz’s indictment stated, in part, that Lorenz, “did then and there
intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life
. . . and the defendant was then and there in the course of intentionally or knowingly committing a
felony[.]”
The case was called for jury trial. During pretrial hearing discussions, and before Lorenz
was present in the courtroom, the trial court asked “if there was any chance of a plea in this case.”
Lorenz’s trial counsel replied, “No, your Honor.” Almost immediately thereafter, the State moved
to strike the portion of the indictment quoted above, arguing it was surplusage. The trial court
stated the matter would be determined once Lorenz was in the courtroom. Lorenz’s trial counsel
stated he intended to object and would argue “that it’s a fundamental right . . . my whole case was
— was based on that.” At that time, Lorenz was brought to the courtroom.
Once Lorenz was in the courtroom, the trial court took up the State’s motion to strike the
mental state portions of the indictment. The State argued that under the Lomax decision, the
language was surplusage because the State was not required to prove a mental state in a felony
murder case where the underlying felony is DWI. Lorenz’s trial counsel objected, stating “I object
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on the grounds it’s a fundamental right of the Defendant. In addition to that, it’s not surplusage.
This is a violation of his Constitutional rights.” The court overruled the objection and granted the
State’s motion. The trial court interlineated the mental state language from the indictment and
initialed the change.
At that point, having mentioned his intent to seek a continuance earlier in the proceedings
in the event the State’s motion was granted, Lorenz’s counsel urged a motion for continuance, and
in support called Lorenz to the stand. Lorenz testified he and his trial attorney spent a significant
amount of time discussing the importance of the “intentionally or knowingly” language that was
included in the indictment. Lorenz testified that neither he nor his attorney knew the State was
going to file a motion to delete the mental state language from the indictment. Lorenz further
stated their entire case was premised on the existence of the mental state language in the
indictment. According to Lorenz, given the trial court’s decision to grant the State’s motion to
strike that language, he needed time to discuss the case with his attorney so he could “intelligently
and voluntarily” make decisions about how to proceed, specifically about whether to plead guilty.
The trial court denied the motion for continuance, but granted Lorenz and his counsel one
hour and twenty minutes to confer about the case. After they conferred, they re-entered the
courtroom. The record establishes Lorenz was called to the stand, apparently having decided to
enter a plea of guilt. The trial court first asked Lorenz if he had “been over that indictment” with
his attorney. Lorenz stated he had. The trial court then asked Lorenz if he understood the charges
against him, to which Lorenz replied that he did. The trial court explained the range of punishment.
The trial court thereafter admonished Lorenz about his rights — right to a jury trial, cross-examine
witnesses, introduce evidence, etc. Lorenz stated he understood that if he pled guilty, he would
give up those rights. Lorenz admitted he and his attorney had reviewed the “Waiver, Stipulations
and Admonishments,” and that he understood it before he signed it. Lorenz stated he had enough
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time to discuss the case with his attorney and review all the necessary paperwork. Lorenz further
stated he was satisfied with his attorney’s representation of him and that no one had forced him to
plead guilty. Lorenz testified he was entering a plea of guilty because he committed the crime he
was pleading to. Lorenz then entered an open plea of guilty to the offense of felony murder.
Having entered an open plea and elected to have the trial court assess punishment, a
punishment hearing was subsequently held. At the hearing, the State asked the trial court to
incarcerate Lorenz for life. Lorenz asked for a lesser sentence, though he did not request a specific
number of years. The trial court assessed punishment at fifty years’ confinement.
Thereafter, Lorenz filed a motion for new trial in which he argued the trial court erred in
granting the State’s motion to remove the mental state language from the indictment and in denying
his motion for continuance. Lorenz claimed these errors resulted in an involuntary plea given the
short time he was given to confer with trial counsel. He also asserted his trial counsel was
ineffective, testifying he did not understand the effect of the trial court’s decision to strike portions
of the indictment or how it would affect any trial strategy. Lorenz also claimed he did not
understand his decision to plead guilty, and asserted he was taking a narcotic medication on the
day of his plea, which may have affected his ability to understand what was happening. Lorenz
testified: (1) his attorney did not effectively explain the case to him, (2) he did not understand the
difference between murder and felony murder, (3) and he did not fully understand his possible
defense, particularly after the trial court granted the State’s motion to remove the mental state
language from the indictment.
However, on cross-examination, Lorenz admitted he had pled guilty on four other
occasions and that in those cases his attorneys explained the terms of the plea agreement and
accompanying paperwork. He also admitted that he read the “Waiver, Stipulation and
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Admonishments,” discussed the terms with his attorney, and that he swore in court he understood
the document.
The trial court did not render a formal order denying the motion for new trial. Lorenz
subsequently filed a timely notice of appeal.
ANALYSIS
On appeal, Lorenz contends he did not receive effective assistance of counsel as required
by the Sixth Amendment. Specifically, Lorenz argues his trial counsel was ineffective because:
(1) he believed he could defend Lorenz by arguing the State did not prove Lorenz acted
intentionally or knowingly; and (2) he believed he could obtain a ten-day continuance under article
28.10 of the Code of Criminal Procedure when the State’s request to abandon the mental state
language from the indictment was granted. Lorenz contends this deficient conduct resulted in his
open plea of guilt and subsequent fifty-year sentence.
Standard of Review
A criminal defendant has a Sixth Amendment right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984); U.S. CONST. amend. VI. To determine whether
counsel’s representation was inadequate so as to violate a defendant’s Sixth Amendment right to
counsel, we apply the United States Supreme Court’s two-pronged Strickland test. Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under Strickland, a party claiming ineffective
assistance of counsel has the burden to establish by a preponderance of the evidence: (1) deficient
performance of trial counsel; and (2) harm resulting from that deficiency sufficient to undermine
confidence in the outcome of the trial. Ex Parte LaHood, 401 S.W.3d 45, 49 (Tex. Crim. App.
2013) (citing Strickland, 466 U.S. at 687). The assessment of whether a defendant received
effective assistance of counsel is made on a case-by-case basis by looking to the totality of the
representation and the particular circumstances of the case. Thompson, 9 S.W.3d at 813.
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Our review of defense counsel’s trial representation is highly deferential, and we must
presume trial counsel’s actions fell within the wide range of reasonable and professional
assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Generally, a direct appeal
is insufficient for an ineffective assistance of counsel claim because the record is typically
insufficient to show trial counsel’s representation was so deficient and so lacking in legal tactics
or strategy as to overcome the presumption that trial counsel’s conduct was reasonable and
professional. Id. Any claim 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.
Moreover, our inability to “discern any particular strategy or tactical purpose in counsel’s trial
presentation,” does not entitle us to assume there was none. Bone, 77 S.W.3d at 836. In fact, to
do so “inverts the analysis.” Id. It is up to the defendant to prove by a preponderance of the
evidence a lack of any plausible reason for trial counsel’s act or omission. Id.
Application
We hold the record does not affirmatively demonstrate trial counsel lacked a sound trial
strategy or acted outside the proper range of reasonable and professional assistance. See Ex parte
Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012); Badillo v. State, 255 S.W.3d 125, 129
(Tex. App.—San Antonio 2008, no pet.). Thus, Lorenz has not sustained his burden.
Lorenz first argues trial counsel was ineffective because he erroneously believed he could
defend the felony-murder case by arguing the State could not prove that Lorenz acted intentionally
or knowingly. Lorenz correctly points out that the Texas Court of Criminal Appeals held no proof
of a mental state is necessary to obtain a conviction for felony murder when the underlying felony
is DWI. See Lomax, 233 S.W.3d at 304, 311. However, the record does not establish that lack of
evidence of a mental state was trial counsel’s proposed trial strategy. In fact, the record belies
such a claim, i.e., that counsel was unaware of the applicable law according to Lomax. When
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specifically asked by the trial court if his position was that a culpable mental state is required for
the offense of felony murder when the underlying felony is DWI, trial counsel responded “No,
Judge. I’m objecting to amending — . . . [w]ell abandoning.” Thus, trial counsel affirmatively
denied a lack of knowledge of the applicable law. Moreover, trial counsel never stated this was
his strategy. Rather, he merely stated “my whole case was — was based on that.” He then objected
to the State’s motion by stating “it’s a fundamental right of the Defendant . . . it’s not surplusage
. . . [t]his is a violation of his Constitutional rights.” Nowhere does trial counsel contend he
intended to defend Lorenz by arguing lack of evidence with regard to a mental state.
Trial counsel’s conduct could plausibly be explained as an attack on a defective indictment,
pointing out a variance between the indictment and the offense charged. When an indictment
contains a defect, defense counsel may develop a trial strategy designed to exploit the defect. We
do not know the exact nature of trial counsel’s strategy with regard to his objection to the
indictment, but such knowledge is not necessary. Based on this record, it is possible counsel had
legitimate and professionally sound reasons for his objection — other than those attributed to him
in this appeal.
Based on the record before this court, we cannot say trial counsel’s strategy was outside of
professional norms — such a finding is not firmly founded in the record.
Second, Lorenz contends that trial counsel erred in believing that he could automatically
obtain a ten-day continuance when the State’s request to abandon the surplus language was
granted. Lorenz argues that this resulted in his decision to plead guilty, after which he received a
fifty-year sentence. There are, however, two problems with this argument. First, the record does
not support Lorenz’s claim that trial counsel believed he was automatically entitled to a ten-day
continuance under article 28.10, which states that when the State amends an indictment the court
shall allow the defendant not less than ten days to respond to the amended indictment. See TEX.
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CODE CRIM. PROC. ANN. art. 28.10(a) (West 2006). Rather, the record reflects trial counsel sought
a continuance so he would have additional time to discuss the surplusage issue with Lorenz and
the impact it might have on a decision to plead guilty. Extrapolating from the record, it could well
be that trial counsel — having lost the opportunity to possibly exploit a variance in the indictment
— wanted to recommend Lorenz plead guilty, particularly given that the record establishes Lorenz
intended to stipulate to his blood alcohol level and his two prior convictions. Counsel never
mentions article 28.10(a).
In addition, the record is silent as to whether Lorenz would have made a different decision,
that is, pled not guilty, had the ten-day continuance been granted. It is unclear from the record
what went into Lorenz’s decision-making process. The record reflects that after the State’s motion
to remove the mental state language was granted, Lorenz and his trial counsel conferred for over
an hour — despite Lorenz’s claim at the motion for new trial hearing that it was mere minutes.
After they conferred, Lorenz stated on the record that he was pleading guilty of his own volition
because he did in fact commit the crime he was being charged with. He swore he understood the
charges and possible sentence, as well as the rights he was waiving. Moreover, Lorenz
affirmatively stated on the record that he was satisfied with his trial counsel’s performance. Thus,
we hold the record does not demonstrate trial counsel acted outside the proper range of reasonable
and professional assistance. See Badillo, 255 S.W.3d at 129.
CONCLUSION
Because Lorenz has failed to establish by a preponderance of the evidence that trial counsel
was ineffective for either reason asserted, we overrule his claims of ineffective assistance of
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counsel. Lorenz’s claims are not firmly founded in the record. Accordingly, we affirm the trial
court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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