COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00129-CR
JAIME MUNOZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Jaime Munoz pleaded guilty without a plea bargain to
possessing 2,000 pounds or less but more than 50 pounds of marihuana. See
Tex. Health & Safety Code Ann. § 481.121(a), (b)(5) (Vernon 2010). After a
punishment hearing, at which Appellant testified, the trial court sentenced
Appellant to fifteen years in prison. Appellant filed a motion for new trial,
1
See Tex. R. App. P. 47.4.
asserting involuntary plea and ineffective assistance of counsel. The trial court
denied the motion after a hearing. We affirm.
II. Factual and Procedural Background
One October afternoon in 2008, a Texas Department of Public Safety
(DPS) trooper pulled over a pickup truck for what appeared to be tinting that
extended too low on the windshield and for not displaying a current inspection
sticker. Lorenzo Garcia was the driver and Appellant the passenger. Both
appeared nervous as they told the trooper that they were on their way from South
Texas to Oklahoma. A necklace dangling from the rearview mirror bore the
image of Jesus Malverde, the patron saint of drug smugglers. The trooper
obtained consent to search.
Other troopers arrived to assist with the search, and in the bed of the
pickup near the cab, one of them noticed two spare tires weighted down with tow
bars. He thought this odd since spare tires normally do not need extra weight to
hold them down. He noticed, too, fingerprints all over the spare tires, indicating
that they had been handled recently. Finally, he observed a piece of plywood
resting in the middle of the truck‘s bed with oil on it. He knew that drug
smugglers often use oil-covered wood to discourage searches because they
think troopers ―don‘t want to get dirty.‖
After lifting the tires, shaking them, and listening to them with a
stethoscope, the troopers let the air out and cut the tires open, exposing bundles
of marihuana. They arrested Appellant and Garcia and took them to the Denton
2
County jail. The bundles went to the DPS lab in Garland where it was
determined that they contained 52.15 pounds of marihuana. Appellant‘s bond
was set at $100,000.
Appellant‘s father knew a private investigator and legal assistant named
Pedro ―Pete‖ Cavazos. Cavazos recommended Corpus Christi attorney Alfred
Montelongo (Counsel) to represent Appellant.
Counsel contacted local attorneys in Denton, Stephen Wohr & Associates,
to assist with Appellant‘s defense. Wohr successfully petitioned the trial court to
reduce Appellant‘s bond from $100,000 to $25,000 with Counsel co-signing.
A lawyer in Wohr‘s office, Greg Boling, appeared in court for Appellant six
times between April and November of 2009. The State‘s standing plea-bargain
offer from April through August of 2009 was three years in prison. Appellant,
however, wanted deferred adjudication.
Counsel appeared in court for Appellant in October 2009 and set the case
for an open plea. Boling made the next court appearance in November, and the
case was reset to December for an open plea.
At the December setting, the trial court granted Appellant‘s motion to
substitute Stephen Wohr & Associates with Counsel as Appellant‘s attorney of
record.
In January 2010, Appellant and Counsel appeared before the trial court.
After establishing that Appellant was a United States citizen who could read,
write, and speak English, the trial court set out the range of punishment and
3
asked Appellant if his plea was intelligent, free, and voluntary. Appellant
answered yes, Counsel tendered an application for probation, and Appellant
pleaded guilty to the indictment.
During the punishment hearing, the State offered evidence of the offense
and Appellant testified on his own behalf. At the end of the punishment hearing,
the trial judge found that Appellant‘s testimony was not credible and sentenced
him to fifteen years in prison.
Appellant filed a motion for new trial, which the trial court denied after a
hearing.
III. Issues on Appeal
Appellant presents two issues in his challenge to the trial court‘s denial of
his motion for new trial. First, he contends that his plea was entered involuntarily
and unknowingly. Second, he argues that his attorney was ineffective.
IV. Standard of Review
We review a trial court‘s ruling on a motion for new trial for an abuse of
discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Holden
v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Loftin v. State, No. 02-08-
00324-CR, 2010 WL 1730859, at *2 (Tex. App.––Fort Worth Apr. 29, 2010, pet.
ref‘d) (mem. op., not designated for publication). We view the evidence in the
light most favorable to the trial court‘s ruling and uphold it if it was within the zone
of reasonable disagreement. Webb, 232 S.W.3d at 112. We do not substitute
our judgment for that of the trial court, but rather we decide whether the trial
4
court‘s decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112;
Holden, 201 S.W.3d at 763. At a hearing to determine whether to grant a new
trial, the trial court is the sole judge of the witnesses‘ credibility. See Salazar v.
State, 38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001).
When the trial judge acts as a factfinder at a new trial hearing and evaluates the
credibility of the defendant‘s testimony, the judge is not required to accept the
testimony as true, whether it is controverted or not. Dusenberry v. State, 915
S.W.2d 947, 949 (Tex. App.––Houston [1st Dist.] 1996, pet. ref‘d); Messer v.
State, 757 S.W.2d 820, 828 (Tex. App.––Houston [1st Dist.] 1988, pet. ref‘d);
Ortiz v. State, No. 02-07-00022-CR, 2008 WL 281171, at *3 (Tex. App.––Fort
Worth Jan. 31, 2008, pet. ref‘d) (mem. op., not designated for publication). A trial
court abuses its discretion when it denies a motion for new trial only when no
reasonable view of the record could support the trial court‘s ruling. Webb, 232
S.W.3d at 112; Holden, 201 S.W.3d at 763.
V. Voluntariness
A. Prima Facie Showing
A guilty plea must be knowingly and voluntarily made or it will be held
constitutionally invalid. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct.
1463, 1469 (1970); Aguirre–Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App.
2003) (noting that there must be a showing ―spread on the record‖ that a guilty
plea is intelligent and voluntary). When the record reflects that a defendant was
properly admonished, it presents a prima facie showing that the guilty plea was
5
entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.
Crim. App. 1998); Jackson v. State, 139 S.W.3d 7, 14 (Tex. App.––Fort Worth
2004, pet. ref‘d). The burden then shifts to the defendant to establish that,
notwithstanding the statutory admonishments, he did not understand the
consequences of his plea. Martinez, 981 S.W.2d at 197; Jackson, 139 S.W.3d at
14; Ribelin v. State, 1 S.W.3d 882, 884 (Tex. App.––Fort Worth 1999, pet. ref‘d).
The record in this case shows that before accepting Appellant‘s guilty plea,
the trial court ensured that Appellant understood that he was giving up
constitutional and statutory rights freely and voluntarily and that he knew the
range of punishment. After establishing that Appellant was a United States
citizen who could read, write, and speak English, the trial court set out the range
of punishment and asked Appellant if his plea was intelligent, free, and voluntary:
THE COURT: Now, in this case you‘ve been indicted on a
second-degree felony. The punishment range for a second-degree
felony is from two years in a state penitentiary up to 20 years in the
state penitentiary, with an optional fine of up to $10,000.
Do you understand that punishment range?
[APPELLANT]: Yes, your Honor.
THE COURT: And your attorney -- -- well, I believe that you‘re
going forward at this time with your plea, and there‘s no plea
agreement between you and the State. Is that correct?
[APPELLANT]: Yes, your Honor.
THE COURT: Are you pleading guilty today freely, knowingly,
and voluntarily?
[APPELLANT]: Yes, your Honor.
6
Appellant then acknowledged that he had reviewed and signed a number
of documents with his attorney. Of the documents in the clerk‘s record that bear
Appellant‘s and Counsel‘s signatures is the Court‘s Admonition of Statutory and
Constitutional Rights and Defendant‘s Acknowledgement. It states, in pertinent
part:
The Court hereby admonishes you of the following Statutory
and Constitutional Rights prior to your entry of a plea of guilty/nolo
contendere in this case pursuant to Article 26.13 of the Texas Code
of Criminal Procedure and the Constitutions of Texas and the United
States of America:
1. You are charged with a:
....
√ 2nd degree felony offense and the range of punishment is a
term of imprisonment in the Institutional Division of the Texas
Department of Criminal Justice for any term of not more than
20 years or less than 2 years and an optional fine not to
exceed $10,000.
....
ACKNOWLEDGMENT
I have read the above and foregoing admonitions by the Court
regarding my rights. I understand the admonitions, and I understand
and am aware of the consequences of my plea. Furthermore, my
attorney has explained to me all of the admonitions given by the
Court in this document.
Signed this the 15 day of January, 2010 [by Appellant and
Counsel].
In addition, Appellant and Counsel signed another document that included,
in pertinent part, the following statement: ―I have been advised as to the
7
consequences of a plea of guilty or nolo contendere including the minimum and
maximum punishment provided by law[.]‖
We hold that the record reflects that Appellant was properly admonished.
Accordingly, Appellant had the burden at the hearing on his motion for new trial
to establish that, notwithstanding the admonishments, he pleaded guilty without
understanding the consequences. See Martinez, 981 S.W.2d at 197; Jackson,
139 S.W.3d at 14.
B. Appellant did not overcome the prima facie showing of voluntariness.
Appellant argues that his plea was involuntary because Counsel only
talked to him for thirty minutes, promised him he would get probation if he
pleaded guilty, and did not tell him that he could be sentenced for up to twenty
years in prison.
Appellant did not testify at the hearing on his motion for new trial. Instead,
he relied on his affidavit attached to his motion for new trial and on the testimony
of a lawyer who testified at the hearing on the motion for new trial.
Although the trial court took judicial notice of its file, including the motion
for new trial and Appellant‘s affidavit, Appellant never offered the affidavit in
evidence and it was never admitted. An affidavit attached to a motion is merely
―a pleading that authorizes the introduction of supporting evidence‖ and is not
evidence itself. Stephenson v. State, 494 S.W.2d 900, 909–10 (Tex. Crim. App.
1973); see McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985).
Appellant‘s affidavit, therefore, was not before the trial court on the issue of
8
whether Appellant met his burden of proving that his plea was involuntary despite
his having been properly admonished. See Jackson, 139 S.W.3d at 20–21
(holding that when an appellant raises ineffective assistance of counsel claims by
affidavit, although a court may judicially notice the affidavit‘s existence in its file, it
may not take judicial notice of the truth of the facts set out in the affidavit).
Accordingly, in addressing Appellant‘s first issue that the trial court abused its
discretion by overruling the motion for new trial on the basis that Appellant‘s plea
was involuntary and unknowing, we will not consider the assertions made in
Appellant‘s affidavit that are unsupported by evidence actually admitted at the
hearing.
We will, however, consider the testimony of Kelly McKinnis, the attorney
who testified at the hearing on Appellant‘s motion for new trial. McKinnis testified
that he reviewed the clerk‘s record, reviewed a case file retrieved from Counsel‘s
office, and talked to Appellant, Appellant‘s family, Appellant‘s appellate counsel,
Cavazos, and Boling. Based on his review and on these conversations, he
testified that Counsel spent a total of only thirty minutes with Appellant, told
Appellant that he would get probation but did not tell him that he could get twenty
years‘ confinement.
McKinnis also testified that Appellant did not understand he could go to
prison on the day of sentencing, that Appellant‘s ―confusing‖ testimony at the
punishment hearing was evidence that he did not understand his exposure to
9
prison time, and that Counsel failed to document in the case file that he told
Appellant that he could be sentenced to twenty years.
We hold that given this testimony, the trial court reasonably could have
concluded that Appellant did not sustain his burden of proving that his plea was
entered unknowingly and involuntarily. First, as pointed out in the State‘s
objection at the hearing on the motion for new trial, McKinnis‘s testimony that
Counsel told Appellant he would get probation is hearsay. Although the judge
sustained the State‘s objection, he stated that he would consider the statement
only as it relates to Appellant‘s state of mind and not for the truth of the matter
asserted. While we agree with the trial court that the statement, ―you‘re getting
probation‖ is not hearsay because it was not offered for its truth, the statement,
―His lawyer told him, ‗You‘re getting . . . probation,‘‖ was offered for the truth of
the matter asserted: that Counsel told Appellant he would get probation. The
statement—Counsel told Appellant he would get probation—spoken by an out-of-
court declarant (someone McKinnis spoke with, presumably Appellant) and
offered for the truth of the matter asserted—is inadmissible hearsay, which
viewed in the light most favorable to the trial court‘s ruling, we presume the trial
court disregarded. See Tex. R. Evid. 801, 802; Webb, 232 S.W.3d at 112.
Second, as for the claim that Appellant did not know he could be
sentenced to prison, we defer to the trial court‘s assessment of Appellant‘s
credibility stated at the end of the hearing on the motion for new trial:
10
Well, he already has said that nobody told him about the punishment
range, but in open court I told him about the punishment range. I
then asked him, ―Have you had an opportunity to review the
documents with your attorney?‖ His answer was, ―Yes, your Honor.‖
Now he‘s telling me that he didn‘t review them. So he was either
lying then or he‘s lying today. Either way, he‘s a liar.
See Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.––Houston [14th Dist.]
2009, pet. ref‘d) (reasoning that trial court is sole judge of witness credibility and
weight of testimony).
Third, we hold that it was reasonable for the trial court to place little, if any,
weight on McKinnis‘s testimony that Appellant‘s ―confusing‖ testimony at the
punishment hearing was evidence that he did not understand the consequences
of his plea. Deferring, as we must, to the trial court‘s determinations of credibility
and demeanor that are supported by the record, we hold that the record amply
supports the trial court‘s conclusion that Appellant‘s confusing testimony was
confusing mainly because he ―was confused in trying to figure out the lies that he
was saying.‖
Finally, we hold that whether or not the case file reviewed by McKinnis
documents that Counsel told Appellant an open plea subjected him to the risk of
the full punishment range, it was reasonable for the trial court to conclude that
Appellant understood that he could be sentenced anywhere within the full range
of punishment because the record shows that Appellant was properly
admonished and because the record supports the trial judge‘s determination of
Appellant‘s credibility.
11
Viewing the record in the light most favorable to the trial court‘s ruling, and
deferring to the trial court‘s determinations of credibility issues, we hold that the
trial court reasonably found that Appellant‘s plea was entered knowingly and
voluntarily. Accordingly, we overrule Appellant‘s first issue.
VI. Effectiveness of Counsel
To establish ineffective assistance of counsel, Appellant must show by a
preponderance of the evidence that his counsel‘s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel‘s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988
S.W.2d 770, 770 (Tex. Crim. App. 1999). Allegations of ineffectiveness must be
based on the record, and the presumption of a sound trial strategy cannot be
overcome absent evidence in the record of the attorney‘s reasons for his
conduct. Ex parte Niswanger, No. AP-76302, 2011 WL 891285, at *3 (Tex. Crim.
App. Mar. 16, 2011); Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App.
1999), cert. denied, 528 U.S. 1081 (2000).
An appellant claiming ineffective assistance of counsel must identify his
counsel‘s allegedly erroneous acts and omissions. Strickland, 466 U.S. at 690,
104 S. Ct. at 2066. We then determine whether, in light of all the circumstances,
12
these identified acts or omissions were outside the wide range of competent
assistance. Id.
In addition to the allegations discussed above that we have already held
are without merit, Appellant claims numerous alleged acts and omissions of
Counsel rendered his representation constitutionally deficient. We will address
these in turn. But first we turn to the presumption of reasonable effective
representation.
There is a strong presumption that trial counsel‘s conduct falls within a
wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett,
65 S.W.3d at 63. Ordinarily, a lawyer should be given an opportunity to explain
his actions before being denounced as ineffective. Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003); see also Goodspeed v. State, 187
S.W.3d 390, 391 (Tex. Crim. App. 2005) (holding that inquiry into trial counsel‘s
conduct—failure to ask any questions during voir dire and exercise of peremptory
challenges on jurors who had already been excused—was needed to determine
whether performance was deficient). Absent evidence in the record of the
attorney‘s reasons for his conduct, an appellant claiming that his lawyer was
ineffective cannot overcome the presumption of a sound trial strategy.
Niswanger, 2011 WL 891285, at *3; Busby, 990 S.W.2d at 269.
Neither Counsel nor the attorney who handled most of Appellant‘s court
appearances for Counsel, Greg Boling, testified at the hearing on the motion for
new trial, nor did either of them submit affidavits explaining the decisions related
13
to Appellant‘s representation. As the State points out in its brief, Appellant thus
failed to present testimony from the ―two attorneys who would have best been
able to testify to what occurred in Appellant‘s case[.]‖ And although Appellant
attached affidavits to his motion, including his own and those of two witnesses
who did testify at the hearing, as previously discussed, he did not offer these
affidavits in evidence nor were they admitted. Consequently, the evidence in the
record upon which Appellant may draw support for his allegations of
ineffectiveness is left to the testimony of Cavazos, who was Counsel‘s former
employee and a friend of Appellant‘s family; the testimony of McKinnis, the
lawyer who opined on the quality of Counsel‘s representation; and Appellant‘s
cross-examination of local counsel Stephen Wohr.
None of these witnesses testified to having any first-hand knowledge of
Counsel‘s decision-making process or of the reasons behind any of the decisions
he made in providing Appellant‘s representation. Cavazos admitted that he
never worked in Denton and that he did not work for Counsel on this case,
although he testified that he did do some work on the side for the family.
McKinnis based his critique on having reviewed the file and having talked to
Appellant, Appellant‘s family, and Cavazos but not to Counsel or to Boling. And
finally, Wohr did not appear to have any significant direct involvement in
representing Appellant, delegating that task to Boling.
Moreover, even absent Counsel‘s first-hand account, our reading of the
record reveals a reasonable strategy. The record shows that at no less than five
14
court appearances, the State communicated its plea-bargain offer of three years‘
confinement to Appellant and to Boling. Appellant‘s signature appears beneath
the State‘s prominently hand-written offer on numerous pass slips preserved in
the clerk‘s record. According to testimony in the record, however, Appellant
wanted deferred adjudication probation.
To get deferred, Appellant had to enter an open plea. Wohr testified that, if
a defendant‘s only acceptable outcome is deferred adjudication and the State
does not offer it, there is no option other than entering an open plea to the trial
court. Thus, the trial court summed up Counsel‘s strategy as ―[Appellant] does
not want to go to the penitentiary; therefore, we‘ll ask the Court for deferred
adjudication. We‘ll ask for mercy from the Court. The way we‘ll do that is we‘ll
plead guilty, accept responsibility.‖
The record augments the already strong presumption that trial counsel
employed reasonable strategy and thus provided reasonable professional
representation. To determine whether Appellant has rebutted that presumption,
we now turn to his additional complaints about his counsel‘s representation.
Counsel did not challenge the stop or the search as pretextual.
Appellant faults Counsel for not challenging the stop or the search as a
pretext because there was evidence that the window tint was within legal limits.
He ignores, however, the trooper‘s second stated basis for the stop as set out in
the complaint: ―The vehicle also was also [sic] not inspected.‖ Because
Appellant offers no theory for challenging the stop on the basis of the truck not
15
having a valid inspection sticker, we presume that Counsel determined there was
none.
Once the trooper made a valid stop on the basis of the truck‘s lack of a
current inspection sticker, Appellant‘s and Garcia‘s nervousness, the image of
the patron saint of drug smugglers, and most importantly their consent to search
vitiate any claim that the search was pretextual. Counsel is not ineffective for
failing to file a futile claim. See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex.
Crim. App. 2005); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)
(to show ineffective assistance of counsel based on a failure to move to suppress
evidence, an appellant must show that motion would have been granted).
Moreover, we‘ve already held that the record shows that Appellant wanted
deferred adjudication and that Counsel‘s strategy was to seek it for him. And as
the trial court observed, ―if you‘re going to ask for mercy from the Court by
accepting responsibility for your actions, admitting guilt and asking for deferred,
you‘re not going to file a bunch of pretrial motions to contest everything, because
that‘s really not accepting responsibility and would hurt your chances of getting
deferred adjudication.‖
We hold that Appellant‘s complaint about the stop does not support his
claim that Counsel was ineffective. See Chandler, 182 S.W.3d at 356; Jackson,
973 S.W.2d at 957.
16
Counsel did not move to re-weigh the marihuana without seeds and stems.
Appellant contends that Counsel should have moved to reweigh the seized
marihuana without seeds, stems, and packaging because a reweighing might
have reduced the offense to a third-degree felony and thus have reduced his
punishment exposure. There is no evidence in the record, however, that seeds,
stems, and packaging were included when the DPS lab weighed the marihuana.
To the contrary, our review of the record suggests that the marihuana might
already have been cleaned before it was weighed in the lab. The DPS complaint
stated that the weight of the seized drugs was ―approximately 63 pounds.‖ The
subsequent lab report, however, listed a net weight of ―52.15 pounds.‖ Further,
Appellant presented no evidence that reweighing actually would have resulted in
a weight of less than fifty pounds.2 See Guijon v. State, No. 14-06-01001-CR,
2007 WL 4165388, at *5 (Tex. App.––Houston [14th Dist] Nov. 20, 2007, no pet.)
(mem. op., not designated for publication) (holding counsel not ineffective when
he did not advise defendant of the option or file a motion to reweigh 5.1 pounds
of marihuana without seeds or stalks when a weight under 5 pounds would have
reduced the charge). Without evidence that a reweigh actually would have
2
There is some speculation in the record, however. Self-reported ―1977
University Interscholastic League Number Sense state champion‖ McKinnis
testified that ―[i]t‘s not uncommon to see up to a 5 percent decrease in the
reduction of the usable amount of marihuana in a reweigh . . . . And 52 pounds,
5 percent of that is about 2.6 pounds, would have knocked it down to under 50
pounds, like 49.4 pounds[.]‖ Despite this display of mathematical acuity,
Appellant has not shown that a reweigh actually would have reduced the charge.
17
reduced the severity of the offense with which Appellant was charged, we refuse
to hold Counsel ineffective for failing to request one.
Counsel did not request notice of the State’s intent to offer extraneous acts
evidence.
At the punishment hearing, the trial court admitted photos from Appellant‘s
cell phone. One of these is dated September 1 and depicts marihuana buds.
Two pictures dated October 2 show a large quantity of United States currency.
Appellant appears in one of these, smiling broadly, standing over a pile of
money.
Appellant declares it a ―huge error‖ for Counsel not to have made a
request under rule 404(b) for timely notice of the State‘s intent to offer
extraneous offense evidence because if he had, Counsel could have prepared
for the State offering the photo from Appellant‘s cell phone showing marihuana
buds which was dated a month before Appellant‘s arrest. The record shows,
however, that a request for such notice was unnecessary because the State
maintained an open file policy, the State provided Counsel with all the evidence
introduced at trial, Appellant admitted at the punishment hearing that Counsel
had shown him the photos on his cell phone before trial, and McKinnis testified at
the hearing on the motion for new trial that all the photos had been submitted to
the defense. This complaint, therefore, is without merit.
18
Counsel did not seek to use testimony from the codefendant who supposedly
accepted full responsibility.
Appellant faults counsel for not calling Lorenzo Garcia to testify on his
behalf because, according to Cavazos, Garcia said he was willing to take full
responsibility for the offense. Notwithstanding the fact that one‘s willingness to
accept full responsibility for an offense logically does not foreclose another‘s
culpability, the record shows that Garcia was a fugitive. Given this fact, the trial
court reasonably could have discredited Cavazos‘ testimony that Garcia was
willing to take any responsibility for the offense. Moreover, the evidence
admitted at the punishment hearing was sufficient to show Appellant‘s culpability.
Finally, calling a codefendant to assume responsibility for an offense, while at the
same time seeking a probated sentence by accepting responsibility for that
offense, is strategically inconsistent. And as discussed previously, it is apparent
from the record that Counsel‘s strategy was to obtain for Appellant deferred
adjudication, which is the outcome the evidence shows Appellant wanted.
Counsel did not try to suppress or mitigate the effects of incriminating photos
found in Appellant’s cell phone.
Again, as stated by the trial court, ―if you‘re going to ask for mercy from the
Court by accepting responsibility for your actions, admitting guilt and asking for
deferred, you‘re not going to file a bunch of pretrial motions to contest everything,
because that‘s really not accepting responsibility and would hurt your chances of
getting deferred adjudication.‖ Not challenging the photos found in Appellant‘s
cell phone, which was apparently seized incident to a lawful arrest, and for which
19
Appellant concedes a warrant was obtained, is, again, consistent with Counsel‘s
apparent-from-the-record trial strategy of securing deferred adjudication for
Appellant by having him assume responsibility and throw himself on the mercy of
the court. Because Counsel reasonably could have decided not to seek
suppression of the photos in effecting his apparent strategy, Appellant‘s
complaint is groundless.
Counsel did not tell Appellant that the sentencing judge had been a prosecutor.
The record is devoid of any evidence that the trial judge, regardless of his
background as a prosecutor, was biased or predisposed to assessing a harsh
sentence. This complaint, therefore, is not grounded in the record.
Counsel should not have allowed Appellant to testify.
Responding to the argument that Counsel should not have allowed
Appellant to testify, the trial court noted, ―I don‘t know many cases in which
they‘re accepting responsibility and asking for deferred and really expect it to be
granted in which the defendant doesn‘t get up and testify.‖ The record shows
that Appellant‘s taking the stand was integral to Counsel‘s apparent strategy.
The problem for Appellant is that the trial court did not believe him. Absent
evidence that Counsel knew Appellant would lie, we will not fault Counsel for
allowing him to testify.
Counsel took no action to refute “the suggestion” that Appellant lied on the stand.
As the following excerpts illustrate, the record shows more than a
suggestion that Appellant lied.
20
[APPELLANT]: I didn‘t know there was nothing in the tires.
....
[APPELLANT]: No. I knew there was something in them, but
I didn‘t know where it was. He told me it was going to be a surprise.
Because I told him I didn‘t want to know nothing about it, you know.
Q. Okay. So you didn‘t want to know the details, but you
knew you were involved in a drug train.
A. Yes, ma‘am.
Q. You knew that‘s what he was doing and that‘s what he was
talking about when he said he was going to triple your money.
A. Yes, ma‘am.
Q. And you agreed to that.
A. Yes, ma‘am. Like I said, it was a mistake.
Q. All right. When is the first time you were involved in any
kind of drug trade or large quantities of drugs?
A. I never done it.
Q. You‘d never done it before—
A. No, ma‘am.
Q. —October the 16th?
A. Well, that‘s the only time.
Q. That‘s the only time?
A. Yeah.
Q. When is the first time you saw those drugs that were in the
tires?
A. I didn‘t ever see them before.
21
Appellant testified that he did not know anything about the drugs in his
truck; then he testified that he made a mistake. The photo of marihuana buds
taken with Appellant‘s cell phone a month before the arrest is inconsistent with
his testimony that he did not know anything about the drugs and that he had
never seen them before. Moreover, as pointed out by the State, the trial court‘s
conclusion that Appellant lied on the stand came after the parties had rested and
the evidence was concluded. It was reasonable, therefore, for Counsel not to
risk alienating the trial judge by attempting to refute the trial court‘s conclusion,
which was, after all, supported by Appellant‘s testimony.
Counsel did not object to the State’s alleged improper impeachment of Appellant
by asking whether he had ever been arrested before.
Appellant does not provide any argument to support his claim that Counsel
should have objected to the State‘s ―improper impeachment‖ of Appellant when
the State asked if he had ever been arrested before. See Vaughn v. State, 931
S.W.2d 564, 566 (Tex. Crim. App. 1996) (an appellant must show that it would
have been error for the trial court to overrule an objection to the admissibility of
evidence). Nor does he point to any evidence in the record that Counsel‘s failure
to object fell below professional norms. Moreover, the record is silent as to why
Counsel did not object to this testimony. We will not declare a lawyer ineffective
when his or her actions or omissions may have been based upon tactical
decisions, but the record lacks specific explanations for counsel‘s actions. See
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Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). Accordingly, we hold
that this complaint does not support Appellant‘s claim.
Counsel was unprepared for the State’s cross-examination of Appellant.
There is no evidence in the record that Counsel did not prepare for the
State‘s cross-examination. Counsel was not called to testify, nor was anyone
who worked with Counsel on the case called to testify about his preparation for
cross-examination. Moreover, it is apparent from the record that Appellant lied
on the stand. As Wohr agreed at the motion for new trial hearing, once a client
takes the stand, an attorney has no control of whether he tells the truth or
whether he lies. If Counsel was unprepared for the State‘s cross-examination of
his dissembling client, the blame does not lie with Counsel. We will presume,
absent evidence to the contrary, that Counsel did not know that his client would
lie under oath, and we decline the invitation to hold a lawyer ineffective for not
countering the State‘s exposure of his client‘s mendacity.
Counsel did not request a presentence investigation report (PSI).
Finally, Appellant‘s complaint that Counsel did not request a PSI is without
merit. It is apparent that the trial court was familiar with Appellant‘s relatively
clean criminal history, and there is no evidence in the record that Appellant was
harmed by the failure of Counsel to request a PSI. To paraphrase the trial court,
what harmed Appellant was lying on the stand, not the lack of a PSI.
In sum, we hold that the evidence in the record supports the trial court‘s
rejection of Appellant‘s claim that he was entitled to a new trial on the basis of
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ineffective assistance of counsel. Accordingly, we overrule Appellant‘s second
issue.
VII. Conclusion
Having overruled both of Appellant‘s issues, we affirm the judgment of the
trial court.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 12, 2011
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