Jerry Perez v. State

OPINION
No. 04-10-00122-CR

Jerry PEREZ,
Appellant

v.

The STATE of Texas,
Appellee

From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2009-CRR00-366-D3
Honorable Elma T. Salinas-Ender, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice

Delivered and Filed: August 24, 2011

AFFIRMED

Appellant Jerry Perez was charged with aggravated robbery and theft. A jury convicted

Perez and the court sentenced him to nine years for the robbery and two years for the theft. On

appeal Perez raises three issues involving ineffective assistance of trial counsel: (1) counsel had

an actual conflict of interest, and the trial court erred by not holding a Garcia hearing; (2)

counsel failed to object to the State’s alleged bolstering during its closing argument, and the trial

court failed to act sua sponte; and (3) counsel failed to object or request a limiting instruction on
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inadmissible hearsay testimony either during examination or when the State referred to it during

closing argument. We affirm the trial court’s judgment.

BACKGROUND

Moises Navarro worked for Wilkinson Brothers Iron & Metal, Inc. and handled monies

for the company. On September 3, 2008, Navarro and Manuel Escalante were in a company

truck taking cash to one of the company sites. While the truck was stopped at the entrance gate,

a man approached the truck, pointed a gun at Navarro, and demanded money. The assailant

struck Navarro with the gun and fled with the cash box.

Three days later, Perez’s brother told police investigating an unrelated domestic dispute

that Perez had been involved in a recent robbery. Based on this information, Detective Flores

separately showed Navarro and Escalante a photo lineup that included a photograph of Jerry

Perez. Both men identified Perez as the person who assaulted and robbed Navarro on September

3. On October 7, 2008, then-Webb County Assistant District Attorney Eduardo Castillo signed

an Arrest Warrant Approval Form for the arrest of Jerry Perez. Without taking any further action

in the case, Castillo left the District Attorney’s office and went into private practice.

Perez was initially represented by an attorney from the public defender’s office, but she

withdrew because she knew the victim. Later, Perez received a different appointed counsel:

Castillo. During a pretrial hearing, Castillo questioned Perez on the record about a potential

conflict of interest based on Castillo having signed the arrest warrant. Perez said he waived his

right to appeal on that issue and asked to proceed to trial with Castillo as his defense counsel.

Perez’s counsel also presented, and the court approved, a motion in limine prohibiting the State

from mentioning Castillo’s name or referring to the fact that Castillo was the person who

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approved the arrest warrant. Perez was convicted by a jury on both counts and now appeals his

convictions.

ACTUAL CONFLICT OF INTEREST AND GARCIA HEARING

In his first issue, Perez asserts he received ineffective assistance of counsel because his

court-appointed attorney had an actual conflict, and the trial court erred by not holding a Garcia

hearing. See United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).

A. Standard of Review

Most claims of ineffective assistance of counsel are reviewed under Strickland v.

Washington, 466 U.S. 668 (1984), but claims involving an actual conflict of interest are reviewed

under Cuyler v. Sullivan, 446 U.S. 335 (1980). Acosta v. State, 233 S.W.3d 349, 356 (Tex.

Crim. App. 2007); Chavez v. State, 6 S.W.3d 66, 73 (Tex. App.—San Antonio 1999, pet. ref’d).

Cuyler’s less burdensome standard applies if the appellant can show defense counsel had an

actual conflict of interest. Acosta, 233 S.W.3d at 356; see Monreal v. State, 947 S.W.2d 559,

565 (Tex. Crim. App. 1997).

B. Cuyler Exception to Strickland Standard

1. Alleged Conflict of Interest

To invoke the Cuyler exception to Strickland, the appellant must show (1) counsel had an

actual conflict of interest and (2) that conflict adversely affected counsel’s performance at trial.

Cuyler, 446 U.S. at 350; Acosta, 233 S.W.3d at 355. We presume prejudice if an appellant

shows both. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (citing Strickland,

466 U.S. at 692).

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2. Actual Conflict

Counsel has an actual conflict of interest if he “‘is required to make a choice between

advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own)

to the detriment of his client’s interest.’” Acosta, 233 S.W.3d at 355 (quoting Monreal, 947

S.W.2d at 564); see also Mickens v. Taylor, 535 U.S. 162, 171 (2002) (clarifying the phrase

“actual conflict of interest” in a remand instruction in a previous case by stating “we think ‘an

actual conflict of interest’ meant precisely a conflict that affected counsel’s performance—as

opposed to a mere theoretical division of loyalties”). “An appellant must identify specific

instances in the record that reflect a choice that counsel made between possible alternative

courses of action, such as ‘eliciting (or failing to elicit) evidence helpful to one [interest] but

harmful to the other.’” Gaston v. State, 136 S.W.3d 315, 318 (Tex. App.—Houston [1st Dist.]

2004, pet. struck) (en banc) (quoting Ramirez v. State, 13 S.W.3d 482, 488 (Tex. App.—Corpus

Christi 2000, pet. dism’d)). “[A] potential conflict may become an actual conflict, but [an

appellate court need not] speculate about a strategy an attorney might have pursued . . . in the

absence of some showing that the potential conflict became an actual conflict.” Routier v. State,

112 S.W.3d 554, 585 (Tex. Crim. App. 2003) (referencing the analysis in James v. State, 763

S.W.2d 776, 781 (Tex. Crim. App. 1989)). “‘[U]ntil a defendant shows that his counsel actively

represented conflicting interests, he has not established the constitutional predicate for his claim

of ineffective assistance.’” Acosta, 233 S.W.3d at 355 (quoting Cuyler, 446 U.S. at 349–50).

3. Adverse Effect

To show that an actual conflict of interest adversely affected counsel’s performance, the

appellant must show “that trial counsel actually acted on behalf of those other interests during

the trial.” Id. The appellant must show that his trial counsel “had to forego a strategy in the

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appellant’s trial that he would have otherwise pursued if he had not represented [a conflicting

interest].” See Routier, 112 S.W.3d at 586.

4. Voluntary Waiver

A defendant can waive the right to conflict-free counsel if he does so knowingly and

voluntarily. Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981); Brink v. State, 78

S.W.3d 478, 485 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also United States v.

Greig, 967 F.2d 1018, 1021 (5th Cir. 1992). A waiver should show that the defendant

understands all three elements: (1) he is aware of the conflict of interest, (2) he realizes the

consequences of continuing with such counsel, and (3) he is aware of his right to obtain other

counsel. Greig, 967 F.2d at 1022; Prejean, 625 S.W.2d at 733 (citing Gray v. Estelle, 616 F.2d

801, 804 (5th Cir. 1980)).

5. Garcia Hearing

When a court is alerted to or aware of an actual conflict, it must conduct a hearing to

ensure that a defendant is knowingly, intelligently, and voluntarily waiving his right to conflict-

free counsel. Cuyler, 446 U.S. at 346–47; Ramirez, 13 S.W.3d at 487 (citing Greig, 967 F.2d at

1022). This hearing is commonly referred to as a Garcia hearing. See United States v. Garcia,

517 F.2d 272 (5th Cir. 1975). The court is required to conduct a Garcia hearing only if the court

“knows or should reasonably know of an actual conflict.” Gaston, 136 S.W.3d at 324 (Higley,

J., concurring) (emphasis altered) (citing Cuyler, 446 U.S. at 347).

C. Potential Conflict Insufficient

To invoke Cuyler’s lesser burden, Perez must show an actual conflict, not just a potential

conflict. See Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex. Crim. App. 2005) (citing

Routier, 112 S.W.3d at 585–86); Monreal, 947 S.W.2d at 565; see also Mickens, 535 U.S. at

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171. A potential conflict is not enough. See Mickens, 535 U.S. at 171; Ex parte Meltzer, 180

S.W.3d 252, 256 (Tex. App.—Fort Worth 2005, no pet.) (op. on reconsideration) (citing Routier,

112 S.W.3d at 581–82). Perez asserts an actual conflict existed because Castillo formerly

represented the State: he signed the arrest warrant approval form. But the mere fact that Castillo

formerly represented the State does not prove an actual conflict. See Routier, 112 S.W.3d at 581.

Perez must show that Castillo advanced the State’s interest to the detriment of Perez’s interest.1

See Acosta, 233 S.W.3d at 355.

1. State’s Interest

The State’s interest was manifest in the bench conference on Perez’s motion in limine:

the State wanted to rebut the defense’s theory that the investigation was sloppy and incomplete—

a rush to judgment that mistakenly identified Perez as the culprit. The State wanted to tell the

jury that Castillo signed the warrant so that it could defend its investigation and obtain a

conviction. Castillo had to believe that there was probable cause when he signed the warrant,

and therefore the State wanted to show the warrant process—and by implication the rest of the

investigation—was carefully conducted, and the State had not rushed to judgment.

2. Perez’s Interest

On the other hand, Perez’s interest was also clear: he wanted to vigorously pursue a

mistaken identity defense. Perez wanted to show that the State had conducted a sloppy

investigation, had failed to pursue other possible suspects, and had failed to conduct a number of

steps that are often performed in an investigation. Perez wanted to attack the investigation to

show that others, not Perez, had committed the charged offenses and the State’s sloppy

investigation had mistakenly identified Perez.

1
Neither Perez’s brief nor his oral argument specifically identifies the State’s interest that Castillo advanced at
Perez’s detriment. See Gaston, 136 S.W.3d at 318 (failing to comply with Gaston’s requirements).

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3. Motion in Limine

During a bench conference just before the court granted the motion in limine, Castillo

conceded that the State had probable cause to issue the warrant. He suggested that the State

could tell the jury that the District Attorney’s office had approved the arrest warrant, but asked

that the jury not hear that he signed it. Castillo repeatedly asserted that he was advancing a

mistaken identity defense based on a sloppy investigation after the warrant issued. The court

granted the motion in limine: the State could show that the District Attorney’s office approved

the arrest warrant but could not disclose who signed the form.

4. No Actual Conflict

The record shows that Castillo did not advance the State’s interest in preserving the

integrity of its investigation. When cross-examining the lead detective, Castillo vigorously

attacked all of the four points in the arrest warrant approval form that linked Perez to the crime.

Castillo challenged the initial report from Perez’s brother Cruz in which Cruz said Perez had

recently committed a robbery. Castillo challenged the process by which the report was given to

the lead detective. Castillo challenged both Navarro’s and Escalante’s separate identifications of

Perez from an array of photographs. Thus, Castillo did not advance the State’s interest at Perez’s

expense. Further, Perez does not identify, and the record does not show, how Castillo advanced

any other State interest to his detriment. See Gaston, 136 S.W.3d at 318. Therefore, we hold

that Castillo’s former representation of the State did not become an actual conflict of interest.

See Acosta, 233 S.W.3d at 355; Routier, 112 S.W.3d at 582; see also Mickens, 535 U.S. at 171.

D. Adverse Effect

Even if we assume arguendo that an actual conflict existed, Perez must also show that the

actual conflict had an adverse effect on Castillo’s performance. See Mitchell, 989 S.W.2d at 748.

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Perez argues that Castillo’s cross-examination of the State’s witnesses was chilled when the

State told the court it would show the jury that Castillo signed Perez’s arrest warrant if Castillo

attempted to argue that the warrant was improperly prepared or that the lead detective failed to

properly investigate the case. However, Perez’s motion in limine was granted; the State did not

tell the jury that Castillo signed the form. Further, Castillo vigorously cross-examined the lead

detective, including challenging his investigation on at least thirteen separate points. Perez also

asserts that Castillo “was limited in his ability to put on a vigorous defense or to pursue other

plausible defense strategies and/or tactics because of the conflict of interest.” But Perez not only

fails to identify a specific conflict of interest, he also fails to specify any defense element, any

plausible strategy, or any tactic that Castillo failed to use. See Gaston, 136 S.W.3d at 318. Perez

has not shown any adverse effect on Castillo’s performance and thus we do not presume

prejudice. See Mitchell, 989 S.W.2d at 748.

E. Garcia Hearing

Perez argues that the trial court erred when it failed to conduct a Garcia hearing because

it was aware of a conflict of interest. See Cuyler, 446 U.S. at 346–47; Ramirez, 13 S.W.3d at

487. However, a Garcia hearing is required only if the court “knows or should reasonably know

of an actual conflict.” See Gaston, 136 S.W.3d at 324 (emphasis altered); United States v.

Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (citing United States v. Carpenter, 769 F.2d

258, 263 (5th Cir. 1985)); see also Cuyler, 446 U.S. at 347 (“Unless the trial court knows or

reasonably should know that a particular conflict exists, the court need not initiate [a conflict of

interest] inquiry.”). Texas courts have reiterated that a Garcia hearing is unnecessary where a

defendant has failed to show that an actual conflict of interest exists. See, e.g., Thompson v.

State, 94 S.W.3d 11, 20 (Tex. App—Houston [14th Dist.] 2002, pet. ref’d) (citing Calloway v.

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State, 699 S.W.2d 824, 829–30 (Tex. Crim. App. 1985)); Ramirez, 13 S.W.3d at 487. Because

there was no actual conflict, the trial court was not required to hold a Garcia hearing. See

Cuyler, 446 U.S. at 347; Garcia-Jasso, 472 F.2d at 245; Pina v. State, 127 S.W.3d 68, 73 (Tex.

App.—Houston [1st Dist.] 2003, no pet.).

F. Voluntary Waiver

Perez filed an affidavit stating certain facts regarding his defense: (1) that he knew there

was a potential conflict of interest, (2) that he had seen the arrest warrant bearing Castillo’s

signature, (3) that he chose to waive his right to appeal on that issue, and (4) that he wanted

Castillo to continue to represent him. Further, during a pretrial hearing, Perez testified that he

was aware of the potential conflict, but was choosing to waive his right to appeal on that issue

and still wanted Castillo to represent him.

At oral argument, Perez’s appellate counsel argued that Perez did not fully understand the

consequences of having Castillo represent him at trial when he waived his right to conflict-free

counsel. However, Perez’s own testimony during the pretrial hearing shows that Castillo briefed

Perez on the scope and breadth of his participation in preparing the State’s case against Perez.

See Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981); Brink v. State, 78 S.W.3d

478, 485 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). During the same pretrial hearing,

Castillo requested that Ray Rodriguez be appointed as co-counsel, which the court granted. See

Prejean, 625 S.W.2d at 733 (deciding that the appellant was aware that he could obtain other

counsel because the court had already appointed counsel for him). Given Perez’s first court-

appointed counsel withdrew and was replaced by another court-appointed attorney (Castillo) and

the court appointed an additional attorney (Rodriguez) shortly before trial, Perez knew that he

could have obtained other counsel in lieu of Castillo had he wished to do so. See id.

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Considering Perez’s testimony, affidavit, and changes in appointed counsel, we hold that

Perez knowingly and voluntarily waived his right to appeal on the issue of conflict of interest.

See Greig, 967 F.2d at 1021; Prejean, 625 S.W.2d at 733; Brink, 78 S.W.3d at 485.

G. Strickland Analysis

Under Strickland v. Washington, the reviewing court does not presume prejudice; the

appellant must affirmatively prove prejudice. Strickland, 466 U.S. at 693; Jackson v. State, 877

S.W.2d 768, 770–71 (Tex. Crim. App. 1994). “The [appellant] must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771.

Here, Perez did not brief or argue that he met Strickland’s prejudice prong. See TEX. R.

APP. P. 38.1(i); Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). He did

not present facts from the record bearing on Castillo’s performance that undermine confidence in

the trial court’s judgment. See Martinez, 195 S.W.3d at 730 n.14. Therefore, he has failed to

meet his burden to show prejudice. See Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771.

H. Conclusion

Perez has not shown that his defense counsel suffered from an actual conflict, that his

defense suffered an adverse effect, or that he was entitled to a Garcia hearing. Further, Perez

knowingly and voluntarily waived his right to conflict-free counsel. Finally, Perez failed to meet

his burden to show prejudice. Because Perez has not proven ineffective assistance of counsel or

shown his right to a Garcia hearing, we overrule his first issue.

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CLOSING ARGUMENT

In his second issue, Perez asserts that his counsel was ineffective or the trial court erred

when the court failed to declare a mistrial or issue a limiting instruction for the prosecutor’s

allegedly improper closing argument.

A. Standard of Review

A defendant is entitled to effective assistance of counsel under both the United States and

Texas Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC.

ANN. art. 1.051 (West 2005 & Supp. 2011). On appeal, to prove ineffective assistance of trial

counsel an appellant must show that counsel’s assistance fell below an objective professional

standard of reasonableness and counsel’s actions thereby prejudiced appellant’s defense.

Strickland v. Washington, 466 U.S. 668, 687–88, 692 (1984); Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). To prove prejudice, an appellant must show by a preponderance of

the evidence that but for counsel’s unprofessional error, the outcome of his trial would have been

different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In reviewing an ineffective assistance of counsel claim, we consider the totality of

counsel’s representation in light of the particular circumstances of the case and presume that

counsel acted competently and made decisions based on a reasonable trial strategy. See

Strickland, 466 U.S. at 689, 695; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App.

1990). To rebut this presumption, the basis for any allegation of ineffectiveness must be

affirmatively founded in the record. Thompson, 9 S.W.3d at 813. “[W]e commonly assume a

strategic motive if any can be imagined and find counsel’s performance deficient only if the

conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v.

State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Even if the appellant proves trial counsel’s

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performance was deficient, the appellant must also prove that he was prejudiced by counsel’s

actions. Thompson, 9 S.W.3d at 812. Appellant must demonstrate a reasonable probability that

the result of the proceeding would have been different if trial counsel had acted professionally.

Id. A reasonable probability is a probability sufficient to undermine confidence in the trial’s

outcome. Id.

B. Ineffective Assistance by Failure to Object

Perez asserts that Castillo’s assistance was ineffective when Castillo failed to object and

to seek a limiting instruction following an alleged bolstering comment in the State’s closing

argument. The prosecutor said:

You heard his [Navarro’s] testimony which is evidence. Okay.

Let me see. When Moises [Navarro] went up there he not only told you
that this happened. But he told you, I saw his face. I saw the gun. And he was
honest. How do we know he was honest? How do we know he was telling the
truth? Besides that, he swore to tell the truth. Because he told you and he told us.
I—I was not sure of his build. If he was going to lie, he could have lied then. He
could [have] told you he was—he was honest. I saw his face. I saw the gun. He
was sitting in the truck and Jerry Perez was standing outside.

Perez complains that Castillo’s failure to object or request a limiting instruction violated Perez’s

Sixth Amendment right to counsel.

1. Bolstering

Jury argument may include: (1) summation of the evidence, (2) reasonable deduction

from the evidence, (3) answer to argument of opposing counsel, and (4) pleas for law

enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992) (emphasis added).

An argument that goes beyond one of these areas is error but is reversible only if “the argument

is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful

to the accused, into the trial.” Id. at 95. Inferences drawn from the evidence are permissible if

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they “are reasonable, fair, legitimate, and offered in good faith.” Smith v. State, 842 S.W.2d 401,

407 (Tex. App.—Fort Worth 1992, pet. ref’d) (citing Gaddis v. State, 753 S.W.2d 396, 398 (Tex.

Crim. App. 1988)).

2. Reasons for Remaining Silent

Here, the record is silent as to why Castillo chose not to object to the State’s closing

argument or to the testimony of Officer Cortez. Perez asserts that “the record clearly

demonstrates that no plausible purpose was served by [Castillo’s] failure to object to [testimony

with respect to Cruz’s statements to Officer Cortez],” that “no plausible purpose was served by

[Castillo’s] soliciting additional commentary from Officer Cortez with respect to [Cruz’s

statement],” and that “[t]here is no plausible strategy to pass over the admission and references

of the only evidence linking [Perez] to any crime.” But Perez failed to question Castillo on the

record as to why he remained silent, and the record does not show why Castillo chose as he did.

See Thompson, 9 S.W.3d at 813.

3. Deficient Assistance

Perez’s conclusory assertions of counsel’s errors are not persuasive in light of the strong

presumption that counsel acted competently and made decisions based on a reasonable trial

strategy. See Thompson, 9 S.W.3d at 812; Ex parte Welborn, 785 S.W.2d at 393. Perez’s mere

conclusory assertions require this court to speculate on why Castillo decided as he did, and this

court need not do so. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)

(deciding not to speculate on defense counsel’s motives); Delrio v. State, 840 S.W.2d 443, 447

(Tex. Crim. App. 1992).

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4. Prejudiced Defense

Even assuming arguendo that Castillo’s failure to object or request a limiting instruction

based on the alleged bolstering in the State’s closing argument was deficient, Perez must still

demonstrate a reasonable probability that his trial result would have been different if Castillo had

acted professionally. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 813. If Castillo

had objected to the argument and asked for a limiting instruction, the State could have merely

rephrased the comment, repeated the same summary of Navarro’s testimony, and the jury could

have reached the same conclusion. Further, the jury heard Detective Flores’s testimony that

Escalante separately identified Perez as the assailant, and other evidence and witnesses that

tended to corroborate Navarro’s testimony. Having “consider[ed] the totality of the evidence

before the judge or jury,” Perez has not shown a reasonable probability of a different outcome.

See Strickland, 466 U.S. at 695; Thompson, 9 S.W.3d at 812.

Finally, Perez also complains that the trial court erred when, on hearing the State’s

argument, it failed to sua sponte issue a limiting instruction or declare a mistrial. Perez does not

cite any authority to support his assertion. For the reasons set forth above, we find this argument

unpersuasive. We overrule Perez’s second issue.

HEARSAY TESTIMONY

In his third issue, Perez complains that Castillo’s assistance was deficient and prejudicial

when Castillo failed to object to hearsay and seek a limiting instruction regarding Officer

Cortez’s testimony. Castillo objected to hearsay when Cortez, on direct examination, began to

say that Perez’s brother told him that Perez was involved in a recent robbery. However, on

cross-examination, Castillo asked Cortez about his conversation with Perez’s brother, essentially

introducing the previously objected to testimony. Further, Castillo did not object to the State’s

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closing argument when the prosecutor repeated Cortez’s statement from Perez’s brother about

Perez’s involvement in a recent robbery.

A. Deficient Assistance

In his brief, Perez asserts that “the record clearly demonstrates that no plausible purpose

was served by [Castillo’s] failure to object to [testimony with respect to Cruz’s statements to

Officer Cortez],” that “no plausible purpose was served by [Castillo’s] soliciting additional

commentary from Officer Cortez with respect to [Cruz’s statement],” and that “[t]here is no

plausible strategy to pass over the admission and references of the only evidence linking [Perez]

to any crime.” But the record does not show that Castillo was ever asked why he made these

choices. Further, Perez must overcome the strong presumption that counsel acted competently

and made decisions based on a reasonable trial strategy. See Thompson, 9 S.W.3d at 812.

Moreover, absent outrageous attorney conduct, we assume defense counsel acted or refrained

based on a strategic motive. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

Perez’s conclusory assertions of deficient assistance do not overcome the presumption of

competent representation or show outrageous conduct. See id.; De Los Santos v. State, 219

S.W.3d 71, 75 (Tex. App.—San Antonio 2006, no pet.). Castillo almost certainly benefited

Perez’s defense by questioning Cortez on whether he got the right Jerry Perez—and having

raised doubts about which Jerry Perez was detained, Castillo may have felt the State’s reference

in closing argument merely restated a point he had successfully deflected.

B. Prejudiced Defense

Even if Castillo’s conduct was deficient, Perez must still demonstrate prejudice—a

reasonable probability that his trial result would have been different if Castillo had acted

professionally. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. However, if the

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jury had never heard that Perez’s brother told police that Perez had been in a robbery, the jury

would still have heard (1) Navarro’s testimony identifying Perez as the assailant, (2) testimony

that Navarro and Escalante each separately identified Perez as the assailant, (3) and other

evidence and testimony that tended to corroborate Navarro’s testimony. Having “consider[ed]

the totality of the evidence before the judge or jury,” Perez has not shown a reasonable

probability of a different outcome. See Strickland, 466 U.S. at 695; Thompson, 9 S.W.3d at 813

(“Failure to make the required showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim.”). We overrule Perez’s third issue.

CONCLUSION

Appellant Jerry Perez has failed to show that he received ineffective assistance of counsel

or that the trial court erred. Therefore, we affirm the trial court’s judgment.

Rebecca Simmons, Justice

PUBLISH

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