Opinion issued October 20, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00758-CR
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RICHARD CONTRERAS, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1401233
MEMORANDUM OPINION
Richard Contreras pleaded guilty to aggravated sexual assault of a child
under 14 years of age and was sentenced to 50 year’s confinement. In two issues,
he contends that he received ineffective assistance of counsel at his sentencing
hearing. We affirm.
Background
Richard Contreras pleaded guilty to aggravated sexual assault of a child
under 14 years of age, his niece. During Contreras’s sentencing hearing, neither the
State nor Contreras called witnesses. The State waived its right to an opening
statement and instead presented a brief 105-word argument. Contreras’s trial
counsel made a brief 64-word argument.
After reviewing the presentence investigation report and holding a
sentencing hearing, the trial court sentenced Contreras to 50 years in the Texas
Department of Criminal Justice Institutional Division.
Ineffective Assistance of Counsel
In his first issue, Contreras argues that “the record hints at a strong family
support, a clean criminal history, opportunities for employment, and a low
probability of recidivism. Counsel did not develop these arguments before the trial
court, nor did she seek independent expert opinions to buttress her case for a lower
sentence. Her only statements, that [Contreras] was sorry and that he had two
young children, could have been made by any layman.”
The State argues that “[t]he totality of the representation afforded
[Contreras] was well above the prevailing professional norms.” Even if trial
counsel was deficient, Contreras “cannot show that he was harmed by her
performance.”
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A. Standard of review
To prove ineffective assistance of counsel, a defendant must satisfy the two
“Strickland prongs” by “show[ing], by a preponderance of the evidence, that
(1) counsel’s performance was so deficient that he was not functioning as
acceptable counsel under the Sixth Amendment and (2) there is a reasonable
probability that, but for counsel’s error or omission, the result of the proceedings
would have been different.” Apolinar v. State, 106 S.W.3d 407, 416 (Tex. App.—
Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984)
and Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)).
“When handed the task of determining the validity of a defendant’s claim of
ineffective assistance of counsel, any judicial review must be highly deferential to
trial counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d
at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). A
claim of ineffective assistance of counsel can be sustained only if it is firmly
grounded in the record. Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App.
1981); Shepherd v. State, 673 S.W.2d 263, 267 (Tex. App.—Houston [1st Dist.]
1984, no pet.).
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B. Deficient performance
With respect to the first Strickland prong, “there is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and the defendant must overcome the presumption that the challenged action might
be considered sound trial strategy.” Gavin v. State, 404 S.W.3d 597, 603 (Tex.
App.—Houston [1st Dist.] 2010, no pet.) (citing Strickland, 466 U.S. at 689, 104
S. Ct. at 2065). We “must not second-guess legitimate strategic or tactical
decisions made by trial counsel” and instead must yield to a strong presumption
that counsel’s conduct was within the wide range of reasonable professional
assistance. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008).
When a defendant argues that trial counsel should have presented additional
evidence, he must show what evidence counsel could have presented. Ex parte
White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004); see Mayo v. State, No. 11-07-
00203-CR, 2009 WL 342694, at *1 (Tex. App.—Eastland Feb. 12, 2009, no pet.)
(mem. op., not designated for publication) (declining to hold counsel ineffective
when defendant did not show testimony hypothetical witnesses could have
provided at sentencing hearing). All of the evidence supporting the arguments
Contreras claims could have been “further developed” at the hearing was already
in the presentence investigation report. Counsel does not need to call witnesses to
repeat the evidence in a presentence investigation report at a sentencing hearing,
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nor does trial counsel need to repeat this evidence during his argument at the
sentencing hearing. See Handley v. State, No. 01-91-00251-CR, 1992 WL 27475,
at *3–4 (Tex. App.—Houston [1st Dist.] Feb. 20, 1992, pet. ref’d) (mem. op., not
designated for publication) (holding “comparatively short” argument at sentencing
hearing and failure to call witnesses at same hearing did not constitute ineffective
assistance because information was already in presentence investigation report);
Castruita v. State, No. 03-10-00419-CR, 2012 WL 2981105, at *2–3 (Tex. App.—
Austin July 12, 2012, no pet.) (mem. op., not designated for publication) (holding
counsel who did not call character witnesses at sentencing hearing was not
ineffective because information witnesses could have offered was in presentence
investigation report). Contreras has not established deficient performance for
counsel’s failure to call these witnesses.
Neither has he established deficient performance by failing to make a longer
argument at the hearing. In her affidavit filed in conjunction with Contreras’s
motion for new trial, Contreras’s trial counsel says that she told Contreras, “[The
trial judge] does not like the actions minimized at all. We will do better to accept
responsibility.” Thus, it appears counsel adopted a strategy of not overemphasizing
mitigating factors but, rather, accepting responsibility in hopes of minimizing the
sentence imposed by the trial judge.
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Such a strategy does not constitute ineffective assistance of counsel. Because
Contreras cannot establish the first Strickland prong, we do not reach the second
Strickland prong. We overrule his first issue.
Contreras’s second issue that “the trial court erroneously denied appellant’s
motion for new trial based on an incorrect statement of law” argues that the trial
court should have granted his “motion based on the interests of justice following a
claim of ineffective assistance of counsel.” We have rejected Contreras’s argument
that he received ineffective assistance of counsel and, therefore, reject this
argument as well.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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