PD-0654-15
Bexar County Public Defender's Office
Paul Elizondo Tower ♦ 101 W. Nueva St., Suite 310 ♦ San Antonio, TX 78205^ _ _
Phone: (210) 335-0701 ♦ Fax: (210) 335-0707 iRfcCESVED SN
COURT OF CRIMINAL APPEALS
May 6, 2015
"'" 29 2015
Mr. Mark Anthony Garcia
TDCJ# 01891224
Abe! Acosta, CSerk
Garza West Transfer Facility
4250 HWY 202 FILED IN
Beeville, TX 78102 „«,mTAr«n,.m,., .nn-.. «
COURT OF CRIMINAL APPEALS
Re: Mark Anthony Garcia v. State of Texas maw o q ?G15
Appeal No. 04-13-00818-CR ™T a
Trial Court No. 2009-CR-2731A
Abel Acosta, Clerk
Dear Mr. Garcia:
The Fourth Court of Appeals issued its opinion in your case on May 6, 2015. The Court
of Appeals affirmed the judgment of the trial court. This means that your conviction and
sentence will stand. I believe that the opinion of the Court of Appeals is legally valid. I
was appointed to represent you at the court of appeals level only. If you want to pursue
your appeal further, you will have to do so on your own, or with another attorney. The
rest of this letter explains your options.
Motion for Rehearing: You may file a motion for rehearing with the Fourth Court of
Appeals if you believe that there are legal grounds for a rehearing. If you decide to file a
motion for rehearing, one original and one copy of the motion must be filed with the
Clerk of the Fourth Court of Appeals within 15 days after the date of the opinion, that is,
no later than May 21, 2015. If the Court of Appeals denies your motion for rehearing,
you will then have 30 days to file a petition for discretionary review with the Court of
Criminal Appeals of Texas.
Petition for Discretionarv Review: You can skip filing the motion for rehearing and file a
petition for discretionary review directly with the Court of Criminal Appeals. The
petition is called "discretionary" because the Court of Criminal Appeals is free to refuse
the petition, or grant it and hear the case, for any reason they choose. Texas Rule of
Appellate Procedure 66.3 sets forth a list of reasons why the Court might grant review. In
my opinion, none of those reasons apply to your case. Because I believe that a petition for
discretionary review would be frivolous, I will not file one for you.
If you decide to file your own petition for discretionary review, you will have to file the
original plus 11 copies of the petition with: Abel Acosta, the Clerk of the Court of
Criminal Appeals of Texas, P.O. Box 12308, Austin, Texas 78711. The petition must be
filed within 30 days afterthe Court of Appeals rendered itsjudgment. Since the judgment
was rendered on May 6, 2015, the 30-day deadline will be June 5,2015. A copy of the
petition must also be served on the BexarCounty District Attorney's Office, Appellate
Division, Paul Elizondo Tower, 101 W. Nueva St. Suite 710, San Antonio, Texas 78205.
Yet another copy of the petition must be sent to the State Prosecuting Attorney, Lisa C.
McMinn, P.O. Box 13046, Austin, Texas 78211.
I have enclosed a copy of the judgment and opinion of the Fourth Court of Appeals. I
have also enclosed a copy of Rules 66-69 of the Texas Rules of Appellate Procedure.
Those rules set out the requirements for filing a petition for discretionary review. You
should review them before deciding to file your own petition.
Do nothing at all: You don't have to do anything at all. This is your third option. If you
don't do anything, a document called the "mandate" will be issued by the Court of
Appeals in about 90 days. Your conviction and sentence will then become final.
Separate and apart from your appellate rights, you may also apply for a writ of habeas
corpus. Again, you will have to hire another attorneyor file the writ applicationon your
own. If you decide to file a writ application, you will have to wait until the Court of
Appeals issues the mandate and the judgment becomes final. I will send you a copy of the
mandate when I receive it.
With this letter, I am closing out your file, other than to send you a copy of the mandate. I
wish you well.
Sincerely,
RICFIARD B. DULANY, JR.
Attorney at Law
Certified Mail - Return Receipt Requested
Article No. 7012 1640 0002 4217 9963
Enclosures: Opinion (copy)
TRAP 66-69
Page 68 TEXAS RULES OF APPELLATE PROCEDURE
64.1. Time for Filing
65.1. Statement of Costs
A motion for rehearing may be filed with the Supreme
Court clerk within 15 days from the date when the Court renders The Supreme Court clerk will prepare, and send to the
judgment or makes anorderdisposing of a petitionforreview. In clerk to whom the mandate is directed, a statement of costs
exceptional cases, if justice requires, the Court may shorten the showing:
time within which themotion maybe filed orevendenytheright
to file it altogether. (a) the costs that were incurred in the Supreme Court,
with a notation of those items that have been paid
64.2. Contents and those that are owing; and
The motion must specify the points relied on for the (b) the party or parties against whom costs have been
rehearing. adjudged,
64.3. Response and Decision 65.2. Enforcement of Judgment
No response to a motion for rehearing need be filed unless Ifthe Supreme Court renders judgment, the trial court need
the Court so requests. A motion will not be granted unless a not make any further order. Upon receiving the Supreme Court's
response has been filed or requested by the Court. But in mandate, the trial court clerk must proceed to enforce the
exceptional cases, ifjustice sorequires, the Court maydeny the judgment of the Supreme Court'sas in anyothercase. Appellate
right to file a response and act on a motion any time after it is court costs must be included with the trial court costs in any
filed. process to enforce the judgment. If all or part of the costs are
collected, the trial court clerk must immediately remit to the
64.4. Second Morion appellate court clerk any amount due to that clerk.
TheCourtwillnotconsidera secondmotionfor rehearing Notes and Comments
unlesstheCourtmodifies itsjudgment,vacatesitsjudgmentand
renders a new judgment,or issues a differentopinion. Comment to 1997 change: Subdivision 65.1 is new.
Subdivision 65.2 is from former Rule 183.
64.5. Extensions of Time
The Court may extend the time to file a motion for SECTION FIVE:
rehearing in theSupremeCourt, if a motioncomplyingwith Rule PROCEEDINGS IN THE
10.5(b)is filed with the Court no later than 15 days after the last COURT OF CRIMINAL APPEALS
date for filing a motion for rehearing.
Rule 66. Discretionary Review
64.6. Length of Motion and Response
in General
A motionor response must be no longer than 15 pages.
66.1. With or Without Petition
Notes and Comments
The Court of Criminal Appeals may review a court of
appeals' decision in a criminal case on its own initiative under
Commentto 1997 change: This is former Rule 190. the
Rule 67 or on the petition of a party under Rule 68.
service andnotice provisions of former subdivisions (b) and (c)
are deleted. See Rule 9.5. Other changes are made.
66.2. Not a Matter of Right
Comment to 2008 change: Subdivision 64.4 is amended
toreflecttheCourt's practiceof considering a secondmotionfor Discretionaryreviewby the Court of Criminal Appeals is
not a matter of right, but of the Court's discretion.
rehearing aftermodifying itsjudgmentor opinion in response to
a prior motion for rehearing. When the Court modifies its
opinion withoutmodityingitsjudgment, theCourtwillordinarily 66.3. Reasons for Granting Review
deny a second motion for rehearing unless the new opinion is
substantially different from the original opinion. While neithercontrollingnor fully measuringthe Court of
Criminal Appeals' discretion, thefollowing willbeconsidered by
the Court in decidingwhether to grant discretionary review:
Rule 65. Enforcement of Judgment
after Mandate
68
Page 70
TEXAS RULES OF APPELLATE PROCEDURE
(a) FirstPetition. The petition must be filed within 30 applying for review. The petition must contain the following
days after either the day the court of appeals' items:
judgment was rendered or the day the last timely
motion for rehearing or timely motion for en banc (a) Table ofContents. The petition mustincludea table
reconsideration was overruled by the court of of contents with references to the pages of the
appeals, petition. The table of contents must indicate the
subject matter ofeach ground orquestion presented
(b) Subsequent Petition. Even ifthe time specified in (a) for review.
has expired, a party who otherwise may file a
petition may do so within 10days after the timely (b) Index ofAuthorities. The petition must include an
filing of another party's petition. index of authorities arranged alphabetically and
indicating the pages of the petition where the
(c) Extension of Time. The Court of Criminal Appeals authorities are cited.
may extend the time to file a petition for
discretionary review if a party files a motion (c) Statement Regarding Oral Argument. The petition
complying with Rule 10.5(b) no later than 15 days must include a short statement ofwhy oral argument
after thelastdayfor filing thepetition. TheCourtof would be helpful, or a statement thatoral argument
Criminal Appeals may extend the time to file a is waived. If a reply or cross-petition is filed, it
response orreply ifa party files a motion complying likewise must include a statement of why oral
with Rule 10.5(b) either before orafter the response argument should or should not be heard.
or reply is due.
(d) Statement ofthe Case. The petition must state briefly
Notes and Comments the nature of the case. This statement should seldom
exceedhalfa page. The detailsof the caseshouldbe
Commentto2011 change: The amendment to Rule68.2(a) reserved and stated with the pertinent grounds or
resolves timely filing questions concerning motions foren banc questions.
reconsideration byincluding those motions incalculating timeto
file.
(e) Statement ofProcedural History. The petition must
state:
68.3. Where to File Petition
(1) the date any opinion of the court of appeals
(a) Thepetition andallcopies ofthepetition must befiled was handeddown, or the dateof anyorderof
withthe clerk oftheCourt of Criminal Appeals. the court of appeals disposing of the case
without an opinion;
(b) Petition Filed in Court of Appeals. If a petition is
mistakenly filed in thecourtofappeals, thepetition isdeemed to < (2) the date any motion for rehearing was filed (or
have been filed the same day with the cIefJs*of the Court of-, a statement that none was filed); and
Criminal Appeals, and the court of appeals clerk must
immediately send the petition to the cleric" of'the Court of (3) thedate themotion forrehearing was overruled
Criminal Appeals. i, or otherwise disposed of.
Notes and Comments (f) Groundsfor Review. Thepetition must statebriefly,
without argument, the grounds on which thepetition
Comment to2011 change: Rule 68.3 ischanged torequire isbased. Thegrounds mustbeseparately numbered.
petitions for discretionary review to be filed in the Court of If the petitioner has access to the record, the
Criminal Appeals rather than in the court of appeals. With the petitioner must (aftereachground) refer to the page
deletion of Rule 50, there is no reason to file petitions in the of the record where the matter complained of is
court of appeals. Rule 68.3(b) is added to address and prevent found. Instead of listing grounds for review, the
theuntimely filing ofpetitions fordiscretionary review that are petition may contain the questions presented for
incorrectly filed in the court of appeals rather than in the Court review, expressed in the terms and circumstances of
of Criminal Appeals. the case but without unnecessary detail. The
statement of questionsshouldbe shortand concise,
68.4. Contents of Petition not argumentative or repetitious.
A petition for discretionary review must be as brief as (g) Argument. The petition must contain a direct and
possible. Itmust be addressed tothe "Court ofCriminal Appeals concise argument, with supporting authorities,
of Texas" and must state the name of the party or parties amplifying thereasonsforgranting review. SeeRule
70
"7 ' f- Ct-o I "
A » jfourtf) Court ot Appeal*
MEMORANDUM OPINION
•Ay 6. t? ^ _^
No. 04-13-00818-CR
\^*
Mark Anthony GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR2731A
Honorable Lori I. Valenzuela, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: RebecaC. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 6, 2015
AFFIRMED AS MODIFIED
Appellant Mark Anthony Garcia was charged by indictment with one count ofmurder. The
jury returned a guilty verdict and assessed punishment at twenty-years' confinement in the
Institutional Division of the Texas Department of Criminal Justice. On appeal, Garcia contends
(1) he was denied effective assistance of counsel and (2) the trial court erred in assessing attorney's
JZZ:
fees. We modify the judgment to delete the assessment of attorney's fees and affirm the trial
court's judgment as modified. ; "^ U>wi 7~fal a>/)tj Qr°v„c/S
04-13-00818-CR
the result of the proceeding would have been different.'" Id. at 158 (footnote omitted) (quoting
Strickland, 466 U.S. at 694).
"An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel." Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). "There is a strong presumption that counsel's conduct
fell within the wide range of reasonable professional assistance." Id. (citing Strickland, 466 U.S.
at 689). Therefore, Garcia "'must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.'" Exparte Moore, 395 S.W.3d at 157
(quoting Strickland, 466 U.S. at 689).
B. Arguments ofthe Parties ^ ^ ^ ^
Garcia contends that by asking the question, trial counsel-unintentionally opened the door
to otherwise inadmissible extraneous offense evidence. Such testimony could only lead the jury
to see Garcia as a "drug-crazed, remorseless killer, instead of a good guy who was just trying to
stop a tragedy."
The State counters that a single, inarticulate question—asked during an otherwise vigorous
representation and well above the objective professional standard of reasonableness—cannot
amount to ineffective assistance of counsel.
C. ,. Ineffective Assistanceof Counsel
"A substantial risk of failure accompanies an appellant's claim of ineffective assistance of
counsel on direct appeal." Thompson, 9 S.W.3d at 813. "In the majority of instances, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel."
Id. at 813-14. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107,111 (Tex. Crim. App.
2003); accord Menefield, 363 S.W.3d at 593. An "appellate court should not find deficient
04-13-00818-CR
performance unless the challenged conduct was 'so outrageous that no competent attorney would
have engaged in it.'" Menefield, 363 S.W.3d at 593 (quoting Goodspeedv. State, 187 S.W.3d 390,
392 (Tex. Crim. App. 2005)). Often on direct appeal, because the record is silent on counsel's
reason, the defendant asks the appellate court to "speculate as to the reasons why trial counsel
acted as he did," but the court is required to "presume that [counsel's] actions were taken as part
of a strategic plan for representing the client." Rodriguez v. State, 336 S.W.3d 294, 302 (Tex.
App.—San Antonio 2010, pet. refd). Here, however, the record specifically provides defense
counsel's reasons for asking the question.
D. Analysis
1. Testimony in Question
On the tenth day oftestimony, after the State rested its case in chief, Garcia took the witness
stand. Garcia articulated his version of the events that evening. Garcia denied firing the weapon
that killed Morales. He further explained that he was actually attempting to stop Lozano "from
doing something stupid."
Defense: At the time that you were in the office talking with the detective, all
right, did you believe that you'd some day end up on the stand being
tried for murder?
State: Objection, Your Honor, relevance.
Defense: State of mind, Your Honor, at the time. Demeanor they placed him.
Trial Court: Ask your question again.
Defense: At the time that you were placed in custody in — with Detective
Angell, all right, did you ever believe that you would be on trial for
murder?
Trial Court: It's sustained.
Defense: Did you have anything to hide that night when you were talking to the
detective?
-5-
04-13-00818-CR
Here, trial counsel clearly articulated that he did not anticipate or believe that his questions
might open the door to the State's propounding questions pertaining to Garcia's possession of
cocaine. But see Garcia v. State, 308 S.W.3d 62, 67-68 (Tex. App.—San Antonio 2009, no pet.)
(concluding trial counsel's multiple blanket questions opened the door to extraneous bad acts and
his repeated failure to object to admission of extraneous offenses deprived defendant of a fair
trial). Even acknowledging that "a single egregious error of omission or commission" can
constitute ineffective assistance, the allegations 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 (citing McFarlandv. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We,
therefore, look to trial counsel's representation throughout the trial.
Trial counsel conducted two days of pre-trial motions, two days of voir dire, fourteen days
oftestimony during the guilt/innocence portion ofthe trial, and two days of punishment testimony.
During the guilt/innocence phase of the trial, trial counsel cross-examined twenty-two State's
witnesses and presented ten defense witnesses. There were a plethora of objections lodged by
defense counsel preventing damaging testimony from being heard by the jury. Additionally, sixty-
one defense exhibits were admitted by the trial court. Defense counsel presented impassioned
closing arguments in both the guilt/innocence and the punishment phases of the trial.
Garcia contends this trial turned on his credibility; yet, the record demonstrates several
witnesses identified Garcia (the individual in the yellowish-colored shirt) as obtaining the weapon
from the vehicle, placing the weapon in his waistband, and firing the weapon at Morales.
Moreover, although Garcia's "jovial" disposition is mentioned during closing arguments, the State
was comparing his appearance shortly after the shooting to his somber appearance in court.
Neither party mentioned possession of cocaine or any other narcotics during closing arguments.
Importantly, although the trial court ruled that defense counsel's question opened the door to
-7-
04-13-00818-CR
1. Trial Court's Finding ofIndigence
The Texas Code of Criminal Procedure provides that a criminal defendant "without means
to employ counsel of my own choosing," may petition the court to appoint counsel to represent
him at the county's expense. Tex. Code Crim. Proc. Ann. art. 26.04(o) (providing oath of
indigence language); id. art. 26.05(f) (requiring counties to pay indigents' costs and attorney's
fees).
In Dieken, 432 S.W.3d at 447, this court analyzed the inherent conflict in article 26.04's
mandate with that of article 26.05(g). We concluded that "[ajrticle 26.05(g) authorizes a court to
determine that a defendant is able to pay a portion of the costs of his legal services but is unable
to paythe balance." Id. (citing Tex. Code Crim. Proc. Ann. art. 26.05(g) ("Ifthecourt determines
that a defendant has financial resources that enable him to offset in part or in whole the costs of
the legal services provided, including any expenses and costs, the court shall order the defendant
to pay during the pendency of the charges or, if convicted, as court costs the amount that itfinds
the defendant is able topay.'")). We must, therefore, determine whether the trial court's conclusion
that Garcia was able to pay for part, but not all, of the legal services he received was reasonable.
2. Relevant Evidence
Although the record does not contain any documents determining Garcia's indigency,
Garcia was clearly represented by appointed counsel during his trial. The trial court further
approved payment of an investigator for the defense. From these documents, we presume Garcia
"'remainfed] indigent . . . unless a material change in [Garcia's] financial circumstances
occurred].'" Id. at 448 (second, fourth alterations in original) (quoting Tex. Code Crim. Proc.
Ann. art. 26.04(p)); see also Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 557.
As the State points out, on January 13,2009, the trial court signed a Special Condition of
Release on Bond, setting Garcia's bond at $100,000.00 and ordering full-house arrest and
-10-
04-13-00818-CR
electronic-monitoring as conditions of bond. On October 28, 2011, the bond was apparently
increased to $200,000.00. Although it appears Garcia was able to post bond, the clerk's record
does not contain any actual documentation of Garcia's bond.
On May 31,2012, defensecounsel filed a Motionto ModifyConditions of Bondrequesting
Garcia's electronic monitoring be modified to accommodate his work schedule at a local
restaurant. On November 20, 2013, defense counsel's motion to withdraw indicatingthat Garcia
"remains indigent and cannot afford to hire an attorney to represent him [on] appeal" was granted
and, the trial court appointed an assistant public defenderto represent Garcia on appeal.
3. SufficientEvidence
To impose the attorney's fees on Garcia, the trial court had to find, either expressly or
implicitly, that a material change occurred and Garcia had the ability to pay $3,110.00 in court
costs and attorney's fees. See Tex. Code Crim. Proc. Ann. art. 26.05(g); Wiley, 410 S.W.3d at
317; Mayer, 309 S.W.3d at 556. The record does not contain either an express written or oral
finding supporting the same. Additionally, the record does not contain a bill of costs outlining a
portion for which the trial court reasonably determined Garcia could pay.
Because the record shows Garcia had court-appointed counsel at trial and on appeal, and
does not include either an express or implicit finding of a material change in Garcia's ability to
pay the attorney's fees, we modify the judgment to delete the assessment of attorney's fees. See
Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 556.
Conclusion
Having overruled Garcia's ineffective assistance claim, we affirm the trial court's
judgment as modified.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
-11-
RECEIVED IN
COURT OF CRIMINAL APPEALS
MAY 29-2015
AbeMoosfa.Ctefk
Jfourtf) Court of Appeal*
JUDGMENT
No. 04-13-00818-CR
Mark Anthony GARCIA, (X
Appellant aS
1
sV
The STATE of Texas,
^
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR2731A
Honorable Lori I. Valenzuela, Judge Presiding
BEFORE JUSTICE MARTINEZ, JUSTICE ALVAREZ, AND JUSTICE CHAPA
In accordance with this court's opinion ofthis date, we MODIFY the trial court's judgment
to delete the assessment of attorney's fees and AFFIRM the trial court's judgment as MODIFIED.
SIGNED May 6,2015.
£SQU*3uSE/w>
Patricia O. Alvarez, Justice
r
Ali
' \-k'
^
/
/
Garcia, Mark Anthony
Combined Opinion