Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00124-CR
Aaron Nathaniel VASQUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR5894
Honorable Raymond Angelini, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: October 23, 2019
AFFIRMED AS MODIFIED
Aaron Nathaniel Vasquez was convicted by a jury of unlawful possession of a firearm by
a felon. The sole issue presented on appeal is whether trial counsel rendered ineffective assistance
of counsel. In a footnote, Vasquez also requests that this court modify the trial court’s judgment
because he did not plead true to the enhancement allegation in the indictment. We modify the trial
court’s judgment as requested and affirm the judgment as modified.
04-19-00124-CR
BACKGROUND
Police officers were dispatched to an apartment complex in response to a domestic
disturbance call in which it was reported that Vasquez pointed a gun at the complainant. Vasquez
was described as a Hispanic male wearing a dark blue t-shirt and carrying a white laundry basket.
The gun was described as having a red handle.
The officers approached Vasquez, who matched the description, and handcuffed him based
on the report that he was in possession of a gun. One of the officers searched Vasquez’s backpack
and found a magazine to a gun. After the magazine was found, another officer shook Vasquez’s
pants leg while frisking him, and a handgun with a red handle fell from the pants leg.
Based on the evidence presented, a jury found Vasquez guilty of unlawful possession of a
firearm by a felon. The trial court sentenced Vasquez to four years’ imprisonment.
APPLICABLE LAW
“To prevail on a claim of ineffective assistance of counsel, the [appellant] must show that
counsel’s performance was deficient and that the deficient performance prejudiced the defense.”
Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Unless appellant can prove both prongs, an appellate court must not find
counsel’s representation to be ineffective.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). “In order to satisfy the first prong, appellant must prove, by a preponderance of the
evidence, that trial counsel’s performance fell below an objective standard of reasonableness under
the prevailing professional norms.” Id. “To prove prejudice, appellant must show that there is a
reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the
result of the proceeding would have been different.” Id.
“An appellate court must make a strong presumption that counsel’s performance fell within
the wide range of reasonably professional assistance.” Id. (internal quotation marks omitted). “In
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order for an appellate court to find that counsel was ineffective, counsel’s deficiency must be
affirmatively demonstrated in the trial record; the court must not engage in retrospective
speculation.” Id. “Trial counsel should generally be given an opportunity to explain his actions
before being found ineffective.” Prine, 537 S.W.3d at 117. “In the face of an undeveloped record,
counsel should be found ineffective only if his conduct was so outrageous that no competent
attorney would have engaged in it.” Id. (internal quotation marks omitted). The Texas Court of
Criminal Appeals “has repeatedly stated that claims of ineffective assistance of counsel are
generally not successful on direct appeal and are more appropriately urged in a hearing on an
application for a writ of habeas corpus.” Lopez, 343 S.W.3d at 143.
ANALYSIS
Vasquez first contends trial counsel was ineffective for failing to explain to him why he
was not requesting a hearing on Vasquez’s pro se motion to suppress. Vasquez also contends trial
counsel was ineffective in failing to object to the following comment made by the trial court during
trial counsel’s voir dire of the jury:
[Trial counsel]: And, lastly, as the Judge explained to you, you’re serving your
country by doing this. But there’s also — your obligation for being here — you
have an obligation — you’re here and your obligation is to decide — okay. It’s to
decide. It’s not necessarily to arrive at a verdict. You don’t have to pigeonhole all
this information y’all get when the evidence comes out into guilty or not guilty.
There’s a thing called mistrial. You cannot figure out — all 12 of you cannot
say he’s definitely guilty, he’s definitely not guilty. So your — again, your
obligation is to decide.
You understand what I mean? It’s to decide. It’s not necessarily to arrive at a
verdict.
Is that something that’s surprising to y’all? Is there anybody there who feels
that you have to come up with either a not guilty or a guilty?
THE COURT: If you’re going to be on the jury, you’re going to come up with
one of those two.
[Trial counsel]: Again, your obligation is to decide.
Vasquez next contends trial counsel was ineffective in failing to object to the following statement
made by one of the officers:
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Q. What was the nature of the disturbance you were dispatched for?
A. It was a domestic disturbance. We were informed that — that the Defendant
had a — pointed a gun at the complainant.
In his brief, Vasquez asserts, “Although it was relevant that Mr. Vasquez was believed to have a
weapon, the notion that he pointed a gun at anyone was clearly calculated to inflame the jury
against him.” Vasquez further asserts trial counsel allowed the trial court to do his work for him
when the State asked what information the officer had to assist the search, and the trial court
interrupted to ask where the State was “going with this,” asserting “[t]his is all hearsay.” After the
trial court’s question, the prosecutor responded he would “move on.” Finally, Vasquez contends
trial counsel was again ineffective in making the trial court do his work for him when the trial
court instructed the State to mute any portions of the body cam video that contained questioning
of Vasquez, who had not been read his Miranda warnings.
In its brief, the State speculates regarding the reasons trial counsel chose not to take the
challenged actions. The Texas Court of Criminal Appeals, however, has instructed that this court
“must not engage in retrospective speculation.” Lopez, 343 S.W.3d at 142. In this case, the record
is silent regarding the reasons trial counsel failed to take the actions Vasquez contends he should
have taken. Instead, we are left with the “strong presumption that counsel’s performance fell
within the wide range of reasonably professional assistance.” Id. And, having examined each of
Vasquez’s contentions in the context of the entire record, we cannot conclude trial counsel’s
conduct “was so outrageous that no competent attorney would have engaged in it.” Prine, 537
S.W.3d at 117.
Even if this court were to conclude the record supported a finding of deficient performance,
Vasquez was required to satisfy the second prong of the test by showing “there is a reasonable
probability, or a probability sufficient to undermine confidence in the outcome, that the result of
the proceeding would have been different.” Lopez, 343 S.W.3d at 142. With regard to this prong,
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04-19-00124-CR
Vasquez’s brief alludes to trial counsel presenting the jury with the impression that he was inept.
Vasquez does not, however, explain how the result of the proceeding would have been different
absent this alleged impression. Vasquez was wearing the clothes and carrying the white laundry
basket described by the complainant, and a handgun with a red handle fell from his pants leg when
he was being frisked. Although Vasquez contends trial counsel did not adequately explain to him
why trial counsel was not pursuing the pro se motion to suppress, Vasquez does not contend trial
counsel was ineffective in not requesting a hearing on the motion. 1 Finally, in two of his
complaints, Vasquez concedes the trial court intervened, thereby preventing the jury from hearing
the evidence Vasquez argues was objectionable.
CONCLUSION
Because Vasquez failed to meet his burden to establish trial counsel rendered ineffective
assistance of counsel, his sole issue on appeal is overruled. We modify the judgment to remove
the plea of true to the enhancement allegation and affirm the trial court’s judgment as modified.
Irene Rios, Justice
DO NOT PUBLISH
1
In his brief, Vasquez asserts he was not contending trial counsel was ineffective in not requesting a hearing because,
“There is nothing in the record to indicate what an evidentiary hearing would have produced.”
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