Opinion issued March 31, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00139-CR
———————————
EX PARTE OSCAR MINJARE SANCHEZ, JR., Appellant
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1412036-A
DISSENTING OPINION ON EN BANC RECONSIDERATION
This is a simple post-conviction habeas corpus case in which the appellant
failed to carry his burden of showing ineffective assistance of counsel in the habeas
court. I would affirm the judgment of the habeas court denying the writ. The En
Banc Court, however, upends the long-established standard of proof of ineffective
assistance and the almost totally deferential standard of review of findings of
historical fact by a trial court, substitutes its own new standards, and reviews the
historical facts in the record de novo. It then declares it cannot tell whether
appellant’s counsel was constitutionally ineffective or not, and it remands the case
to the habeas court for unspecified “further proceedings.” I respectfully dissent.
Oscar Minjare Sanchez Jr. appeals from the denial of his post-conviction
application for a writ of habeas corpus filed under Texas Code of Criminal Procedure
article 11.072.1 In his sole issue, Sanchez contends that his trial counsel rendered
ineffective assistance by failing to call allegedly exculpatory witnesses who,
according to Sanchez, were available to testify during the guilt-innocence phase of
his trial for failure to stop and render aid and whose testimony, he claims, would
have benefited him.
The original panel opinion in this case, issued December 20, 2018,
unanimously affirmed the habeas court’s denial of Sanchez’s application. The En
Banc Court disagrees.2 It declares that the habeas court’s findings of fact—which
simply recite the pleadings filed in that court and historical facts from the record in
the trial court—are not supported by the record. It rebalances and reweighs the
1
See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 2(b).
2
Sanchez moved for rehearing and en banc reconsideration of the Court’s December
20, 2018 memorandum opinion and judgment in this case. Ex parte Sanchez, No.
01-18-00139-CR, 2018 WL 6684863 (Tex. App.—Houston [1st Dist.] Dec. 20,
2018, no pet. h.) (mem. op., not designated for publication). Because two of the
three members of the original panel were no longer on the Court, the motion for
rehearing was overruled by operation of law pursuant to Texas Rule of Appellate
Procedure 49.3. En banc reconsideration was then granted, the memorandum
opinion was withdrawn, and the judgment was vacated. See TEX. R. APP. P. 49.7.
2
historical facts in the record from Sanchez’s original trial without giving any
deference to the original trial court’s judgment, its necessarily implied findings of
fact, or the habeas court’s findings. It declares that it does not have enough evidence
to determine whether Sanchez’s trial counsel committed ineffective assistance by
failing to call witnesses Sanchez claims were available to testify on his behalf and
whose testimony Sanchez claims would have benefited him. And it reverses the
judgment of the habeas court denying the writ and remands the case to that court for
unspecified “proceedings consistent with this opinion.”
The en banc opinion thus enshrines in the precedent of this Court errors in
the application of both (1) the standard of appellate review of a trial court’s findings
of historical fact and (2) the standard of proof of constitutionally ineffective
assistance of counsel. Because an en banc opinion establishes binding precedent for
the Court, I urge review of this case by the Texas Court of Criminal Appeals.3
The historical background facts from the trial record, the habeas court’s
3
The en banc opinion satisfies the requirements for discretionary review set out in
Texas Rule of Appellate Procedure 66.3, subsections (a), (c), (e), and (f). See Tex.
R. App. P. 66.3 (listing considerations of Court of Criminal Appeals in deciding
whether to grant discretionary review, including whether court of appeals’ decision
conflicts with another court of appeals’ decision on same issue; whether court of
appeals has decided important issue of state or federal law in way that conflicts with
applicable decisions of Court of Criminal Appeals; whether justices of court of
appeals have disagreed on material question of law necessary to decision; and
whether court of appeals “has so far departed from the accepted and usual course of
judicial proceedings . . . as to call for an exercise of the Court of Criminal Appeals’
power of supervision”).
3
findings of fact and conclusions of law, and the established standard of proof of
ineffective assistance and standard of review of the findings of fact of a habeas court
relevant to this case are set out below.
Background
A. Original Trial Proceedings
Sanchez was charged with failing to stop and render aid to Harris County
Sheriff’s Office Lieutenant Gaisile Goudeau after his truck hit her unmarked police
car during a police chase, throwing it over the curb, through some railings, and into
a parking lot, causing her severe injuries. The evidence at trial showed that on
August 11, 2013, Sanchez was the designated driver for his four passengers on a
night out celebrating a friend’s birthday. After visiting two bars, where he drank two
beers, Sanchez set out on Highway 249 in his F-250 pickup truck to drive Tomball
Police Department Captain Richard Grassi, Sharleen Martin, Marion Lamal
Oshman, and Bobby Joe Flores home.4
At the same time on the same stretch of Highway 249, Lieutenant Goudeau
was monitoring a police chase. To allow a police cruiser to pass, Goudeau pulled her
unmarked Chevy Impala into the right lane in front of Sanchez’s truck. Sanchez
swerved to the left to avoid colliding with Goudeau, but his truck struck her Impala
4
The following facts are as stated in this Court’s prior opinion on direct appeal. See
Sanchez v. State, No. 01-16-00293-CR, 2017 WL 1424949, at *1-2 (Tex. App.—
Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem. op., not designated for
publication).
4
from behind, causing the violent crash that lifted Goudeau’s car into the air, pushed
it over the curb and through some rails, and spun it into the nearby parking lot.
Sanchez did not stop. He continued driving his passengers home.
Sergeant K. Benoit, who was following the police chase, testified that he
passed Lieutenant Goudeau’s car several seconds before the crash, and that he saw
in his rearview mirror a truck matching Sanchez’s strike Lieutenant Goudeau’s car,
throwing it into the air, onto the curb, and into the parking lot. Benoit returned to the
scene and saw that Goudeau had obvious injuries from the crash. He waited with
Goudeau until she was transported to the hospital, where she stayed for four days
after suffering severe injuries requiring three surgeries and months of rehabilitation.
Sanchez testified at trial. He admitted that while he was driving home from a
bar with friends, he began following the police chase. One of his passengers, Captain
Grassi, called the Tomball Police Department to report the chase. Sanchez saw
Lieutenant Goudeau’s car pull in front of his truck, but he claimed that he swerved
out of the way in time to avoid a collision.
Harris County Sheriff’s Office Deputy R. Musil was the lead investigator for
the accident and the sole investigator on the crime scene. He took photographs of
the scene and analyzed the Impala. He testified that the damage to the Impala was
consistent with its having been hit by a larger, higher-sitting vehicle. He also stated
that its license plate, found on the highway, had been knocked off by the force of the
5
initial impact from the larger vehicle. Musil also testified that he interviewed the
eyewitnesses to the accident, including all four of Sanchez’s passengers. Although
the interviews were videotaped, the videotapes were not introduced into evidence.
On cross-examination by Sanchez’s counsel, Deputy Musil stated that the four
eyewitnesses’ interviews were consistent with each other and that they did not
support the police’s theory of the case.
Investigator A. Marines of the Harris County District Attorney’s Office
examined Sanchez’s truck. He testified that he found “what [he] believed to be a
gray metallic paint which matched the color of the vehicle driven by [Lieutenant
Goudeau]” on the truck’s front tow ring. He collected samples of the paint and
submitted them for testing. Devin Stasicha, a forensic scientist with the Texas
Department of Public Safety’s Houston Regional Crime Lab, testified that the paint
was consistent with paint fragments recovered from the rear bumper of Goudeau’s
Impala.
Investigator Marines further testified that he spoke with Sanchez and Captain
Grassi at the Tomball Police Department the day after the accident. Both were
cooperative and spoke with Marines voluntarily. Sanchez told Marines that he had
not hit Goudeau’s car.
Two days later, Investigator Marines asked Sanchez to return to the Tomball
Police Department to make a statement, and Sanchez complied, providing a written
6
statement. On cross-examination, Marines testified that Sanchez’s interview and
statement were consistent with each other and were also consistent with Grassi’s
interview.
After eliciting the above-described information about the eyewitnesses’
statements on cross-examination of Deputy Musil and Investigator Marines,
Sanchez’s attorney chose not to call any of Sanchez’s passengers as witnesses.
Instead, he argued at closing that the State had not called them as witnesses because
their testimony would have conflicted with the State’s theory that Sanchez caused
the accident.
The jury convicted Sanchez of the third-degree felony offense of failure to
stop and render aid. See Sanchez v. State, No. 01-16-00293-CR, 2017 WL 1424949, at
*1 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem. op., not designated for
publication). The trial court assessed Sanchez’s punishment at ten years’ confinement
but probated this sentence by placing him on community supervision for a period of
ten years. See id. Sanchez did not file a motion for new trial. In 2017, this Court
affirmed Sanchez’s conviction, overruling the two issues he raised on appeal—
whether the trial court erred in submitting a voluntary-intoxication charge to the jury
and whether the evidence of his knowledge of the accident was insufficient. See id.
The Court of Criminal Appeals refused Sanchez’s petition for discretionary review
and this Court’s mandate issued on October 20, 2017.
7
B. Habeas Corpus Proceedings
On December 12, 2017, Sanchez filed an application for a writ of habeas
corpus under Texas Code of Criminal Procedure article 11.072, alleging only that
his trial counsel had provided ineffective assistance by failing to call necessary
exculpatory witnesses—Captain Grassi, Martin, and Flores—to testify. In support
of his application, Sanchez obtained and attached affidavits from each of these three
witnesses stating that they were passengers in his truck, they saw him swerve around
the car that darted out in front of the truck, and they were not aware of a collision.
The habeas court denied Sanchez’s application without an evidentiary hearing
and certified that Sanchez had a right of appeal. We abated this appeal and remanded
the case to the habeas court for findings of fact and conclusions of law mandated by
article 11.072 section 7(a). See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a)
(providing that unless applicant is “manifestly entitled to no relief,” habeas court
“shall enter a written order including findings of fact and conclusions of law”).
The habeas court supplemented the appellate record with its findings of fact
and conclusions of law, which included the following:
FINDINGS OF FACT
....
4. In his sole ground for relief, the applicant alleges that he received
the ineffective assistance of trial counsel. Applicant’s Writ at 8–9.
8
5. The applicant claims trial counsel failed to present evidence from
Captain Richard Grassi, Sharleen Martin, and Bobby Joe Flores
during the applicant’s trial. Applicant’s Writ at 8–9.
6. The applicant claims that these witnesses would have testified that
they were passengers in the applicant’s vehicle and that they were
not aware of the applicant’s vehicle colliding with the complainant’s
vehicle. Applicant’s Writ at 8–9.
7. The trial court finds that trial counsel did not call any witnesses in
his case-in-chief during the guilt[/]innocence phase of the
applicant’s trial.
8. The trial court finds, based on the reporter’s record, that trial
counsel’s cross[-]examination of Deputy Ryan Musil elicited
testimony that Grassi, Martin, and Flores all made consistent
statements to law enforcement about what happened. . . .
9. The trial court finds, based on the reporter’s record, that trial
counsel’s cross[-]examination of Investigator Arturo Marines
elicited testimony that the applicant and Grassi both made consistent
statements to law enforcement about what happened.
10.The trial court finds, based on the reporter’s record, that during
closing trial counsel made the following argument: that “[t]here are
four eyewitnesses in a car, Bobby Joe Flores, [Sharleen] Nichol
Martin, Maria Lamal Oshman, Captain Rick Grassi . . . [the
prosecutor] didn’t call them” ; that the prosecutor failed to bring the
jury “every piece of evidence” as she had promised; and that the
prosecutor failed to do so because “it [did not] match her theory.”
11.The trial court finds that the applicant fails to show that trial counsel
was deficient.
12.The trial court finds that the applicant fails to establish a reasonable
probability that the result of the proceeding would have been
different had these witnesses been called to testify at the applicant’s
trial.
9
CONCLUSIONS OF LAW
....
3. The applicant fails to show that Grassi, Martin, and Flores were
available and that their testimony would have benefited the defense.
See King v. State, 649 S.W.2d 42 (Tex. Crim. App. 1983); [E]x parte
Flores, 387 S.W.3d 626, 638 (Tex. Crim. App. 2012) (the applicant
must still show that “some benefit” establishes a reasonable
probability that the result of the proceeding would have been
different, i.e., one sufficient to undermine confidence in the
outcome).
....
5. In all things, the applicant has failed to demonstrate that he was
denied the effective assistance of counsel.
Accordingly, the instant application is DENIED.
After this Court reinstated the case and requested briefing, both Sanchez and
the State filed briefs and Sanchez filed a reply. See TEX. R. APP. P. 31.1. The Court
issued its opinion on December 18, 2018, affirming the habeas court’s denial of the
writ. Sanchez’s motion for rehearing was denied by operation of law as two of the
original panel members were no longer on the Court. See note 2 supra. The En Banc
Court granted rehearing, withdrew the original opinion, vacated the judgment, and
now issues its opinion. I dissent.
Ineffective Assistance of Counsel
In his sole issue, Sanchez claims that the habeas court abused its discretion in
concluding that he failed to show that his trial counsel was constitutionally
ineffective. He contends that he showed that Captain Grassi and Sharleen Martin
10
were available to testify, that their testimony would have benefited his defense,5 and
that, because they were not called as witnesses, his counsel’s performance was
deficient and probably caused a different result than would have been the case had
they been called.
A. Standard of Review in Habeas Corpus Proceedings
Appellate courts review a trial court’s decision to grant or deny habeas corpus
relief for an abuse of discretion. See Ex parte Montano, 451 S.W.3d 874, 877 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d). “In reviewing the trial court’s decision
to grant or deny habeas corpus relief, we view the evidence in the light most
favorable to the trial court’s ruling.” Id. We afford almost total deference to the trial
court’s determination of historical facts supported by the record, especially when the
fact findings are based upon an evaluation of credibility and demeanor. Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Montano, 451 S.W.3d at 877. And
we afford the same amount of deference to the trial court’s rulings on the application
of law to fact if the resolution of ultimate questions turns on an evaluation of the
witnesses’ credibility and demeanor. Guzman, 955 S.W.2d at 89; Sandifer v. State,
233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When an issue is
necessarily fact intensive, “a trial court’s finding must be accepted on appeal unless
5
On rehearing, Sanchez concedes that Flores’s affidavit did not state that he was
available to testify, so we need to analyze only the affidavits of Sharleen Martin and
Captain Grassi.
11
it is clearly erroneous.” Montano, 451 S.W.3d at 877. And “[w]hen there are no
written findings explaining the factual basis for the trial court’s ruling, we imply
findings of fact that support the ruling so long as the evidence supports those implied
findings.” Id.
Appellate courts review the evidence presented in the light most favorable to
the trial court’s ruling, regardless of whether the court’s findings are implied or
explicit, or are based on affidavits or live testimony, provided they are supported by
the record. See Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006);
Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). Appellate courts may treat findings mislabeled as conclusions of law as
findings of fact. See Ex parte Estrada, 573 S.W.3d 884, 891 (Tex. App.—Houston
[1st Dist.] 2019, no pet.) (citing Ray v. Farmers’ State Bank of Hart, 576 S.W.2d
607, 608 n.1 (Tex. 1979)). We will uphold the habeas court’s judgment so long as it
is correct under any theory of law applicable to the case. See Ex parte Taylor, 36
S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam).
Here, the en banc opinion sets out the general standard of review in habeas
proceedings. Slip Op. at 7–8. But it understates the Court of Criminal Appeals’ long-
standing holding that the intermediate appellate courts should afford “almost total
deference” to the trial court’s determination of historical facts and to the trial court’s
rulings on ultimate questions that turn on an evaluation of witnesses’ credibility and
12
demeanor. See Ex parte Guzman, 955 S.W.2d at 89; Ex parte Montano, 451 S.W.3d
at 877. And it misjudges who the finder of historical fact is in this post-conviction
habeas corpus proceeding based on ineffective assistance at trial—namely, the
original trial court in which Sanchez’s counsel represented him, not the habeas court,
whose findings merely reflect the trial record and Sanchez’s pleadings in his habeas
petition. Accordingly, stating that the habeas court was in no better position than this
appellate court to determine the relevant historical facts, as the habeas judge was not
the original trial judge, the En Banc Court deems itself free to review and reweigh
de novo the historical facts relevant to Sanchez’s trial counsel’s representation of
him. It does not defer at all to the original trial court’s judgment on the verdict or the
necessarily implied findings of historical fact by the jury that evaluated the demeanor
and credibility of the witnesses at trial that support the judgment. It likewise affords
no deference to the habeas court’s findings of historical fact. It concludes that they
are unsupported by the record, even though they merely recite the relevant historical
facts from the trial record and set forth Sanchez’s claims in his application for habeas
corpus. Yet, prevailing standards of review require that the historical facts the jury
found by evaluating the demeanor and credibility of the witnesses at trial and the
habeas judge found by reading the record and acknowledging its contents and
Sanchez’s pleadings must be afforded almost total deference by the appellate court,
not decided anew, as the En Banc Court does. See, e.g., Guzman, 955 S.W.2d at 89.
13
The real question in this ineffective assistance of counsel inquiry is threefold:
whether, taking the historical facts as established by the trial record and according
those facts almost total deference, and viewing the record in the light most favorable
to the trial court’s and the habeas court’s judgments, Sanchez established (1) that the
witnesses he claims were necessary to his defense were available to testify at trial,
(2) that their testimony would have benefited his defense, and (3) that no reasonable
attorney could have employed a strategy under which they were not called, the
questions to which I now turn.
B. Standard of Proof of Ineffective Assistance
To establish that trial counsel rendered constitutionally ineffective assistance,
an appellant must demonstrate, by a preponderance of the evidence, that (1) his
counsel’s performance was deficient and (2) there is a reasonable probability that
the result of the proceeding would have been different but for his counsel’s deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte
White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); see also Robinson v. State, 514
S.W.3d 816, 823 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). The appellant’s
failure to make either of the required showings of deficient performance or sufficient
prejudice defeats the claim of ineffective assistance. See Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one
prong of the Strickland test negates a court’s need to consider the other prong.”).
14
Courts indulge a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance, and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687; see also
Robinson, 514 S.W.3d at 823. Appellate review is highly deferential to counsel, and
courts do not speculate regarding counsel’s trial strategy. See Bone v. State, 77
S.W.3d 828, 833, 835 (Tex. Crim. App. 2002).
To prevail on an ineffective assistance claim, the appellant must provide an
appellate record that affirmatively demonstrates that his counsel’s performance was
not based on sound strategy. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999) (holding that record must affirmatively demonstrate alleged
ineffectiveness). In the absence of evidence of counsel’s reasons for the challenged
conduct, courts will assume a strategic motivation if any can possibly be imagined
and will not conclude that the challenged conduct constitutes deficient performance
unless it was so outrageous that no competent attorney would have engaged in it.
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
C. Application of the Standard of Proof
1. Performance Prong
With respect to the first Strickland prong, performance of counsel, to
demonstrate ineffectiveness of counsel based on an uncalled witness, an appellant
15
must show two things: (1) the witness would have been available to testify; and (2)
the witness’s testimony would have been of some benefit to the defense. See
Strickland, 466 U.S. at 687; Ex parte Ramirez, 280 S.W.3d 848, 853–54 (Tex. Crim.
App. 2007) (per curiam) (denying habeas relief based on argument that trial counsel
was ineffective for failing to call witnesses where witness’s statement was “not
sworn or signed” and did “not state that she was available to testify at [defendant’s]
trial”); White, 160 S.W.3d at 52; King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.
1983); Robinson, 514 S.W.3d at 824. This may be established through either
testimony on the record or, as here, affidavits from the uncalled witnesses; mere
allegations in a motion or habeas petition are not sufficient to establish these factors.
See White, 160 S.W.3d at 52–53 (rejecting ineffectiveness claim where applicant
provided affidavit from uncalled witness but did not provide substance of testimony
that showed benefit to applicant); Robinson, 514 S.W.3d at 824 (rejecting
ineffectiveness claim where appellate counsel obtained letters from proposed
witnesses but letters neither indicated their availability or willingness to testify at
appellant’s trial nor described substance of testimony had they been asked to testify).
Where the record is silent as to trial counsel’s rationale in deciding not to call
witnesses, we are directed to assume a strategic motivation if any can possibly be
imagined, and only if none can be conceived may we conclude that the challenged
conduct constitutes deficient performance. See Ex parte Varelas, 45 S.W.3d 627,
16
632 (Tex. Crim. App. 2001); Garcia, 57 S.W.3d at 440. This is particularly
uncontroversial, as “[t]he decision whether to call a witness is clearly trial strategy
and, as such, is a prerogative of trial counsel.” Brown v. State, 866 S.W.2d 675, 678
(Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
Like the habeas trial court, I would hold that Sanchez failed to make the
required showing “that Grassi, Martin, and Flores were available and that their
testimony would have benefited the defense.” I would also hold that Sanchez failed
to show that his trial counsel could have had no conceivable strategic motivation for
failing to call Grassi and Martin; and, therefore, he failed to defeat the presumption
that his trial counsel did not provide ineffective assistance.
a. Availability of the witnesses to testify
A defendant who complains that his attorney was ineffective because he failed
to call certain witnesses whose testimony would have benefited him must show that
the uncalled witnesses were available to testify at his trial. See Ramirez, 280 S.W.3d
at 853 (denying habeas relief based on ineffective assistance for failure to call
witness whose statement did “not state that she was available to testify at
[defendant’s] trial”); White, 160 S.W.3d at 52; King, 649 S.W.2d at 44. Courts must
afford almost total deference to the habeas court’s findings that a habeas applicant,
such as Sanchez, did not show by a preponderance of the evidence that the uncalled
witnesses he seeks—here, Captain Grassi and Martin—were available to testify at
17
his trial, as long as the habeas court’s findings are supported by the record. See
Wheeler, 203 S.W.3d at 325–26. And they are.
Here, the record relied on by the habeas court included the reporter’s record
from trial and the affidavits of Captain Grassi and Martin. Captain Grassi’s affidavit
did not state anything about his availability to testify at Sanchez’s trial. Martin’s
affidavit stated, “If I had been asked to testify at Mr. Sanchez’s trial, I would have
gladly done so.” I would conclude, therefore, that the habeas court did not abuse its
discretion in finding that Sanchez failed to show that Captain Grassi was available
to testify at Sanchez’s trial. See Ramirez, 280 S.W.3d at 853; White, 160 S.W.3d at
52; King, 649 S.W.2d at 44; Robinson, 514 S.W.3d at 824. Assuming without
deciding that Martin’s affidavit was sufficient to show her availability to testify,
despite the habeas court’s finding, and even assuming the same with respect to
Captain Grassi, I would still conclude that Sanchez failed to show that the testimony
of either Grassi or Martin would have benefited him, as is also required.
b. Benefit of Grassi’s and Martin’s testimony
Even if Sanchez had shown that Captain Grassi and Martin were available to
testify at his trial, in order to establish that his trial counsel was ineffective he still
needed to show that he would have benefited from their testimony to satisfy the first
prong of Strickland, requiring that the defendant show his counsel’s performance
was professionally deficient. See Strickland, 466 U.S. at 687; Ramirez, 280 S.W.3d
18
at 853. The habeas court found that Sanchez did not make that showing with respect
to either witness. I agree.
The habeas court found that Sanchez’s trial counsel elicited testimony on
cross-examination of Deputy Musil and Investigator Marines that Captain Grassi,
Martin, and Sanchez all made consistent statements to law enforcement about the
accident, and then used this information in his closing argument as evidence that
Sanchez did not hit Lieutenant Goudeau’s car. That court also found that Sanchez’s
trial counsel argued that the prosecutor failed to bring Grassi’s and Martin’s
testimony before the jury, despite promising to bring all evidence before them, and
that the prosecutor did so because it did not match her theory.
Specifically, the habeas court found that
during closing trial counsel made the following argument: that “[t]here
are four eyewitnesses in a car, Bobby Joe Flores, [Sharleen] Nichol
Martin, Maria Lamal Oshman, Captain Rick Grassi . . . [the prosecutor]
didn’t call them;” that the prosecutor failed to bring the jury “every
piece of evidence” as she had promised; and that the prosecutor failed
to do so because “it [did not] match her theory.”
This Court must afford total deference to these findings unless they are not supported
by the record. See Wheeler, 203 S.W.3d at 325–26. Here, the historical facts found
by the habeas court and necessarily implied by the jury’s verdict and the original
trial court’s judgment are fully supported by the record.
In his affidavit submitted with Sanchez’s habeas petition, Captain Grassi
stated that on August 11, 2013, he was riding as a passenger in Sanchez’s truck with
19
three other passengers when they observed a high-speed car chase conducted by the
Harris County Sheriff’s Office. Grassi contacted the Tomball Police Department—
his employer—to report the chase and told Sanchez to follow it. An unmarked police
car then cut directly in front of Sanchez’s truck, forcing Sanchez to veer to the left
to avoid striking the car. While Grassi “was not aware of having collided with the
other vehicle,” and did not see any visible damage to Sanchez’s truck the next day,
he concluded that Sanchez’s “truck is a large, heavy-duty work truck, so it is possible
there was a glancing strike to the other vehicle, but nobody in [Sanchez]’s vehicle
showed any knowledge of having been in a collision[.]”
Martin’s affidavit stated that “[o]n the night of August 11, 2013, my husband
Bobby Flores, Rick Grassi and his girlfriend Mariam, Oscar Sanchez and [I] went
out for Rick’s birthday . . . at a pub playing shuffle board and then decided to go to
Whiskey River.” After leaving Whiskey River, “there was a high-speed chase on
249 going north” and “[Captain Grassi] asked [Sanchez] to follow the chase while
he was on the phone with someone from his police station where he works.” Martin’s
affidavit continued, “I was sitting behind [Sanchez] chatting with [Oshman] not
really paying much attention to the road up ahead but did see a car up ahead on the
left side of us,” and then “[Sanchez] slams on his brakes and honks his horn, and
swerves away from a car.” Martin’s affidavit concluded, “I did not observe any
20
collision between [Sanchez]’s truck and any car that night,” and she averred that
“[i]f we had been in a collision I would have noticed it.”
While it is possible that the testimony these witnesses stated they would have
provided may have had some benefit to Sanchez’s defense, it is also equally possible,
if not more likely than not, that calling Captain Grassi and Martin to testify would
have harmed Sanchez’s defense since it would have exposed them to cross-
examination. It is undisputed that Sanchez was driving these witnesses home at night
after they had visited two bars. On cross-examination, their testimony, demeanor,
and credibility would have had to have been weighed against the testimony,
demeanor, and credibility of Sergeant Benoit, who was following the police chase
and saw and heard the accident, and the two investigating officers who gave
evidence regarding the details of the accident and who took videotaped interviews
of these witnesses and testified on the stand that they corroborated Sanchez’s
testimony but who were not asked further details. See Castruita v. State, No. 03-10-
00419-CR, 2012 WL 2981105, at *3 (Tex. App.—Austin July 12, 2012, no pet.)
(mem. op., not designated for publication) (testimony that “may have had some
benefit” to defendant’s defense was not shown to be beneficial where it was “also
possible that the testimony would have harmed [defendant’s] appellant’s defense
during cross-examination”).
21
Based on its review of the facts from the trial records, the habeas court came
to the conclusion that Sanchez failed to show that Grassi’s and Martin’s testimony
would have benefited Sanchez. See Ex parte Flores, 387 S.W.3d 626, 638 (Tex.
Crim. App. 2012) (“[T]he applicant must still show that ‘some benefit’ establishes a
reasonable probability that the result of the proceeding would have been different,
i.e., one sufficient to undermine confidence in the outcome.”). I agree.
Having concluded that Sanchez had failed to carry his burden of showing that
the witnesses were available and that their testimony would have benefitted him, the
habeas court did not reach the question whether any competent attorney could have
failed to call these witnesses. I address it below.
c. Counsel’s trial strategy
As stated above, when, as here, the record is silent as to trial counsel’s
rationale in deciding not to call certain witnesses, we must assume a strategic
motivation if any can possibly be imagined, and only if none can be conceived may
we conclude that the challenged conduct constitutes deficient performance. See
Varelas, 45 S.W.3d at 632. This is particularly uncontroversial here, as “[t]he
decision whether to call a witness is clearly trial strategy and, as such, is a
prerogative of trial counsel.” Brown, 866 S.W.2d at 678. And it is not difficult to
imagine a sound trial strategy here, where defense counsel’s decision allowed him
to advance his client’s interests while avoiding prejudicing him.
22
The evidence that Captain Grassi’s and Martin’s affidavits stated they would
have given—that neither was aware that Sanchez had hit Lieutenant Goudeau’s
car—was elicited on cross-examination of Deputy Musil and Inspector Marines,
after which Sanchez’s counsel asked no further questions. This enabled the defense
to avoid subjecting Martin and Grassi to cross-examination while introducing
evidence supporting Sanchez’s testimony that he was unaware that there had been a
collision. Cross-examination of these witnesses—Sanchez’s friends, with whom he
had been out at bars drinking just before the accident—might have shown
intoxication or bias on the part of these witnesses, and it would have subjected their
credibility to the scrutiny of the jury both through their demeanor on the witness
stand and through the introduction into evidence of the videotapes of their interviews
with Deputy Musil and through questioning of these witnesses as to their impaired
state on the night of the accident.
The only reasonable inference from defense counsel’s failure to call Martin
and Grassi to the stand is that counsel made a professional judgment that calling
these witnesses and opening the door to the videotapes of their interviews would
have harmed Sanchez more than it would have benefited him. As it was, defense
counsel was able to make the jury aware of their statements and their consistency
with Sanchez’s account of the accident and to bring that information again to the
jury’s attention in closing argument, to the benefit of his client, without prejudicing
23
his defense by opening the door to their cross-examination and the introduction of
contravening evidence.
Moreover, Sanchez failed to explain how Captain Grassi’s and Martin’s
testimony agreeing with him that they were unaware a collision had occurred would
have benefited him, given both the overwhelming evidence of his guilt presented at
trial and the risks presented by exposing these potential witnesses to cross-
examination and to the introduction of the police videos of their statements, which
Sanchez could have introduced into evidence himself had he thought them
beneficial. Nor has Sanchez shown that it was not sound trial strategy for defense
counsel to elicit testimony from the State’s witnesses that these potential witnesses
corroborated Sanchez’s testimony while at the same time avoiding cross-
examination and preserving the right to present the references to their testimony in
a light favorable to Sanchez in closing argument.
I cannot rationally conclude that Sanchez has overcome the presumption that
his trial counsel’s decision not to call Martin and Captain Grassi to testify at trial
constituted “sound trial strategy.” Strickland, 466 U.S. at 689; Williams, 301 S.W.3d
at 687. I would hold, therefore, that Sanchez did not meet his burden to prove by a
preponderance of the evidence that his trial counsel was deficient. See Thompson, 9
S.W.3d at 813 (defendant bears burden of proof on both Strickland prongs, and
failure to make either showing by a preponderance of the evidence defeats
24
ineffectiveness claim); Toledo v. State, 519 S.W.3d 273, 287 (Tex. App.—Houston
[1st Dist.] 2017, pet. ref’d) (same). Accordingly, I would affirm the judgment of the
habeas court denying the writ.
The En Banc Court, however, does not even address this element of the proof
of constitutionally deficient representation before coming to the conclusion that it
cannot determine whether Sanchez’s trial counsel was ineffective or not and,
therefore, that it must remand the case to the habeas court for unspecified further
proceedings in accordance with its opinion.
2. Prejudice Prong
The “appellant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other prong.” Williams, 301 S.W.3d at 687. Thus,
because Sanchez failed to demonstrate that his trial counsel’s performance was
deficient, it is unnecessary to consider whether he was prejudiced by his counsel’s
performance at trial.
I would overrule Sanchez’s sole issue.
Conclusion
I would affirm the judgment of the trial court denying habeas relief. Because
the en banc opinion is binding precedent on this Court and because, in my view, the
en banc opinion contains fundamental errors of law with respect both to the standard
of review of a habeas court’s denial of a post-conviction petition for habeas corpus
25
and to the standard of proof of ineffective assistance of counsel and remands this
case for further proceedings without any basis in law, I also urge the Court of
Criminal Appeals to grant review, to reverse the judgment of the En Banc Court, and
to reaffirm the almost totally deferential standard of review of a habeas court’s and
a trial court’s findings of historical fact and the established standard of proof of
ineffective assistance of counsel.
Evelyn V. Keyes
Justice
The En Banc Court consists of Chief Justice Radack and Justices Keyes, Lloyd,
Kelly, Goodman, Landau, Hightower, and Countiss.
Justice Landau writing for the En Banc Court.
Justice Keyes, joined by Justice Lloyd, dissenting.
Chief Justice Radack dissenting without opinion.
Publish. TEX. R. APP. P. 47.2(b).
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