~\
SS'V-15
COURT OF CRIMINAL APPEALS
AUSTIN TEXAS ORIGINAL
MARK ANTHONY GARCIA PRO SE
CASE NO: 04-13-0081 8-CR
MOTION OF APPEAL... FOR
DISCRETIONARY REVIEW
PETITION TO CRIMINAL
COURT OF APPEALS; PURSUANT
V. TO RULE OF APPELLATE
PROCEDURE 66.3
' fc3)C/?V
STATE OF TEXAS
APPELLEE
COURT OF CRffifflNAL APPEALS
JUL 15 2015 j
Abe! Acosta, Clerk
FILED \H
COURT OF CRIMINAL APPEALS
JUL 15 2015 '
Abel Acosta, Clerk
COURT; OF CRIMINAL APPEALS
COURT OF CRIMINAL APPEALS OF TEXAS
P.O. BOX 1 23Q8,AUSTIN.-TEXAS 78711
LITIGATION PRO SE INDIGENT MOTION IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C.1914(a)
Comes now pro se litigant Mark Anthony Garcia and request ife&t
this Honrable Court of Appeals recognize appellants indigent
request that he has no money to pay for filing or copying of
his present litigation and brief material to his present case.
So prays petitioner.(See attached copy of present account).
Respectfully
Mnnlr JaJfaH t«*«* ^9/22"/
CERTIFICATE OF SERVICE
On this day of (Juni /~?-1 2015 I sent a copy of this motion and
indigent request to the Court of Appeals clerk of the court.
Respectfully
fji sl^M l^«* iWH
AFFIDAVIT IN SUPPORT
OF MOTION
TITLE 28 INSIDE THE UNITED STATES
CODE SECTION
1746
Akx/k. An^/tcM
by/Uark
This affidavit hy woo* H'
Afl$\Qft>A h*8&fi v P^o
e se petitioner in the present
case being first duly sworn and deposed say and declare under pena
lty of perjury that the facts herein are true and correct to the be
st of my knowledge and belief. I understand that making false state
ments may lead to my being prosecuted for perjury and affirm that all
of the statements contained herein are true and correct to the best
of my knowledge:asd^feelief^are^as^follo^s.
STATEMENT OF FACTS
FOURTH COURT OF APPEALS
SAN ANTONIO,TEXAS
MARK ANTHONY GARCIA PRO SE CASE NO:04-13-00818-CR
APEALLANTS PRO SE MOTION
tmm MOTION TO RECALL^ THE
-MANDATE
'ON APPEAL FROM THE 437th
JUDICAL DISTRICT COURT„
v. BEXTAR COUNTY,TEXAS,TRIAL
COURT NO:2009CR2731A
STATE OF TEXAS
APELLEE
MOTION
Comes now pro se petitioner Mark Anthony Garcia and request that this
court hold this pro se brief to a less stringent.standard than one pr
epared and filed by a seasoned lawyer.See Thomas v. Edy;481 F.3d 434
440(6th Cir.2006);Haines v.Kerner,404 U.S.19,501-21(1972). In support
of petitioners motion he asserts the following grounds for relief.
Appellant acting pro se moves this court to review and entertain all
of his present claims for relief and allegations at law in the .intere;
est of justice to prevent further miscarriage of justice to appellant,
Appellant also moves this Honorable Court to recall the mandate in a
timely fashion to allow"Petition for Panel Rehearing"to be considered
by the Court.
I.BACKGROUND
Apellant was found guilty of one count of murder and was sentenced to
twenty years imprisonment in the Institutional Division of Texas De
partment of Criminal Justice. On Appeal Garcia contends that he was
denied effective assistance of counsel at trial and that the trial co^
urt erred in assessing attorney fees to an indigent defendant.
1 of 7
Appellant is recalling the mandate and envoking any and all rules of
procedure to be reviewed by this court of appeals.Moreover that both
his trial and appellate counsel were ineffective..Appellants trial
counsel for exposing him to cruel and unusual punishment and an 8th
amendment violation. By and through trial counsels cross examination
of appellant that lead the jury to believe he was a drug crazed.rem
orseless killer .Because appellant is raa^zn^-thesei^^SeasJtiwse assis-
f
tance of appellate counsel issues at this time he is requesting that
this court of appeals toll the time in accordance with^the rule of cr
iminal procedure that the record be fully developed to adequately re
flect appellants claims> Thompson v. State,9 S.W.3d 808,813(Tex.Crim.
App.1999); Strickland 466 U.S.at 688,690.
Furthermore in the interest of justice appellant request that this co
urt review these prejudical circumstances of extraordinary exception.
ARGUMENT.X
Appellant has been severlyprejudiced.by counsels performance that .
clearly represents an conflict of interest by and through their
non professional actions at trial and during his jpresenfei appeal.
See Evitts v. Lucey,469 U.S.387(1985);The Sixth Amendment right to
counsel "attaches" with filing of formal criminal charges,and ext
ends to all'Vcritical stages"of the proceedings.Moran v. Burbine,475
U.S.412(1986:Michigan v. Jackson,475 U.S.525,629 n.3(1986);Scott
v. Illinois,440 U.S.367(1979),-Coleman v. Alabama,399 U.S.1(1970)
Dew v. United States,558 A.2d1112,1113^18(D.C.1989)"[TJhe right to
counsel is right to effective assistance of counsel."Strickland v.
Washington,466 U, S.668,685{1984)(quoting McMann v. Richardson,397
U.S.759,771 n.14(1970). ...
When a jurisdiction provides an appeal of right,due process also gu-
2of7
arantees the assistance of counsels on appeal. Evittsv. Lucey,469
U.S.387 (1985).Moreover it is the Courts obligation to ensure that
defendants rights are;protected (1)that defendant understands the ch
arges (2)assist attorney in making defense Dusky v. U.S.,362 U.S.402
(1960).Counsels cumulative errors throughout his trial proceedings
perjudiced defendants opportunity at a fair result attttiallandtldulning
his court proceedings. See Taylor v. Kentucky436, U.S.478,n.15,98 S
Ct.1930,L.Ed.2d 468(1978);Strickland ,466 U.S.at 688.
Counsel is expected to have not only the formal training and is res
ponsible, by and through membership in the bar but also enough addit
ional knowledge,as well as experience,to permit the exercise [of]th
at degree of reasonable care and skill expected of lawyers acting un
der similar circumstnces").Thus for defendants_counsel at rial to ex-
pose him to such a total disregard E>?m<£tprotecting his client from
such exposure with his own defense strategey, prejudiced the defendant
and exposed him to an 8th Amendment violation of cruel and unusual
punishment.by portrayingdefendant as a crazed drug murderer.
Judicial scrutiny of counsels performance must be highly deferential
[A]Court must indulge a strong presumption that counsels conduct fa
lls xvithin the wide range of reasonable professional assistance "the
proper standard for attorney performance is that of reasonable effe
ctive assistance"defined as reasonableness under prevailng professi
onal norms."- In appellants case counsel so undermined the adversar
ial process that the trial cannot be relied upon as having produced a
just result. Strickland,466 U.S.at 686.Moreover appellate counsel re
fused to implicate or recognize the ineffective consequences that wea?e
evidenced by trial counsels deficient performance that prejudiced
appellant at trial. 3 0f7
Appellant need not show that counsels deficient performance more lik
ely than not altered the outcome of the case,"id.at 693,but rather
must show that there is a reasonable probabiitiy that,but for cou
nsels unprofessional errors,the result in the proceedings would ha
ve been different. A reasonable probability is a probability suffic-
cient to undermine confidence in the outcome.As in appellants case
the numerous cumulative errors that counsel should have exposed and
revealed-(1) father of co-defendant prosecuting D.A. and assistant
Prosecuting the case forced to resign for tampering with evidence and
illicit tactics in court proceedings these and other undermining ev
idence should have been utilized by defense counsel and appellate co-
ounsel that could have uimdrerMiJO^d the confidence in the outcome of the
prosecutions case and changed the entire evidentiary picture in^app-
ellants case and trial.Brady v. Maryland,373 U.S.83(1963)this is exc
ulpatory information and should have been utilized by defense attor-
to mitigate appellants sentence and guilt.
These prejudicial errors should have been brought before the appeals
cxazxttthat are part of the record and exhibits by prosecution and def
ense needed to know or should have Jfernawin through due diligence the ex-
tent of thxs exculpatoi'y information. v 'J J '
QUESTIONS FOR THE COURT
1. Whether counsel was ineffective for failing to make Brady type
obj ections at Appellants Sentencing and krdJngLLng to the courts atten
tion that there should be a mistrial for the participation of a pros
ecutors assistant that was presently under investigation for tampering
with evidence in other cases and possiblv appellants case.Thus cont
rary to the Judicial Court Appellants sentence was determined in vio
lation of the constituional principles enunciated in Strickland and
4 of 7 ^
and Brady specifically that had the jury been made aware of the D.A*
and his assistant being under investigation for illicit acts in the
performance of their jobs by and through prosecution of appellant and
others ^
2. Whether appellantCounsel representedran .active conflict of interest
by not assisting appellant in filing his requested ineffective assis
tance of counsel claims to the Court of Appeals. See Strickland ,466
U,S.at 688; Evitts v. Lucey 463 U.S.387,396-99(1985);Hollines v.Es-
telle,-569 F.Supp., 146(W.D.Tex.1 983) ;U.S. v. Johnson. 995 F.Supp.1259(D
Kan.1998);Demarest v. Price,905 F.Supp.1432(D.Col,1995);Berryman v.
Morton,100 F.3d 1089(3rd.Cir.1996).
3„Whether the Court should recognize the conflict of interest,claim
which constituted "cause " for procedural default Bliss v. Lockhart
980 F.2d 470(8th Cir.1992)See also Murray v. Carrier,477 U,S,478,496
106 S.Ct.2639,2649-50,91 L.Ed.2d 397(1985);The Supreme Court although
cautioningj£hatt it would not always be true,instructed that "where a
constitutional violation has probably resulted in the conviction of
one who is actually innocent,a federal habeas corpus may grant the
writ even in the absence of a showing of cause for pocedural default"
The Supreme Court in Smith v. Murray,477 U.S.527,537,106 S.Ct.2661,26
67-68,91 L.Ed.2d 434(1986 did imply that actual innocence exception
may apply to non capital sentencing cases;We reject the suggestion th
at the principles of Wainwright v Sykes, [cause and eraejjiuHiGe requ
irements in cases of procedural default]apply differently depending
on the nature of the genaiE^y a State imposes for the violation of its
criminal laws.We similarly reject the suggestion that the there is an
ything "fundamentally unfair "about enforcing procedural default rules
in cases devoid of any substantial claim that the alleged error under
mined the accuracy of guilt or sentencing determination.(Emphasis add-
5 of 7
ed). 4.
Whether the court erred in not considering appellants actual and fac
tual innocence by and through his numerous realistic claims for rel
ief .Schlu£_v^_pelo,513U,S,298,130 L.Ed.2d.808,115 3,Ct.851(1995) A
credible claim of actual innocence involves the petitionee.,'; support
ing his constitutional claim with "new reliable evidence whether it
be exculpatory, scientific evidence,trustworthy,eyewitness accounts
or critical physical evidence that was not presented at trial.,!Id.
The Court "is not bound by the rules o£!admissibility that would gov
ern at trial" And should "consider the probative force of relevant
evidence that was either excluded or unavailable at trial."id.[a]
petitioner does not meet the threshold requirement unless he persu--c>.
ades the ceuqtr.fct that,in light of the new evidence, no jurror fet
ing reasonably,would have voted to find him guilty beyond a reason
able doubt."Id. Also see McCoy v. Norris,958 F.Supp.420(E.D.Ark.1996)
See also Bouseley v. United States.523 U.S.614,140 L.Ed.2d 828,118 S.
Ct. 1604(1998);
Petitioner in the present case moves this court to issue a writ to re
open the cases or all writs necessary or appropriate in aid of its ju
risdictions and agreeable to the usages and principles of law to reo
pen the criminal case and to grant relief from the execution of the
judgement. Because of the matters arising subsequent to the rendition
of the judgement based upon legal defenses arising after the judgement
showing that constitutional violations resulted in conviction of one
who is actually innocent of comitting any crime.
6 of 7
-Or that the conduct that he was accused of no longer be deemed a crime
The 11th Circuit found that a"colorable showing of factual innocence"
is the test,or the test is whether the alleged error precluded the de
velopment of true facts or resulted i^the admission of false ones on
a material question of justice will demand consideration of the merits
of aclaim,where there is a colorable showing of factual innocence.
This a^Lfearit present set of extra ordinary circumstances that he prays
this court KIM review and in the interest of justice relieve him from
judgement. So Prays Petitioner.
Respectfully
ML Aa-Wfv 0CV* m^M
CERTIFICATE OF SERVICE
On this day of ,LL Z*l 2015 I sent a copy of this motion-tot:
the clerk of the court.
Respectfully
I Ilij (L, |V*7/22/
7 of 7
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jfourtJ) Court of Appeals
i§>an Antonio, tEexas
MEMORANDUM OPINION
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: Rebeca C. 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 of murder. 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
fees. We modify the judgment to delete the assessment of attorney's fees and affirm the trial
court's judgment as modified.
04-13-00818-CR
Factual and Procedural Background
Because Garcia does not challenge the sufficiency of the evidence, our recitation of the
facts is limited to those facts associated with his appellate issues.
On December 13, 2008, several patrons at a local bar became engaged in a heated
argument. The security guard removed the group of individuals from inside the premises and the
confrontation ensued outside of the bar. Two of the men walked to a nearby silver vehicle;
witnesses described both men as Hispanic—the first man wearing a black shirt and the second
wearing a yellowish-colored shirt. Witnesses described the male with the yellowish-colored shirt
reaching into the vehicle and grabbing a semi-automatic firearm. The vehicle was driven down
the road and the man with the yellowish-colored shirt ran back to the bar and fired several shots at
the victim, Michael Morales, who was standing outside the bar.
Officers quickly located a silver Cadillac with a Hispanic male wearing a yellowish-
colored shirt. The individual was identified as Appellant Mark Anthony Garcia. Garcia's brother,
Michael Garcia, and a Hispanic female, Priscilla Beltran, were also in the vehicle. Other officers
located another Hispanic male, identified as Hector Lozano, wearing a black shirt and hiding in a
dumpster nearby. A 9 mm firearm was found hidden in a parking lot in the same vicinity.
Garcia was detained and immediately told officers that his brother Michael was not
involved in the incident. During the trial, several of the State's witnesses identified Garcia as the
individual that returned to the bar and fired at Morales. Defense witnesses called into question
whether Lozano or Garcia fired the weapon. As evidence of such, the witnesses pointed to the fact
that Lozano, not Garcia, was the only individual with gunshot residue on his hands.
Garcia took the stand in his own defense. Garcia testified that he was actually running
toward Lozano, who was holding the firearm, and trying to keep Lozano "from doing something
stupid." At the close of Garcia's direct examination,defense counsel asked Garcia whether he had
04-13-00818-CR
done anything to justify his arrest on the night of the shooting. Garcia answered emphatically with
"I had nothing to hide" and "I didn't do nothing." The State immediately argued trial counsel's
question opened the door to otherwise inadmissible evidence—Garcia's possession of cocaine at
the time of his arrest.
Garcia contends the jury's knowledge that he was in possession of cocaine prejudiced his
credibility. Instead of attributing his behavior to too much alcohol, the jury viewed Garcia as "a
drug-crazed, remorseless killer, instead of a good guy who was trying to stop a tragedy." The jury
returned a verdict of guilty and assessed punishment at twenty-years' confinement in the
Institutional Division of the Texas Department of Criminal Justice.
We turn first to Garcia's claim of ineffective assistance of counsel.
Ineffective Assistance of Counsel
A. Standard of Review
In order to establish that trial counsel rendered ineffective assistance, Garcia must
"establish two components by a preponderance of the evidence: deficient performance of trial
counsel and harm resulting from that deficiency that is sufficient to undermine the confidence in
the outcome of the trial." Exparte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)); accordMenefield v. State, 363 S.W.3d 591,
592 (Tex. Crim. App. 2012). To establish the first prong, deficient performance, Garcia must
prove that his attorney's performance '"fell below an objective standard of reasonableness' under
prevailing professional norms and according to the necessity of the case." Ex parte Moore, 395
S.W.3d at 157 (quoting Strickland, 466 U.S. at 687-88).
To establish harm, Garcia "must demonstrate that he was prejudiced by his attorney's
performance or that 'there is a reasonable probability that, but for counsel's unprofessional errors,
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 of the 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 Assistance of 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. "[Tjrial 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
-4-
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. ref d). 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
l
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
Garcia: I had nothing to hide.
Defense: Had you done anything?
Garcia: I didn't do nothing.
2. Arguments Before the Trial Court
After the defense rested, the State immediately asked to approach the bench. The State
asserted that defense counsel "opened the door to his motion in limine" and the State was entitled
to ask questions pertaining to the fact that Garcia "had drugs in his possession." The jury was
excused and trial counsel explained,
I don't believe that the motion in limine has been violated, Your Honor, on the
record. I asked him if he ever thought he would be arrested for murder, that night,
and did he have any reason. And that's what we're talking about murder. We're
not talking about drugs. We're not talking about anything else.
The testimony was read back for the parties and the trial court. The trial court determined
that, in light of the question asked, defense counsel "opened the door to any criminal act he may
have committed that night that could have resulted in an arrest." Over defense counsel's ardent
objection, the trial court ruled "that the door [was] opened. And [the State is] going to get to ask
the questions."
3. Conclusion
We are "especially hesitant to declare counsel ineffective based upon a single alleged
miscalculation during what amounts to otherwise satisfactory representation, especially when the
record provides no discernible explanation of the motivation behind counsel's actions—whether
those actions were of strategic design or the result of negligent conduct." Thompson, 9 S.W.3d at
813; see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ("While a single error
will not typically result in a finding of ineffective assistance of counsel, an egregious error may
satisfy the Strickland prongs on its own.").
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 McFarland v. 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
of testimony during the guilt/innocence portion of the 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
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evidence of extraneous bad acts, there is no indication in the record defense counsel's actions were
intentional; to the contrary, he clearly disagreed with the trial court's determination that the door
was opened.
We remain mindful that simply showing other counsel's hindsight or a different trial
strategy does not show ineffective assistance. See Bone v. State, 11 S.W.3d 828, 833 (Tex. Crim.
App. 2002). Upon a review of the entire record, we conclude Garcia failed to demonstrate
Strickland's first requirement—the deficient performance of trial counsel. See Ex parte Moore,
395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 687-88). Because Garcia failed to show that
trial counsel's performance was deficient, he failed to meet Strickland's first prong so we need not
address prejudice. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We therefore
overrule Garcia's first issue on appeal.
Attorney's Fees
Garcia challenges the assessment of $3,110.00 in court costs plus an undetermined amount
for attorney's fees imposed in the judgment. Garcia asserts the trial court twice found him indigent
for purposes of trial—during the trial phase and again on appeal. He was, therefore, presumed to
remain indigent, and there is no evidence to show he was able to pay the court-appointed trial
attorney's fees.
A. Argument of the Parties
Garcia contends there is no evidence of a material change in his financial circumstances
after the trial court determined his indigency. Because there is no such evidence, the record is
insufficient to support the assessment of attorney's fees as costs against Garcia.
The State counters that Garcia was able to post a $200,000.00 bond and gained employment
while on bond awaiting trial. Such evidence, the State argues, is some evidence that Garcia had
the financial resources to cover at least a portion of his legal expenses.
04-13-00818-CR
B. Court Costs Assessed Against Indigent Defendants
'"A defendant who is determined by the court to be indigent is presumed to remain indigent
for the remainder of the proceedings in the case unless a material change in the defendant's
financial circumstances occurs.'" Dieken v. State, 432 S.W.3d 444, 446-47 (Tex. App.—San
Antonio 2014, no pet.) (quoting Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2014));
accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d
552, 557 (Tex. Crim. App. 20.10). On the other hand,
"[i]f the court determines that a defendant has financial resources that enable him to
offset in part or in whole the costs of the legal services provided, . . . the court shall
order the defendant to pay ... as court costs the amount that it finds the defendant is
able to pay."
Dieken, 432 S.W.3d at AA6-A1 (alterations in original) (quoting TEX. CODE CRIM. PROC Ann.
art. 26.05(g)); accord Mayer, 309 S.W.3d at 556.
'"[T]he defendant's financial resources and ability to pay are explicit critical elements in
the trial court's determination of the propriety of ordering reimbursement of costs and fees.'"
Dieken, 432 S.W.3d at 447 (quoting Mayer, 309 S.W.3d at 556). Our review determines whether
the record supports a finding that Garcia's "financial circumstances experienced a material
change" and that he "was able to pay the court-appointed attorney's fees." Id. (citing TEX. CODE
CRIM. PROC. ANN. art. 26.04(p)); accordMcFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App.
2010). In doing so, "we view the evidence in the light most favorable to the judgment." Dieken,
432 S.W.3d at 447 (citing Mayer, 309 S.W.3d at 557).
D. Analysis
We first turn to the trial court's determination that Garcia was indigent.
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 "[a]rticle 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 pay the balance." Id. (citing Tex. Code Crim. Proc. Ann. art. 26.05(g) ("Ifthe court determines
that a defendant has financial resources that enable him to offset in part or in whole the costs of
the legal servicesprovided, including any expenses and costs, the courtshall order the defendant
to pay during the pendency of the charges or, if convicted, as court costs the amount that itfinds
the defendantis 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 &t3ll; 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
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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, defense counsel filed a Motion to Modify Conditions of Bond requesting
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 indicating that 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 defender to represent Garcia on appeal.
3. Sufficient Evidence
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
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