Jorge Garza A/K/A Jose Luis Galarza Bernrdino v. State ( 2019 )

NUMBER 13-18-00202-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JORGE GARZA A/K/A JOSE LUIS
GALARZA BERNRDINO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Contreras
Appellant Jorge Garza a/k/a Jose Luis Galarza Bernrdino appeals from his
conviction for aggravated assault with a deadly weapon, a first-degree felony. See TEX.
PENAL CODE ANN. § 22.02(a), (b)(1) (West, Westlaw through 2017 1st C.S.). By one issue,
appellant argues he received ineffective assistance from his trial counsel. We affirm.
I. BACKGROUND
On May 23, 2016, the State filed an amended indictment alleging appellant
committed the offense of aggravated assault with a deadly weapon against a person with
whom appellant had or previously had a dating relationship. See TEX. FAM. CODE ANN.
§ 71.0021(b) (West, Westlaw through 2017 1st C.S.); TEX. PENAL CODE ANN.
§ 22.02(b)(1). Appellant pleaded not guilty and proceeded to trial.
At trial, in his opening statement, defense counsel stated that appellant and the
complainant had been in a relationship for over twenty-five years and argued appellant
made “a tremendous bad mistake.” The State called multiple witnesses, including police
officers, the complainant, and the complainant’s daughter. The evidence showed that
appellant waited for the complainant at her place of work and attacked her with a hammer,
striking her on the face multiple times.
During the complainant’s testimony, the State requested permission from the trial
court to elicit testimony regarding extraneous and prior instances of alleged violence by
appellant against the complainant. The State argued that defense counsel had opened
the door to this testimony through his opening statement by arguing that appellant made
a mistake. Defense counsel did not object to this request and agreed to allow the State
to proceed with that line of questioning. Defense counsel noted that he did not believe
the State would be able to corroborate the alleged extraneous offenses testified to by the
complainant. Subsequently, the complainant testified of the history of physical and verbal
abuse between her and appellant. Specifically, the complainant testified that appellant
had pushed her and choked her in the past.
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The jury charge included an instruction that the jury could not consider the
extraneous offense evidence for any purpose unless they were convinced beyond a
reasonable doubt that appellant had committed the extraneous offenses. The jury found
appellant guilty and assessed punishment at twenty years’ imprisonment in the Texas
Department of Criminal Justice and a $10,000 fine. Appellant did not file a motion for
new trial. This appeal followed.
II. DISCUSSION
By his sole issue, appellant argues that he was provided with ineffective assistance
of counsel in violation of the United States Constitution and the Texas Constitution. See
U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10. Specifically, appellant argues that
his defense counsel was ineffective because “he agreed to permit the [S]tate to foray into
extraneous conduct not alleged in the indictment.”
A. Applicable Law and Standard of Review
A defendant in a criminal prosecution has a Sixth Amendment right to the effective
assistance of counsel. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10). We employ the United States
Supreme Court’s two-pronged Strickland test to determine whether counsel’s
representation was inadequate so as to violate a defendant’s Sixth Amendment right.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see Strickland v.
Washington, 466 U.S. 668, 687 (1984).
Under that test, to prevail on a claim of ineffective assistance of counsel, appellant
must prove by a preponderance of the evidence that: (1) counsel’s performance fell below
the standard of reasonableness under prevailing professional norms; and (2) there is a
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reasonable probability that, but for counsel’s deficiency, taking into account the totality of
the evidence before the judge or jury, the result of the trial would have been different. Ex
parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011); see Strickland, 466 U.S.
at 687; Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). Failure to show
either deficient performance or sufficient prejudice under Strickland defeats a claim for
ineffective assistance. Thompson, 9 S.W.3d at 813.
The burden is on the defendant to prove ineffective assistance of counsel by a
preponderance of the evidence, and we review counsel’s effectiveness by the totality of
the representation, not by isolated acts or omissions. Id.; Robertson v. State, 187 S.W.3d
475, 483 (Tex. Crim. App. 2006). To show deficient performance, the defendant must
overcome the strong presumption that the challenged action “might be considered sound
trial strategy.” Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 100–
101 (1955)); see State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (en banc)
(“[U]nless there is a record sufficient to demonstrate that counsel’s conduct was not the
product of a strategic or tactical decision, a reviewing court should presume that trial
counsel’s performance was constitutionally adequate”). If there is any basis for
concluding that counsel’s conduct was strategic, then further inquiry is improper. See
Morales, 253 S.W.3d at 696; Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999)
(“Judicial scrutiny of counsel’s performance must be highly deferential”). “[W]e commonly
assume a strategic motive if any can be imagined and find counsel’s performance
deficient only if the conduct was so outrageous that no competent attorney would have
engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
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Normally, the presumption of a sound trial strategy cannot be overcome absent
evidence in the record of the attorney’s reasons for his conduct. Thompson, 9 S.W.3d at
813–14; Busby, 990 S.W.2d at 269; see Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994) (en banc). The Texas Court of Criminal Appeals has said numerous
times that “a reviewing court on direct appeal will rarely be able to fairly evaluate the
merits of an ineffective-assistance claim, because the record on direct appeal is usually
undeveloped and inadequately reflective of the reasons for defense counsel’s actions at
trial.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Salinas v. State, 163
S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim.
App. 2001); Thompson, 9 S.W.3d at 813–14. “The lack of a clear record usually will
prevent the appellant from meeting the first part of the Strickland test, as the
reasonableness of counsel’s choices and motivations during trial can be proven deficient
only through facts that do not normally appear in the appellate record.” Mata, 226 S.W.3d
at 430. Thus, claims of ineffective assistance of counsel are better suited to an application
for writ of habeas corpus or motion for new trial where the record can be developed to
include defense counsel’s insight into his decisions. Jackson, 877 S.W.2d at 772 & n.3;
see Mata, 226 S.W.3d at 430.
B. Analysis
Appellant only complains of his defense counsel’s failure to object to the
introduction of the alleged extraneous offenses that involved appellant and the
complainant. Here, appellant did not file a motion for new trial and brought his ineffective
assistance claim on direct appeal. Therefore, the record is silent as to why appellant’s
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trial counsel chose to not object to the complainant’s testimony regarding the extraneous
offenses.
We note that an attorney is not required to make frivolous objections to avoid a
claim of ineffective assistance of counsel. See Brennan v. State, 334 S.W.3d 64, 74 (Tex.
App.—Dallas 2009, no pet.); Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d). And an opening statement can open the door for the
presentation of extraneous evidence to rebut the defensive theory put forth in the opening
statement. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Moses v.
State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Knight v. State, 457 S.W.3d 192,
202 (Tex. App.—El Paso 2015, pet. ref’d) (“By raising a defensive theory, the defendant
‘opens the door’ for the State to offer rebuttal testimony regarding an extraneous offense
if the extraneous offense has characteristics common with the offense for which the
defendant was on trial.”); see also TEX. R. EVID. 404(b)(2) (providing that extraneous
offenses may be admissible to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident”). If a defendant raises a
defense of “it was an accident” or “it was inadvertent,” the State may rebut the defense
with evidence of other conduct by the defendant which tends to show that his actions on
those occasions, and hence on this occasion as well, were not mistaken, inadvertent, or
accidental. Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004).
Here, during defense counsel’s opening statement, defense counsel argued that
the appellant made “a tremendous bad mistake,” which insinuated that the incident was
a one-time lapse of judgment. The complainant’s testimony regarding the extraneous
offenses established that appellant had a history of verbally and physically abusing the
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complainant, which rebutted appellant’s defensive theory. See id.; Gillette v. State, 444
S.W.3d 713, 734 (Tex. App.—Corpus Christi 2014, no pet.). Thus, any objection would
have been denied. See TEX. R. EVID. 404(b)(2); Moses, 105 S.W.3d at 626; Knight, 457
S.W.3d at 202. Therefore, defense counsel’s failure to object in this case cannot be seen
as so outrageous that no competent attorney would have taken it, and we must presume
that the decision was a strategic one. See Andrews, 159 S.W.3d at 101; see also
Strickland, 466 U.S. at 689. Accordingly, based on this silent record, appellant has failed
to rebut the presumption that this was a reasonable decision and part of defense
counsel’s strategy. See Mata, 226 S.W.3d at 431; Thompson, 9 S.W.3d at 814; Saenz
v. State, 103 S.W.3d 541, 545 (Tex. App.—San Antonio 2003, pet. ref’d). “Failure to
make the required showing of . . . deficient performance . . . defeats the ineffectiveness
claim.” Strickland, 466 U.S. at 700. We reject appellant’s claim that his trial counsel
rendered ineffective assistance by failing to object to the complainant’s testimony
regarding extraneous offenses.
We overrule appellant’s sole issue.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
11th day of April, 2019.
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