Jose Alejandro Davila v. State ( 1996 )

CR5-255 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00255-CR



Jose Alejandro Davila, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT NO. 94-144-K277, HONORABLE WILLIAM S. LOTT, JUDGE PRESIDING

PER CURIAM

Jose Alejandro Davila appeals from his conviction for aggravated possession of marihuana. Tex. Health & Safety Code Ann. § 481.121 (West Supp. 1996). After a bench trial, the court sentenced him to sixty years' confinement in the Texas Department of Corrections--Institutional Division and ordered him to pay a $10,000.00 fine. Appellant brings three points of error, contending that his conviction should be reversed for ineffective assistance of counsel because: (1) counsel had an actual conflict of interest when he represented appellant and a co-defendant; (2) counsel improperly advised him to testify at the punishment phase, thus waiving his right to appeal from the trial-court ruling on the motion to suppress; and (3) counsel filed a motion for new trial but failed to verify the motion. We will affirm the trial-court judgment.

Factual Background

Department of Public Safety Troopers Lovelace and King stopped a motor home traveling north on IH-35 for unlawfully crossing a yellow line and for failing to have mud flaps. Appellant was a passenger in the vehicle. After stopping the vehicle, checking the driver's license of the vehicle's driver and the rental agreement, the troopers became suspicious at what they perceived to be an unusual level of nervousness and at discrepancies in the two men's descriptions of their relationship ("cousin" versus "friend"). Officer Lovelace asked for permission to search the vehicle, which the driver gave. The driver's name was on the rental agreement; appellant's was not, either as a lessee or authorized driver. While searching the vehicle, the troopers found nine bundles of marihuana.

The troopers arrested the driver and appellant and gave them Miranda warnings. Later, appellant signed a statement admitting his knowing participation in transporting the marihuana. At trial, he stipulated that his fingerprints were on four of the nine bales of marihuana. He also stipulated that the marihuana weighed 382.5 pounds. Most of the trial centered around the propriety of the search.

Ineffective Assistance

In presenting an ineffective assistance of counsel claim, an appellant must show: (1) trial counsel's performance was deficient to the extent that he failed to function as the "counsel" guaranteed by the Sixth Amendment and (2) but for trial counsel's alleged unprofessional errors, there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland test for state constitutional claims); Keiser v. State, 880 S.W.2d 222, 224 (Tex. App.--Austin 1994, pet. ref'd).

The appellate court scrutinizes trial counsel's performance deferentially, and every effort must be made to eliminate the distorting effect of hindsight. Strickland at 689. A strong presumption exists in favor of counsel's conduct, and a defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland at 689; Keiser, 880 S.W.2d at 224. That another attorney might have pursued a different strategy will not support a finding of ineffective assistance.

Appellant has the burden of proving, by a preponderance of the evidence, that his counsel was ineffective. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). The record must contain evidence that rebuts the presumption of proper conduct on the part of defense counsel. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Based on Multiple Representation

The Court of Criminal Appeals frequently has found ineffective assistance when the same attorney represented multiple defendants. James v. State, 763 S.W.2d 776, 778 (Tex. Crim. App. 1989). However, such multiple representation does not per se violate the Sixth Amendment. Holloway v. Arkansas, 435 U.S. 475 (1978). When the claim of ineffective assistance involves an issue of joint representation and the defendant did not object at trial to joint representation, he must show some actual and not merely speculative conflict of interest. James, 763 S.W.2d at 778-79; Wilson v. State, 786 S.W.2d 74, 76 (Tex. App.--El Paso 1990, no pet.). The lack of a joint trial tends to reduce the potential for divergent interests among multiple defendants. Calloway v. State, 699 S.W.2d 824, 830 (Tex. Crim. App. 1985); Wilson, 786 S.W.2d at 76.

In this cause, appellant did not object to multiple representation at trial. In his brief, he argues that the trial court reasonably should have known about the conflict and therefore should have initiated an inquiry, alleviating appellant from the necessity of demonstrating an actual conflict. Cuyler v. Sullivan, 446 U.S. 335, 347 (1980)(unless trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry; in the absence of a trial objection, the defendant must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.)

The record does not show that the trial court reasonably should have known of the existence of a potential conflict. Appellant was not tried jointly with the vehicle's driver. A review of the statement of facts shows references to a "co"-defendant, but does not suggest to the trial court that appellant's counsel represented the other defendant. The transcript in this cause contains documents from State v. Gonzalez, 94-143-K277, the cause involving the driver. Nothing in the record shows these documents were ever presented to the trial court in connection with appellant's cause, much less in any way admitted into evidence or otherwise properly made part of the appellate record. Shields v. State, 820 S.W.2d 831, 833-34 (Tex. App.--Waco 1991, no pet.). Including a document in the transcript does not make it part of the "record on appeal." Id. Appellant cannot rely on the trial court's failure to make an inquiry as excusing him from demonstrating an actual conflict.

Neither does appellant demonstrate any actual conflict. First, he was not tried jointly with the driver. Second, the major issue at trial was the propriety of the stop and subsequent search. Appellant offers no theory as to how his and the driver's interests were adverse with regard to the stop and search. For example, the driver and appellant both had an interest in claiming that the consent was invalid. In his brief on appeal, he asserts a rather vague argument that he could have plea-bargained had counsel not represented the co-defendant. In view of the fact that appellant signed a written statement confessing to his knowing participation in transporting the marihuana for money and that his fingerprints were on several of the bales of marihuana, it is doubtful that he was in much of a position to bargain. Appellant offers nothing to show that he had anything valuable to offer in connection with prosecuting the driver. We overrule appellant's first point of error.

Based on the Decision to Testify at Punishment

In point of error two, appellant contends that he was denied effective assistance of counsel because counsel improperly advised him to testify at the punishment phase, thus waiving his right to appeal from the trial court's ruling on the motion to suppress. Appellant is correct that when a defendant judicially confesses to the commission of the charged offense during the punishment phase of trial, he waives any error that might have occurred during the guilt-innocence stage of the trial. See McGlothlin v. State, 896 S.W.2d 183, 186 (Tex. Crim. App. 1995). Of course, in evaluating counsel's performance, we presume that the challenged action might have been sound trial strategy. Strickland, 466 U.S. at 689.

A review of appellant's testimony at the punishment stage shows that he testified that he had never been arrested before but only had had traffic tickets. He testified that the driver of the vehicle was a long-time family acquaintance, that the driver told him about the marihuana and told him that he would pay him something to "help [appellant's family] with the bills," although they did not settle on a specific amount. He specifically asked the court to consider his testimony in mitigation of the sentence and asked for leniency.

From the testimony given above, it appears that counsel was pursuing a trial strategy of asking for leniency based on appellant's lack of a prior record. Given that the driver consented to the search and given the deferential standard of review of a motion to suppress, we cannot say that appellant's counsel was not pursuing a sound trial strategy in trying to mitigate the punishment. Appellant has not demonstrated that counsel failed to render reasonably effective assistance at the punishment stage. See Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991) (test for effectiveness of counsel at punishment stage). We overrule appellant's second point of error.

Based on the Motion for New Trial

In his third point of error, appellant contends that counsel who represented him after trial but before current appellate counsel was ineffective in that he did not verify the motion for new trial, thus depriving appellant of a hearing.

The motion for new trial gave two different reasons for a new trial based on ineffective assistance of counsel. It raised no other issues. The Court of Criminal Appeals has suggested that a motion for new trial is not a very practical mechanism for developing a record to evaluate a claim of ineffective assistance of counsel. Jackson, 877 S.W.2d at 772 n.3. That record is better developed through a hearing held on an application for writ of habeas corpus. Id. Even if the failure to verify the motion was deficient, appellant has not demonstrated that the outcome of the court's ruling would have been different, i.e., that had he been granted a hearing, he would have secured a new trial. See Prendez v. State, 786 S.W.2d 99, 101 (Tex. App.--San Antonio 1990, no pet.). Further, we cannot say that had counsel continued to represent appellant, he would not have filed an application for writ of habeas corpus. We overrule appellant's third point of error.

Having overruled all points of error, we affirm the judgment of conviction.

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: May 1, 1996

Do Not Publish

with regard to the stop and search. For example, the driver and appellant both had an interest in claiming that the consent was invalid. In his brief on appeal, he asserts a rather vague argument that he could have plea-bargained had counsel not represented the co-defendant. In view of the fact that appellant signed a written statement confessing to his knowing participation in transporting the marihuana for money and that his fingerprints were on several of the bales of marihuana, it is doubtful that he was in much of a position to bargain. Appellant offers nothing to show that he had anything valuable to offer in connection with prosecuting the driver. We overrule appellant's first point of error.