Adam Torres v. State ( 1996 )

CR5-408.Torres.draft TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00408-CR



Adam Torres, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. A-94-0677-S, HONORABLE BARBARA WALTHER, JUDGE PRESIDING

PER CURIAM

In a joint trial involving four defendants, a jury found appellant, Adam Torres, guilty of aggravated assault with a deadly weapon. The jury assessed punishment at imprisonment for four years and a $5000 fine. By one point of error, appellant contends that he received ineffective assistance of counsel during the punishment phase of his trial and is entitled to a new punishment hearing. We will affirm the trial-court judgment.

On either April 19 or 20, 1995, around 2:30 a.m., three men and a woman entered an apartment in San Angelo and attacked the occupants. Appellant arrived carrying a baseball bat. Another man beat the victim with the bat. The trial court charged the jury on the law of parties. The trial court entered a judgment reflecting the jury's guilty verdict and its punishment assessment.

Appellant filed a motion for new trial, contending that he received ineffective assistance of counsel in four instances. He contended that, considering these occurrences, his legal representation during the punishment phase of trial was deficient to such an extent that he should receive a new punishment hearing. Appellant contended that his attorney was ineffective because he (1) failed to adequately communicate the State's offer of a plea bargain to appellant before trial; (2) was not adequately prepared for trial; and (3) elicited damaging, inadmissible evidence from a State witness. The trial court held a hearing regarding appellant's claims of ineffective assistance. At the hearing, appellant, his trial attorney, and some of his co-defendants testified. After hearing evidence, the trial court denied appellant's motion for new trial. Appellant raises the same complaints in this Court, with an additional contention that he received ineffective assistance of counsel because his attorney represented multiple defendants at trial whose interests conflicted.

The granting of a motion for new trial on the ground of ineffective assistance of counsel is a matter within the trial court's discretion. Tex. R. App. P. 30(b); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). When considering a motion for new trial, the trial court possesses broad discretion in assessing the credibility of witnesses and in weighing the evidence to determine whether a different result would occur upon retrial. Perrett v. State, 871 S.W.2d 838, 839 (Tex. App.--Houston [14th Dist.] 1994, no pet.). We will not disturb the trial court's ruling unless the record reflects an abuse of discretion. Id.

The effective assistance guarantee ensures that criminal defendants receive a fair trial. Almanzar v. State, 702 S.W.2d 653, 655 (Tex. Crim. App. 1986). The test for effectiveness of counsel during the punishment phase of a trial of a non-capital offense is, (1) whether counsel was reasonably likely to render effective assistance, and (2) whether counsel reasonably rendered effective assistance. Craig v. State, 825 S.W.2d 128, 129-30 (Tex. Crim. App. 1992) (citing Ex parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990) and quoting Ex parte Duffy, 607 S.W.2d 507, 514 n.14 (Tex. Crim. App. 1980)). The right to reasonably effective assistance of counsel does not guarantee appellant errorless counsel. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993).

The sufficiency of counsel's assistance is gauged by the totality of the accused's representation. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time. Ex parte Kunkle, 852 S.W.2d at 505. The burden is on appellant to demonstrate ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Jaile v. State, 836 S.W.2d 680, 683, 686-87 (Tex. App.--El Paso 1992, no pet.). Allegations of ineffectiveness will be sustained only if they are firmly founded in the record. Valdes-Fuerte v. State, 892 S.W.2d 103, 110 (Tex. App.--San Antonio 1994, no pet.).

CONFLICT OF INTEREST

Appellant argues that he received ineffective assistance of counsel because his attorney represented three of four defendants at trial and their interests conflicted.

An attorney may represent multiple defendants in a criminal trial without a conflict existing among the defendants' interests. Almanzar, 702 S.W.2d at 655. It is imperative, however, that a defense attorney not become entangled in a web of conflicting interests among multiple co-defendants. Id. Thus, an attorney's representation of multiple defendants in a criminal trial does not necessarily result in ineffective assistance or prevent the opportunity of a fair trial for the defendants. Id. (citing Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978)). We review the record to determine whether a conflict of interests existed among the three defendants.

At a pre-trial hearing, the court inquired of counsel and appellant if they had discussed possible conflicts of interest that might develop because counsel was representing some of appellant's co-defendants. The attorney responded that he and the defendants had discussed possible conflicts of interest and that all were aware of the possibilities. The trial court then asked counsel if he had read all of the reports and determined what the State would be attempting to prove against the defendants; the attorney responded that he had. Finally, the court asked counsel if he had determined whether any conflicts of interests existed; counsel responded that he had and that no conflicts existed. The trial court then asked appellant and the other two defendants represented by appellant's attorney the following,

Gentlemen, you understand that in any case where several people are -- allegedly are accused of acting in one situation and having one lawyer defend them could cause some problems? In other words, what he says may be bad for you; what you say may be bad for you, and you've got one lawyer trying to defend both of you - three of you in this case. You know, there could be some problems. Do you understand that?

Appellant and the other two defendants indicated that they did. The trial court asked the three men if they still wanted appellant's attorney to represent them; they indicated that they did. At the hearing on the motion for new trial, counsel explained that appellant and his brother, one of appellant's co-defendants, had come to his office seeking to employ him as their attorney to defend against the charges of aggravated assault. Counsel said that the three co-defendants he was representing all contended that they were innocent. Additionally, all three denied having or using a baseball bat. The record reveals that none of the three co-defendants testified during the guilt-innocence phase of the trial and that all three of them testified consistently with each other during the punishment phase of the trial. We conclude that appellant has failed to show that there existed a conflict among the three co-defendants that denied him effective assistance of counsel.

PLEA NEGOTIATIONS

Appellant acknowledges that counsel timely advised him that the State had extended a plea offer. Appellant argues, however, that he was denied effective assistance of counsel because his attorney did not communicate the State's offer to him in sufficient detail so that he completely understood the offer. Appellant's entitlement to reasonably effective assistance of counsel includes defense counsel's duty to inform him of any plea offer by the State. Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993) (citing Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987)).

At the hearing on the motion for new trial, the trial court heard evidence about whether counsel effectively communicated the State's plea offer to appellant. The attorney stated that, on several occasions, he had discussed with appellant the State's offer of deferred adjudication, five years probated and a $1,000 fine. He stated that he did his best to explain to appellant the benefits of the State's offer. Counsel stated that at no time did appellant or either of the other two co-defendants he represented express a desire to plead guilty. Appellant testified, conversely, that his attorney mentioned the State's plea offer to him only once. Appellant claimed that his attorney never explained the State's offer to him, rather, he only mentioned it and decided for appellant that he should not take the offer. Appellant stated that, though he was innocent, he would have pleaded guilty and taken the State's offer of deferred adjudication if his attorney had fully explained it to him. On cross-examination, appellant stated that his attorney had explained deferred adjudication to him though he could not remember the difference between deferred adjudication and probation.

The credibility of witnesses for purposes of granting a new trial is a matter to be determined by the trial court. Hafford v. State, 864 S.W.2d 216, 217 (Tex. App.--Beaumont 1993, no pet.) (citing Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984)). In light of the conflicting testimony heard by the trial court at the hearing on the motion for new trial, the trial court was in the best position to evaluate the witnesses' testimony. When reviewing the record and evaluating appellant's attorney's conduct, appellant's allegation of ineffectiveness regarding his attorney's failure to effectively communicate the State's plea offer is not firmly founded in the record. We cannot conclude that appellant has shown that his legal representation was ineffective regarding the plea negotiations.

TRIAL PREPARATION

Appellant also argues that his attorney was not properly prepared for trial because he had only two or three meetings with appellant, he did not meet with appellant the weekend before trial, he did not obtain a list of witnesses, and he did not prepare appellant for testifying.

When an appellant fails to indicate to the appellate court other defenses he may have had, we cannot second guess the trial strategy employed by trial counsel, and the fact that another attorney may employ different tactics is insufficient to support a claim of ineffective assistance of counsel. Martin v. State, 623 S.W.2d 391, 395 (Tex. Crim. App. 1981). Counsel testified that before trial he had reviewed the State's files and attempted to interview witnesses.

Appellant does not indicate what defenses he may have had that were not advanced by counsel or name the witnesses that may have been called but were not. The record reveals that counsel was not unprepared for trial. He presented witnesses at the punishment hearing and cross-examined the State's witnesses. Appellant has failed to show that his attorney's performance in this regard amounted to ineffective assistance of counsel.

ELICITING DAMAGING TESTIMONY

During the trial's punishment phase, the State called Officer Tim Vasquez. The State asked Vasquez if he knew appellant. He said that he did and that he knew he had a bad reputation. Appellant's attorney, on cross-examination, opened the door to testimony from Vasquez that appellant, when he was a juvenile, had been arrested for aggravated assault. The State through Vasquez then established that appellant's aggravated assault committed as a juvenile included the use of a baseball bat.

In reviewing the record, while appellant's attorney elicited harmful testimony from Vasquez, it appears that appellant had not informed his attorney that he had been arrested previously. At the punishment hearing, in an attempt to mitigate the fact that appellant had been arrested previously, appellant's attorney elicited testimony from Vasquez that he did not know whether there had been any finding of delinquency on the part of appellant in relation to the previous arrest for aggravated assault. While the testimony was harmful, this instance does not lead us to conclude that appellant received ineffective assistance of counsel.

In reviewing the totality of appellant's legal representation, we conclude that appellant has failed to demonstrate that he received ineffective assistance of counsel. The trial court did not abuse its discretion by overruling appellant's motion for new trial. We overrule appellant's single point of error.

CONCLUSION

We affirm the trial-court judgment.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: April 24, 1996

Do Not Publish

ey had explained deferred adjudication to him though he could not remember the difference between deferred adjudication and probation.

The credibility of witnesses for purposes of granting a new trial is a matter to be determined by the trial court. Hafford v. State, 864 S.W.2d 216, 217 (Tex. App.--Beaumont 1993, no pet.) (citing Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984)). In light of the conflicting testimony heard by the trial court at the hearing on the motion for new trial, the trial court was in the best position to evaluate the witnesses' testimony. When reviewing the record and evaluating appellant's attorney's conduct, appellant's allegation of ineffectiveness regarding his attorney's failure to effectively communicate the State's plea offer is not firmly founded in the record. We cannot conclude that appellant has shown that his legal representation was ineffective regarding the plea negotiations.

TRIAL PREPARATION

Appellant also argues that his attorney was not properly prepared for trial because he had only two or three meetings with appellant, he did not meet with appellant the weekend before trial, he did not obtain a list of witnesses, and he did not prepare appellant for testifying.

When an appellant fails to indicate to the appellate court other defenses he may have had, we cannot second guess the trial strategy employed by trial counsel, and the fact that another attorney may employ different tactics is insufficient to support a claim of ineffective assistance of counsel. Martin v. State, 623 S.W.2d 391, 395 (Tex. Crim. App. 1981). Counsel testified that before trial he had reviewed the State's files and attempted to interview witnesses.

Appellant does not indicate what defenses he may have had that were not advanced by counsel or name the witnesses that may have been called but were not. The record reveals that counsel was not unprepared for trial. He presented witnesses at the punishment hearing and cross-examined the State's witnesses. Appellant has failed to show that his attorney's performance in this regard amounted to ineffective assistance of counsel.

ELICITING DAMAGING TESTIMONY

During the trial's punishment phase, the State called Officer Tim Vasquez. The State asked Vasquez if he knew appellant. He said that he did and that he knew he had a bad reputatio