Luis Hernandez Cruz v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Luis Hernandez Cruz

Appellant

Vs.                   Nos. 11-03-00266-CR & 11-03-00267-CR -- Appeals from Harris County

State of Texas

Appellee

Luis Hernandez Cruz appeals his conviction by a jury of two counts of aggravated robbery with a deadly weapon.  The jury assessed his punishment for each count at 45 years in the Texas Department of Criminal Justice, Institutional Division.  In his appeal from both convictions, Cruz contends in a sole issue that he received ineffective assistance of counsel at trial because his trial counsel did not make a motion to sever his case from that of a codefendant who had a prior conviction because it was evident that the codefendant=s defense was in conflict with his own.  We affirm.

The State presented evidence at trial showing that Cruz and his codefendant participated in a robbery spree, committing several robberies in a short period of time. Cruz=s codefendant had a prior conviction and testified against Cruz during the punishment phase of the trial.  While one or more witnesses were able to identify the codefendant as having committed robbery against them, none were able to identify Cruz.

We apply a two-pronged test to ineffective-assistance-of-counsel claims. Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Cr.App.1999).  First, appellant must show that his counsel=s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense.  Wiggins v. Smith, supra at 521; Strickland v. Washington, supra at 687.

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.  Thompson v. State, supra at 813.  A defendant must demonstrate that counsel=s representation fell below an objective standard of reasonableness and the prevailing professional norms at the time of the alleged error.  Wiggins v. Smith, supra at 521; Strickland v. Washington, supra at 688-89.  A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@  Strickland v. Washington, supra at 690.  An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, supra at 814.  Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight.  Strickland v. Washington, supra at 689. 

The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable.  Id. at 687.  In other words, appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id.  The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding being challenged.  Id. at 697.

Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel=s conduct was reasonable and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App.2002). Rarely will the record from trial contain sufficient infor-mation to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.  A defendant=s counsel should ordinarily be accorded an opportunity to explain his or her actions before being condemned as unprofessional and incompetent.  Rylander v. State, 101 S.W.3d 107, 111 (Tex.Cr.App.2003); Bone v. State, supra at 836.

Trial counsel did not testify in any post-trial proceeding.  Further, there is nothing else in the record to show that trial counsel=s choice not to pursue a motion to sever was anything other than trial strategy.  Appellant bears the burden of proving ineffective assistance.  When reviewing a claim of ineffective assistance, we will indulge a strong presumption that counsel=s conduct is within the wide range of reasonable professional assistance.  Appellant must overcome the presumption that, under the circumstances, the challenged action could be considered sound trial strategy.  Strickland v. Washington, supra.  Appellant has failed to overcome that presumption.  Bone v. State, supra.  We overrule Cruz=s sole issue on appeal.

The judgments are affirmed.

PER CURIAM

November 4, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and Hill, S.J.^[1]

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^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.