Luis Chavarri v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-099-CR
NO. 2-08-100-CR
LUIS CHAVARRI APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Luis Chavarri appeals his convictions and sentences for
aggravated sexual assault of a child under age fourteen and possession of child
pornography. In a single point, he argues that his trial counsel provided
constitutionally ineffective assistance of counsel. We will affirm.
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… See Tex. R. App. P. 47.4.
Chavarri entered open pleas of guilty to the offenses of aggravated sexual
assault of a child under fourteen years of age and possession of child
pornography. He testified at the punishment phase of the trial and detailed his
criminal conduct. Chavarri’s counsel called three other witnesses who gave
testimony. The trial court found Chavarri guilty of both offenses and sentenced
him to thirty-five years’ confinement for the aggravated sexual assault offense
and eight years’ confinement for the possession of child pornography offense.
Chavarri argues in his sole point that because trial counsel’s “entire goal
was to achieve as lenient a sentence as possible,” he was ineffective for failing
to obtain a mitigation specialist to assist in the investigation and handling of the
case. Chavarri contends that the trial court should have been presented with
evidence of his life story from sources other than just the Pre-Sentence
Investigation Report and his sister’s testimony and that trial counsel “put on a
halfhearted mitigation case.”
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
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2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
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, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65
S.W.3d at 63). Thus, there is a substantial risk of failure when a claim of
ineffective assistance of counsel is brought on direct appeal. Thompson, 9
S.W.3d at 813. To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
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record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d
at 813). It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record. Mata v. State, 226
S.W.3d 425, 432 (Tex. Crim. App. 2007).
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 with
a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. 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, 104 S. Ct. at 2068. 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 in
which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.
Here, Chavarri did not develop the record to support his ineffective
assistance claim by filing a motion for new trial. As such, there is no evidence
in the record demonstrating why trial counsel did not hire a mitigation specialist,
there is no evidence in the record illuminating the extent of trial counsel’s
investigation into Chavarri’s background and life circumstances for possible
mitigating evidence, nor is there any evidence in the record that mitigating
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evidence existed to be discovered by a mitigation specialist. The silent record
is thus not sufficiently developed to allow us to do more than speculate as to
why trial counsel did not hire a mitigation specialist. 2 See Mata, 226 S.W.3d
at 432. Although there are rare cases in which a record is sufficient for an
appellate court to make a decision on the merits of an ineffective assistance of
counsel claim, this is not one of those cases; trial counsel’s alleged
ineffectiveness is not so apparent from the record that “the inherent need for
reversal is obvious.” See Remsburg v. State, 219 S.W.3d 541, 546 (Tex.
App.—Texarkana 2007, pet. ref’d).
Because Chavarri’s allegation of ineffectiveness is not firmly founded in
the record, he has not overcome the strong presumption that trial counsel’s
conduct fell within the wide range of reasonable representation. See Salinas,
163 S.W.3d at 740. Chavarri’s ineffectiveness claim thus fails under the first
Strickland prong. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065;
Grijalva v. State, No. 02-08-00018-CR, 2008 WL 4602252, at *1 (Tex.
App.—Fort Worth Oct. 16, 2008, no pet.) (mem. op., not designated for
2
… Chavarri’s argument relies heavily on Wiggins v. Smith, 539 U.S. 510,
123 S. Ct. 2527 (2003). Wiggins is procedurally distinguishable from this case
because the petitioner in that case sought post-conviction relief in which he
presented testimony supporting his ineffective assistance claim. Id. at 516–17,
123 S. Ct. at 2532–33. Here, Chavarri raises his ineffective assistance claim
on direct appeal with a silent record.
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publication) (addressing identical issue and reaching same conclusion); see also
Teixeira v. State, 89 S.W.3d. 190, 193–94 (Tex. App.—Texarkana 2002, pet.
ref’d) (overruling argument that counsel was ineffective for failing to request
that a sexual offense expert be appointed to assist at trial or in mitigation of
punishment because there was no showing in the record that an expert would
have testified in a manner that would have benefitted appellant). We overrule
Chavarri’s sole point and affirm the trial court’s judgments.
PER CURIAM
PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 2, 2009
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