Fernando Avila v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-18-00143-CR
07-18-00144-CR
FERNANDO AVILA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court Nos. 73,789-E, 75,482-E, Honorable Abe Lopez, Presiding
July 24, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Fernando Avila, appeals the trial court’s judgments by which he was
convicted of felony driving while intoxicated and evading arrest or detention using a
vehicle. His issues on appeal implicated the denial of an oral motion for continuance, the
constitutionality of the statute pertaining to motions for continuance, the purported
ineffectiveness of counsel, and the assessment of costs. We modify the judgments and
affirm as modified.
Issues One and Two – Denial of Oral Motion to Continue
Through his first two issues, appellant initially contends that the trial court erred in
denying him a continuance and that statutory requirements pertaining to such motions
are unconstitutional as applied to him. He moved, through defense counsel, for a
continuance immediately before voir dire began to gather records from the “TDC” and a
local school district. The motion was not in writing but, rather, oral. Furthermore, defense
counsel identified neither the specific records purportedly being sought nor their content.
Similarly omitted from his oral request was a particularized discussion concerning their
relevance. The trial court denied the motion due to the age of the cases being prosecuted.
Appellant argues before us that the trial court erred in denying his oral motion for
continuance, invites us to overrule judicial precedent and statutory mandates requiring
that motions for continuance be in writing as sworn to, and asks that we hold as
unconstitutional the statutes in question. We overrule the issues.
The applicable standard of review is abused discretion. That is, the appellant must
establish that the trial court abused its discretion in denying his motion. Rodriguez v.
State, 553 S.W.3d 733, 741 (Tex. App.—Amarillo 2018, no pet.). Such discretion is not
abused so long as the decision falls within the zone of reasonable disagreement and is
correct under any applicable theory of law irrespective of whether the theory was raised
below. Id. Appellant failed to satisfy his burden here in several ways.
First, motions to continue 1) must be in writing, 2) aver sufficient cause warranting
the postponement, TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006), and 3) be made
under oath by one having personal knowledge of the facts relied upon. Id. art. 29.08
(West 2006). Appellant’s motion was oral, and no oath accompanied it. Thus, it did not
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comply with statute. See Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009)
(holding that, “if a party makes an unsworn oral motion for a continuance and the trial
judge denies it, the party forfeits the right to complain about the judge’s ruling on appeal”);
see also Washington v. State, No. 07-17-00427-CR, 2018 Tex. App. LEXIS 8319, at *4–
5 (Tex. App.—Amarillo Oct. 10, 2018, pet. ref’d) (mem. op., not designated for publication)
(relying on Anderson in arriving at same conclusion).
Second, the trial court denied the motion because the age of the prosecutions, as
exemplified when saying “it’s been almost a year – or it has been a year . . . that these
cases have been indicted, so I’ll deny your request.” Given the standard of review,
appellant was obligated to explain why denying further delay due to the age of the
prosecutions fell outside the zone of reasonable disagreement. He did not. Nothing was
said on appeal about the school district or TDC records underlying the motion, what they
contained, their relevance, when they were initially sought, why they could not be secured
by time of trial, and why their purported need outweighed further delay in assuring
appellant’s constitutional right to a speedy trial.
As for appellant’s argument that articles 29.03 and 29.08 of the Code of Criminal
Procedure are unconstitutional as applied to him, the record fails to reveal that it was
raised below. Consequently, appellant failed to preserve it for review on appeal. See
Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (holding that “‘[a]s
applied’ constitutional claims are subject to the preservation requirement and therefore
must be objected to at the trial court in order to preserve error”).
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Issues three through twelve - Ineffective Assistance of Counsel
In his remaining issues, appellant contends the actions, or lack thereof, of trial
counsel denied him the effective assistance of counsel. We disagree and overrule the
issues.
To prevail on a claim of ineffective assistance of counsel, the claimant must prove,
by a preponderance of the evidence, that 1) counsel’s representation fell below an
objective standard of reasonableness, and 2) the deficient performance prejudiced the
appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); see Burch
v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Failure to make the requisite
showing of either prong is fatal to the claim. See Lopez, 343 S.W.3d at 142. Additionally,
prejudice consists of a reasonable probability, or a probability sufficient to undermine
confidence in the outcome, that the result of the proceeding would have been different.
See id.; see also Howard v. State, No. 07-17-00178-CR, 2018 Tex. App. LEXIS 1987, at
*9 (Tex. App.—Amarillo Mar. 20, 2018, no pet.) (mem. op., not designated for publication)
(observing that the prejudice prong of the Strickland test “requires evidence establishing
a link between trial counsel’s supposed default and a different outcome had the default
not happened”).
As the Texas Court of Criminal Appeals has explained, rarely will the trial record
contain sufficient information to permit a reviewing court to fairly evaluate the merits of
such a serious allegation: “in the vast majority of cases, the undeveloped record on direct
appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland.”
Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999). Ineffective-
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assistance-of-counsel claims are not built on retrospective speculation; they must “be
firmly founded in the record.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002)
(quoting Thompson, 9 S.W.3d at 813).
Appellant points to a number of acts or omissions of trial counsel to support his
contention that trial counsel’s representation was deficient. We address those
contentions, having grouped them generally by topic when efficient to do so.
Failure to file a written motion for continuance
Again, defense counsel did not file a written, sworn motion for continuance, and
that allegedly was ineffective assistance of counsel. To establish ineffective assistance
upon trial counsel’s failure to file a written and sworn motion for continuance, an appellant
must show that the trial court would have erred in denying a sworn and written motion.
See Granados v. State, No. 07-06-0482-CR, 2007 Tex. App. LEXIS 9130, at *12 (Tex.
App.—Amarillo Nov. 20, 2007, no pet.) (mem. op., not designated for publication) (citing
Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.—Houston [1st Dist.] 1994), aff’d, 931
S.W.2d 564, 566–67 (Tex. Crim. App. 1996) (en banc) (per curiam) (holding that in order
for counsel’s failure to object to the State’s question and argument to have been
ineffective assistance, an appellant must show that the trial court would have erred in
refusing to sustain the objection)); accord Pryce v. State, No. 03-12-00797-CR, 2014 Tex.
App. LEXIS 13725, at *10–11 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op., not
designated for publication); Hayward v. State, No. 14-01-01185-CR, 2006 Tex. App.
LEXIS 536, at *11 (Tex. App.—Houston [14th Dist.] Jan. 24, 2006, no pet.) (mem. op.,
not designated for publication). As stated above, appellant made no effort to illustrate
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that the trial court’s decision fell outside the zone of reasonable disagreement or was
wrong under every applicable legal theory.
Incomplete investigation
Appellant also accuses trial counsel of being ineffective by allegedly failing to
perfect an insanity defense, undertake a complete investigation concerning the
acquisition of records and experts to bolster that defense, and obtain additional mitigating
evidence for use in punishment.1 In response, we note the absence from the record of
specific evidence, information, or argument about what further investigation by trial
counsel would have revealed or whether it would have been beneficial to appellant.
Instead, appellant’s protestations dwell in the speculative area of maybe something or
someone could have been uncovered which may have helped. Thus, appellant failed to
carry his burden to prove ineffectiveness and prejudice. See Straight v. State, 515
S.W.3d 553, 568 (Tex. Crim. App. 2017) (stating that, without showing what an
investigation would have revealed that reasonably could have changed the result of the
case or what interviews with purported witnesses would have revealed that reasonably
could have changed the outcome, a claim fails for ineffective assistance based on trial
counsel’s general failure to investigate the facts of the case); see also Bone, 77 S.W.3d
at 835 (cautioning against speculating about the existence of mitigating evidence and
noting that ineffective assistance claims are not built on retrospective speculation).
Additionally, the jury assessed punishment at the statutory minimum for each
offense. With that, we cannot say that the outcome of the proceeding in terms of
punishment could have been any more favorable for appellant had there been more
1An investigation into appellant’s competence to stand trial was performed, and he was found
competent.
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mitigating evidence presented. See State v. Choice, 319 S.W.3d 22, 27 (Tex. App.—
Dallas 2008, no pet.) (where appellant was sentenced to the statutory minimum
punishment and concluding that “[a]dditional mitigating evidence could not have resulted
in a lesser sentence” and that, therefore, “there is no possibility that, had trial counsel
offered additional mitigating evidence, the result of the proceeding would have been
different”).
Cumulation of Errors
Appellant also contends that the various omissions of trial counsel when
considered in the aggregate have the cumulative effect of rendering his trial unfair in
violation of his Due Process rights. As to the individual contentions of ineffective
assistance, we noted that the record before us is insufficiently developed to satisfy the
requirements of Strickland. Those assertions, when considered in the aggregate, do not
somehow become more viable or more easily discernible on a record that simply is not
developed to address ineffective-assistance claims.
Prejudice
Furthermore, we are still left to address the prejudice element of ineffective
assistance of counsel. The record remains silent as to it, as does appellant’s argument,
generally. So even if we were to presume that trial counsel’s omissions constituted
deficient performance, appellant still has not sufficiently shown prejudice from any of the
alleged errors “either individually or cumulatively.” See Hillery v. State, No. 02-13-00253-
CR, 2014 Tex. App. LEXIS 9017, at *11 (Tex. App.—Fort Worth Aug. 14, 2014, pet. ref’d)
(mem. op., not designated for publication).
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Our disposition of these contentions, along with the previous complaints raised as
ineffective assistance of counsel, demonstrates how, ordinarily, the appellate record on
direct appeal is insufficient to flesh out a claim of ineffective assistance of counsel. See
Martinez v. State, No. 10-15-00360-CR, 2016 Tex. App. LEXIS 10316, at *19–20 (Tex.
App.—Waco Sep. 21, 2016, pet. ref’d) (mem. op., not designated for publication). Of
course, appellant is free to pursue the claim via available post-judgment avenues such
as a petition for habeas corpus.
Issue Thirteen - Court Costs/Modification of Judgments
Finally, appellant contends and the State concedes that the trial court’s judgments
should be modified to reflect the trial court’s decision that fines and court costs against
appellant were waived. This Court has the authority to modify or reform a judgment to
make the record speak the truth when the matter has been called to its attention. TEX. R.
APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc).
Appellant’s contention and the State’s concession are well-taken, and we reform the trial
court’s judgments of conviction in trial court cause numbers 73,789-E and 75,482-E to
reflect that court costs are waived.
We affirm the trial court’s judgments of conviction as reformed or modified.
Per Curiam
Do not publish.
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