Rueben Regalado, Jr. v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00496-CR



Rueben Regalado, Jr., Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-97-0443, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

The jury found appellant guilty of the offense of aggravated assault by causing serious bodily injury to another ⁽¹⁾ and assessed punishment at confinement for fifteen years and a fine of $5,000. A not guilty verdict was returned by the jury on an additional count of burglary of a habitation. ⁽²⁾ In a single point of error, appellant contends that he did not receive effective assistance of counsel in the trial court. We will affirm.

Appellant's stepdaughter, Meagon Clemmer, went to Michael Prado's home shortly after noon on the day in question in response to a telephone invitation from Michael. It appears undisputed that hugging and kissing ensued between the teenagers until appellant kicked down the door to the house and administered a rather severe beating to the smaller Michael, age 17. While the events that occurred between Meagon's arrival and appellant's appearance are in dispute, it is undisputed that appellant, in an altercation with Michael, struck Michael with his fists in the face, groin, and abdomen until Meagon asked him to stop because she was afraid appellant would get in trouble. Appellant's defense throughout the trial was the necessity to use reasonable force to protect himself and his stepdaughter against the use of unlawful force by Michael.

Appellant contends on appeal that his trial counsel was defective by agreeing to stipulate as to the element of serious bodily injury. Defense counsel offered the stipulation after Michael's mother, Jo Anne Prado, identified a picture of Michael as he appeared when she arrived at the hospital in response to a call she received at her place of employment. In a bench conference, defense counsel stated that he tendered the stipulation because the picture of Michael's injuries "would be harmful to my client by causing undue emotional response by the jury." It appears that the picture was never shown to the jury nor was the State's projected testimony from Michael's treating doctor ever offered.

The burden of proof an accused has in proving ineffective assistance is set forth with clarity and completeness in Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990):

The test to be applied in determining ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As this Court has previously noted, no mechanistic formula is provided by Strickland:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Butler v. State, 716 S.W.2d 48, 54 (Tex. Cr. App. 1986) quoting Strickland, 104 S.Ct. at 2064. A defendant seeking relief under Strickland must show that counsel's performance was deficient and the defendant must show that the deficient performance prejudiced the defense. Butler, 716 S.W.2d at 54. When clarifying the "prejudice" prong of this two part test, the Strickland Court held:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Ex parte Guzmon, 730 S.W.2d 724, 733 (Tex. Cr. App. 1987) quoting Strickland, 104 S.Ct. at 2068.

This standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Cr. App. 1986). When reviewing a claim of ineffective assistance of counsel, judicial scrutiny of counsel's performance must be highly deferential. 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed. 2d at 694. Whether the Strickland standard has been met is to be judged by "the totality of the representation." Id.; Ferguson v. State, 639 S.W.2d 307, 310 (Tex. Cr. App. 1982). Isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel's performance for examination. Bridge, 726 S.W.2d at 571; Johnson v. State, 629 S.W.2d 731, 736 (Tex. Cr. App. 1981). An applicant must show omissions or other mistakes made by counsel that amount to professional errors of a magnitude sufficient to raise a reasonable probability that the outcome of the trial would have been different but for the errors. Butler, 716 S.W.2d at 54. The test is to be applied at the time of trial, not through hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Cr. App. 1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1590, 94 L. Ed. 2d 779 (1987).

There is no showing in the record before us that there was any basis for an issue as to whether Michael received serious bodily injuries. In reviewing defense counsel's performance, we must also be mindful that the jury found appellant not guilty on the burglary count.

We hold that appellant has not overcome the presumption that the challenged action of trial counsel could be considered sound trial strategy. Nor has appellant shown mistakes by counsel that amount to professional errors of a magnitude sufficient to raise a reasonable probability that the outcome of the trial would have been different but for the alleged error.

The judgment is affirmed.

Tom G. Davis, Justice

Before Justices Jones, Kidd and Davis^*

Affirmed

Filed: August 26, 1999

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. See Tex. Penal Code Ann. § 22.02(a)(1) (West 1994).

2. See Tex. Penal Code Ann. § 30.02(a)(1) (West 1994).

sarial process that the trial cannot be relied on as having produced a just result.

Butler v. State, 716 S.W.2d 48, 54 (Tex. Cr. App. 1986) quoting Strickland, 104 S.Ct. at 2064. A defendant seeking relief under Strickland must show that counsel's performance was deficient and the defendant must