Rufus Sito Nanez, III v. State ( 2011 )

NO. 07-09-0339-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 28, 2011
RUFUS SITO NANEZ, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 4077; HONORABLE RON ENNS, PRESIDING
Opinion
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
What we have before us is an appeal attacking trial counsel’s performance.
Appellant, Rufus Sito Nanez, III, was convicted on two counts of aggravated sexual
assault. He and his appellate attorney attempt to sway us to believe that trial counsel
provided Nanez ineffective assistance in eighteen different ways. Whether either
appellant or his attorney read this court’s opinion in Beck v. State, 976 S.W.2d 265, 268
(Tex. App.–Amarillo 1998, pet. ref’d) (especially the last paragraph) is unknown but we
respectfully suggest that they do. And, we affirm the judgment for the following
reasons.
First, of the eighteen complaints, none were supported by legal authority. That is,
neither appellant nor his appellate attorney provided us with statutory or case citation
purporting, in any way, to illustrate that the particular conduct of which they complained
was unreasonable or deficient. Omitting such authority alone permits us to deem the
issues inadequately briefed and, therefore, waived. Delijevic v. State, 323 S.W.3d 606,
609 (Tex. App.–Amarillo 2010, no pet.) (holding that the failure to support argument with
applicable authority equates to inadequate briefing and constitutes a waiver of the
issue).
Second, no evidence appears of record purporting to illustrate the reasons or
motivations, if any, underlying trial counsel’s decisions or actions. This is problematic
because we are to presume that counsel based those decisions and actions on sound
trial strategy. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).
Furthermore, that presumption cannot generally be overcome absent evidence of those
reasons and motives appearing in the record. Ex parte Niswanger, 335 S.W.3d 611,
615 (Tex. Crim. App. 2011). And, none of the examples of allegedly deficient conduct
cited by appellant and his appellate attorney compare to those rare instances of
misconduct for which there can be no legitimate strategy. Indeed, attacking trial
counsel because he “fail[ed] to address venirepersons by name” falls short of such
unjustifiable misconduct.
Third, proving ineffective assistance requires more than simply showing some
mistake or default. The complainant must also establish that the default was prejudicial.
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Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). Moreover, fulfilling
that burden requires more than simply surmising that the result may have differed if X
had happened. Rather, it is a true burden mandating explanation and development,
and omitting to do so is fatal to the complaint. See Howard v. State, 239 S.W.3d 359,
368 (Tex. App.–San Antonio 2007, pet. ref’d); Callahan v. State, 24 S.W.3d 483, 486
(Tex. App.–Houston [1st Dist.] 2000, pet. ref’d). Appellant and his counsel so failed
here.
Counsel is not ineffective simply because he did not do that which his accuser
thought he should have done. Nor is he legally deficient simply because some attorney
who enjoys the benefit of hindsight and cool reflection would have taken a different tact.
Indeed, appellate counsel should not only recognize what is required by law but also
use caution when calling someone ineffective. Those before us today should heed that
admonishment when next they think about invoking the theory. Unfounded and
undeveloped accusations like those uttered at bar needlessly belittle their human target
and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are
dealing with.
We overrule each issue and affirm the judgment.
Brian Quinn
Chief Justice
Publish.
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