Robert G. Posos v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00419-CR
Robert G. POSOS,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 298496
The Honorable Jason Wolff, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: August 7, 2013
AFFIRMED
Following a jury trial, appellant Robert G. Posos was convicted of interference with the
duties of a public servant. On appeal, Posos contends his trial counsel was ineffective. We affirm
the trial court’s judgment.
BACKGROUND
A detailed rendition of the facts is unnecessary for the disposition of the issues in this
appeal. Accordingly, we provide only a brief background for context.
04-12-00419-CR
After police responded to a disturbance at Posos’s home, he was arrested for interfering
with police officers while they were performing their duties. A jury found Posos guilty, and the
trial court sentenced him to six months in jail and a $300.00 fine. The trial court suspended jail
time and placed Posos on probation for nine months. After his motion for new trial was denied,
Posos perfected this appeal.
ANALYSIS
On appeal, Posos raises a single issue, complaining his trial counsel was ineffective in the
following respects: (1) misinformed Posos regarding eligibility for deferred adjudication
community supervision; (2) improperly attempted to present evidence of an officer’s reprimand to
the jury; (3) re-played a prejudicial 911 recording during closing argument; (4) failed to call
witnesses during punishment; (5) was unaware of Posos’s previous convictions; and (6)
inadequately prepared and presented the motion for new trial.
Standard of Review
To prevail on an ineffective assistance of counsel claim, an appellant must show: (1)
deficient performance by trial counsel, and (2) prejudice arising from the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.
Crim. App. 2012); Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007). To establish
deficient performance, an appellant must prove by a preponderance of the evidence counsel’s
representation fell below the “objective standard of reasonableness.” Jimenez, 364 S.W.3d at 883
(citing Strickland, 466 U.S. at 688). Appellate courts have never interpreted this standard of
review to mean “the accused is entitled to errorless or perfect counsel.” Badillo v. State, 255
S.W.3d 125, 129 (Tex. App.—San Antonio 2008, no pet.) (quoting Ex parte Welborn, 785 S.W.2d
391, 393 (Tex. Crim. App. 1990)). The range of reasonable assistance by counsel is wide and the
representation as a whole is measured, with deference given to the likelihood that actions taken
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were based on sound trial strategy. Jimenez, 364 S.W.3d at 883. Based on this, there is a strong
presumption that counsel rendered adequate assistance and exercised reasonable professional
competence. Strickland, 466 U.S. at 690; Ex parte Niswanger, 335 S.W.3d 611, 619 (Tex. Crim.
App. 2011).
To overcome this presumption, an appellant must establish counsel’s ineffectiveness is
“firmly founded in the record,” and “the record affirmatively demonstrate[s]” the alleged
ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Otherwise, the strong
presumption that trial counsel acted within the proper range of reasonable and professional
assistance and had a sound trial strategy in mind is not overcome. Badillo, 255 S.W.3d at 129.
Generally, direct appeals are inadequate vehicles for Strickland claims because the record
is usually undeveloped. Goodspeed, 187 S.W.3d at 392. This is true with regard to claims of
deficient performance where counsel’s reasons for claimed errors do not appear in the record. Id.
A reviewing court should not find deficient performance unless trial counsel has had an
opportunity to explain his actions or the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Id; see Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Accordingly, “a silent record on the reasoning behind counsel’s actions is sufficient
to deny relief.” Badillo, 255 S.W.3d at 129.
Even if an appellant is able to demonstrate deficient performance, he must still
affirmatively prove prejudice by showing a reasonable probability that “but for counsel’s
unprofessional errors” the outcome at trial would have been different. Strickland, 466 U.S. at 694;
Jimenez, 364 S.W.3d at 883. A reasonable probability is one that is sufficient to “undermine
confidence” in the outcome of the trial. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
Failure to make the required showing of either deficient performance or sufficient prejudice defeats
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the ineffectiveness claim. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d
482, 500 (Tex. Crim. App. 1996)).
Eligibility for Deferred Adjudication Community Supervision
Posos first claims his trial counsel was ineffective because she misunderstood the law
relating to eligibility for deferred adjudication community supervision. Posos pled not guilty to
the charge of interfering with the duties of a police officer. A jury found him guilty, and the trial
court placed him on probation for nine months. On appeal, Posos contends his trial counsel
rendered ineffective assistance because she did not inform him that pleading “not guilty” would
render him ineligible for deferred adjudication community supervision. Furthermore, Posos states
that during the punishment phase, trial counsel mistakenly requested deferred adjudication
community supervision, which the trial court denied, noting Posos was ineligible because Posos
had pled not guilty. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012).
To prove ineffective assistance of counsel based on trial counsel’s alleged
misunderstanding of the law regarding deferred adjudication community supervision, Posos must
show it is apparent from the record that trial counsel’s actions were more than “mere mistake.”
See State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991) (en banc). Among other things,
the record must contain evidence that defendant’s decision would have been different if trial
counsel had correctly informed him of the law. 1 Id. at 731‒32. Trial counsel’s representation shall
be viewed in its totality to determine whether it was reasonably effective during the punishment
phase of the trial. Id. at 731; Ex Parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989); Ex
1
Appellant must prove there is evidence to support the following four elements to establish an ineffective assistance
of counsel regarding trial counsel’s misunderstanding of the law on deferred adjudication: (1) defendant was initially
eligible to receive deferred adjudication; (2) counsel’s advice to go to the trial judge for sentencing was not given as
part of a valid trial strategy; (3) defendant’s decision to have the judge assess punishment was based on his attorney’s
erroneous advice; and (4) defendant’s decision would have been different if counsel had correctly informed him of
the law. See Recer, 815 S.W.2d at 731–32. Since Posos needs to prove all four elements, and we hold he has failed
to establish the last element, we need not address the other three elements.
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Parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). Each case must be reviewed based upon
its individual facts and circumstances. Recer, 815 S.W.2d at 731 (citing Ex Parte Gallegos, 511
S.W.2d 510, 511 (Tex. Crim. App. 1974)).
We hold Posos does not satisfy the stated Recer requirement—the record is silent as to
whether Posos would have made a different decision, that is, pled guilty, had trial counsel correctly
informed him of the law regarding deferred adjudication community supervision. See Badillo, 255
S.W.3d at 129. In order to meet Strickland’s second prong, and to prove prejudice, Posos must
show that but for his trial counsel’s errors there was reasonable probability that the result of the
proceedings would have been different. See Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim.
App. 2012). The prejudice prong turns on whether the deficiency made any difference to the
outcome of the case. Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012). As noted, there
is no evidence in the record Posos would have pled guilty, and thus, no evidence of a different
outcome.
Posos argues his trial counsel’s request for deferred adjudication during the punishment
phase is some evidence he would have pled guilty in order to have a chance to receive deferred
adjudication community supervision. We disagree. The record does not clearly establish Posos
would have pled guilty had he known a “not guilty” plea would make him ineligible for deferred
adjudication. See Recer, 815 S.W.2d at 730 (holding defendant must show he would have made a
different decision if properly informed). We hold the record does not show Posos would have
entered a guilty plea because neither Posos’s intentions, nor his trial counsel’s advice, are clearly
stated in the record. Cf., Garcia v. State, 308 S.W.3d 62, 73‒75 (Tex. App.—San Antonio 2009)
(holding record clearly shows trial counsel’s assistance was prejudicial). Thus, because Posos’s
ineffective assistance claim is not firmly founded in the record, we hold Posos has failed to
establish trial counsel’s assistance was ineffective. We overrule his first issue.
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Other Alleged Instances of Ineffective Assistance
Posos also contends his trial counsel was ineffective because she: (1) attempted to present
inadmissible evidence to the jury; (2) replayed a prejudicial 911 recording during closing
argument; (3) failed to call witnesses during punishment; (4) was unaware of Posos’s previous
convictions; and (5) inadequately prepared and presented the motion for new trial.
Regarding Posos’s first four contentions, the record does not affirmatively demonstrate
trial counsel lacked a sound trial strategy or acted outside the proper range of reasonable and
professional assistance. See Jimenez, 364 S.W.3d at 883; Badillo, 255 S.W.3d at 129; see also
Goodspeed, 187 S.W.3d at 392.
First, Posos argues his trial counsel attempted to present inadmissible evidence to the jury.
Posos contends his trial counsel should not have attempted to introduce a San Antonio Police
Department disciplinary report, which showed one of the police officers that arrested Posos was
reprimanded for failing to note in his report that he drew his weapon. However, the record shows
trial counsel tried to admit such evidence in order to attack the credibility of a witness, a police
officer. We hold this was sound strategy.
Next, Posos contends trial counsel erred in replaying a 911 recording from the night of his
arrest. Posos claims the recording, played for the second time during closing argument, shows
him screaming and angrily cursing at the officers, and could have prejudiced the jury. However,
the record shows trial counsel used the recording to show discrepancies between witnesses’
testimonies. See Jensen v. State, 66 S.W.3d 528, 544 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d) (noting introduction of evidence to attack credibility of witnesses may be sound trial
strategy). This too was a sound strategy.
With respect to Posos’s contentions that trial counsel was ineffective by failing to present
witnesses during the punishment phase and being unaware of Posos’s prior DWI convictions, the
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record is silent. See Badillo, 255 S.W.3d at 129. The record does not show whether witnesses
were available to testify and the benefit Posos would have obtained from such testimony. See
Garza, 213 S.W.3d at 347‒48; see also Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim.
App. 2005) (holding appellant failed to establish trial counsel’s deficient performance for failure
to call witnesses at guilt-innocence and punishment stage when appellant could not identify
specific witnesses that should have been called, that such witnesses were available to testify, and
that their testimony would have benefitted him). Thus, Posos’s claim in this regard is not firmly
founded in the record.
Finally, the record does support Posos’s contention that his trial counsel inadequately
prepared and presented the motion for new trial. Trial counsel did not file a sworn and notarized
affidavit; she improperly made hand-written edits to the affidavit; and she did not present copies
of the motion for new trial at the hearing. 2 The record shows the judge refused the admission of
the affidavit because it was not sworn and notarized and there was “additional writing” calling into
question its authenticity. See TEX R. EVID. 901 (requiring authentication “as a condition precedent
to admissibility that is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”). Also, trial counsel cited inapplicable law in the motion
for new trial, and erroneously asked for a judgment notwithstanding the verdict in the alternative,
which applies only in civil cases. See TEX. R. CIV. P. 301. Therefore, considering the errors trial
counsel committed, we hold no competent attorney would have made the same decisions with
regards to the motion for new trial. See Andrews, 159 S.W.3d at 101; see also Perez, 310 S.W.3d
at 893.
2
See TEX. R. CIV. P. 21.
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Nonetheless, we hold trial counsel’s deficiencies in this respect did not cause Posos to
suffer such prejudice that the “outcome would have been different but for the alleged errors.” See
Howard v. State, 239 S.W.3d 359, 368 (Tex. App.—San Antonio 2007, pet. ref’d); Strickland, 466
U.S. at 694. In other words, Posos has failed to show a reasonable probability that had his trial
counsel properly prepared and presented his motion for new trial, it would have been granted. See
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding that although motion to
suppress would have been appropriate vehicle to challenge alleged illegal search, appellant failed
to prove such motion would have been granted, thereby failing to satisfy Strickland); see also Ryan
v. State, 937 S.W.2d 93, 104 (Tex. App.—Beaumont 1996) (holding failure of trial counsel to file
appropriate pretrial motions was not ineffective counsel because appellant failed to identify basis
in record for granting motions. Accordingly, we overrule Posos’s remaining issues.
CONCLUSION
Based on the foregoing, we affirm the trial court’s judgment.
Marialyn Barnard, Justice
DO NOT PUBLISH
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