Miguel Angel Montez v. the State of Texas ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00033-CR
Miguel Angel MONTEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CR8548
Honorable Jennifer Pena, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: September 29, 2021
AFFIRMED
Miguel Angel Montez was convicted by a jury of aggravated sexual assault of a child, and
the trial court assessed punishment at sixty-five years in prison. Montez appeals, arguing his
counsel rendered constitutionally ineffective assistance and the trial court committed reversible
error in charging the jury. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
In 2016, nine-year old E.C. told her grandmother that Montez had touched her
inappropriately the previous year when E.C. and her mother were living with him. Montez was
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subsequently indicted and charged with one count of continuous sexual abuse of a young child and
three counts of aggravated sexual assault of a child. The case was tried to a jury in 2019. The State
presented the testimony of E.C., her mother, and grandmother. In addition, the investigating
detective testified, and the jury saw videos of the detective’s interview of Montez and the forensic
interview of E.C. Finally, the State presented testimony of a child abuse expert. Montez rested
without presenting any evidence in his case in chief. The State waived one of the counts of
aggravated sexual assault. The jury was charged on continuous sexual assault of a young child and
two lesser-included counts of aggravated sexual assault of a child. The jury found Montez guilty
of one of the lesser-included counts.
In the punishment phase, which was tried to the court, the State reintroduced the evidence
from the guilt phase. It also called E.C. to testify about another incident of misconduct by Montez
and called Montez’s daughter to testify regarding an incident during which he slapped her. In
addition to eliciting beneficial testimony from his daughter in cross-examination, Montez
presented the testimony of one of his former supervisors and that of Montez’s parents. Montez
also introduced a notebook containing nine character reference letters from professional colleagues
and family members, a summary of his personal, military, and educational accomplishments, and
some school and military records. After both sides rested, the trial court imposed a sentence of
sixty-five years in prison. No motion for new trial was filed.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Montez contends his trial counsel rendered constitutionally ineffective
assistance by: failing to conduct an adequate investigation of mitigation factors, hire a mitigation
specialist or expert, or introduce sufficient mitigation evidence; failing to object to E.C.’s
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extraneous offense testimony in the punishment phase of the trial; and failing to present any
evidence in his case in chief during the guilt/innocence phase of the trial.
To establish ineffective assistance of counsel, a defendant must show his trial counsel’s
performance was deficient and the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, the defendant must
prove by a preponderance of the evidence that counsel’s performance fell below an objective
standard of reasonableness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our review of defense counsel’s
representation is “highly deferential” and we presume “counsel’s actions fell within the wide range
of reasonable and professional assistance.” Bone, 77 S.W.3d at 833. To overcome this
presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813.
“[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). When
the record contains no direct evidence of counsel’s reasons for the challenged conduct, we “will
assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined.”
Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011).
A defendant claiming ineffective assistance of counsel must also establish prejudice by
showing “a reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002). Failure to prove either deficient performance or prejudice is fatal to any complaint of
ineffective assistance. Strickland, 466 U.S. at 700.
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Mitigation evidence
Montez contends he was prejudiced by trial counsel’s failure to sufficiently investigate and
introduce mitigating evidence in the punishment phase. In particular, he faults counsel for failing
to use a mitigation expert. However, there is no evidence in the record before us regarding the
investigation counsel undertook. There is no evidence of whether counsel consulted a mitigation
expert or of why counsel chose not to use such an expert at trial. As Montez recognizes in his brief,
“the record is silent as to the use of any mitigation specialists.” Further, the record is completely
silent as to what specific mitigating evidence counsel should have discovered and presented. As
Montez again recognizes in his brief, “[w]ithout knowledge of the specific mitigating evidence, it
is pure speculation as to any extent such evidence might serve to explain the defendant’s actions
in this case” or the “extent such evidence might have assisted the judge in determining the
defendant’s blameworthiness.”
A silent record will not support a claim of ineffective assistance in this case. Without
evidence of the investigation counsel undertook, if any, Montez is unable to establish that
counsel’s performance was deficient. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986) (holding appellate court cannot “assume that because a record is silent as to the depth of an
attorney’s investigation . . . , he made no such investigation”). Furthermore, a claim of ineffective
assistance based on trial counsel’s failure to sufficiently investigate cannot succeed “absent a
showing of what the investigation would have revealed that reasonably could have changed the
result of the case.” Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009,
pet. ref’d). Because the record fails to show what mitigating evidence Montez contends should
have been discovered and that the evidence was available, he has failed to show that any available
mitigating evidence, when weighed against the State’s aggravating evidence, would undermine
our confidence in the outcome. See Ex parte Martinez, 195 S.W.3d 713, 730-31 (Tex. Crim. App.
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2006); see also Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (“[S]ince appellant
does not explain what mitigating evidence his trial counsel should have proffered, we cannot
possibly find that a failure to proffer such evidence constituted ineffective assistance.”); Martinez
v. State, 449 S.W.3d 193, 209–10 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (overruling
ineffective assistance claim based on failure to present mitigating evidence at punishment because
the appellant “presented no specific indication of the evidence that he claims should have been
introduced by his trial counsel, nor is there any indication that such evidence actually exists”).
Failure to object
During the punishment phase, the State called E.C, who testified that on one occasion
Montez urinated on her after she had taken a shower. Montez asserts counsel rendered ineffective
assistance by failing to object to the testimony.
“When an ineffective assistance claim alleges that counsel was deficient in failing to object
to the admission of evidence, the defendant must show, as part of his claim, that the evidence was
inadmissible.” Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). He must show the trial
court would have committed error in overruling the objection. Ex parte Martinez, 330 S.W.3d 891,
901 (Tex. Crim. App. 2011).
Montez suggests the evidence was not relevant and generally states it was inflammatory,
but he does not specify what objection should have been made or argue the trial court would have
abused its discretion in overruling a specific objection. Article 37.07, section 3(a)(1) of the Texas
Code of Criminal Procedure expressly allows the state to offer evidence “as to any matter the court
deems relevant to sentencing,” including “evidence of an extraneous crime or bad act that is shown
beyond a reasonable doubt by evidence to have been committed by the defendant,”
“notwithstanding Rules 404 and 405, Texas Rules of Evidence.” TEX. CODE CRIM. PROC. art.
37.07, sec. 3(a)(1). Although relevant extraneous conduct evidence may be excluded during
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punishment if, for example, its probative value is substantially outweighed by its prejudicial effect,
Montez has not argued the trial court would have abused its discretion in overruling such an
objection. Moreover, because the record is silent as to why counsel failed to object, we presume
his conduct was reasonable. Bone, 77 S.W.3d at 833. Montez has thus failed to establish ineffective
assistance.
Failure to present any evidence in case in chief
Finally, Montez generally asserts counsel was ineffective when he rested after the State
rested its case, complaining that counsel “did not put on one shred of testimony.” As with his claim
about mitigation evidence, Montez has not produced a record that discloses what beneficial
evidence was available for counsel to present or the reasons counsel rested without calling any
witnesses. Accordingly, the record does not support the claim of ineffective assistance. See
Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021) (holding courts “may not find
deficient performance from a silent record if there is any reasonable strategy that might support
counsel’s decision); Bone, 77 S.W.3d at 834-35 (holding counsel could not be found ineffective
when record on direct appeal did not show witnesses or evidence were available).
We therefore overrule Montez’s first point of error.
CHARGE ERROR
Montez’s second point of error asserts his “Constitutional Rights were violated when the
Trial Court against the objection of both the State and Defense Counsel submitted an improper
jury charge.”
The jury was charged on one count of continuous sexual abuse of a young child (count 1)
and two counts of aggravated sexual assault of a child (counts 2 and 3). The charge instructed that
if the jury did not find Montez guilty of count 1, it was to proceed to consider count 2 and, if
necessary, count 3. The charge on counts 2 and 3 submitted the lesser-included offenses of
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aggravated sexual assault of a child, based on the same acts that served as the predicate for count
1 and that occurred during the same time period as count 1. The jury was instructed not to consider
counts 2 or 3 if it found Montez guilty of count 1. The charge allowed the jury to find Montez
guilty of only one of the lesser included offenses.
During the charge conference, the State objected to the charge, asserting the jury should be
allowed to find Montez guilty of both of the lesser-included offenses. Defense counsel then stated:
I’m going to join her in the objection, Your Honor. I know it seems
counterproductive to our position, but my fear is this: If the jury skips over Count
1 and starts to consider Count 2 and Count 3 and realizes that they can’t find him
guilty on both counts, then they’ll revert back to Count 1 because that’s not what
they want out of this process.
I’m not familiar with the law, but it just doesn’t sound correct that both indicted
lesser counts cannot be considered separately.
The point of error suggests Montez is asserting the charge was improper for the reason he
and the State asserted at trial: that it did not allow the jury to convict Montez of both lesser-included
offenses. However, Montez’s concern—that the jury, realizing this, might go back and reconsider
count 1 after having rejected it—did not come to pass. Moreover, Montez does not argue in his
brief that the jury should have been allowed to convict him of both lesser-included offenses and
he does not explain how this aspect of the charge conceivably harmed him. 1
In the argument part of his brief, Montez asserts his “Constitutional Rights were violated
by the jury charge presented to the jury.” The brief then contains six pages discussing general
1
The only other objection to the charge Montez lodged in the trial court was:
I just wanted more clarity on the word unanimously and that it specifically addressed the activities
in Count 2 and Count 3 and that a jury can make no mistake on what to consider in Count 2 and
Count 3, that it must be the exact same incident that all of the jurors are finding the Defendant guilty
for should they choose to do that.
The application paragraphs for counts 2 and 3 each expressly required the jury to find unanimously each of the
elements of the lesser-included offense. Montez does not argue any error in the instructions regarding unanimity in
his brief.
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principles of double jeopardy and lesser-included offenses and concludes by stating the jury charge
had “confusion and ambiguity” and prays for a reversal. There is no attempt made in the brief to
apply the law to the jury charge in this case, there is no statement or explanation of what the alleged
error in the charge was, and there is no argument of how any such error harmed Montez.
The acts of aggravated sexual assault of a child charged in counts 2 and 3 were alleged to
have occurred during the same time period as that covered by the continuous sexual abuse of a
child in count 1. The trial court therefore properly precluded the jury from considering counts 2
and 3 if it found Montez guilty of count 1 and properly submitted counts 2 and 3 as lesser included
offenses. See TEX. PENAL CODE § 21.02(e); Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App.
2014). We express no opinion as to whether it was error to preclude the jury from finding Montez
guilty of both the lesser-included offenses because the error, if any, was clearly harmless to
Montez.
CONCLUSION
For the foregoing reasons, we conclude Montez has failed to show any reversible error. We
therefore affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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