Vives, Andres Lee v. State

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00296-CR

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ANDRES LEE VIVES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 857492

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O P I N I O N

A jury convicted appellant for aggravated assault and sentenced him to eight years' confinement in prison. In his sole point of error, appellant contends he received ineffective assistance of counsel because trial counsel did not request that the lesser included offenses of reckless and deadly conduct be included within the jury charge. We affirm.

Facts

On May 23, 2000, Derrek Rion and a passenger, Ricky Demann, were driving to a Casa Ole restaurant for dinner. When they stopped at a traffic light, a car pulled up next to them. Victor Vialva was driving the car and appellant was the passenger. Occupants of both vehicles exchanged glances. When the light turned green, Rion and Demann turned left proceeding in route to the restaurant.

Before arriving at the restaurant, Rion and Demann decided to pull into a clinic parking lot to investigate a vibration noise coming from their truck. Both Rion and Demann got out of the truck to investigate. Vialva and appellant followed Rion and Demann into the parking lot and began screaming and cursing at them. During the confrontation, appellant leaned over to the driver's side of the car, pulled out a pistol, and pointed it at Demann through the driver's side window. Reacting to the pistol, Demann and Rion raised their hands in the air and began to back away.

Appellant pointed the pistol at Demann for 20 seconds before firing his first bullet. The bullet struck the parking lot cement and ricocheted into Demann's left leg. Ten seconds later, appellant fired a second bullet that traveled through the roof of Rion's truck. Appellant testified that the second bullet accidentally fired while appellant attempted to pull the pistol back inside the car. Vialva and appellant then left the parking lot and fled the scene.

Stacy Norman obtained the license plate number of Vialva's car while witnessing the shooting from the clinic's front door. Norman gave the number to Officer Moon of the Pasadena Police Department, who used the number to obtain Vialva's address. Moon went to the address, saw Vialva's car there, and spotted Vialva and appellant leaving Vialva's apartment. When Moon ordered Vialva and appellant to stop, Vialva complied, but appellant did not. Instead, appellant ran back inside the apartment. Thirty seconds later appellant came out of the apartment with his hands raised.

After receiving Vialva's consent to search the apartment, Moon recovered a pistol. Tests revealed that the recovered pistol fired the shell casings found in the clinic parking lot. Norman positively identified Vialva and appellant as the shooting suspects when Moon took them back to the clinic parking lot. Vialva and appellant were then arrested.

Ineffective Assistance of Counsel

Appellant contends that he received ineffective assistance of counsel because trial counsel did not request that the lesser included offenses of reckless and deadly conduct be included within the jury charge.

•   Standard of Review

To reverse a conviction based on ineffective assistance of counsel, the appellate court must find (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a probability, but for counsel's unprofessional errors, the results of the proceeding would have been different. Davis v. State, 930 S.W.2d 765, 767 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd).

There is a strong presumption that counsel's conduct falls within a broad scope of satisfactory professional performance. See id. An error in trial strategy will be considered inadequate representation only if counsel's actions have no plausible basis. See id. Although we look at counsel's representation as a whole, a single critical error may be sufficient to render counsel's performance ineffective. Id.

•   Representation as a Whole

Appellant's trial counsel was appointed in June of 2000. During his representation, counsel (1) appeared on appellant's behalf eight times before trial, (2) filed a motion for community supervision, (3) conducted voir dire and secured the dismissal of two prospective jurors pursuant to his challenges for cause, (4) cross examined all of the State's witnesses, (5) presented two witnesses for the defense during the guilt stage, including the appellant, (6) argued for an acquittal based on the evidence that appellant did not intend to hurt Demann, (7) requested that self-defense be included in the jury charge, (8) presented two witnesses for the defense during the punishment stage, and (9) argued for probation. Based on this record, we cannot say counsel's performance as a whole fell below an objective standard of reasonableness.

•   Lesser Included Offense

Texas courts have held that not requesting a jury charge that would have aided the defendant is ineffective assistance of counsel. See, e.g., Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992) (holding that defendant received ineffective assistance of counsel when trial counsel did not request jury charge on necessity defense). However, not requesting a charge on a lesser included offense can be a reasonable trial strategy. See Davis, 930 S.W.2d at 768; Lynn v. State, 860 S.W.2d 599, 603 (Tex. App.--Corpus Christi 1993, pet. ref'd). In Lynn, the court stated:

Counsel chose not to request lesser included offenses upon which the jury could find appellant guilty. He required the jury to opt between murder, an intentional and knowing act, and acquittal. Such a decision, although risky, is sometimes successful. We cannot say that such a tactic was so unreasonable under the facts of the case that it denied appellant the effective assistance of counsel.

Lynn, 860 S.W.2d at 603.

To defeat the presumption of effective assistance of counsel, the allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Additionally, an appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions. Id.

Our record is silent as to counsel's motivations for omitting any requests for lesser included offenses. This Court will not speculate on the reasons behind trial counsel's actions when confronted with a silent record. See Jackson v. State, 877 S.W.2d 768, 771-772 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). The record does show that appellant's counsel made repeated attempts to prove that appellant, fearing for his own safety, did not intend to shoot Demann, but instead intended only a warning shot. It is thus possible that appellant's counsel, believing that appellant would be acquitted of aggravated assault, chose to employ the "all or nothing" approach upheld in Lynn and not request a lesser included offense. See Lynn, 860 S.W.2d at 603.

Because counsel's representation is afforded a strong presumption of effectiveness, and because the record before us is insufficient to defeat this presumption, we cannot say that counsel's not requesting to charge the jury with the lesser included offenses of reckless conduct or deadly conduct was ineffective assistance.

We overrule appellant's sole point of issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala Justice

Panel consists of Justices Taft, Alcala, and Price. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.4.

1. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.