Roberto Raul Martinez v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-395-CR



ROBERTO RAUL MARTINEZ,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR92-293, HONORABLE MACE B. THURMAN, JUDGE PRESIDING

PER CURIAM

Appellant was one of a group of persons who attacked Charles Saunders on the night of September 27, 1992. During the assault, appellant stabbed Saunders in the chest with a knife, narrowly missing the heart. The jury that heard this evidence found appellant guilty of aggravated assault and assessed punishment at imprisonment for ten years and a $10,000 fine. Tex. Penal Code Ann. § 22.02(a)(1) (West 1994). ⁽¹⁾

In two points of error, appellant contends he did not receive effective assistance of counsel at either stage of trial. To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). The prejudice component of the Strickland test does not apply to claims of ineffectiveness at the punishment stage. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987); Ex parte Duffy, 607 S.W.2d 507, 514 n.14 (Tex. Crim. App. 1980).

With regard to counsel's performance at the guilt stage, appellant complains principally of counsel's failure to secure the testimony of Maria Lara. Lara testified at the hearing on appellant's motion for new trial that she was with appellant on the night of the alleged offense and that appellant did not attack Saunders. According to Lara, appellant attempted to break up a fight between Saunders and his wife during which the wife stabbed Saunders. Lara was subpoenaed to testify at trial, but she failed to timely appear because of a conflicting medical appointment. Both sides had closed by the time she arrived at the courthouse and defense counsel declined the court's offer to reopen.

Counsel testified that he attempted to interview Lara before trial, but she refused to talk to him on the one occasion he was able to locate her. Counsel stated that he decided not to call Lara as a witness because she had a criminal record and "was not the kind of witness that I would have felt comfortable putting on without having an opportunity to review the record and understand a little more about her." In addition, the victim's son, who witnessed the assault, testified at trial that he did not see appellant wield a knife and counsel "thought that was much stronger in terms of establishing a reasonable doubt than Ms. Lara's testimony and her credibility would give." Appellant has failed to demonstrate that counsel's failure to call Lara as a witness was not sound trial strategy under the circumstances. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant contends that counsel did not confer with appellant "in a manner consistent with the gravity of the case," but appellant did not testify at the new trial hearing and he cites no evidence to support this contention. Appellant notes that three other persons who were involved in the attack on Saunders were not called as witnesses and were "presumably not interviewed." He also asserts that it is "highly questionable" whether trial counsel interviewed the State's witnesses before trial. In fact, appellant states that defense counsel had no knowledge of the facts of the case. These contentions are mere speculation. Other than the testimony described above regarding counsel's attempt to interview Lara, there is no evidence in the record concerning counsel's trial preparation.

Appellant's criticism of counsel's handling of the punishment phase of trial centers on the testimony of appellant's father, who was called by the defense. Fernando Martinez testified that, to his knowledge, appellant was a peaceable and law-abiding person who had never been involved in fights. During cross-examination, the prosecutor asked the witness if he knew that his son had been arrested fourteen times in the preceding ten years for such offenses as theft and assault. Martinez stated that he was unaware of this. Appellant argues that it was ineffectiveness for counsel to question Martinez in a manner that opened the door for cross-examination about appellant's arrest record. Appellant also complains that counsel failed to "explain away" appellant's arrests or to offer any other favorable evidence at the punishment stage.

Once again, trial counsel was not questioned with regard to his decision to call Martinez and there is no evidence as to what counsel knew or did not know concerning appellant's previous arrests. There is no showing in the record that other evidence favorable to appellant was available.

Appellant has failed to overcome the presumption that counsel was acting within the broad range of reasonable professional assistance. Jackson, 877 S.W.2d at 771. Points of error one and two are overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: December 7, 1994

Do Not Publish

1. That portion of section 22.02 that applies to this cause was unchanged by the 1994 amendments and the present code is cited for convenience.