Pedro Dominguez v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00322-CR
NO. 02-12-00323-CR
NO. 02-12-00324-CR
NO. 02-12-00325-CR
NO. 02-12-00326-CR
NO. 02-12-00327-CR
NO. 02-12-00328-CR
NO. 02-12-00329-CR
NO. 02-12-00330-CR
NO. 02-12-00331-CR
NO. 02-12-00332-CR
NO. 02-12-00333-CR
PEDRO DOMINGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
The Collins family hosted a Halloween party at their residence for the
Arlington ISD gymnastics team on October 30, 2010. Later in the evening, after
the guests had settled down to watch a movie, a group of men entered the house
wearing bandanas or masks and, after refusing to identify themselves, pulled out
guns and instructed everyone to lie face down on the floor. The men took cell
phones, jewelry, and other items of value from the guests and homeowners and
assaulted the father of one of the guests before leaving. Within a few days,
however, the police tracked one of the stolen cell phones to an apartment where
Appellant Pedro Dominguez lived and discovered numerous items that had been
taken during the robbery.
A grand jury indicted Dominguez for burglary of a habitation and eleven
separate offenses of aggravated robbery with a deadly weapon. Dominguez
initially entered a plea of guilty to the burglary offense but later changed his plea
to not guilty. A jury convicted Dominguez of all the indicted offenses and
assessed his punishment at twenty years‟ confinement for the burglary conviction
and ninety-nine years‟ confinement for each aggravated robbery conviction. The
trial court sentenced Dominguez accordingly.
In a single point, Dominguez argues that his trial counsel was ineffective
because counsel mistakenly advised him to plead guilty to the burglary offense.
Dominguez contends that his trial counsel “truly meant to have Appellant enter a
plea of „guilty‟ to another burglary offense that he had been charged with in
2
another case” and that the mistake “removed the trial strategy that was
evidenced by the defense‟s case-in-chief.”
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel‟s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel‟s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). The
prejudice prong of Strickland requires a showing that counsel‟s errors were so
serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant
must show there is a reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104
S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding in which the result is being challenged.
Id. at 697, 104 S. Ct. at 2070.
We have reviewed the entire record. Although Dominguez pleaded guilty
to the burglary offense at the outset of trial, the trial court permitted him to
change his plea to not guilty later in the trial. Dominguez also took the stand and
testified that he did not commit the indicted offenses, and he called a number of
witnesses to testify on his behalf. Thus, to the extent that Dominguez complains
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about the effect that his changing pleas had on his trial strategy, the record
reflects that he had ample opportunity to clarify and establish his defense to the
State‟s allegations. We also note that the State presented a substantial amount
of evidence to support its claims that Dominguez committed the burglary and
aggravated robberies.2 For these reasons, Dominguez has not shown that there
is a reasonable probability that the result of the trial would have been different
had his trial counsel not initially advised him to plead guilty to burglary. His
argument therefore fails under the second Strickland prong. Id. at 694, 104
S. Ct. at 2068. Accordingly, we overrule Dominguez‟s only point and affirm the
trial court‟s judgments.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
GABRIEL, J., filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 30, 2013
2
The State called twenty-one witnesses and introduced over 150 exhibits.
4