Oscar Perez, Jr. v. State

Affirmed and Majority and Dissenting Opinion filed December 11, 2008

Affirmed and Majority and Dissenting Opinion filed December 11, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00414-CR

____________

OSCAR PEREZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 51,650

 M A J O R I T Y   O P I N I O N

A jury found appellant, Oscar Perez, Jr., guilty of aggravated robbery.  See Tex. Penal Code Ann. '' 29.02, 29.03 (Vernon 2003).  The trial court assessed appellant=s punishment at thirty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  In his sole point of error, appellant contends he received ineffective assistance of counsel.  We affirm.

Factual and Procedural Background

On November 30, 2005, appellant and Marcus Antonio Tavira, each armed with a knife, kicked in the door to Maria Rangel=s home and committed robbery.  Both men wore handkerchiefs around their faces, but Mr. Tavira=s handkerchief slipped down during the course of the robbery, thereby exposing his face. Maria identified Mr. Tavira, but she could not identify appellant because she never saw his face and did not pay attention to his body.  Maria=s son Ernesto, who was thirteen at the  time of the robbery, recognized both appellant and Mr. Tavira as the offenders.  Maria and Ernesto disagreed whether the robbery occurred about 8:00 p.m. or 10:00 p.m., but they both agreed that it lasted about ten minutes total.

At trial, Maria, Ernesto, and the officer who investigated the scene of the robbery testified for the State.  The defense did not present any witnesses or other evidence.

The jury found appellant guilty of aggravated robbery, and the trial court sentenced him to thirty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  After the trial, appellant=s trial counsel, Mark Racer, filed a motion to withdraw, and the court appointed appellant new counsel.  Appellant filed a motion for new trial alleging, among other things, that he received ineffective assistance of counsel at trial.  Specifically, appellant alleged Mr. Racer failed to (1) interview and present an alibi witness or (2) do any meaningful preparation or investigation for trial.  At the request of appellant=s new counsel, the court appointed an investigator to speak with appellant regarding Mr. Racer and to investigate and interview potential witnesses.  The investigator interviewed appellant=s mother, his sister, and two alibi witnesses.

In response to appellant=s motion for new trial, the trial court held a hearing during which appellant, Mr. Racer, the State=s attorney, the investigator, appellant=s mother, and an alibi witness testified.   

Mr. Racer testified that from the time the court administrator appointed him to defend appellant, he understood appellant was charged with aggravated robbery, and that it was an habitual offender first-degree felony case.  Appellant testified that prior to trial, Mr. Racer visited him only twice while he was in jail.  In fact, on his fee voucher, Mr. Racer only recorded these two visits.  Mr. Racer testified his notes revealed one additional meeting, and he alleged he met with appellant several other times.  However, he has no record of  those meetings.  The only preparation for trial Mr. Racer recorded on his fee voucher is an hour and a half the weekend before trial began.

Appellant testified he wrote several letters to the court administrator stating his attorney was not visiting him, and Mr. Racer testified he received a letter from appellant in which appellant complained Mr. Racer would not comply with his requests or even respond to him.  Appellant=s mother testified she called Mr. Racer several times on his office phone and his cell phone with questions about the case but he did not answer.  She further testified she began calling from an un-recognized number, at which point he answered her calls and stated he would call her back when he had information for her concerning the case.  She testified, however, the only time Mr. Racer called her back was during the trial to ask for the number of an alibi witness. Appellant=s mother further testified Mr. Racer did not tell her the dates of any hearings or of the trial.

Mr. Racer testified appellant told him about Christina Pereda, an alibi witness, during their first meeting, which was a year and a half before trial.  According to Mr. Racer, he called Ms. Pereda on several occasions, but she never returned his calls.  Ms. Pereda, however, testified she never received any phone calls, messages, or letters from Mr. Racer.  She further testified she did not even know who Mr. Racer was.  The only attempt to contact Ms. Pereda that Mr. Racer noted in his file was a phone call on the day trial began.  Mr. Racer testified he never visited the witness=s home, never moved for a continuance to interview the witness, and never subpoenaed the witness.

Mr. Racer testified that as a court appointed attorney, he understood he had a duty to investigate.  Despite this duty, he did not interview Ms. Pereda, and he did not investigate whether there were any other possible witnesses.  At no point did Mr. Racer ask the court to appoint an investigator to contact Ms. Pereda or to determine whether there were any other witnesses.  Mr. Racer testified he did not ask for an investigator because he could not get in contact with Ms. Pereda and because appellant did not state a specific event that he and the witness attended at the time of the robbery. 

At the hearing, Ms. Pereda testified she did not personally know appellant=s whereabouts the night of the robbery, but she stated that Roselie Padilla might know.  She further testified if Mr. Racer had contacted her before trial, she would have provided him this information.

Ms. Padilla did not attend the hearing, but she provided an affidavit in which she testified she lived with appellant in a small house along with several other people, including Ms. Pereda.  She did not provide a specific event that she and appellant attended the night of the robbery, rather she only testified generally that appellant was always home about 10:00 p.m., and the week of the robbery was no different.

At the hearing, appellant testified Mr. Tavira, the co-defendant, would have provided favorable testimony.  The record reveals Mr. Tavira accepted a plea bargain, which required him to waive all appeals before appellant=s trial.  Mr. Racer testified he was unaware of the plea bargain and assumed Mr. Tavira=s case was still pending; therefore, he made no attempts to interview Mr. Tavira.

The trial court denied appellant=s motion for new trial, and this appeal followed.

Discussion

In his single issue on appeal, appellant argues he received ineffective assistance of counsel at trial because his trial counsel failed to (1) interview and present an alibi witness or (2) do any meaningful preparation or investigation for trial.  Therefore, appellant contends the trial court erred in denying his motion for new trial.

I. Standard of Review             

A.  Motion for New Trial

We review the denial of a motion for new trial for an abuse of discretion.  Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action; rather it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.  State v. Herndon, 215 S.W.3d 901, 907B08 (Tex. Crim. App. 2007).  We do not substitute our judgment for that of the trial court.  Lewis, 911 S.W.2d at 7.  We review the evidence in the light most favorable to the trial court=s ruling and presume that all reasonable findings that could have been made against the losing party were so made.  Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997).  Only when no reasonable view of the record could support the trial court=s ruling do we conclude the trial court abused its discretion by denying the motion for new trial.  Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

B.  Ineffective Assistance of Counsel

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different.  Id. (citing Strickland, 466 U.S. at 687B88, 104 S. Ct. at 2064B65).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

An accused is entitled to reasonably effective assistance of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, we look to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  To overcome the presumption of reasonable professional assistance, any 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 814.  When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would require impermissible speculation.  Stults, 23 S.W.3d at 208.  Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

II. Appellant=s Trial Counsel Was Not Ineffective

A.  Appellant=s Trial Counsel Was Deficient         

A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  A breech of the duty to investigate may result in a finding of ineffective assistance Awhere the result is that any viable defense available to the accused is not advanced.@  Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).  In defining the duty to investigate, the United States Supreme Court has stated that Acounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments.@  Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.

 Appellant argues he received ineffective assistance of counsel at trial because his trial counsel, Mr. Racer, failed to (1) interview and present an alibi witness or (2) do any meaningful preparation or investigation for trial.  We address these two arguments simultaneously because adequately preparing and investigating for trial includes, among other things, interviewing and presenting witnesses.  See Ex parte Welborn, 785 S.W.2d at 393.

At the hearing on appellant=s motion for new trial, Mr. Racer testified that, from the time the court administrator appointed him to defend appellant, he understood appellant  was charged with aggravated robbery and this would be an habitual offender first-degree felony case.  The record demonstrates Mr. Racer met with appellant only two or three times before trial.  Appellant testified he wrote several letters to the court administrator complaining Mr. Racer was not visiting him, and Mr. Racer testified he received letters to this effect.  Appellant=s mother testified she unsuccessfully tried to contact Mr. Racer on his office phone and his cell phone and was only able to reach him when she called from an un-recognized number.  She testified when she did reach Mr. Racer, he told her he had no pertinent information but he would call her when he did.  She also testified he did not tell her the dates of any hearings or of the trial, and the only time he called her was to ask for the number of an alibi witness during trial.

Mr. Racer testified that, as a court appointed attorney, he understood he had a duty to investigate.  Nevertheless, Mr. Racer interviewed no witnesses before trial and he never asked the court to appoint an investigator to interview witnesses or search for potential witnesses.

Mr. Racer testified appellant told him about Ms. Pereda during their first meeting.  Mr. Racer had a year and a half to pursue this witness before trial, but his file indicated his only attempt to contact this witness was on the first day of trial.  According to Mr. Racer, he made other attempts to contact Ms. Pereda, which were not recorded in his file; however, he testified he never visited her home, he never moved for a continuance to interview her, and he never subpoenaed her.  At the hearing, Ms. Pereda testified she never received any phone calls, messages, or letters from Mr. Racer.  Mr. Racer=s reasons for not asking the court for an investigator were that he could not get in touch with Ms. Pereda and appellant=s alibi was non-specific in nature.

Furthermore, Mr. Racer made the assumption Mr. Tavira=s case was still pending, rather than inquiring about it.  Therefore, Mr. Racer remained unaware of Mr. Tavira=s plea bargain, and he made no attempts to interview him.

The record reveals Mr. Racer prepared only an hour and a half the weekend before trial began.  The record also reveals Mr. Racer did not present any witnesses at trial and he did not put forth any other evidence.

Prior to the hearing, and at the request of appellant=s newly appointed counsel, the court appointed an investigator to speak with appellant regarding Mr. Racer and to investigate and interview potential witnesses.  At the hearing, the investigator testified that he interviewed appellant=s mother, appellant=s sister, and the two alibi witnesses, Ms. Pereda and Ms. Padilla.  Ms. Pereda gave the investigator Ms. Padilla=s name, who provided the investigator with a sworn affidavit.

The investigator testified that, in a three week time period, he spent thirty to forty hours investigating appellant=s case.  The investigator further testified from his experience in criminal investigations, thirty to forty hours is the minimum acceptable amount of preparation for this type of case, and a lawyer who did not conduct this type of investigation, or hire an investigator to do so, would not be reasonable.

Based on the totality of Mr. Racer=s actions, or lack thereof, and the particular circumstances of this case, we find Mr. Racer=s decisions were not reasonably professional or motivated by sound trial strategy.  See Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687B88, 104 S. Ct. at 2064B65); Stults, 23 S.W.3d at 208.  We conclude Mr. Racer=s representation was deficient in that it fell below the standard of prevailing professional norms.  See Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687B88, 104 S. Ct. at 2064B65); Thompson, 9 S.W.3d at 813; see also Butler v. State, 716 S.W.2d 48, 56 (Tex. Crim. App. 1986) (holding counsel=s representation deficient where counsel failed to seek out and interview an alibi witness as well as two eyewitnesses who could testify to misidentification); Shelton v. State, 841 S.W.2d 526, 527 (Tex. App.CFort Worth 1992, no pet.) (holding counsel=s assistance deficient where counsel failed to present available testimony in support of defendant=s alibi).  Thus, appellant has met his burden under the first prong of our analysis.  See Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).

B.  Appellant Was Not Prejudiced by Counsel=s Deficiency

Trial counsel=s failure to call witnesses at the guilt-innocence stage is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.  King, 649 S.W.2d at 44.  Thus, we must determine whether appellant would have benefitted from the absent witnesses= testimonies had Mr. Racer adequately prepared for trial by investigating, interviewing, and presenting these witnesses.  See id.

At the hearing, Ms. Pereda testified she did not personally know of appellant=s whereabouts the night of the robbery but she would have provided Ms. Padilla=s name because she believed Ms. Padilla might have known.  She further testified that had Mr. Racer contacted her, she would have provided him with this information. Because her testimony does not reveal a specific alibi, but rather leads to a second witness, we must consider Ms. Padilla=s testimony to determine whether Mr. Racer=s failure to act prejudiced appellant.

In her affidavit, Ms. Padilla stated she lived with appellant in a small house along with several other people, including Ms. Pereda, at the time of the robbery.  However, Ms. Padilla=s affidavit did not provide a specific event that she and appellant attended the night of the robbery.  Rather, Ms. Padilla testified generally that appellant was always home by about 10:00 p.m., and the week of the robbery was no different.  Ms. Padilla failed to provide a specific date or event; thus, her testimony did not directly conflict with the testimony provided by the State.

For support, appellant cites Shelton v. State.  In Shelton, the defendant was indicted for sexual assault of a minor.  Shelton, 841 S.W.2d at 526.  At trial, the defendant=s counsel failed to call a witness whose testimony Acompletely contradicted@ the only evidence supporting the State=s case.  Id. The complainant testified he and the defendant slept together in the defendant=s bedroom the entire night of the offense; however, the defendant=s alibi witness, if given the opportunity, would have testified that on the night of the offense, she spent the night at the defendant=s home and the defendant was away from home the entire night.  Id. at 526B27. 

This is not the situation we have here.  In the instant case, neither Ms. Pereda nor Ms. Padilla specified, in detail, the defendant=s actions or the time he was home on the date of the robbery.  Therefore, neither witnesses= testimony completely contradicted evidence provided by the State.  See id. at 526.^[1] Assuming both of these witnesses would have been available to testify at trial, the record does not establish appellant would have benefitted from their testimony.  See King, 649 S.W.2d at 44. 

Additionally, appellant testified at the hearing that Mr. Tavira would provide favorable testimony.  Nevertheless, appellant did not present this witness or a sworn affidavit authored by this witness.  We cannot speculate what this witness might have said.  Accordingly, while we agree Mr. Racer=s assistance was deficient, based on our review of the record as a whole, we find appellant failed to show a reasonable probability that, but for the alleged deficiencies of his trial counsel, the result of the trial would have been different.  See  Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Thus, appellant has not shown he was prejudiced by Mr. Racer=s failure to adequately prepare or investigate for trial, failure to move for a continuance to investigate witnesses, failure to hire an investigator to investigate witnesses, or failure to subpoena witnesses.  See id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  Therefore, appellant has not met his burden under the second prong of our analysis.  See id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).

Because we have determined appellant did not receive ineffective assistance of counsel, we further hold that the trial court did not abuse its discretion when it denied his motion for new trial.  Accordingly, we overrule appellant=s single issue on appeal.

Conclusion

Having overruled Appellant=s single issue on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Majority and Dissenting Opinion filed December 11, 2008.

Panel consists of Justices Anderson, Frost, and Senior Justice Hudson.^* (Frost, J. dissent)

Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Additionally, appellant cites Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986), for support.  In Butler, the court found the defendant=s trial counsel rendered ineffective assistance where he failed to investigate and call an alibi witness and two eyewitnesses who could testify that someone other than the defendant was actually the robber.  Id. at 56.  The alibi witness could testify, in detail, the defendant was doing something else at the time of the offense.  Id. at 51.  This too is not the case we have here.  In the instant case, the alibi witnesses could not specify, in detail, the defendant=s actions or the time that he was home on the date of the robbery.

^*  Senior Justice J. Harvey Hudson sitting by assignment.