Kevin Antonio Caballero v. the State of Texas

Opinion issued March 31, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00878-CR
NO. 01-19-00879-CR
———————————
KEVIN ANTONIO CABALLERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case Nos. 1594160, 1594161
OPINION
Kevin Antonio Caballero was convicted of two counts of aggravated assault
with a deadly weapon and sentenced to 30 years’ confinement.1 The charges
1
See TEX. PENAL CODE § 22.02.
stemmed from Caballero shooting two men during what was intended to be a
fistfight in his friend’s backyard.
In this direct appeal, Caballero raises a single issue—that he received
ineffective assistance of his retained counsel during the guilt-innocence and
punishment phases of his trial. The State points out that Caballero raised this same
issue in a denied motion for new trial and requests that we treat Caballero’s issue
as a challenge to the denial of his new-trial motion, which would invoke a more
deferential standard and require us to view the record in the light most favorable to
the trial court’s ruling.
We agree that the ineffective-assistance claim must be analyzed on appeal as
a challenge to the denial of Caballero’s motion for new trial in which he asserted
the same claim. But we conclude that the trial court abused its discretion in
denying the new-trial motion and, therefore, reverse and remand for a new trial.
Background
The events leading to Caballero’s conviction happened in the backyard of a
home owned by K. and E. Singleton.
K. Singleton had the idea that ongoing tensions between a young man living
in her home, Ashton Smading, and another man, Matt Brown, needed to be
resolved through a fistfight to avoid tensions erupting into a gunfight. Singleton
arranged for Smading and Brown to fight in her backyard. Each brought friends as
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“backups” to protect them from being “jumped” during the one-on-one fight.
Smading brought Caballero. Brown brought three men: D. Byars, S. Bell, and Z.
All men, except Smading, went to the backyard. Smading stayed in the
house and left Caballero alone in the backyard with Brown and his three friends.
K. Singleton was also in the backyard. There is video evidence of what happened
next in the fight because the Singletons’ home surveillance videos were admitted
as evidence and played for the jury.
The first four videos show events leading to the shooting. In the first video,
Caballero is seen arriving alone to the Singleton/Smading home. In the next video,
K. Singleton is seen removing a trash can and recycling bin from the backyard
before the fistfight. In the third video, Brown and his three friends set their
belongings on the ledge of the privacy fence and gather for the fight in the
backyard. Brown is hopping up and down, punching the air. He engages in a brief,
friendly spar with one of his friends as he waits. In the fourth video, Caballero
walks to the far corner of the fenced yard and turns toward Brown and his friends
with no yard space behind him. The key video is the fifth video.
In the fifth video, all men appear to be waiting for Smading. Caballero is
seen squatting down, with his back to the far corner of the fenced yard. Brown and
Bell are standing near Caballero. Byars, Brown’s other friend, is standing on the
other side of the privacy fence. And Singleton is standing at the entrance of the
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backyard gate. Brown and his friends are standing near Caballero. The men are
talking, but there is no audio on the recording to know what is being said or to
whom. Brown and Bell appear to be talking, and Bell points his finger at Caballero
and then walks away. Caballero stands, pauses, then walks toward a nearby gate in
the privacy fence. Byars and Singleton are standing at the gate opening. Caballero
backs away as he runs his hands through his hair. He then pushes forward to the
gate again and moves past Singleton and Byars, who turns but remains at the gate.
Brown, Bell, and Z move toward the gate. Caballero is in what appears to be a
space between the privacy fences of neighboring homes. Caballero then moves out
of view.
Brown and his three friends are at or around the gate, when, suddenly, they
lurch, duck, and run. Byars is seen collapsing on the other side of the privacy
fence. Caballero comes back into view. He is holding a gun, shooting toward the
men in the backyard. Brown jumps over the backyard fence for cover. Caballero
moves out of view again, just briefly. As he comes back into view, he is seen
reaching into his shorts pocket, pulling out a black object, and bringing it up
toward his gun. He moves out of view again. Bell also runs toward the backyard
fence and jumps over.
All men are out of view at this point, except Byars. Byars is lying on the
ground in the space between the privacy fences. His legs are visible, but his upper
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body is obscured from view by a privacy fence. Caballero is not in view. Byars is
motionless until, suddenly, his leg twitches high into the air.2 After a moment,
Byars stands and hurries out of view. There are blood stains on his t-shirt. The
video ends with an empty backyard.
A. The State’s theory of the case
The State established its theory of the case in opening statements. The
prosecutor told the jury that Caballero brought “a gun to a fistfight” and “start[ed]
shooting at everyone execution style.” Caballero was trying “to kill” Brown and
his friends “pointblank, unprovoked.” The prosecutor characterized the two men
who were shot—Byars and Bell—as merely “in the wrong place, the wrong time,
not trying to hurt anybody.” They were “there because their friend was supposed to
be in a fistfight.” The evidence would show, the prosecutor said, that no one
approached or tried to beat up Caballero. More specifically, the prosecutor said
that Brown and his friends “never threaten[ed]” Caballero. Throughout trial, the
prosecutor framed the shooting as an unprovoked attempt to execute unarmed,
harmless bystanders.
The trial proceeded with the State calling witnesses without an opening
statement from the defense.
2
The jury was told that Byars’s leg rose suddenly because he was shot in the back,
“execution”-style.
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B. The State’s three witnesses
The first witness was K. Singleton. She testified about the layout of her
house and backyard. She authenticated the surveillance videos the police obtained
from her home security system and testified that they accurately represented what
happened that day. And she identified Caballero in the courtroom.
Singleton testified that there was supposed to be a fistfight in her backyard
between Brown and Smading. She invited them to her house to fight so that they
could resolve their disputes. She told them it would be a fistfight only, no weapons.
Singleton “patted down” Brown and his friends to make sure they did not have
weapons. She did not think to pat down Caballero, who arrived later.
She described Brown and his friends as being “hyped up” and “very
mouthy.” She told them there would be “no jumping” the other side. Asked what
happened when Caballero went around the corner, she testified that he “pulled out
a gun and started shooting.” She added, “The guys were trying to jump him.” At
that point, she ran and hid in her garage. She described the sound of gunfire,
stating that it “sounded like everybody was shooting.” The prosecutor did not ask
anything further about threatening conduct directed toward Caballero.
On cross-examination, Singleton said the men appeared to “have it out for”
Caballero. Caballero’s counsel asked her why she thought that. She said it was
based on what they were saying to Caballero. The State objected to testimony
6
about what Brown and his friends said, asserting it was hearsay. The court
sustained the objection. Caballero’s counsel abandoned any effort to obtain
testimony about threatening comments to Caballero. He did not make an offer of
proof to memorialize the testimony he was not allowed to elicit.
Rather than pursuing testimony about any threatening comments that could
lay the groundwork for a potential self-defense claim, counsel asked Singleton
whether it appeared to her, having been an eyewitness to the events, that Caballero
was in imminent danger. The State objected that the question called for
speculation. The trial court sustained the objection. Again, counsel did not make an
offer of proof to memorialize the testimony he was not allowed to elicit.
Throughout the cross-examination, the only question that pointed toward
any defensive theory was a question confirming Singleton’s testimony that she
thought Brown and his friends were going to “jump” Caballero.
The next witness was S. Bell. He said he was sitting in a bar with friends
when Brown got a text to meet at a neutral location to fight. They went to
Singleton’s backyard. He understood that it was supposed to be a one-on-one fight
between Brown and someone else. Bell approached Caballero in the backyard to
tell him to go get his friend for the fight. The “next thing” that happened was
gunshots. Bell was shot in the arm. He hid behind an air conditioner. While
Caballero reloaded, Bell ran. That is when he was shot in the back. Bell was
7
treated for a collapsed lung. His doctors did not remove the bullet from his back,
fearing the surgery would cause more damage. Bell identified only Caballero as the
shooter. He testified that Caballero was the only person who became violent.
The State’s third witness was S. Byars, the other man shot that day. He
testified that he was at a bar and asked Brown for a ride home. As they drove,
Brown took a phone call and then told Byars that they were going to another
location for Brown to fight someone. They went to the backyard, but the guy did
not come out. Byars got a “bad feeling” about it.
According to Byars, he did not hear Caballero being threatened. He did not
know Caballero, and he did not threaten Caballero. Byars testified that he saw
Caballero turn to leave and then turn back with a gun. Caballero said nothing. He
turned and shot. Byars was shot twice in the arm. He was shot again in the back
while lying on the ground. The gunshot to his back exited at his armpit, coming
within an inch of his heart. He had a metal plate placed in his arm, which reduced
his mobility. He identified Caballero as the shooter.
C. Caballero’s opening statement
The defense’s opening statement, where Caballero’s defensive theory was to
be presented to the jury, was only a single page of text in the trial transcript: 25
lines. Counsel told the jury the evidence would show that Caballero planned to tell
Brown that Smading was not coming out, that things got “kind of crazy,” that
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Caballero was “walking out” but “folks begin to follow him,” that Caballero
determined he was “in mortal danger,” and that Caballero used a weapon to defend
himself because he was “in danger of his life.”
D. Caballero’s only witness: himself
Caballero called no witnesses other than himself. He said he and Smading
were friends. On the day of the shooting, after going to eat lunch, they returned to
Singletons’ house, where Smading lived. K. Singleton told Smading about the
planned fight. Smading said he was not going to come outside to fight. Smading
told Caballero to tell the others that he was not coming out.
Caballero testified that Smading handed him a gun. Caballero believed
Brown and his three friends were “there for something else, not for a one-on-one.”
He did not want to leave K. Singleton alone in the backyard with the other men. He
was concerned. He went to the corner of the backyard, with his back against the
fence. The other men were “talking recklessly, acting very violently” toward him.
He sat there for a minute or two. They were threatening him. He thought he was
“about to get beat up real bad.” He decided he needed to get out of there and tried
to leave. But when he saw the men follow him, he pulled out the gun and shot. He
did not think he could have fought them off. According to Caballero, he was
“literally trying to fight for [his] life.” The only description the jury heard, though,
9
about what may have been said to Caballero before the gunshots was that there had
been “aggressive talk” by the other men.
During this testimony, Caballero’s counsel repeatedly told him not to relay
what anyone had said to him, apparently trying to avoid eliciting hearsay. He had
Caballero vaguely confirm that the men said something to him, without specifying
what the men said. Because counsel did not pursue Caballero’s testimony about
any threatening comments to the point of eliciting a hearsay objection, no moment
arose for an offer of proof for the appellate record—assuming a sustained hearsay
objection—first, what threatening comments were made, and, second, evidence to
substantiate Caballero’s testimony that his life was in danger. Caballero’s defense
abandoned all effort to establish any threatening conduct toward Caballero or to
develop evidence of his state of mind as he drew the weapon.
On cross-examination, Caballero testified that he shot the men because they
were following him and he feared for his life. He thought they would pursue him
and “beat [him] to a pulp.” He felt he needed to shoot them to defend himself.
Caballero admitted to shooting Byars but denied he was the person who shot
the last bullet into Byars’s back while he was on the ground. The prosecutor asked
whether there were “some magic other bullets” that hit Byars in the back if it was
not bullets from Caballero’s gun. After some back and forth about whether
Caballero ever reloaded his gun, Caballero testified that his gun was empty before
10
Byars was shot in the back. Caballero then said Smading fired the shot through the
window that struck Byars in the back. The prosecutor responded, “Okay. Wow.
That is amazing. First time we’re hearing this.” The State dismissed Caballero’s
identification of Smading as a shooter as fanciful.
After Caballero’s testimony, both sides rested.
E. Closing arguments
In the State’s closing argument, the prosecutor argued that Caballero was not
legally justified in using deadly force unless he thought that Brown and Brown’s
friends were attempting to use deadly force against him. He argued there was no
evidence of that. Instead, the evidence indicated that Caballero turned and shot
men who were cornered in an enclosed backyard. He kept shooting even as they
ran away.
In the defense’s closing, Caballero’s attorney reminded the jury that
Singleton had testified—twice—that she thought Brown and his friends were going
to “jump” Caballero. He argued that Caballero felt threatened.
The State’s rebuttal focused on the gunshots after the men began to scatter.
Some bullets went through the privacy fence where some of the men were on the
other side running away. Another bullet went into Byars, who was on the ground,
injured. The prosecutor argued that none of those shots could be justified as
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self-defense. Caballero was shooting at fleeing men. He shot an injured man, who
was already down, “execution”-style. Self-defense, he argued, did not apply.
The jury returned guilty verdicts on both aggravated assault charges. During
the punishment phase, Caballero’s sister and the mother of his young child both
testified, seeking leniency.
Caballero’s counsel also called Bell—one of the people Caballero was
convicted of shooting. Counsel asked Bell about sentencing. Bell said that
Caballero tried to take “years” from him and Byars and added, “So I mean, you
want my truth, 60 years.” Caballero’s counsel replied, “All right. That’s fair.”
Counsel asked for Bell’s agreement that Bell and the others’ presence might
have been “kind of intimidating” for Caballero. Bell testified that Caballero saw
Singleton pat him and his friends down for weapons, knew they did not have
weapons, knew he did have one, and still “made the choice to shoot [Bell] instead
of, if he was in fear for his life, to run when he had an opening.” Bell emphasized,
“He made that choice, not me.”
Caballero testified next. When asked about his statement that there was a
second shooter, Caballero testified that it was something someone had told him
happened. There were no follow-up questions about the possibility that Smading
shot Byars in the back and possibly did some of the other shooting as well.
Caballero asked for leniency, stating that he wanted to be a father to his son and to
12
help his sister. His counsel noted that Caballero was 27 years old and then asked
Caballero for a number to tell the judge. Caballero responded, “Something I can do
so I can be able to come out, 15 or so.” Caballero planned to become a truck driver
when he got out and to care for his child, his sister, and her child.
On cross-examination, the prosecutor asked Caballero about reloading his
gun and shooting Byars in the back. Caballero denied he did so. Caballero’s
counsel followed up on redirect. Caballero testified that, after the shooting,
Smading admitted to him that he shot bullets from an upstairs window of the
house. The jury never heard testimony about any admission by Smading during the
guilt-innocence phase of the trial.
Finally, during closing arguments, Caballero’s counsel asked the court to
sentence Caballero to the 15 years he requested, adding: “We were close to that
prior to going to trial.” Counsel noted that Caballero would be eligible for parole,
at the earliest, at 7.5 years if sentenced to 15 years. In turn, the State emphasized
that it was only luck that kept this from being a capital murder case, given that the
bullet passed only one inch from Byars’s heart. The State requested a sentence of
50 years.
The court sentenced Caballero to 30 years for each offense, to run
concurrently, with credit for the 3.5 years he was in custody awaiting trial.
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F. Caballero moves for a new trial, arguing ineffective assistance of
counsel
At the new-trial hearing, Caballero made several specific criticisms of his
prior counsel’s performance during all phases of his criminal trial. These criticisms
are not distinct or isolated from each other. The interplay between the alleged
deficiencies and how some created others necessarily affects our analysis. First, we
list the alleged harmful omissions of defense counsel. Caballero maintained his
counsel did not
• meet with him during the months and weeks leading up to trial;
• communicate a 15-year plea offer that was half the amount of his
eventual sentence and equal to his requested sentence;
• meet with prospective witnesses who would have bolstered
Caballero’s self-defense claim;
• engage an investigator to learn the facts of the case even though the
trial court had authorized the hiring of an investigator;
• understand the basic facts of the shootings for which Caballero was
being tried;
• show the jury that the complainants whom the State described as
simply being in the wrong place at the wrong time had weapons in
their cars that they used in a gunfight with each other just minutes
after Caballero drove away; or
• understand the law well enough to
o (1) overcome a frivolous hearsay objection that kept crucial
self-defense evidence from the jury,
o (2) get critical self-defense-related instructions in the jury
charge, or
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o (3) know that Caballero did not need to testify for the jury to be
instructed on self-defense.
Second, we list what Caballero says his counsel actively did that was
prejudicial ineffective assistance. His counsel
• called Caballero to the stand without preparing him to testify, without
understanding that threatening statements made to Caballero before he
shot the complainants were admissible and could be recited in support
of a self-defense claim, and without determining what facts Caballero
might testify to; and
• called a complainant to the stand without having interviewed him,
asked the complainant open-ended questions including what sentence
the complainant wanted the court to impose, and when the
complainant suggested a 60-year sentence, added to the already
damaging effects of the testimony by responding, “That’s fair.”
Caballero submitted affidavits in support of his motion for new trial. The
thrust of the evidence was that Caballero had a robust self-defense theory that the
jury never heard because of his counsel’s deficient representation.
The first affidavit is from K. Singleton. She was an eyewitness to the
shooting. She was on the State’s trial witness list. The State called her as a witness,
and Caballero’s trial counsel cross-examined her. In her affidavit, Singleton stated
that no one from the defense team ever contacted her.
Although the trial court authorized Caballero’s trial counsel to retain an
investigator to investigate the facts of the offense, there are no bills in the record to
indicate that the investigator investigated anything. But Singleton had key
information relevant to Caballero’s potential self-defense claim.
15
Singleton’s post-trial affidavit stated that Smading had asked Caballero to be
his backup in the fistfight. Once in her backyard, Brown and his three friends were
“all pumped up and ready to fight.” To her, Caballero looked scared. Caballero
“was squatted down in the corner just waiting for [Smading] to come out.” Brown
and his friends became impatient and menaced Caballero. She continued,
They were getting ready to attack [Caballero], I felt that. Next thing
you know, I look over and these guys were trying to jump [Caballero].
[Smading] was nowhere to be found so [Caballero] was still alone up
against these four guys. . . . [One of Brown’s friends,] S[.] Bell, the
same one who asked me to turn off the video, was calling [Caballero]
all kinds of names. He was telling him he was “going to kick his teeth
down his throat.” [Caballero] was already squatted down so if he got a
kick to the face that very well could have happened. [Bell] also said to
me in front of [Caballero], “I just wanna let you know that we are
gonna f– – Kevin up.”
She said that, once the shooting started, she heard a lot of shots. At first, she
thought Brown and his friends must have been shooting back, but then she found
out it was Smading shooting from inside the house. She explained,
I ran inside my house as soon as the shooting started. I heard a ton of
shots so I thought that [Brown] and his friends must have snuck guns
past me. I later found out that [Smading] was actually shooting at the
backyard from a window inside the house.
Singleton confirmed that no one asked her about Smading as the second shooter
when she testified at trial.
At [Caballero’s] trial, I testified for the [S]tate after a subpoena was
sent to me. The only thing they allowed me to talk about was my
address, the video, identifying [Caballero], who was in the backyard
of my house, and my actions leading up to the fight. I would have said
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much more if I hadn’t been cut off. . . . [Caballero’s] attorney didn’t
even know what to ask me because he had never talked to me before.
Finally, she confirmed her then-belief that Caballero was acting in self-defense.
I believe [Caballero] was acting in self-defense. I could see that he
was scared and I felt that same fear which is why I ran into my house.
I don’t think [Caballero] ever had any intention of hurting or shooting
anyone. I would have told the jury all of this if I had had the
opportunity and my testimony would have been favorable to
[Caballero].
Singleton’s affidavit aligned with a second affidavit provided by her
husband, E. Singleton. He testified that Caballero’s defense counsel never
contacted him either. The prosecutor interviewed him and decided not to call him
as a witness. If he had been called as a witness, he would have testified that he was
inside the house with Smading when the shooting started.
Once we heard shots start to go off outside, [Smading] and I were the
only two people inside of the house. [Smading] was in my bedroom
and I was in the hallway. I heard him fire off at least four (4) shots
from my bedroom. I could tell they were different shots than the ones
coming from outside because they were closer to me and much louder.
[Smading] told my wife and I he had to leave before the police got
there because he had residue on his hands.
Other evidence in the record indicates that the prosecutor knew—at the time
of Caballero’s trial—that Smading had given a recorded statement to police on the
day of the shooting in which he admitted that he shot a gun from inside the
Singletons’ house into the backyard. Though the State knew this, it appears
defense counsel never did. Thus, Smading’s statement did not inform defense
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counsel’s choice of questions for Singleton during her cross-examination or for
Caballero during his direct examination.
The third affidavit submitted in support of Caballero’s new-trial motion was
from a person who confirmed that she had listened to Smading’s statement and that
her attached transcription of it was correct to the best of her ability. In the
recording, Smading tells an officer that he shot a weapon that day in self-defense.
He was inside the house. There were “guys with guns” in his backyard. He was
asked, “Did you have to shoot outside the house to—from inside the house out—
to, to defend yourself or . . .? And Smading responded, “Yes, sir.” Thus, the
substance of Smading’s statement to the police on the day of the shooting was
consistent with what the Singletons said in their post-trial affidavits—that Smading
fired shots from inside the house.
The fourth affidavit was from Caballero’s trial counsel. Counsel conceded
that he provided deficient representation and that the deficiencies harmed
Caballero. He described his deficiencies by grouping them into six categories, but
those six categories do not fully cover all the claims of deficiency raised at the
new-trial hearing and on appeal. He admitted he was deficient in these ways:
(1) not engaging in plea negotiations or conveying any plea deal to
Caballero “until the week before trial began”;
(2) not asking for a jury charge instruction on multiple assailants in
connection with a self-defense claim;
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(3) not offering evidence at trial that Brown and his friends had access to
guns stored in their vehicles, that they had a gunfight with Smading in
the Singletons’ front yard immediately after Caballero left, or that
Smading shot into the backyard at Brown and his friends through a
bedroom window;
(4) advising Caballero that he had to testify to get a self-defense
instruction even though, unknown to counsel, that is not the law;
(5) asking a complainant during the punishment phase of the trial how
long Caballero’s sentence should be, even though counsel had never
interviewed the complainant and had no idea how the complainant
might answer the question; and
(6) filing an ineffective motion for new trial without contemporaneous
representation of the client, without supporting evidence, and without
setting the motion for hearing.
Counsel did not include in his affidavit any discussion of his pretrial investigation.
Nor did he confirm what the Singletons said, which is that he never contacted them
to learn what they were able and willing to testify to, if called.
Counsel concluded his affidavit by stating that he “was ineffective as
[Caballero’s] counsel at many points throughout [the] representation . . . and [he]
take[s] responsibility for that.” He agreed “that cumulatively [the] deficient
performance was harmful to [Caballero] at both the guilt[-]innocence phase and
punishment phase of trial.” And he confirmed that he had no strategic reason for
the lapses in his representation outlined in the six points above.
The State’s presentation at the new-trial hearing had four parts. The first
concerned plea negotiations. Caballero claimed in his affidavit that he was never
told about a 15-year plea offer. The prosecutor testified at the new-trial hearing,
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though, that he personally told Caballero of the 15-year offer a few days before
trial began, he left Caballero and his trial counsel alone for a private conversation
that he assumed was about the offer, and then counsel declined the offer. The trial
court was within its discretion to believe the prosecutor’s version of events.
The second part of the State’s presentation concerned Caballero’s role in the
shooting. The prosecutor testified to his belief about what happened in the
backyard the day Caballero shot Bell and Byars. His interpretation of the fifth
video was that Caballero had an open route to leave the backyard and left briefly,
the other men stayed “fairly stationary” (i.e., were not aggressively following
Caballero), yet Caballero turned back and shot these men who were, in the
prosecutor’s words, “cornered, for lack of a better word” in the backyard. In his
view, the video showed that Caballero reloaded his gun before moving offscreen to
shoot Byars in the back “execution”-style as Byars laid helpless on the ground. The
prosecutor stated his belief that Caballero was the only shooter in the backyard.
On cross-examination, the same prosecutor agreed that he had studied all
available evidence in preparation for Caballero’s trial. He admitted that he knew
about the recorded police statement Smading gave on the day of the shooting:
DEPUTY TCHUDY: [T]oday is June 4, 2018, it’s 10:30 p.m.,
Deputy Tchudy with the Harris County
Sheriff’s Office, Violent Crimes Unit.
What’s your name?
ASHTON SMADING: Ashton Smading.
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DEPUTY TCHUDY: Alright Ashton. Uh . . . what’d you wanna
have to say?
ASHTON SMADING: That I did shoot my weapon in self-defense.
And they were on my property. And that’s
all.
DEPUTY TCHUDY: So you shot a - a weapon in self-defense
earlier today. Where were you at when this
happened?
ASHTON SMADING: Inside of my house.
DEPUTY TCHUDY: Inside the house when you shot? Okay.
Um . . . did uh, you weren’t outside the
house when you were shooting?
ASHTON SMADING: No.
DEPUTY TCHUDY: In the driveway? Okay. Um . . . and that
was the gun that was found beneath,
underneath your seat in your driver’s -
ASHTON SMADING: Yes, sir.
DEPUTY TCHUDY: On the driver’s side of your car right? K.
What type of gun is it, you know?
ASHTON SMADING: Taurus thirty-eight special.
DEPUTY TCHUDY: Thirty-eight special? Okay. So uh . . . you
shot your gun in self-defense. Why did you
feel in fear for your life or what - what were
the circumstances surrounding that?
ASHTON SMADING: Some random guys with guns around my
house. I mean -
DEPUTY TCHUDY: Okay. In the backyard or front yard?
ASHTON SMADING: In the backyard.
DEPUTY TCHUDY: Okay. And uh . . . so you were inside the
house. Did you have to shoot outside the
house to, from inside the house out to, to
defend yourself or?
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ASHTON SMADING: Yes, sir.
DEPUTY TCHUDY: Okay. Um . . . anything else you wanna tell
me in reference to that?
ASHTON SMADING: No, sir.
DEPUTY TCHUDY: Okay, um, I’m just confirming that you
wanted to - to tell us about the guns to
make sure that we understood why that the
gun was shot and that it was shot and it was
shot by you in self-defense.
ASHTON SMADING: Yes, sir.
At the new-trial hearing, the prosecutor would not acknowledge that
Smading’s statement meant that Smading had fired shots into the backyard from
inside the house. But he did concede that Smading’s statement—however this
prosecutor was interpreting it—was inconsistent with his just-stated position and
the State’s trial theory that Caballero was the only shooter.
Still discussing Smading’s pretrial statement, Caballero’s new-trial-hearing
counsel and the prosecutor had a lengthy discussion about one exchange before the
jury during Caballero’s criminal trial. The prosecutor had been cross-examining
Caballero when he pressed Caballero about shooting Byars as he was lying on the
ground. Caballero denied doing that, stating that Smading fired that shot. The
prosecutor responded in front of the jury: “Okay, wow. That is amazing. First time
we’re hearing this.”
Caballero’s new-trial-hearing counsel characterized the prosecutor’s
response as a sidebar scoff at the idea of another shooter that made Caballero’s
22
claim of self-defense seem laughable to the jury. He asked the prosecutor how
Caballero’s implication of Smading could have been “amazing” or surprising as he
had explained given that the prosecutor knew of Smading’s statement before the
trial began. The prosecutor was already aware of Smading as a possible second
shooter when Caballero testified about it at trial.
The prosecutor explained that he was in “shock” that Caballero implicated
Smading so late in the trial. In the prosecutor’s view, Caballero had many
opportunities to develop the evidence of Smading being a shooter during the
cross-examination of K. Singleton and during his own direct examination, yet
Caballero never brought it up until this late point in his cross-examination. The
prosecutor stated, “My shock was: Why did you bring it up just now when you’ve
had all day to say otherwise?” In other words, he claimed he was reacting to the
defense waiting until the eleventh hour to implicate Smading, not to the idea that
Smading might have been a second shooter.
The third part of the State’s presentation went to the veracity of the
Singletons and defense counsel who submitted affidavits supporting the new-trial
motion. The State posited that the Singletons now had a reason to blame Smading
instead of Caballero: Smading died of an overdose and would face no
consequences from shifting blame to him to help Caballero. And defense counsel
was “falling on his sword” to help his former client.
23
The fourth part concerned trial counsel’s representation and any harm it
caused. According to the State, whether defense counsel was deficient is a “close
call.” But regardless, any deficiencies did not affect the criminal trial because there
was overwhelming evidence of guilt—Caballero admitted shooting these men and
there was video evidence of him doing it.
Defense counsel argued that there is a significant difference between a
scenario where a man shoots repeatedly, unprovoked at “cornered,” unarmed men,
including a wounded man lying on the ground, versus a scenario where a man is
about to be attacked by four men and shoots briefly in self-defense while another
man is shooting additional gunshots through a window, including the shot that
struck Byars while on the ground. The first scenario looks like an execution. That
is what the jury heard and imposed a 30-year sentence. The second scenario sounds
more like self-defense. But the jury never heard the second scenario.
The trial court denied the motion for new trial without issuing fact findings.
Analysis
Caballero contends he received ineffective assistance of counsel during both
the guilt-innocence and punishment phases of his criminal trial.
A. Proper framing of appellate issue to determine deference required
Caballero does not frame his appellate issue as a challenge to the denial of
his motion for new trial after a hearing. Instead, he directly appeals whether he
24
received ineffective assistance of counsel. Because Caballero raised his
ineffective-assistance claim in a denied motion for new trial, however, we analyze
the claim on appeal as a challenge to the trial court’s ruling on that motion, and we
review the ruling under an abuse-of-discretion standard. See Charles v. State, 146
S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by
TEX. R. APP. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905
n.5 (Tex. Crim. App. 2007); Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d); cf. Norris v. State, No. 05-16-00397-CR,
2017 WL 1075613, at *3 (Tex. App.—Dallas Mar. 21, 2017, no pet.) (mem. op.,
not designated for publication). We will reverse the trial court’s ruling only if the
decision to deny the new-trial motion was arbitrary or unreasonable, viewing the
evidence in the light most favorable to the ruling. Riley v. State, 378 S.W.3d 453,
457 (Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548
S.W.3d 497 (Tex. Crim. App. 2018); Starz, 309 S.W.3d at 118.
Trial courts are in a better position to evaluate the credibility of witnesses
and resolve conflicts in evidence than appellate courts, which must rely on a
submitted record. See Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App.
1999). Accordingly, we defer to the trial court’s decision to believe or disbelieve
all or any part of a witness’s testimony. See id. This same deference applies when
the testimony is by affidavit. See Manzi v. State, 88 S.W.3d 240, 243–44 (Tex.
25
Crim. App. 2002). If there are two permissible views of the evidence, the trial
court’s choice between them cannot be held to be clearly erroneous. Riley, 378
S.W.3d at 457. Thus, a trial court abuses its discretion in denying a motion for new
trial only when no reasonable view of the record could support the trial court’s
ruling. Id. at 457–58; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
When, as here, the trial court makes no findings of fact on the denial of a
motion for new trial, we “impute implicit factual findings that support the trial
judge’s ultimate ruling.” Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App.
2005). But there is a limitation on imputing factual findings: we will only impute
implicit factual findings that “are both reasonable and supported in the record.” Id.;
see Escobar v. State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d).
B. Standard for ineffective assistance of counsel
The Sixth Amendment of the United States Constitution guarantees an
accused’s right to the reasonably effective assistance of counsel in criminal
prosecutions. U.S. CONST. amend. VI; Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011) (right to counsel “does not provide a right to errorless counsel,
but rather to objectively reasonable representation”). To prove a claim for
ineffective assistance of counsel, an appellant must establish, by a preponderance
of the evidence, that (1) his trial counsel’s representation fell below an objective
26
standard of reasonableness and (2) there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez, 343
S.W.3d at 142. In determining whether there was a reasonable probability of a
different result but for the ineffective assistance, courts look for a “probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
When conducting a Strickland analysis of alleged ineffective assistance of
counsel, we look to the totality of the representation to determine counsel’s
effectiveness. Cf. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App.
2006) (setting forth standard on direct appeal). The purpose of the Strickland
two-pronged test is to assess whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be said to have produced
a reliable result. See Strickland, 466 U.S. at 686.
The appellant bears the burden to establish both prongs, and his “failure to
satisfy one prong of the Strickland test negates a court’s need to consider the other
prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see
Lopez, 343 S.W.3d at 142 (“Unless appellant can prove both prongs, an appellate
court must not find counsel’s representation to be ineffective.”).
27
C. Deficient performance: failure to investigate and prepare a coherent
defensive theory
Caballero argues that he received ineffective assistance of counsel at trial
when his trial counsel failed to, among other things, (1) do any meaningful
preparation or investigation for trial, (2) interview witnesses, or (3) present
evidence in support of a self-defense theory. We address these three arguments
together because adequately investigating and preparing for trial includes, among
other things, interviewing and presenting witnesses, including the
defendant. See Perez v. State, 403 S.W.3d 246, 251 (Tex. App.—Houston [14th
Dist.] 2016), aff’d, 310 S.W.3d 890 (Tex. Crim. App. 2010).
A criminal defense attorney “must have a firm command of the facts of the
case as well as governing law before he can render reasonably effective assistance
of counsel.” Ex parte Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App. 1990).
Counsel has a duty to make reasonable investigations or to make a reasonable
decision that a particular investigation was unnecessary. Strickland, 466 U.S. at
691. Counsel’s failure to conduct an adequate investigation may constitute
ineffective assistance. See Wiggins v. Smith, 539 U.S. 510, 521–52 (2003).
Part of the duty to investigate is counsel’s responsibility to seek out and
interview potential witnesses. Ex parte Welborn, 785 S.W.2d at 394. To
demonstrate ineffective assistance of counsel based on an uncalled witness, an
appellant must show two things: (1) the witness would have been available to
28
testify and (2) the witness’s testimony would have been of some benefit to the
defense. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007); Ex parte
White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004).
A decision by counsel to not conduct a particular investigation is directly
assessed for reasonableness in all the circumstances, and appellate courts are
required to provide a heavy measure of deference to counsel’s judgments.
Strickland, 466 U.S. at 691; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App.
1986); Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.]
2018, no pet.). An appellant cannot show ineffective assistance based on failure to
investigate and adduce evidence without showing what the investigation would
have revealed that reasonably could have changed the outcome. See Stokes v. State,
298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); see also
Butler, 716 S.W.2d at 55. To determine whether an appellant was prejudiced from
a failure to investigate and present evidence, this Court must “compare the
evidence presented by the State with the ‘evidence the jury did not hear due to trial
counsel’s failure to investigate.’” Perez v. State, 310 S.W.3d 890, 896 (Tex. Crim.
App. 2010) (quoting Butler, 716 S.W.2d at 56).
An appellate court will not reverse a conviction based on failure to
investigate unless the consequence of that failure “is that the only viable defense
available to the accused is not advanced.” Donald, 543 S.W.3d at 477; see
29
Muirhead v. State, No. 02-20-00089-CR, 2021 WL 4472626, at *6 (Tex. App.—
Fort Worth Sept. 30, 2021, no pet.) (mem. op., not designated for publication);
Bahr v. State, 295 S.W.3d 701, 712 (Tex. App.—Amarillo 2009, pet. ref’d).
Case law is not fully developed on the issue of what constitutes an available
defense being “advanced” to preclude reversal or “not advanced” to compel
reversal for ineffectiveness. A defense is advanced when counsel vigorously
presents the defensive theory through lengthy cross-examination of witnesses. See
Flores v. State, No. 01-20-00213-CR, 2022 WL 961554, at *16–17 (Tex. App.—
Houston [1st Dist.] Mar. 31, 2022, pet. filed) (mem. op., not designated for
publication). On the other hand, it is not advanced when counsel fails to interview
any witnesses, fails to follow up on a lead from his client about a possible alibi
witness, records less than two hours of work in preparation for trial, and fails to put
on any evidence at trial. See Perez, 403 S.W.3d at 251. Here, counsel’s defensive
actions fall in the middle.
Caballero’s counsel presented a defense to the extent he told the jury that
Caballero claimed self-defense; elicited a single, vague statement from
K. Singleton during cross-examination that she thought the group of men was
going to “jump” Caballero; and elicited statements from Caballero on direct
examination that he did not think he could get away from the men who were acting
violently and that he felt that he was fighting for his life.
30
But counsel did not present to the jury a coherent explanation of why
Caballero felt threatened enough to resort to lethal force. While the jury heard the
word “self-defense,” they never heard a sufficient explanation for Caballero’s fear.
That was, at least in part, due to counsel actively avoiding any questions to
witnesses that might elicit direct quotes of any threatening statements made to
Caballero in the backyard. On appeal, Caballero argues that counsel’s tactic was an
ill-conceived attempt to avoid a hearsay objection. He points to places in the trial
transcript where counsel told witnesses that they could not repeat what someone
else said, thus closing off all testimony about any threats Caballero received before
he drew a gun.3
Not only did counsel fail to present any coherent explanation for any need
for self-defense, but counsel also failed to adduce evidence of how Byars was shot
while lying on the ground already injured. The State argued to the jury that the
3
Here though, hearsay would not apply. The statements would not be offered for
the truth of the matter asserted but, rather, for how they made Caballero feel and to
gain insight into Caballero’s claim that he needed to defend himself. In other
words, a statement by a declarant that he is going to “kick in [someone]’s teeth”—
which K. Singleton claims in her post-trial affidavit Bell said to Caballero—would
be offered for how it made Caballero feel and to explain Caballero’s response, not
for the truth of whether Bell would really kick Caballero’s teeth in. See TEX. R.
EVID. 801(d)(2); McGowan v. State, 188 S.W.3d 239, 243–44 (Tex. App.—Waco
2006, pet. ref’d) (complainant’s statement “I know you don’t want to go to war
over $50” was not hearsay because it was offered for declarant’s state of mind, not
statement’s truth). Alternatively, the statement could qualify as an exception to
hearsay as a then-existing mental or emotional condition. See TEX. R. EVID.
803(3); Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (en banc)
(complainant’s statement that she was afraid of appellant was indicative of her
state of mind and fell within exception to rule against hearsay).
31
final bullet fired into Byars was shot by Caballero, who attempted to execute a
defenseless, injured man long after everyone else had fled. To mount his own
defense, Caballero spontaneously asserted on cross-examination that Smading fired
that last gunshot at Byars. When Caballero made that isolated statement without
context or supporting testimony, the prosecutor openly scoffed that Caballero’s
claim was “new” and derided it as “magic bullets.” Defense counsel advanced
nothing during guilt-innocence in support of the defensive theory that someone
else shot Byars as he was lying on the ground. Caballero’s counsel’s post-trial
affidavit states that he had no strategic reason for failing to present such evidence.
That failure left the jury with no way to connect Caballero’s isolated statement,
which the State mocked, to other details of the shooting to develop an
understanding of what happened and why.
Case law does not tell us whether counsel uttering the word “self-defense” in
addition to one-off statements by the defendant about another shooter and by one
State’s witness about men possibly “jumping” the defendant qualify as having a
defensive theory “advanced” so that a failure to investigate or interview witnesses
is not deficient performance. The trial court necessarily determined that they do,
because it denied Caballero’s motion for new trial requesting relief on this basis.
We, then, must determine whether the trial court abused its discretion in denying
the new-trial motion.
32
The State argues that the standard of review for a denial of a new-trial
motion involves a great deal of deference to the trial court. Applying that
deference, it argues, we must conclude that the trial court found witnesses with
testimony in support of the denial were credible and that witnesses with testimony
opposing denial were not credible. The State further argues that defense counsel’s
failure to admit to inadequate investigation and inadequate interviews of potential
witnesses and failure to explain why he failed to do these things require this Court
to presume a strategic reason for his inaction. We do not agree that the applicable
standard of review insulates counsel’s performance to the degree the State asserts.
Caballero’s counsel admitted in his post-trial affidavit that there were
several points during Caballero’s trial that he acted without any strategic reason
and that his errors harmed Caballero. After pointing to specific errors, including in
the plea negotiations, charge conference, presentation of evidence on guilt or
innocence, presentation of evidence on punishment, and in the handling of
post-judgment motions, counsel stated: “I believe I was ineffective as [Caballero’s]
counsel at many points throughout my representation . . . and I take responsibility
for that. I acknowledge that cumulatively my deficient performance was harmful to
[Caballero] at both the guilt[-]innocence phase and punishment phase of trial.”
Counsel’s affidavit did not specifically admit to a lack of investigation as
one of his enumerated deficiencies. He did not admit to failing to visit Caballero in
33
the Harris County Jail for the 15 months he represented Caballero to understand
Caballero’s version of events and prepare him to testify. He did not admit to failing
to interview the Singletons. He did not admit to failing to investigate whether
Smading fired shots from the upstairs window or to not knowing that Smading
gave a recorded statement to police on the day of the shooting admitting to
shooting from the upstairs window. Counsel did not refute Caballero’s contentions.
While it is true that Caballero’s counsel was silent on these aspects of alleged
deficient performance, we do not agree that the record is silent as to whether
counsel failed to investigate or act strategically.
First, the Harris County jail records confirm that Caballero’s counsel never
once visited him in custody to learn his version of events and develop leads to hand
over to an investigator. See AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE
STANDARDS FOR THE DEFENSE FUNCTION 4-3.3(b) (4th ed. 2017),
https://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionF
ourthEdition/ (“Counsel should interview the client as many times as necessary for
effective representation, which in all but the most simple and routine cases will
mean more than once.”). Had counsel done this, he would have learned about the
possibility of Smading as a second shooter, the detailed facts of any self-defense
claim, and the need for further investigation of these two items. Although counsel
was mistaken that Caballero needed to testify to receive a self-defense instruction,
34
the need to prepare Caballero to testify would have prompted visits to the jail.
Instead, based on counsel’s misunderstanding of the hearsay rules, Caballero had
to wait until the State cross-examined him to present his self-defense testimony,
which landed without any support from other evidence.
Second, Caballero’s counsel admitted in his affidavit that he had no strategic
reason for failing to present evidence that Smading shot from the upstairs window.
There is an order from the trial court in the appellate record authorizing defense
counsel to hire an investigator to assist with case development, which could have
included interviewing Smading before he died. Yet there is no record of an
investigator submitting a bill for payment, which can only be reasonably
understood to mean that no investigator interviewed witnesses to be eligible for
payment. Though counsel did not explicitly admit that he failed to investigate the
Smading matter, he admitted that he had no strategic reason for keeping that
defensive evidence from the jury. See Aldrich v. State, 296 S.W.3d 225, 244–45
(Tex. App.—Fort Worth 2009, pet. ref’d) (failure to investigate based on
misapprehension of law was not strategic and constituted deficient performance);
see also AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE STANDARDS FOR THE
DEFENSE FUNCTION 4-4.1(a), (c) (4th ed. 2017), https://www.americanbar.org/grou
ps/criminal_justice/standards/DefenseFunctionFourthEdition/ (“Defense counsel
has a duty to investigate in all cases, and to determine whether there is a sufficient
35
factual basis for criminal charges. . . . Defense counsel’s investigative efforts
should commence promptly and should explore appropriate avenues that
reasonably might lead to information relevant to the merits of the matter . . .
[including] potential avenues of impeachment of prosecution witnesses[] and other
possible suspects and alternative theories that the evidence may raise.”).
Third, K. Singleton said in her post-trial affidavit that no one from the
defense interviewed her before the trial. E. Singleton said the same. Even if
counsel did not specifically admit that he failed to engage an investigator to
interview the Singletons and visit the scene of the shooting, the lack of an invoice
for an investigator supports the Singletons’ statements. Had counsel been aware of
a possible second shooter and the alleged threats Caballero received before he fired
his weapon and how to navigate the hearsay rules, the jury could have been
presented with a potentially colorable self-defense claim and heard evidence that
contradicted the State’s depiction of Caballero as an executioner. See Frangias v.
State, 450 S.W.3d 125, 138–44 (Tex. Crim. App. 2013) (failure to secure
deposition or request continuance to bring late-discovered witness to trial to
advance sole defense was ineffective assistance of counsel); Ex parte Amezquita,
223 S.W.3d 363, 368 (Tex. Crim. App. 2006) (failure to investigate cell phone
records pointing to another suspect was ineffective assistance of counsel).
36
This is not a silent record as to counsel’s strategic choices. When all
evidence in the new-trial record indicates that counsel failed to visit his client at
the jail or interview witnesses and counsel admitted to ineffective assistance of
counsel at “many points throughout my representation” in both the guilt-innocence
and punishment phases of trial, including presenting a defensive theory that
Smading shot at least some of the bullets that day, the normal presumption that
accompanies a “silent record” should not apply. Indeed, counsel was given the
opportunity to explain his trial strategy. See State v. Frias, 511 S.W.3d 797, 811
(Tex. App.—El Paso 2016, pet. ref’d).
We conclude the record demonstrates that Caballero’s counsel was deficient
in failing to investigate or interview witnesses to assist in presenting a coherent
defense at trial. He neither conducted a reasonable investigation nor made a
reasonable decision that made interviewing these eyewitnesses unnecessary. See
Wiggins, 539 U.S. at 521–22. Because of counsel’s failures, no cogent defense was
advanced. The first prong of the ineffective-assistance test is met.
The State points out that the Singletons may have been lying in their
post-trial affidavits. Smading died after Caballero’s conviction. With Smading no
longer facing the possibility of criminal punishment for the shooting, perhaps the
Singletons decided to shift blame to Smading to help Caballero. But this theory
ignores that the Singletons’ affidavits are consistent with Smading’s own version
37
of events that he gave to the police on the day of the shooting. Smading told the
police that he shot from inside the house. E. Singleton’s affidavit states that he
heard Smading shoot from inside the house. Further, K. Singleton stated in her
affidavit that there were so many shots fired, she thought more people were firing
weapons than just Caballero.
Even if the trial court doubted the Singletons and determined that counsel’s
silence left open the possibility that there was a strategic basis for his decisions,
that deficient performance will be excused only if we can conceive of a reasonable
trial strategy that counsel could have been pursuing with the challenged tactics. See
Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). When a reviewing
court cannot conceive of any reasonable trial strategy that would support the
actions or inactions of counsel, then counsel’s performance is deficient. See id. It is
not enough that this trial court might have viewed the affidavit from Caballero’s
trial counsel with skepticism. There still must be a conceivable and reasonable trial
strategy that could have informed counsel’s trial tactics.
Here, where an investigation would have revealed possible defensive
evidence that there was an additional shooter and specific, articulable testimony
about alleged threats to harm and “f– – up” the defendant just before his defensive
maneuvers, the failure to undertake that investigation or interview those witnesses
has no strategic basis. See Strickland, 466 U.S. at 690–91 (“[S]trategic choices
38
made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.”); Johnson v. State, 172 S.W.3d
6, 20 (Tex. App.—Austin 2005, pet. ref’d) (“It cannot be effective trial strategy to
forego trial strategy [through lack of investigation].”). Smading admitted in a
recorded statement to police that he shot a weapon into the backyard from inside
the Singletons’ house. That evidence never reached the jury. Nor was the second
shooter theory coherently presented to the jury, even without evidentiary support.
If nothing more, the audio of Smading’s statement would have corroborated key
aspects of the Singletons’ testimony to aid counsel in evaluating whether additional
investigation into the Singletons’ recollection was worthwhile, even if the audio
did not, itself, make it into evidence.
Defense counsel’s (1) lack of knowledge of the underlying facts of the case
combined with (2) his acquiescence to inapplicable hearsay objections and (3) his
poor preparation and management of his client’s testimony and the
cross-examination of the State’s witness left Caballero without an articulated
self-defense theory of his case. The jury was left with no intelligible explanation
for the shooting other than the State’s theory of “unarmed” victims, who were “not
trying to hurt anybody” and did not threaten anyone, being gunned down
39
“execution”-style while simply being in “the wrong place” at “the wrong time.”
“[A] thorough factual investigation is the foundation upon which effective
assistance of counsel is built[.]” Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.
Crim. App. 1982) (citing Powell v. Alabama, 287 U.S. 45, 52 (1932)). Being
uninformed to the point of inability to meaningfully advance the only viable
defensive theory is simply not strategic. The trial court abused its discretion in
determining otherwise.
D. Prejudice
To demonstrate prejudice, the defendant must show that there is a reasonable
probability that, but for his attorney’s errors, the jury would have had a reasonable
doubt about his guilt. See Perez, 310 S.W.3d at 893. In giving meaning to the Sixth
Amendment’s requirement that an accused receive effective assistance of counsel,
“we must take its purpose—to ensure a fair trial—as the guide” in assessing
prejudice. Strickland, 466 U.S. at 686. A fair trial has certain features that are
missing here:
[A] fair trial is one in which evidence subject to adversarial testing is
presented to an impartial tribunal for resolution of issues defined in
advance of the proceeding. The right to counsel plays a crucial role in
the adversarial system embodied in the Sixth Amendment, since
access to counsel’s skill and knowledge is necessary to accord
defendants the “ample opportunity to meet the case of the
prosecution” to which they are entitled. . . . That a person who
happens to be a lawyer is present at trial alongside the accused,
however, is not enough to satisfy the constitutional command. The
Sixth Amendment recognizes the right to the assistance of counsel
40
because it envisions counsel’s playing a role that is critical to the
ability of the adversarial system to produce just results. An accused is
entitled to be assisted by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the trial is fair.
Id. at 685 (citations omitted).
A defendant must show more than “that the errors had some conceivable
effect on the outcome of the proceeding,” Perez, 310 S.W.3d at 894(quoting Strickland, 466 U.S. at 693). “Rather, he must show that ‘there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.’” Id. (quoting Strickland, 466 U.S. at 695). We
must ask whether there is a “reasonable probability sufficient to undermine
confidence in the outcome that, but for counsel’s errors, the outcome of the
proceeding would be different.” Everage v. State, 893 S.W.2d 219, 224 (Tex.
App.—Houston [1st Dist.] 1995, pet. ref’d).
This is more than the simple evaluation of the sufficiency of the evidence.
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Butler, 716
S.W.2d at 54 (quoting Strickland, 466 U.S. at 686).
The prejudice standard is met on this record. Caballero had a viable
defensive theory that, due to his counsel’s deficient performance, was never
advanced at trial. Unbeknownst to counsel, at least three witnesses were available
41
to testify that after Smading failed to emerge from the Singletons’ house, Brown
and his three friends “were trying to jump” Caballero and threatening they would
“kick in his teeth” and “f– – him up.” The jury could have heard that the men had
weapons nearby and engaged in a shootout after leaving the Singletons’ backyard.
If advanced, Caballero could have presented evidence to support a theory of the
case to refute the State’s theory that Brown and his three friends were not innocent
bystanders in the wrong place at the wrong time. This evidence would have
countered the State’s theory that no one threatened anyone that day except
Caballero. The witnesses also could have told the jury that there was a second
shooter. The State repeatedly portrayed the final shot at Byars as he was lying on
the ground as an attempted execution of a wounded man unable to fight back.
Evidence that someone other than Caballero shot that bullet at Byars would have
considerably altered the narrative at trial.
Yet the jury heard none of this. Counsel failed to investigate and interview
witnesses to gain a basic understanding of who was doing what where to present a
coherent explanation of the alleged need for self-defense and the limits of
Caballero’s role in the shooting. See Andrus v. Texas, 140 S. Ct. 1875, 1883
(2020) (failure to sufficiently investigate and prepare led to counsel not knowing
whether one of his witnesses was truthful in negatively characterizing defendant
and being unable to rebut aggravating evidence). This failure to meet with
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Caballero, conduct a reasonable investigation, prepare witnesses to testify,
understand the exceptions to the hearsay rule, and present the jury with a cogent
self-defense theory permeated the entire trial. See Holmes v. State, 277 S.W.3d
424, 429 (Tex. App.—Beaumont 2009, no pet.) (omitting investigation and
discovery of key evidence precluded trial strategy and preparation); Johnson, 172
S.W.3d at 19 (discussing ripple effects of failure to investigate). Counsel’s conduct
so undermined the proper functioning of the adversarial process that we cannot
have confidence that Caballero’s trial produced a just result. See Butler, 716
S.W.2d at 54.
We therefore conclude that the trial court abused its discretion in denying
the motion for new trial based on ineffective assistance of counsel.
Conclusion
We reverse and remand for a new trial.
Sarah Beth Landau
Justice
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
Publish. TEX. R. APP. P. 47.2(b).
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