Estrada, Domingo M. v. The State of Texas--Appeal from 385th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DOMINGO M. ESTRADA, )

) No. 08-01-00334-CR

Appellant, )

) Appeal from the

v. )

) 385th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-26,573)

)

O P I N I O N

This appeal is from a conviction for burglary of a habitation enhanced as a repeat offender. A jury found the Appellant guilty and the trial court assessed the punishment of 30 years= imprisonment. We affirm.

There are two issues, and both allege ineffective assistance of counsel. The first complains that trial counsel did not present any evidence in mitigation at the punishment stage, and the second alleges that trial counsel failed to fully or adequately investigate the facts of the case.

Briefly, the Appellant had an affair with his brother=s estranged wife. It became an abusive relationship and she tried to end it. A short time later, he broke into her home and assaulted her. He was indicted for burglary of a habitation with intent to assault enhanced as a repeat offender.

Appellant filed a timely motion for new trial that though verified, was not sufficiently in the form of or supported by an affidavit sufficient to raise matters not determinable from the record. Butler v. State, 6 S.W.3d 636, 642 (Tex.App.--Houston [1st Dist.] 1999, pet. ref=d); Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). The State objected to a hearing on the ground that there was no Aproper@ affidavit and the trial court sustained the objection. Though not an issue here, we do note that not all motions for new trial require supporting affidavits. See State v. Daniels, 761 S.W.2d 42, 44 (Tex.App.--Austin 1988, pet. ref=d), citing Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App. 1983). In criminal trials, the court may hear evidence supporting a motion for new trial Aby affidavit or otherwise.@ Tex.R.App.P. 21.7.

The trial court did allow Appellant to put on evidence in a Bill of Exceptions, and the State also put on a witness. It has been stated that matters contained within a Bill of Exceptions are not evidence from which inferences of fact may be drawn. Lincicome v. State, 3 S.W.3d 644, 647 (Tex.App.--Amarillo 1999, no pet.). Nevertheless, where both sides have extensively briefed and analyzed the evidence adduced in the Bill of Exceptions, we believe no purpose would be served by donning blinders to the evidence preserved in the Bill of Exceptions.

We apply a single standard of review for ineffective assistance of counsel during the entire trial process. Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). That standard is the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Under Strickland, the appellant must first demonstrate that trial counsel=s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. 2064. Counsel=s competence is presumed, and the appellant must rebut this presumption by identifying the acts or omissions of counsel that are alleged as ineffective assistance, and then must affirmatively prove that such acts and omissions fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel=s representation, but will judge the claim based on the totality of the representation. See Strickland v. Washington, 466 U.S. at 695, 104 S. Ct. 2068-69. Secondly, the appellant is required to show prejudice from the deficient performance of his attorney. See Hernandez, 988 S.W.2d at 772. To establish prejudice, an appellant must prove that but for counsel=s deficient performance, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. at 693-95, 104 S. Ct. 2067-69. The alleged deficiencies of counsel must be supported by the record. Johnson v. State, 691 S.W.2d 619, 626 27 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865, 106 S. Ct. 184, 88 L. Ed. 2d 152 (1985).

In Issue One, Appellant complains that his trial counsel failed to present any evidence in mitigation or challenge the documents that established his prior felony conviction. The record reflects that neither side put on any testimony in the punishment phase; the State offered Appellant=s pen pack to establish a prior felony conviction for sexual assault and it was admitted without an objection. The trial court then noted that he had received a presentence report, which is not in the record here, and Appellant=s trial counsel stated he had discussed it with Appellant and that it was accurate.

In his Bill of Exceptions testimony, Appellant=s trial counsel stated with regard to the punishment phase that A[w]e did not have any witnesses that would be beneficial to us to put on@ and that he had visited with Appellant=s family in an Aattempt to try to find something that would be mitigating . . . .@

The Appellant testified that his trial attorney failed to interview three men, Ricardo Fino, Ralph Rodriguez, and Roman Estrada. However, apart from vague reference to the punishment phase, the primary evidence that each man might have provided was not to mitigation but rather to show that Appellant had the victim=s permission to enter her home. One of these men did testify, Ricardo Fino, but all of the questions put to him related to where Appellant was living during the pertinent time with the inference being that Appellant had the victim=s permission to enter the house.

There is simply no showing in the record before us, even including the Bill of Exceptions, that his trial counsel=s representation fell below an objective standard of reasonableness. See Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Moreover, under the second prong, it cannot be shown that the alleged deficient performance prejudiced the defense. The appropriate standard for judging prejudice requires an appellant to show that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id at 712. The sentence of thirty years is in the middle of the range of possible sentences. We overrule Issue One.

In Issue Two, Appellant claims that his trial counsel failed to properly investigate the case. An attorney is ineffective if the failure to seek out and interview potential witnesses precludes the accused from advancing a viable defense. Mallet v. State, 9 S.W.3d 856, 866 (Tex.App.--Fort Worth 2000, no pet.). We find this complaint to be without merit. The record clearly reflects that trial counsel investigated and interviewed potential witnesses. He, in fact, called two witnesses in the guilt/innocence phase and extensively cross-examined the State=s witnesses. Trial counsel=s performance was simply not deficient. The Appellant had effective assistance of counsel. Issue Two is overruled.

The judgment of the trial court is affirmed.

June 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)