Alexander Gonzales v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

98-00702 Gonzales v State of Texas.wpd No. 04-98-00702-CR
Alexander GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-1451
Honorable Pat Priest, Judge Presiding(1)

Opinion by: Alma L. L pez, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: October 13, 1999

AFFIRMED

Alexander Gonzales was convicted of sexual assault of a child, indecency with a child by sexual contact, and indecency with a child by exposure. The victim in these offenses was Gonzales's 14-year old step-daughter, X.R. A jury found Gonzales guilty of each offense and sentenced him to 15, 14 and 10 years respectively. Gonzales filed a notice of appeal and the trial court appointed an attorney for the appeal. Said attorney later filed an Anders brief wherein he asserted that Gonzales's appeal was frivolous and without merit, and asked to withdraw as counsel. This court granted the attorney's motion to withdraw. Gonzales then filed a pro se brief complaining about ineffective assistance of counsel. Because we do not agree with Gonzales that his trial attorney was ineffective, we affirm the judgments of the trial court.

Ineffective Assistance of Counsel

On appeal, Gonzales contends that he was denied effective assistance of counsel. Specifically, Gonzales complains that his attorney failed to properly investigate his case, failed to review the State's file, failed to interview the State's witnesses, did not prepare notes for trial and erroneously advised him not to testify. Gonzales further contends that his attorney failed to call witnesses that could have established that he had an alibi defense and that the attorney failed to pursue what he characterizes as a viable defense: that the victim of his offenses was a 275-pound "wanna-be gang member."

A claim of ineffective counsel is reviewed under the standard set out in Strickland v. Washington, 104 S. Ct. 2052 (1984). To prove ineffective assistance of counsel under Strickland, the appellant must prove that his lawyer's conduct was deficient, and that the result of the proceeding would have been different but for the lawyer's deficient performance. Strickland, 104 S. Ct. at 2064, 2068. This standard applies to both phases of trial.(2) Whether this standard has been met is judged by the totality of representation rather than by isolated acts or omissions by trial counsel. Butler v. State, 716 S.W.2d 48, 54 (Tex. App. Crim. 1986). Despite Gomez's complaints about his attorney's performance, the record does not reflect ineffective assistance of counsel.

Instead, the record reflects that Gonzales's trial attorney provided effective assistance of counsel. The attorney thoroughly and effectively voir dired the jury by questioning jurors about past experiences with sexual abuse and difficulties with step-children. The attorney also objected to the State's evidence where appropriate and cross-examined the State's witnesses. Although Gonzales criticizes his attorney for failing to pursue the issues of the victim's promiscuity and gang involvement, the record reflects that the attorney considered Gonzales's desire to pursue these issues.

The attorney attempted to question X.R. about her involvement with gangs, but the State objected to this line of questioning and the trial court sustained the objection. The attorney did, however, establish on cross-examination that X.R. had not always told the truth; i.e., the attorney showed how X.R. told a lie to get out of what X.R. referred to as court school. The attorney also established through cross-examination of the State's expert witness on child sex abuse that the injury to X.R.'s hymen could have resulted from some act other than penal penetration; e.g., a finger used during masturbation. The attorney further requested a jury instruction on the promiscuity of the victim; the request, however, was properly denied. The attorney was even able to develop a closing argument despite substantial and uncontroverted evidence of Gonzales's guilt by focusing on an ostensible change in X.R.'s demeanor between direct examination and cross-examination, attacking X.R.'s description of an oral sex act with Gonzales as unbelievable, questioning how X.R. knew that Gonzales's penis looked normal, and relying on a letter that X.R. wrote Gonzales about showing her how to have sex.

Nothing in the record supports Gonzales's contentions that his attorney failed to investigate his case, failed to review the State's file, failed to interview the State's witnesses, did not prepare for trial, or that he had an alibi defense. And, rather than support his complaint that his attorney advised him inappropriately not to testify, Gonzales's testimony during the punishment phase of his trial, as well as his assertions contained in his pro se pleadings, indicate that such advice was appropriate if in fact given. Because the totality of the attorney's representation does not indicate that Gonzales's attorney was ineffective, we overrule his complaint about ineffective assistance of counsel and affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

1. The Honorable Quay Parker presided over the trial proceedings.

2. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (stating that Strickland applies to punishment phase of trial and overruling Ex Parte Duffy which was previously used to evaluate effectiveness of counsel during punishment phase).