Robert Hernandez v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-98-01019-CR
Robert HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-3801
Honorable Raymond Angelini, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 30, 1999

AFFIRMED

Robert Hernandez ('Appellant') challenges his conviction for burglary of habitation. In a single issue, appellant argues he received an unfair trial due to ineffective counsel. We overrule appellant's claim and affirm the trial court's judgment.

Factual and Procedural Background

On December 2, 1997, a jury found appellant guilty of the offense of burglary of habitation,

and sentenced him to thirty years in prison with a $2,500 fine. In his sole issue, appellant complains he received ineffective assistance of counsel in violation of both the state and federal constitutions. Specifically, appellant points to trial counsel's failure to pursue objections to the introduction of extraneous evidence of prior bad acts, her subsequent inquiries which opened the door into evidence of extraneous offenses, stipulations to damaging evidence, and general disorganization throughout the course of the trial.

Ineffective Assistance of Counsel

When reviewing ineffective assistance of counsel claims, the court of criminal appeals follows the two-prong test set forth in Strickland v. Washington, 466 U.S. 686, 687 (1984). Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). Under Strickland, a convicted defendant must show that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Whether a defendant has received ineffective assistance of counsel is to be judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

Turning to the facts in appellant's case, we note at the outset that the record contains compelling eyewitness testimony which implicated the appellant with the charged crime. At trial, the State introduced testimony from Richard Cerna, who testified that on March 12, 1997, at around two in the afternoon, he heard a screeching noise coming from a car headed in the wrong direction on the one-way street. He further testified that he observed the car back into his cousin's driveway. At the time of the incident, Cerna lived in his brother's house directly adjacent to his cousin's house. Thereafter Cerna testified that he got into his own vehicle to get a closer look at the unfamiliar car and driver. Cerna stated that he heard the driver yell "hurry up" to someone apparently inside his cousin's house. Cerna reported the suspicious activity to the police, giving both a physical description of the driver as well as a license number of the vehicle to the reporting officer. After an investigation of the later determined burglary, Cerna positively identified the appellant as the driver of the vehicle from two different arrays of six-suspect line-ups. At trial, Cerna again pointed to appellant as the driver of the vehicle in his cousin's driveway. Cerna testified that his view of the appellant was unobstructed as both his and appellant's car windows were rolled down and it was a clear afternoon. The jury freely chose to believe Cerna's testimony, and as the trier of fact, was entitled to assess his credibility and the weight of his testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Further, the jury was entitled to draw reasonable inferences from basic facts to ultimate facts. Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.-San Antonio 1994, pet. ref'd).

In light of this testimony, we decline to entertain an analysis of whether counsel's performance was deficient under the first prong of Strickland, because testimony in the record conclusively supports the trial court's judgment; thus, appellant fails to demonstrate that but for any alleged error, the result would have been different. Holland, 761 S.W.2d at 314. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, No.1532-98-CR, slip. op. at 3, 1999 WL 812394, at *4 (Tex. Crim. App. 1999) (emphasis added); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Even if we assume that trial counsel's performance fell below constitutional requirements, in the absence of evidence of both Strickland prongs, we cannot conclude with any degree of certainty that the conviction resulted from a breakdown in the adversarial process and rendered an unreliable result. See Thompson v. State, No.1532-98-CR, slip. op. at 3, 1999 WL 812394, at *4 (Tex. Crim. App. 1999).

Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.

Catherine Stone, Justice

DO NOT PUBLISH