Bernardo Hernandez Gonzales v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-01-00806-CR
Bernardo HERNANDEZ Gonzalez,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court of Bexar County, Texas
Trial Court No. 1993-CR-0197
Honorable Mary Roman, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 28, 2003

AFFIRMED

Appellant Bernardo Hernandez Gonzalez was charged with murder. Following a jury trial, Hernandez was found guilty and sentenced to 80 years' imprisonment. He now appeals, citing two issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Hernandez argues the trial court erred in denying his request for a jury charge on the lesser included offenses of involuntary manslaughter and criminally negligent homicide. In determining whether an accused is entitled to a jury charge on a lesser included offense, we apply the two-pronged Royster-Aguilar test . Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 446-47 (Tex. Crim. App. 1981). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, some evidence must exist in the record which would permit the jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense and not the greater offense. Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

Both involuntary manslaughter and criminally negligent homicide are lesser included offenses of murder, meeting the first prong of the test. Burnett v. State, 865 S.W.2d 223, 228 (Tex. Crim. App. 1993). In examining the second prong of the Royster-Aguilar test, we must look at the distinction between murder, involuntary manslaughter and criminally negligent homicide. The only distinction lies in the culpable mental state accompanying the defendant's homicidal act; murder requires the defendant have acted knowingly or intentionally, while involuntary manslaughter requires a culpable mental state of recklessness and criminally negligent homicide dictates the defendant acted with criminal negligence. Burnett, 865 S.W.2d at 228-29. In order for a defendant to be entitled to a jury charge on involuntary manslaughter or criminally negligent homicide, the record must contain "some" evidence that the defendant did not intend the resulting death or know that it was reasonably certain to occur. If this evidence is present, the record must then be examined to see if it indicates whether the defendant was aware of the risk that his conduct could result in the unintentional killing of the deceased. Burnett, 865 S.W.2d at 229.

The evidence in the immediate case shows that Hernandez intentionally pointed a loaded gun at the deceased, knowing the potential risk involved. He thereby demonstrated an awareness of a risk created by that conduct and chose to disregard that risk. Burnett, 865 S.W.2d at 229; Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985). Because Hernandez disregarded the risk and because he acted voluntarily, the second prong of the Royster-Aguilar test is not met and the lesser included offenses of involuntary manslaughter and criminally negligent homicide were properly excluded from the jury charge. Accordingly, we overrule Hernandez's first issue.

2. In his second issue, Hernandez contends he received ineffective assistance of counsel in violation of both the United States and Texas Constitutions. U.S. Const. am. VI; Tex. Const. art. I, 10. Hernandez asserts his counsel was ineffective because he (1) failed to file a written motion for continuance prior to the commencement of trial, (2) stated during his opening statement that Hernandez would testify in his own defense, prejudicing the jury, (3) in his closing statement, drew attention to the fact that Hernandez was absent from the courtroom, prejudicing the jury, (4) failed to present any evidence on the issue of punishment, and (5) made a fatal mistake in Hernandez's motion for new trial.

In determining whether a criminal defendant has been denied effective assistance of counsel, as guaranteed by the Sixth Amendment, we follow the traditional standards of review. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To prevail on an ineffective assistance of counsel claim, an appellant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Id.; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 2002). It is appellant's burden to overcome the presumption that the counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689. In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

The record is silent regarding any explanation for counsel's actions in all five situations complained of by Hernandez. In the absence of an explanation of the motivation behind counsel's decisions, we find that Hernandez has failed to overcome the strong presumption of reasonable assistance. Hernandez has not shown that his counsel's actions fell below an objective standard. Strickland, 466 U.S. at 687. In addition, even if defense counsel's actions were deficient, Hernandez has failed to show that but for counsel's unprofessional errors, he would have been acquitted. Id. We overrule Hernandez's second issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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