EARL GONZALES v. THE STATE OF TEXAS--Appeal from 25th District Court of Gonzales County

NUMBER 13-05-288-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EARL GONZALES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court

of Gonzales County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Earl Gonzales, was convicted by a jury of three counts of aggravated sexual assault of a child and two counts of indecency with a child. See Tex. Pen. Code Ann. '' 21.11, 22.021 (Vernon 2003). The jury sentenced appellant to thirty years' confinement for each count of aggravated sexual assault and twenty years' confinement for each count of indecency, with the sentences to run concurrently. The trial court has certified that this is not a plea-bargain case, and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). In a single point of error, appellant contends that he was denied the effective assistance of trial counsel. We affirm.

I. Background

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law or the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Assistance of Counsel

By his sole point of error, appellant contends that he was denied effective assistance of counsel.

A. Standard of Review

The standard of review for an ineffective assistance of counsel claim is well-established. Appellant must show that (1) counsel=s performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). We must indulge a strong presumption that counsel=s conduct fell within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689. To carry this burden, appellant must demonstrate that counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id. at 694. Whether this burden has been met is to be judged by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). As a reviewing court, we must make every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689.

B. Analysis

By his sole point of error, appellant contends that he was denied effective assistance of counsel. More specifically, appellant claims that his counsel=s assistance was ineffective because he failed to interview or call the following four witnesses whose testimonies, he asserts, would have supported counsel=s defense strategy: Scott Trammel (Trammel), Ellie Kitchens (Kitchens), Tina Gonzales (Tina), and Leticia Dunn (Dunn).[1]

It is settled law that counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Id. at 691. Therefore, we now review appellant's specific challenges.

Appellant first contends counsel should have interviewed and called Trammel, Tina's ex-boyfriend, because he could have testified that Tina, the victim's mother and outcry witness, had falsely accused him of rape. Although counsel testified he was aware of Trammel=s potential testimony, he also testified that he did not interview or call Trammel because doing so would not further his defense strategy.

Next, appellant contends that counsel should have interviewed and called Kitchens, the victim=s pre-school teacher, because she could have testified as to a conversation she had with the victim.[2] However, the record demonstrates that Kitchens failed to come forward about this conversation until after the trial was concluded. Moreover, counsel testified that he did not interview or call Kitchens because interviewing or calling the victim's teachers was not part of the defense strategy.

In addition, appellant asserts that counsel should have interviewed Tina, although appellant does not indicate what Tina's testimony would have revealed. Counsel testified that while he attempted to contact Tina, she repeatedly refused to speak with his investigator. While counsel did not interview Tina, the record demonstrates she testified as a State's witness and counsel cross-examined her during the trial.

Finally, appellant asserts that counsel should have interviewed and called Dunn, appellant's ex-wife, because she could have testified that Tina had falsely reported to Child Protective Services (CPS) that Dunn had been molested by her own father. However, Dunn testified that there was no proof that Tina was the person who had made the false report to CPS. Furthermore, counsel testified that his investigator had interviewed Dunn and that he chose not to call her because her testimony might have been harmful to appellant.

The hearing on the motion for new trial, as discussed above, revealed the reasoning behind the decisions of counsel not to interview or call each of the witnesses identified by appellant. We find that counsel's decision not to interview three of the four potential witnesses was reasonable in light of all the circumstances.[3] See Strickland, 466 U.S. at 691. Furthermore, we find that counsel's decision not to call three of the four potential witnesses was reasonable, considering his trial strategy.[4] See id. at 689. Therefore, we conclude appellant has not overcome the presumption that counsel=s conduct fell within a wide range of reasonable professional assistance. See id. at 689. Thus, appellant has failed to satisfy the first prong of the Strickland test. Because appellant has failed to satisfy the first prong of the test, we need not address the second prong. See id. at 688. We overrule appellant=s sole point of error.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 29th day of June, 2006.

[1]We note that there is a conflict between what appellant contends to have been trial counsel's strategy and what counsel testified to regarding his defense strategy. Appellant suggests counsel's strategy was to undermine the credibility of the outcry witness. However, counsel testified at the hearing on motion for new trial that his defense strategy was focused on showing that the assault did not happen by discounting the prosecution's expert witness and showing that there was no opportunity for the crime to have taken place.

[2]Kitchens stated in an affidavit and at the hearing on motion for new trial that the victim approached Kitchens and said that her daddy did something bad. Kitchens also stated that the victim said "my momma said he did something bad to me and that I wasn't allowed to talk to him anymore."

[3]We note that while appellant claims counsel did not interview Dunn, the record demonstrates that counsel's investigator interviewed Dunn.

[4]We note that appellant claims that counsel should have called Trammel, Kitchens, and Dunn. Appellant does not assert that counsel should have called Tina, as she served as a State's witness.