ROBERT S. SALINAS v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

NUMBER 13-06-501-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ROBERT S. SALINAS, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Justice Benavides

Appellant Robert Salinas claims that he received ineffective assistance from his trial counsel when counsel failed to (1) present and obtain rulings from the trial court on filed motions and (2) secure a witness through subpoena. We disagree and affirm the judgment of the trial court.

I. Factual Background

On February 2, 2006, Robert Salinas was indicted for aggravated sexual assault of a child, a first degree felony, and indecency with a child by touching, a second degree felony. Tex. Penal Code Ann. 22.021(a) (Vernon 2007); Tex. Penal Code Ann. 21.11 (Vernon 2007).

Salinas's counsel, during the course of trial preparation, filed the following motions: (1) a Motion for Discovery and Inspection of Evidence, (2) a Motion for Discovery of Punishment Evidence, (3) a Motion for Production of Favorable Evidence, and (4) a Motion for Production of Witness Statements after Direct Examination. Although trial counsel filed these motions, he did not present any of the motions to the trial court or obtain rulings on them. During the trial, no dispute arose over any discovery matters which would have related back to the pretrial motions filed.

At trial, Salinas sought to have a witness testify on his behalf who did not appear. Salinas's trial counsel did not secure the witness through subpoena. Trial counsel stated that the witness's testimony would only last five to ten minutes, but did not otherwise expound upon the substance of the testimony. Trial counsel then requested, and was granted, an extra ten minutes to wait for the witness to appear, but she never did. After the recess, the defense rested. Salinas's counsel did not make a record of what the witness would have said or why her testimony would have changed the outcome of the trial.

Salinas was convicted on both counts on August 8, 2006. He received sentences of fifty years and twenty years, respectively, in the Texas Department of Criminal Justice Institutional Division. The district court ordered the sentences to run concurrently. Salinas now appeals his conviction, arguing that his trial counsel was ineffective.

II. Standard of Review

When evaluating claims of ineffective assistance of counsel, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim App. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). In order to overcome this presumption, an appellant must demonstrate by a preponderance of the evidence that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's professional errors the trial result would have been different. Strickland, 466 U.S. at 688. A "reasonable probability" means a probability sufficient to undermine confidence in the outcome. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The defendant bears the burden of proving both elements of an ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.).

III. Analysis

The acts or omissions complained of in an ineffective assistance of counsel appeal must appear on the record, and a silent record providing no explanation for counsel's conduct is insufficient to overcome the presumption of reasonableness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). It is "critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic." Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

An appropriate record, including counsel's reasons for his actions, is generally prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. Batiste, 2006 Tex. App. LEXIS 8822, at *19-20. "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Absent an opportunity for the attorney to explain his actions, an appellate court should not "find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

This presumption of reasonable professional judgment which we extend to trial counsel means that we may not speculate about the reasons that trial counsel did not file a particular motion. Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd). It is possible, for instance, that trial counsel may simply have decided that the presentation of a particular motion would have been frivolous. Id. If there is no explanation for trial counsel's actions in the record, then we must presume that counsel was better positioned than the appellate court to judge the pragmatism of the decision. Ex parte Okere, 56 S.W.3d 846, 856 (Tex. App.-Dallas 2001, no pet.).

Similarly, an appellate court is also barred from revisiting trial counsel's failure to subpoena a witness unless there is an explanation in the record as to what the testimony of the witness would have established. Id. Lacking an offer of proof or any other evidence that would provide such an explanation, a court has no basis for evaluating whether there was a reasonable probability that the outcome of the trial would have been different had the witness been subpoenaed and testified. See Reese v. State, 905 S.W.2d 631, 635-36, 638 (Tex. App.-Texarkana 1995, pet. ref'd). To do so would be mere speculation on our part.

Salinas argues that his counsel's failure to present four motions and subpoena a specific witness constituted ineffective assistance of counsel. The record is silent, however, as to any explanation for counsel's actions in either situation. With no explanation of the motivation behind counsel's decisions, we find that Salinas has failed to overcome the strong presumption of reasonable assistance extended to trial counsel. Salinas has not shown that his counsel's actions fell below an objective standard of reasonableness or that but for these actions the outcome of his trial would have been different. Strickland, 466 U.S. at 687.

IV. Conclusion

The judgment of the district court is AFFIRMED.

 

_________________________

GINA M. BENAVIDES,

Justice

 

Do not publish.

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

Memorandum Opinion delivered and

filed this the 23rd day of August, 2007.