Rodriguez, Lynda Ann v. The State of Texas

 
AFFIRM; Opinion Filed November 2, 2011.
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-01018-CR
No. 05-10-01309-CR
............................
LYNDA RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F10-00590-X and F09-00855-X
.............................................................
OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Myers
 
Appellant, Lynda Rodriguez, was convicted of theft in the
aggregate of $1,500 or more but less than $20,000. In only one issue,
she argues that she was denied the effective assistance of counsel. We
affirm the trial court's judgments.
Discussion
Appellant argues that her trial counsel was ineffective because
he failed to present any mitigating evidence at the sentencing hearing.
It is appellant's burden to show by a preponderance of the
evidence that trial counsel's performance was deficient in that it fell
below the prevailing professional norms and that the deficiency
prejudiced the defendant. In other words, but for the deficiency, there
is a reasonable probability that the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine
the totality of counsel's representation to determine whether appellant
 
received effective assistance but do not judge counsel's strategic
decisions in hindsight; rather, we strongly presume counsel's
competence. Thompson, 9 S.W.3d at 812. In most cases, a silent record
providing no explanation for counsel's actions will not overcome the
strong presumption of reasonable assistance, and an application for writ
of habeas corpus is often the more appropriate vehicle to raise such
claims. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App.
2003). Moreover, counsel should ordinarily be given an opportunity to
explain his actions before being condemned as incompetent. Id. at 111.
Appellant filed a motion for new trial alleging (among other
issues) ineffective assistance of counsel, and a motion for new trial
hearing was held on August 19, 2010. At the hearing, appellant, a former
accounts payable clerk at Entech Sales and Service, testified that she
wanted to testify at her sentencing hearing but did not because her
attorney advised her not to. She explained that she wanted to testify
about how, when she forged checks at her former place of employment, she
had been recently diagnosed with epilepsy and was on a new medication.
In addition, appellant learned her husband was having an affair with
another woman, and appellant was having difficulty paying her bills. She
said that she felt like she “was having some kind of breakdown.”
Appellant admitted that she did not feel like she was prevented from
testifying. Appellant stated that her attorney asked her if she wanted
to testify and she responded that she “would if he wanted me to.”
 
Counsel replied, according to appellant, “Well, I advise against it.”
Appellant also testified that her mother was in the courtroom on the day
of sentencing and was prepared to testify to the same facts described
above, but defense counsel did not call appellant's mother to testify.
Appellant explained that she was dissatisfied with counsel's
representation of her because she did not have enough information to
make an informed decision about testifying due to a lack of
communication with counsel. At the end of the hearing, the court denied
appellant's motion for new trial, stating, “The court still believes,
like I told you, Ms. Rodriguez, at the last hearing, this is not a
probation case. You don't deserve probation.”
Appellant now argues that she received ineffective assistance of
counsel “because her counsel did not communicate with her sufficiently
to enable her to make a meaningful decision as to whether she should
testify or remain silent and [counsel] failed to call an available
witness to present evidence which could have mitigated punishment.”
Appellant's trial counsel, however, did not testify at the motion for
new trial hearing, and the record is silent regarding counsel's strategy
or reasons for not calling appellant or her mother to testify at the
sentencing hearing. When the record contains no evidence of counsel's
reasons for the challenged conduct, we “'will assume a strategic
motivation if any can possibly be imagined,' and will not conclude the
challenged conduct constituted deficient performance unless the conduct
 
was so outrageous that no competent attorney would have engaged in it.”
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (quoting 3 W.
LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999)).
In this case, there are possible strategic considerations for
not calling appellant or her mother to testify. At the close of the
State's evidence, defense counsel did not put on any witnesses but he
asked the trial court to take judicial notice of the presentence
investigation report. Defense counsel may have believed that the facts
to which appellant or her mother would have testified were raised in the
presentence investigation report, and there was no need to call either
witness and subject them to potentially damaging cross-examination.
Therefore, appellant has not shown defense counsel's conduct was
deficient. We overrule appellant's issue.
We affirm the trial court's judgments.
 
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101018F.U05
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