Edwin Martinez Gonzalez v. The State of Texas--Appeal from 351st District Court of Harris County

No. 04-98-00107-CR
Edwin Martinez GONZALEZ,
Appellant
v.
The STATE of Texas,
Appellee

From the 351st District Court, Harris County, Texas

Trial Court No. 754748

Honorable Jon Hughes, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: December 30, 1998

AFFIRMED

Edwin Martinez Gonzalez appeals his conviction of aggravated assault, contending he received ineffective assistance of counsel in violation of both the federal and state constitutions. Because the issues presented on appeal involve well-settled law, we overrule Gonzalez's points of error and affirm the trial court's judgment in this memorandum opinion pursuant to Tex. R. App. P. 47.1.

Gonzalez was charged with aggravated assault of Miguel Sanchez, with the specific allegation that he "unlawfully, intentionally and knowingly threaten[ed] Miguel Sanchez with imminent bodily injury by using and exhibiting a deadly weapon, namely, a motor vehicle." During closing argument, Gonzalez's attorney on two occasions remarked that the State had failed to prove beyond a reasonable doubt that Gonzalez committed an intentional act to cause imminent bodily injury to Sanchez. On appeal, Gonzalez complains that he was not charged with causing imminent bodily injury, he was charged with threatening to cause bodily injury. Gonzalez contends that trial counsel erroneously "base[d] his defensive theory on the absence of proof as to something which the State did not need to . . . prove."

The operative standard for determining whether an accused has suffered a deprivation of his right to effective assistance of counsel is the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel, a convicted defendant must show: (1) his trial counsel's performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Strickland, 466 U.S. at 687; Butler v. State, 872 S.W.2d 227, 241 (Tex. Crim. App. 1994) (en banc), cert. denied, 513 U.S. 1157 (1995). 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. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989); Wilkerson v. State, 726 S.W.2d 542, 548 n.3 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689. Counsel's performance is judged by considering the "'totality of the representation,'" not by isolated omissions or acts of the trial counsel. Wilkerson v. State, 726 S.W.2d at 548 (quoting Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983)). Counsel is not required to perform flawlessly, and ineffectiveness is not established solely by the fact that a different trial strategy may have been pursued by another attorney in hindsight. Ybarra v. State, 890 S.W.2d 98, 112 (Tex. App.--San Antonio 1994, pet. ref'd).

Judging counsel's performance based on the totality of representation, we cannot say that two isolated remarks during closing argument rendered the representation deficient. Further, even if these remarks are deemed erroneous, Gonzalez has not met his burden of establishing the second prong of the Strickland standard. Gonzalez's only references to this prong are his statements that this court "cannot have confidence in what the outcome would have been if counsel had not erred," and that he "would have had a better chance if his counsel had addressed the allegations which were actually made." These general conclusions do not demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Holland, 761 S.W.2d at 314. Accordingly, Gonzalez's points of error are overruled.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

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