Antonio Aragon v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00605-CR

Antonio ARAGON Jr.,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-4482

Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 14, 2005

AFFIRMED

Antonio Aragon Jr. appeals the trial court s judgment convicting him of aggravated assault with a deadly weapon of his girlfriend Jill Garza, sentencing him to twenty years in prison, and fining him $5,000.00. On appeal, Aragon argues he received ineffective assistance of counsel. We disagree and affirm the trial court s judgment.

1. Independent Investigation Aragon first argues his trial counsel provided ineffective assistance by failing to conduct an independent investigation. We disagree. The duty to investigate is not absolute. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997), disapproved on other grounds, Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). To the contrary, an attorney may fulfill his investigatory duty by either making a reasonable investigation or by making a reasonable decision that an investigation is not necessary. Id. We review an attorney s decision to forego or limit the scope of his investigation with a great deal of deference and look to the reasonableness of the decision in light of the totality of the circumstances. Id. Here, Aragon s trial counsel testified at the hearing on the motion for a new trial that, although he twice reviewed and was familiar with the contents of the State s file, he did not conduct an independent investigation, interview any witnesses, or personally view the crime scene because it would have been futile to employ an investigator since the facts were pretty well-known. Indeed, Garza, while still at the scene and later in a written statement, told an EMT technician and a police officer that her injuries had been inflicted by Aragon. Aragon s trial counsel therefore made it clear from the very beginning that[, because] the evidence was very strong ... [p]hysical evidence ....[t]estimonial evidence ... [e]verything appeared to point towards guilt ... there was not a whole lot to be presented in the guilt/innocence phase, he considered the case to be a punishment case. Nothing in the record even suggests that Aragon s trial counsel s decision to forego further investigation was unreasonable, precluded the presentation of potential defenses, or indeed made any difference in Aragon s defense.

Aragon also argues his trial counsel was ineffective in failing to interview him or discuss the case with him other than briefly in the courtroom. However, contrary to Aragon s assertions, the record establishes that his trial counsel spoke to him several times about the case before trial and was available to speak with him on several other occasions; but Aragon did not attend any of his trial counsel s several conferences with Aragon s family. Aragon s claim is thus without merit. So too is his contention that trial counsel was ineffective in failing to interview Garza. When Aragon s trial counsel was asked at the hearing on the motion for new trial why he did not interview Garza before trial, he explained that he knew her story from her statements that she had given to the police and decided it was not prudent to speak to her before trial for fear that it might be interpreted as an attempt to exert pressure on her to change her story. We hold this decision was reasonable in light of the circumstances. Finally, Aragon argues his trial counsel was ineffective in failing to interview Aragon s uncle, John Delgado. However, Aragon s trial counsel was not asked why he did not interview Delgado; this complaint is therefore not firmly founded in the record and Aragon has not overcome the presumption that his trial counsel was effective. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (noting strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance).

Aragon also argues that, even though his trial counsel decided in advance of trial that the case was one primarily concerned with punishment, he failed to seek out or interview punishment witnesses. However, Aragon has failed to establish that the witnesses who testified on his behalf at the hearing on his motion for new trial were available to testify at trial. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Vasquez v. State, 2 S.W.3d 355, 361 (Tex. App. San Antonio 1999, pet. ref d).

Aragon also argues his trial counsel was ineffective in failing to investigate Aragon s prior acts of misconduct and extraneous offenses and, as a result, failed to effectively litigate the instances of extraneous misconduct elicited during the punishment phase and was unable to challenge their veracity in front of the jury. However, Aragon provides no argument, much less any evidence, to establish that taking these steps would have yielded a different result. Aragon also argues his trial counsel should have investigated his school and employment history because matters contained in those histories could have provided valuable information for the jury s determination of punishment. However, Aragon s appellate counsel did not introduce Aragon s school and employment history into evidence at the hearing on the motion for new trial; consequently, Aragon has failed to establish the contents of his school and employment histories or that they would have been helpful. Likewise, Aragon s appellate counsel failed to establish that the witnesses who testified regarding Aragon s employment history were available to testify at trial.

2. Failure to file pre-trial motions Aragon next argues his trial counsel was ineffective in failing to file pretrial motions. However, as Aragon admits in his brief, [t]he mere failure to file appropriate pre-trial motions may not be categorically deemed ineffective assistance of counsel. Aragon contends his trial counsel was ineffective in announcing he was not ready to proceed to trial and then failing to move for a continuance. However, Aragon makes no effort to show how failure to move for continuance resulted in ineffective assistance of counsel. Bridge v. State, 726 S.W.2d 558, 572 (Tex. Crim. App. 1996). Absent such a showing, [Aragon] could not meet the harm element required by Strickland. Champion v. State, 126 S.W.3d 686, 699 (Tex. App. Amarillo 2004, no pet.). Aragon also argues his counsel was ineffective in failing to file motions related to the State s use of extraneous matters. However, these matters were elicited by the State during the punishment phase in its cross-examination of Aragon s defense witness and its rebuttal of Aragon s defense; accordingly, Aragon would not have been entitled to notice of these matters even if he had filed motions. See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App.) (holding that a defendant is not entitled to notice of the State s intent to use extraneous bad acts evidence when that evidence is introduced during cross-examination and rebuttal testimony in the punishment phase because the notice requirement is limited to evidence introduced in the State s case-in-chief), cert. denied, 537 U.S. 1005 (2002).

3. Failure to lodge the proper evidentiary objection Aragon next argues his trial counsel was ineffective in failing to object to Jessica Rosas s impeachment testimony on the ground that the State failed to lay the proper predicate, see Tex. R. Evid. 613(a), rather than on the grounds he did (inadmissible hearsay and lack of probative value). Again, however, Aragon s appellate counsel failed to ask Aragon s trial counsel at the hearing on the motion for new trial why he chose to object on the grounds he did. Accordingly, Aragon has failed to overcome the presumption that his trial counsel s conduct was sound trial strategy. Moreover, even if Aragon were correct that his trial counsel failed to lodge the proper objection, he has failed to show that there is a reasonable probability that the result of the proceeding would have been different.

4. Failure to object to medical record evidence Aragon argues his trial counsel was ineffective in failing to object to parts of Garza s medical records and to the EMT s reading that part of his report that corroborated Garza s written statement. We disagree. Aragon has not shown that the trial court would have erred in overruling the objections and there is no evidence in the record as to why trial counsel did not object. Accordingly, Aragon has failed to establish counsel was ineffective. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); See Russell v. State, 90 S.W.3d 865, 875 (Tex. App. San Antonio 2002, pet. ref d).

Finally, Aragon argues trial counsel was ineffective in failing to attack the reliability of Garza s written statement by exploring whether she might have been under the influence of pain medication when she made it. However, as trial counsel explained, Garza s written statement was consistent with the statements she made soon after she was injured, when she was not medicated; therefore, it did not appear that the medication affected Garza s ability to recount what happened. Trial counsel s explanation is reasonable under the circumstances and Aragon has failed to overcome the presumption that counsel s performance fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813.

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice

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