Ex Parte Alvaro Pena--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION
No. 04-07-00476-CR
EX PARTE Alvaro PE A
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. DC-07-30
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: November 21, 2007

 

REVERSED AND RENDERED

The State appeals the trial court's order granting Alvaro Pe a's application for post-conviction habeas relief pursuant to section 11.072 of the Texas Code of Criminal Procedure. The State contends the trial court abused its discretion in granting the relief because: (1) the trial court relied on an overruled case; and (2) the record was insufficient to establish that Pe a was denied effective assistance of counsel. Because Pe a's allegations of ineffective assistance are not firmly founded in the record, we reverse the trial court's order and render judgment denying habeas relief.

 
Background

In January of 1994, Pe a was convicted by a jury of aggravated possession of cocaine. During trial, two border patrol agents testified that they stopped Pe a's vehicle to check the immigration status of the occupants. The officers were in a marked vehicle in full uniform. Pe a and his passenger told the officer that they did not have a driver's license and appeared very nervous. The officer observed a brown paper bag protruding from under the seat and a box of baggies on the seat. When the officer inquired about whether they had any weapons or illegal drugs, the officer observed the passenger nudge Pe a to drive away, and Pe a did. The officers followed Pe a through heavy traffic and lost sight of his vehicle at one location on a hill. After stopping the vehicle and securing Pe a and the passenger in the patrol car, the officer observed that the brown paper bag had been ripped open, and the box of baggies was missing. Upon searching in the area where the officers had lost sight of Pe a, a plastic bag of cocaine and the box of baggies were recovered.

The defense presented at trial was that Pe a suffered from a mental condition that caused him to panic and drive away when the officers stopped him. Defense counsel also elicited evidence that there were a few incidents in which "pseudo" cops had been stopping vehicles.

After the jury convicted Pe a, he withdrew his election regarding punishment and requested that the trial court assess punishment. The trial court sentenced Pe a to ten years community supervision.

In January of 1998, Pe a was granted early termination of his community supervision. In January of 2007, Pe a filed an application seeking habeas relief contending his conviction resulted from the ineffective assistance of counsel.

 
Standard of Review

An appellate court reviewing a trial court's ruling on a habeas claim must review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657,664 (Tex. Crim. App. 2006); Ex parte Wilson, 171 S.W.3d 925, 928 (Tex. App.--Dallas 2005, no pet.). In conducting our review, we afford almost total deference to the trial court's determination of the historical facts that are supported by the record, especially those based on an evaluation of credibility and demeanor. Ex parte Wilson, 171 S.W.3d at 928; Ex parte Nagle, 48 S.W.3d 213, 215 (Tex. App.--San Antonio 2000, no pet.). We afford that same level of deference to the trial court's application of the law to the facts if the ultimate questions turn on an evaluation of credibility and demeanor. Ex parte Wilson, 171 S.W.3d at 928. Otherwise, we review the trial court's application of the law to the facts as well as its determination of the law de novo. Ex parte Nagle, 48 S.W.3d at 215-16.

Citation to Ex parte Duffy

In its first issue, the State contends the trial court erred in citing Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980), in its findings because Ex parte Duffy has been overruled by Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The trial court cited Ex parte Duffy as support for the contention that trial counsel has a duty to investigate the facts. This contention has not been overruled by the Texas Court of Criminal Appeals, nor could it be. Trial counsel's duty to investigate is established in United States Supreme Court precedent as follows:

In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. 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.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

 

Strickland v. Washington, 466 U.S. 668, 691 (1984). The State's first issue is overruled.

Ineffective Assistance

In evaluating an ineffective assistance of counsel claim, we apply the usual Strickland standard of review, requiring that Pe a show both deficient performance by counsel and prejudice as a result. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Allegations of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Trial counsel must ordinarily be afforded an opportunity to explain whether his actions were the result of a legitimate trial strategy before being denounced as ineffective. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). Pe a had the burden to rebut the strong presumption that counsel rendered reasonable assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.

Pe a and his wife were the only witnesses who testified at the habeas hearing. They both testified that Pe a was under psychiatric treatment and medication for psychological problems at the time of his arrest and trial. Pe a's wife testified that they met with trial counsel prior to the trial but did not recall if Pe a ever discussed his psychiatric treatment with the attorney. Pe a testified that he did not discuss with trial counsel the use of his psychiatric treatment as a defense. Pe a acknowledged that a letter was introduced into evidence from his psychiatrist stating that Pe a suffered from panic disorder and was taking medication; however, Pe a could not recall whether he gave the letter to trial counsel or whether trial counsel requested the letter. Finally, Pe a stated that he did not testify during the guilt-innocence phase of trial because his attorney advised him not to testify. Pe a stated that if he had testified, he would have told the jury "what [he] was doing at the scene."

In addition to the testimony of Pe a and his wife, the transcript of the trial was introduced into evidence. During his opening statement, trial counsel told the jury that Pe a suffered from depression and was taking medication for his condition. Pe a prompted trial counsel with regard to the number of years he had been undergoing treatment and the name of the medication. Trial counsel further told the jury that Pe a drove away from the officer after he was stopped because of his condition and because the officer drew his gun. (1) Trial counsel introduced into evidence a letter from Pe a's treating psychiatrist, stating that Pe a had a diagnosis of panic disorder for which he was taking medication. During his closing argument, trial counsel referred to the letter and Pe a's condition in explaining the reason Pe a drove away from the officer.

The trial court granted habeas relief because it found that trial counsel was deficient in: (1) failing to discuss Pe a's mental capacity to stand trial; and (2) depriving Pe a of his right to testify. The trial court further found that Pe a was prejudiced because: (1) he would not have been obligated to stand trial while mentally incapacitated; and (2) the jury would have had a better understanding of the facts if Pe a had testified. Even viewing the record in the light most favorable to the trial court's ruling, however, the evidence does not support the trial court's findings or its conclusion that trial counsel was ineffective.

With regard to Pe a's mental capacity, evidence that Pe a had a mental illness that was being treated by a psychiatrist does not constitute evidence that Pe a was incompetent to stand trial. See Leyva v. State, 552 S.W.2d 158, 160-61 (Tex. Crim. App. 1977); Valderas v. State, 134 S.W.3d 330, 337 (Tex. App.--Amarillo 2003, no pet.). Pe a presented no evidence that he was actually incompetent at the time of his arrest or trial. See Ex parte Urquhart, 170 S.W.3d 280, 284 (Tex. App.--Dallas 2005, no pet.) (noting different result appellant had to show was that conviction would be reversed). Moreover, Pe a presented no evidence from which the trial court could find that trial counsel had not investigated the effect of Pe a's mental illness. Trial counsel was clearly aware of the mental illness and used Pe a's condition to assist in his defense. Although Pe a relies heavily on Freeman v. State, 167 S.W.3d 114 (Tex. App.--Waco 2005, no pet.), trial counsel in that case testified at the hearing and conceded that he did not investigate the defendant's mental health history. In the instant case, Pe a failed to call trial counsel as a witness to explain his actions. See Goodspeed, 187 S.W.3d at 392 (noting trial counsel ordinarily must be afforded opportunity to explain actions); Andrews, 159 S.W.3d at 103 (same). Having reviewed the trial court's application of the law to the evidence presented at the hearing, we conclude the trial court abused its discretion in concluding that trial counsel was ineffective because the evidence fails to rebut the strong presumption that counsel rendered reasonable assistance by investigating and considering Pe a's mental capacity. Thompson, 9 S.W.3d at 813.

With regard to trial counsel's decision not to call Pe a to testify, we again note that Pe a failed to call trial counsel as a witness. See Goodspeed, 187 S.W.3d at 392; Andrews, 159 S.W.3d at 103. Pe a testified that trial counsel advised him not to testify; therefore, the record reflects that trial counsel made a conscious decision to not put Pe a on the stand. Absent trial counsel's testimony, we would merely be speculating as to the trial strategies trial counsel was pursuing. Trial counsel may have believed that the letter from Pe a's psychiatrist provided a stronger defense to Pe a's actions than would Pe a's testimony. Furthermore, Pe a did not testify with regard to the facts he would have disclosed to the jury, so the record does not establish that the result of the trial would have been different if Pe a had been called to testify. Therefore, applying the law to the facts, Pe a failed to rebut the presumption that counsel rendered reasonable assistance in advising Pe a not to testify.

Conclusion

Because Pe a failed to present any evidence to rebut the strong presumption of reasonably effective assistance, the trial court erred in granting the habeas relief. The trial court's order is reversed and judgment is rendered denying Pe a application for writ of habeas corpus.

 

Catherine Stone, Justice

DO NOT PUBLISH

 

1. The officer later testified that he had not drawn his gun.