“[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel’s performance was constitutionally adequate . . . .”
How later courts described this case
- “[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel’s performance was constitutionally adequate . . . .”
- “[A] reasonably competent counsel need not perform a useless or futile act[.]”
- holding record was insufficient to support ineffective assistance of counsel claim when record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses
Written by the judges who cited it.
The opinion
Opinion issued May 2, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00322-CR
NO. 01-12-00323-CR
———————————
ALFREDO GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case Nos. 10CR0862 and 10CR0863
MEMORANDUM OPINION
Appellant Alfredo Gonzales pleaded guilty to two offenses of aggravated
robbery. 1 A jury assessed appellant’s punishment at 17 years in prison for the first
offense and 12 years in prison for the second offense, with the sentences to be
served concurrently. Presenting the same issue in each appeal, appellant contends
that he received ineffective assistance of counsel during the punishment phase of
trial.
We affirm the judgment of conviction in each appeal.
Background Summary
On March 16, 2010, Vernon and Sherrie Whitehead, along with their 15-
year-old son Dakota, and his best friend, Reed, were traveling on Interstate 45
through downtown Houston on their way home to Texas City. They were
returning from a spring break trip to the Whitehead’s vacation home. Vernon was
driving the family’s pickup truck, which was pulling a trailer loaded with four-
wheelers they had used on vacation. Sherrie was in the passenger seat and Dakota
and Reed were in the backseat.
Appellant was also on the freeway, driving a stolen pickup truck. Two of
appellant’s friends were in the truck with him. Appellant began tailgating the
Whitehead’s vehicle. Appellant then got in front of the family’s truck and slowed
1
See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011).
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down. Appellant also drove alongside the Whitehead’s vehicle. The Whiteheads
were concerned about appellant’s erratic driving and also thought that appellant
was following them. Eventually, the family no longer saw appellant. They
believed that appellant had turned off the freeway.
When they were close to their home, the Whiteheads noticed that appellant
was still behind them. Vernon decided to pull over to ask appellant why he was
following them. Vernon got out of the truck, followed by Dakota, and approached
appellant, who was sitting in the driver’s seat. Appellant and the two other men in
the vehicle tried to pull bandanas up over the bottom portion of their faces.
Vernon saw that appellant had grabbed a rifle from inside the truck.
Meanwhile, Sherrie had called 9-1-1. Vernon yelled to her that appellant
had a gun. Vernon and Dakota got back in their pickup. Vernon tried to drive
away, but appellant blocked the Whitehead’s vehicle. Appellant and his two
companions approached the Whiteheads, who were trying unsuccessfully to lock
their doors. Appellant was on the driver’s side of the Whitehead’s vehicle pointing
the rifle at Vernon. One of the men got Dakota’s door open. While Dakota was on
the ground, one of the men kicked him in the head. Vernon decided to get out of
the truck. Appellant demanded his keys, but Vernon refused to comply. One of
the men was pulling Sherrie out of the truck. Sherrie was still on the telephone
with 9-1-1 while the events unfolded.
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A man who lived nearby heard Sherrie’s screams. He came outside with his
gun and fired four warning shots. Appellant and his companions took off in the
stolen truck. The police soon arrived.
When the police tried to stop him, appellant continued to drive, and a chase
ensued. Several local law enforcement agencies eventually took part in the pursuit.
Appellant refused to stop even after two spike strips were deployed, and he was
driving only on the vehicle’s rims. Appellant hit a civilian vehicle during the
pursuit. He stopped only when the stolen truck became disabled. Appellant then
fled on foot but was apprehended by police and arrested. Appellant gave three
statements to the police over the next few days. He admitted to being the driver of
the truck, to intending to steal the four wheelers, and to fleeing from the police.
Appellant denied that he brandished the gun, maintaining that it was one of his
friends who had the weapon.
Appellant was indicted for two offenses of aggravated robbery. One
indictment identified Vernon as the complainant and the other identified Sherrie as
the complainant. Appellant pleaded guilty to each offense, requesting that a jury
determine his punishment.
The Whiteheads and Reed each testified at the punishment hearing regarding
the events surrounding the robberies and how each had been affected by the
crimes. A number of police officers also testified, describing the high speed
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pursuit of appellant, his arrest, and the investigation of the robberies. The State
also introduced the testimony of a street gang expert, who concluded appellant was
a member of a gang. The expert reached this conclusion based on appellant’s
tattoos and on his association with known gang members.
The jury also heard evidence that appellant had committed the robberies
while he was on community supervision for the offense of possession of a
controlled substance. Appellant also had a previous conviction for the
misdemeanor offense of evading arrest.
Appellant offered the testimony of his sister, his fiancée, and his father.
They each testified that appellant had become more mature in the nearly two years
since he had committed the offenses. They requested that appellant be placed on
community supervision. They asserted that this would permit appellant to be a
father to his two-year-old daughter and to help his father who had suffered a series
of strokes. During closing argument, in addition to emphasizing the testimony of
these witnesses, defense counsel requested the jury to take into consideration that
appellant was only 18 years old when he committed the robberies.
During its closing argument, the State emphasized the nature of the crimes,
the high speed chase that followed, and the fact that appellant was already on
community supervision for another offense when he committed the crimes. The
State requested the jury to assess punishment at 40 years in prison.
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The jury assessed appellant’s punishment at 17 years in prison for the
aggravated-robbery offense in which Vernon is the complainant. Appellant
received a sentence of 12 years in prison for the offense in which Sherrie is
identified as the complainant. The sentences are to be served concurrently.
Appellant did not file a motion for new trial in either case. These appeals
followed.
Ineffective Assistance of Counsel
In each appeal, appellant raises one issue, complaining that he received
ineffective assistance of counsel at the punishment hearing.
A. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must
show the following: (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that, but for counsel’s
errors, the result would have been different. See Strickland v. Washington, 466
U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068, (1984); Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of
either deficient performance or sufficient prejudice defeats the ineffectiveness
claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);
Andrews, 159 S.W.3d at 101.
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Appellant bears the burden of proving by a preponderance of the evidence
that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Id. “In making an assessment of effective assistance of counsel, an appellate court
must review the totality of the representation and the circumstances of each case
without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011).
Demonstrating ineffective assistance of counsel on direct appeal is “a
difficult hurdle to overcome.” Id. Review of counsel’s representation is highly
deferential, and the reviewing court indulges a strong presumption that counsel’s
conduct fell within a wide range of reasonable representation. Salinas v. State, 163
S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63 (Tex.
Crim. App. 2001). Counsel “should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective.” Menefield v. State, 363
S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003)). If trial counsel is not given that opportunity,
then the appellate court should not find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
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2001)). In short, “the record must demonstrate that counsel’s performance fell
below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify trial counsel’s acts or omissions, regardless
of his or her subjective reasoning.” Lopez, 343 S.W.3d at 143.
B. Analysis
Appellant identifies a number of ways that he contends that his counsel’s
performance was deficient. It is significant that appellant did not file a motion for
new trial. Without counsel’s testimony in conjunction with a new trial motion, we
are left to speculate what counsel’s trial strategy was with respect to each
complaint appellant raises against him. Because the record does not offer an
explanation for his actions, we presume that trial counsel made all significant
decisions in the exercise of reasonable professional judgment. Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197,
199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Without testimony from
trial counsel, we cannot meaningfully address trial counsel’s strategic reasons for
the actions that appellant alleges constitute ineffective assistance. See Crawford v.
State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(citing Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1996,
pet. ref’d)). Against this backdrop, and with the applicable legal principles in
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mind, we determine whether appellant has shown, by a preponderance of the
evidence, that his counsel was ineffective.
Appellant first asserts that counsel’s performance was deficient because he
failed to adequately prepare appellant’s fiancée to testify. His fiancée testified that
she believed that appellant should be given probation. On cross-examination, the
State asked the fiancée whether she knew certain details about the robberies, which
she admitted that she did not know. Appellant now argues that this shows that
counsel failed to prepare his fiancée to testify.
The record is silent with respect to what efforts counsel made to prepare the
fiancée to testify. It is possible that counsel did not prepare her to testify, and it is
also possible that the fiancée did not remember the specific details of the offenses
when under the pressure of cross-examination. In the absence of direct evidence to
the contrary, we must strongly presume that counsel’s conduct fell within a wide
range of reasonably professional assistance. See Andrews, 159 S.W.3d at 101; see
also Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (holding
record was insufficient to support ineffective assistance of counsel claim when
record was silent regarding reason counsel failed to call expert witness, failed to
file pre-trial motions, and failed to adequately prepare witnesses).
Appellant next contends that counsel’s performance was deficient because
he did not object when the State elicited testimony from the fiancée indicating that
9
she had been convicted of misdemeanor theft. Appellant asserts that such
questioning was in violation of an in limine order requiring a party to approach the
bench before eliciting extraneous offense evidence to impeach a witness.
Appellant contends that counsel’s failure to object or to ask for an instruction to
cure once the testimony was elicited amounted to ineffective assistance of counsel.
Misdemeanor theft is a crime of moral turpitude; thus, it is admissible for
impeachment purposes. See Rodriguez v. State, 129 S.W.3d 551, 558–59 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d); see also TEX. R. EVID. 609(a). Here,
any objection requiring the State to comply with the in limine order would have
ultimately proven to be a futile act because evidence of the fiancée’s conviction
was admissible for impeachment purposes. See Rodriguez, 129 S.W.3d at 558–59.
Counsel is not ineffective for failing to undertake futile actions. See Mooney v.
State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Ex parte Chandler,
182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel
need not perform a useless or futile act[.]”).
In any event, the record is silent regarding trial counsel’s strategy or reasons
for not objecting to the evidence. Thus, appellant has not rebutted the presumption
that counsel’s performance was reasonable. See State v. Morales, 253 S.W.3d 686,
696–97 (Tex. Crim. App. 2008).
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Appellant also contends that his counsel was ineffective because, during
cross-examination of the State’s witnesses, counsel emphasized testimony that was
damaging to the defense while failing to question certain witnesses regarding
weaknesses in his or her testimony. In particular, appellant points out that counsel
asked the Whiteheads the frightening nature of the incident.
The defense’s strategy was to argue that appellant should receive probation
because he had matured in the two years since the offenses, he was needed by his
family, and he was young when he committed the crimes. It is conceivable that
counsel questioned the Whiteheads about the frightening nature of the crimes to
appear sympathetic to their experience. In any event, the record is not sufficient to
address appellant’s ineffective-assistance-of-counsel claim because it does not
adequately show that counsel’s representation was lacking in tactical and strategic
decision making. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Lastly, appellant contends that counsel’s performance was deficient because
he referred to a fact during closing argument that was not supported by evidence.
Specifically, counsel twice mentioned that appellant had gotten one of his tattoos
when he only 13 years old. Appellant contends that defense counsel should have
introduced evidence to support the remark. Although no evidence had been
introduced to support this fact, the State did not object to the remarks. Counsel
11
made these remarks in conjunction with arguing that appellant had a difficult
childhood and a “rough life” growing up.
We do not know why counsel did not introduce the evidence cited by
appellant but then chose to mention it during closing statement. Given the silent
record, we presume that counsel had a tactical reason for doing so. Morales, 253
S.W.3d at 696 (“[U]nless there is a record sufficient to demonstrate that counsel's
conduct was not the product of a strategic or tactical decision, a reviewing court
should presume that trial counsel’s performance was constitutionally
adequate . . . .”). We further presume that counsel’s actions and decisions were
reasonable and motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994).
We hold that appellant has not met his burden to satisfy the first Strickland
component by demonstrating that his counsel’s performance fell below an
objective standard of reasonableness. See Strickland, 466 U.S. at 687–88, 694, 104
S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02. We overrule appellant’s
sole issue in each appeal.
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Conclusion
We affirm the judgment in each appeal.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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