Opinion issued February 9, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00143-CR ——————————— CHARLES JOHNATHAN CHAVEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Case No. 2041267
MEMORANDUM OPINION
Charles Johnathan Chavez was convicted of misdemeanor assault and
sentenced to one year’s confinement.1 He raises four issues on appeal. In his first
and second issues, Chavez contends that he received ineffective assistance of
1 TEX. PENAL CODE § 22.01. counsel due to trial counsel’s failure to make certain objections during voir dire
and the State’s case-in-chief. In his third issue, Chavez contends that the trial court
erred in assessing attorney’s fees against him, an indigent. In his fourth issue,
Chavez contends that the trial court erred by failing to hold a hearing on his pro se
notice of appeal, which he contends should be characterized as a motion for new
trial. We modify the judgment to strike the attorney’s fees and affirm as modified.
Background
Chavez’s girlfriend is Brenda Vasquez. One day, Vasquez found a text from
another woman on Chavez’s phone, and the two began to argue loudly outside
their apartment, drawing the attention of a neighbor. The neighbor then observed
Chavez pull Vasquez by her hair back into their apartment. The neighbor called
911, leading to Chavez’s arrest.
Chavez was charged with misdemeanor assault. At trial, Vasquez denied that
Chavez had pulled her by her hair during their argument, but the jury found
Chavez guilty as charged. The trial court signed a judgment of conviction and
sentenced Chavez to one year of confinement, which the trial court suspended for
two years while placing Chavez on community supervision. Chavez appeals.
Ineffective Assistance of Counsel
In his first two issues, Chavez argues that he received ineffective assistance
of counsel because his trial counsel failed to make two objections. First, Chavez
2 contends that trial counsel should have objected during voir dire when the
prosecutor told the venire that his office is responsible for prosecuting cases with
recanting complainants. Chavez argues that trial counsel should have objected
because the comment was an improper attempt “to indoctrinate the jurors on the
[State]’s theory” that Vasquez—who denied that Chavez hit her—was a “liar.”
Second, Chavez contends that trial counsel should have objected during the State’s
case-in-chief when the responding officer testified that he did not find Vasquez’s
alternative account of what happened to be credible.2 Chavez argues that the
officer’s testimony was improper because a witness normally may not offer a
direct opinion about the truthfulness of another witness.
To prevail on a claim for ineffective assistance of counsel, a defendant must
satisfy the two-prong test set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the first
prong, the defendant “must show that his counsel’s performance was deficient.”
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Under the second
prong, the defendant “must show that the deficient performance prejudiced his
defense.” Id.
In reviewing a claim for ineffective assistance of counsel, we are “highly
deferential” to trial counsel. Taylor v. State, 461 S.W.3d 223, 228 (Tex. App.—
2 Vasquez told the responding officer that she received her injuries from falling down the stairs. 3 Houston [1st Dist.] 2015, pet. ref’d). We indulge a “strong presumption” that trial
counsel’s performance “fell within the wide range of reasonable professional
assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). To
prove that counsel’s performance was deficient, “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d).
“Any allegation of ineffectiveness must be firmly founded in the record,
which must demonstrate affirmatively the alleged ineffectiveness.” Id. If the record
does not contain affirmative evidence of counsel’s reasoning or strategy, we
normally presume that counsel’s performance was not deficient. Id. “In rare cases,
however, the record can be sufficient to prove that counsel’s performance was
deficient, despite the absence of affirmative evidence of counsel’s reasoning or
strategy.” Id.
Chavez has failed to provide us with any evidence showing why trial
counsel did not object to the prosecutor’s comments during voir dire or the
responding officer’s testimony during the State’s case-in-chief. Nor has he argued
or otherwise demonstrated that this is one of those “rare cases” in which “the
record can be sufficient to prove that counsel’s performance was deficient, despite
the absence of affirmative evidence of counsel’s reasoning or strategy.” Id.
4 Because the record is silent as to why trial counsel failed to make the objections,
Chavez has failed to rebut the “strong presumption” that counsel’s performance
“fell within the wide range of reasonable professional assistance.” LaHood, 401
S.W.3d at 50. We overrule Chavez’s first and second issues.
Attorney’s Fees
In his third issue, Chavez argues that the trial court erred in assessing
attorney’s fees against him because the trial court never found that there had been a
material change in his financial circumstances after initially finding him indigent.
The State agrees with Chavez that the trial court erred in assessing attorney’s fees.
Once a trial court finds a criminal defendant indigent, the defendant “is
presumed to remain indigent for the remainder of the proceedings in the case
unless a material change in the defendant’s financial circumstances occurs.” TEX.
CODE CRIM. PROC. art. 26.04(p). However, under Article 26.05 of the Code of
Criminal Procedure, a trial court may order an indigent defendant “to re-pay costs
of court-appointed legal counsel that the court finds the defendant is able to pay.”
Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013); see TEX. CODE CRIM.
PROC. art. 26.05(g). If the trial court does not find that there has been a material
change in the defendant’s financial circumstances, it may not order the defendant
to re-pay attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim.
App. 2010).
5 Before trial, the trial court found Chavez indigent and appointed him trial
counsel. After Chavez was convicted, the trial court ordered him to pay $645 in
attorney’s fees at the rate of $50 per month. But the trial court never found that
there had been a material change in Chavez’s financial circumstances. Instead,
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued February 9, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00143-CR ——————————— CHARLES JOHNATHAN CHAVEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Case No. 2041267
MEMORANDUM OPINION
Charles Johnathan Chavez was convicted of misdemeanor assault and
sentenced to one year’s confinement.1 He raises four issues on appeal. In his first
and second issues, Chavez contends that he received ineffective assistance of
1 TEX. PENAL CODE § 22.01. counsel due to trial counsel’s failure to make certain objections during voir dire
and the State’s case-in-chief. In his third issue, Chavez contends that the trial court
erred in assessing attorney’s fees against him, an indigent. In his fourth issue,
Chavez contends that the trial court erred by failing to hold a hearing on his pro se
notice of appeal, which he contends should be characterized as a motion for new
trial. We modify the judgment to strike the attorney’s fees and affirm as modified.
Background
Chavez’s girlfriend is Brenda Vasquez. One day, Vasquez found a text from
another woman on Chavez’s phone, and the two began to argue loudly outside
their apartment, drawing the attention of a neighbor. The neighbor then observed
Chavez pull Vasquez by her hair back into their apartment. The neighbor called
911, leading to Chavez’s arrest.
Chavez was charged with misdemeanor assault. At trial, Vasquez denied that
Chavez had pulled her by her hair during their argument, but the jury found
Chavez guilty as charged. The trial court signed a judgment of conviction and
sentenced Chavez to one year of confinement, which the trial court suspended for
two years while placing Chavez on community supervision. Chavez appeals.
Ineffective Assistance of Counsel
In his first two issues, Chavez argues that he received ineffective assistance
of counsel because his trial counsel failed to make two objections. First, Chavez
2 contends that trial counsel should have objected during voir dire when the
prosecutor told the venire that his office is responsible for prosecuting cases with
recanting complainants. Chavez argues that trial counsel should have objected
because the comment was an improper attempt “to indoctrinate the jurors on the
[State]’s theory” that Vasquez—who denied that Chavez hit her—was a “liar.”
Second, Chavez contends that trial counsel should have objected during the State’s
case-in-chief when the responding officer testified that he did not find Vasquez’s
alternative account of what happened to be credible.2 Chavez argues that the
officer’s testimony was improper because a witness normally may not offer a
direct opinion about the truthfulness of another witness.
To prevail on a claim for ineffective assistance of counsel, a defendant must
satisfy the two-prong test set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the first
prong, the defendant “must show that his counsel’s performance was deficient.”
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Under the second
prong, the defendant “must show that the deficient performance prejudiced his
defense.” Id.
In reviewing a claim for ineffective assistance of counsel, we are “highly
deferential” to trial counsel. Taylor v. State, 461 S.W.3d 223, 228 (Tex. App.—
2 Vasquez told the responding officer that she received her injuries from falling down the stairs. 3 Houston [1st Dist.] 2015, pet. ref’d). We indulge a “strong presumption” that trial
counsel’s performance “fell within the wide range of reasonable professional
assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). To
prove that counsel’s performance was deficient, “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d).
“Any allegation of ineffectiveness must be firmly founded in the record,
which must demonstrate affirmatively the alleged ineffectiveness.” Id. If the record
does not contain affirmative evidence of counsel’s reasoning or strategy, we
normally presume that counsel’s performance was not deficient. Id. “In rare cases,
however, the record can be sufficient to prove that counsel’s performance was
deficient, despite the absence of affirmative evidence of counsel’s reasoning or
strategy.” Id.
Chavez has failed to provide us with any evidence showing why trial
counsel did not object to the prosecutor’s comments during voir dire or the
responding officer’s testimony during the State’s case-in-chief. Nor has he argued
or otherwise demonstrated that this is one of those “rare cases” in which “the
record can be sufficient to prove that counsel’s performance was deficient, despite
the absence of affirmative evidence of counsel’s reasoning or strategy.” Id.
4 Because the record is silent as to why trial counsel failed to make the objections,
Chavez has failed to rebut the “strong presumption” that counsel’s performance
“fell within the wide range of reasonable professional assistance.” LaHood, 401
S.W.3d at 50. We overrule Chavez’s first and second issues.
Attorney’s Fees
In his third issue, Chavez argues that the trial court erred in assessing
attorney’s fees against him because the trial court never found that there had been a
material change in his financial circumstances after initially finding him indigent.
The State agrees with Chavez that the trial court erred in assessing attorney’s fees.
Once a trial court finds a criminal defendant indigent, the defendant “is
presumed to remain indigent for the remainder of the proceedings in the case
unless a material change in the defendant’s financial circumstances occurs.” TEX.
CODE CRIM. PROC. art. 26.04(p). However, under Article 26.05 of the Code of
Criminal Procedure, a trial court may order an indigent defendant “to re-pay costs
of court-appointed legal counsel that the court finds the defendant is able to pay.”
Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013); see TEX. CODE CRIM.
PROC. art. 26.05(g). If the trial court does not find that there has been a material
change in the defendant’s financial circumstances, it may not order the defendant
to re-pay attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim.
App. 2010).
5 Before trial, the trial court found Chavez indigent and appointed him trial
counsel. After Chavez was convicted, the trial court ordered him to pay $645 in
attorney’s fees at the rate of $50 per month. But the trial court never found that
there had been a material change in Chavez’s financial circumstances. Instead,
after trial and sentencing, the trial court held an indigency hearing and again found
Chavez indigent.
We hold that the trial court erred by assessing attorney’s fees without first
determining that there had been a material change in Chavez’s financial
circumstances. See id.; TEX. CODE CRIM. PROC. art. 26.05(g). Accordingly, we
sustain Chavez’s third point and modify the trial court’s judgment to strike the
assessment of attorney’s fees.
Hearing on Motion for New Trial
In his fourth issue, Chavez contends that the trial court erred by failing to
hold a hearing on his first notice of appeal, which he filed pro se. In his pro se
notice of appeal, Chavez argued that he received ineffective assistance of counsel
because trial counsel did not permit him to testify. Chavez contends that the trial
court should have characterized his pro se notice of appeal as a motion for new
trial and held a hearing on it. The State responds that Chavez failed to present his
motion in accordance with Rule 21.6 of the Rules of Appellate Procedure. We
agree.
6 Rule 21.6 provides that a defendant must present a motion for new trial to
the trial court within 10 days of filing it, unless the trial court in its discretion
permits it to be presented and heard within 75 days from the date when the court
imposes or suspends sentence in open court. TEX. R. APP. P. 21.6. If the defendant
fails to timely present the motion, then the trial court has no duty to hold a hearing
on it. Bearnth v. State, 361 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d).
To present the motion, the defendant must do more than simply file it with
the trial court clerk. Id. The defendant must put the trial court on actual notice that
the defendant wants the trial court to take some action on the motion. Id. “The
presentment must result in actual notice to the trial court and may be evidenced by
the judge’s signature or notation on a proposed order or by a hearing date set on
the docket.” Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).
Chavez does not point us to any ruling, proposed order, docket entry, or
other evidence that the trial court had actual notice that he characterized his notice
of appeal as a motion for new trial and wanted a hearing on it. Under well-
established law, it was Chavez’s burden to provide us with a record that shows he
properly presented the motion. Bearnth, 361 S.W.3d at 146. He has failed to do so.
We overrule Chavez’s fourth issue.
7 Conclusion
We modify the trial court’s judgment to strike the assessment of attorney’s
fees and affirm as modified.
Harvey Brown Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).