i i i i i i
MEMORANDUM OPINION
No. 04-07-00792-CR
Francisco A. RODRIGUEZ, Appellant
v.
The STATE of Texas, Appellee
From the 216th Judicial District Court, Bandera County, Texas Trial Court No. CRAC-07-056 Honorable Stephen B. Ables, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: December 10, 2008
AFFIRMED
Francisco A. Rodriguez was convicted by a jury of aggravated sexual assault and sentenced
to forty years imprisonment. Rodriguez contends his trial counsel was ineffective by failing to
properly prepare for the punishment phase of trial. We affirm the trial court’s judgment.
FACTUAL BACKGROUND
Francisco A. Rodriguez was charged with aggravated sexual assault. He was represented by
court-appointed trial counsel, who first met with Rodriguez at his arraignment on April 23, 2007. 04-07-00792-CR
Trial counsel also met with Rodriguez at his pre-trial hearing on May 24, 2007 and at the Comal
County Jail on September 28, 2007. On October 23, 2007, Rodriguez pled guilty and elected to
proceed before a jury for punishment on the same day. After deliberation, the jury reached a verdict
and sentenced Rodriguez to forty years imprisonment.
Prior to the punishment stage of trial, Rodriguez’s trial counsel did not file any written pre-
trial motions. At trial, counsel did not call any witnesses and did not present any evidence while the
State called two witnesses: Desmond O’Neill, a law enforcement agent to whom Rodriguez
confessed, and the victim in the case.
STANDARD OF REVIEW
A defendant is entitled to effective assistance of counsel under both the United States and
Texas Constitutions. U.S. CONST . amend. VI; TEX . CONST . art. I, § 10; TEX . CODE CRIM . PROC.
ANN . art. 1.051 (Vernon Supp. 2008). To prove ineffective assistance of trial counsel on appeal, an
appellant must show that counsel’s assistance fell below an objective professional standard of
reasonableness and counsel’s actions thereby prejudiced appellant’s defense. Strickland v.
Washington, 466 U.S. 668, 687-88, 692 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999). To establish prejudice, appellant must prove, by a preponderance of the evidence, that
but for counsel’s unprofessional error, the outcome of his trial would have been different. Jackson
v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In reviewing an ineffective assistance of counsel claim, we consider the totality of counsel’s
representation in light of the particular circumstances of the case and presume that counsel acted
competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn, 785
S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for any allegation
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of ineffectiveness must be affirmatively founded in the record. Thompson, 9 S.W.3d at 813. It is
very difficult for an appellant to establish ineffective assistance when the record does not specifically
mention counsel’s reasons for his actions and appellant does not develop an evidentiary record
through a hearing on a motion for new trial. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d).
Even if appellant is able to prove trial counsel’s performance was deficient, appellant must
also affirmatively prove that he was prejudiced by counsel’s actions. Thompson, 9 S.W.3d at 812.
Appellant must demonstrate a reasonable probability that the result of the proceeding would have
been different if trial counsel had acted professionally. Id. A reasonable probability is a probability
sufficient to undermine confidence in the trial’s outcome. Id.
ANALYSIS
Rodriguez alleges he received ineffective assistance of counsel because his trial counsel
failed to adequately prepare for the punishment phase of trial by failing to: (1) file any pre-trial
motions; (2) prepare a type-written application for probation and an election for punishment prior
to trial; (3) interview or subpoena defense witnesses, including a potential character witness, to
testify at sentencing; (4) ensure Rodriguez had proper clothing to wear to trial; (5) present evidence
of eligibility and requirements for probation; and (6) present evidence regarding requirements for
sex offender registration.
On November 29, 2007, a hearing was held on Rodriguez’s motion for new trial. At the
hearing, trial counsel testified that she had been practicing law for almost twenty years. She testified
that she opened her own criminal defense practice in 2004 and was appointed to Rodriguez’s case
in April of 2007. Trial counsel stated that Rodriguez’s case was her first jury trial for sexual assault,
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but she also added she had tried at least three or four other felony jury trials.
Trial counsel admitted that she did not file any pre-trial motions. Trial counsel testified that
she did draft some pre-trial motions she thought she would need to present prior to trial in order to
obtain evidence; however, she did not file the motions because of the State’s open file policy. As
a result, she obtained copies of everything she needed, including Rodriguez’s confession and the
reports made by O’Neill, a witness, and the police. Trial counsel also admitted she did not file a
written motion to suppress Rodriguez’s confession or O’Neill’s statement. Although trial counsel
drafted motions to suppress the evidence, she and co-counsel believed they lacked grounds to
suppress either Rodriguez’s confession or the statement after interviewing O’Neill and conducting
additional research.
Trial counsel also admitted she did not prepare a type-written application for probation or
an election for punishment prior to trial. Trial counsel testified that her co-counsel filed a
handwritten application for probation and an election for punishment on the day of trial. Trial
counsel testified that her initial strategy was to proceed with a jury trial to determine Rodriguez’s
guilt or innocence; however, trial counsel changed her strategy after reviewing the evidence and
speaking to Rodriguez. Trial counsel testified that she did not make the decision to ask the jury to
give Rodriguez a light sentence or probation until the day of trial.
Trial counsel further testified she visited Rodriguez on September 28, 2007, and she and
Rodriguez reviewed all the evidence in detail, including Rodriguez’s confession and the reports
made by O’Neill and the police. Trial counsel testified Rodriguez voluntarily decided to plead guilty
to avoid putting his step-daughter, the victim, through any more trauma. Trial counsel added she and
co-counsel had a lengthy discussion with Rodriguez about his plea to ensure he made it freely and
-4- 04-07-00792-CR
voluntarily as well as understood what he was doing. Trial counsel testified that she then began to
prepare the case for the punishment phase of trial.
Trial counsel admitted she failed to question any defense witnesses prior to trial. Although
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i i i i i i
MEMORANDUM OPINION
No. 04-07-00792-CR
Francisco A. RODRIGUEZ, Appellant
v.
The STATE of Texas, Appellee
From the 216th Judicial District Court, Bandera County, Texas Trial Court No. CRAC-07-056 Honorable Stephen B. Ables, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: December 10, 2008
AFFIRMED
Francisco A. Rodriguez was convicted by a jury of aggravated sexual assault and sentenced
to forty years imprisonment. Rodriguez contends his trial counsel was ineffective by failing to
properly prepare for the punishment phase of trial. We affirm the trial court’s judgment.
FACTUAL BACKGROUND
Francisco A. Rodriguez was charged with aggravated sexual assault. He was represented by
court-appointed trial counsel, who first met with Rodriguez at his arraignment on April 23, 2007. 04-07-00792-CR
Trial counsel also met with Rodriguez at his pre-trial hearing on May 24, 2007 and at the Comal
County Jail on September 28, 2007. On October 23, 2007, Rodriguez pled guilty and elected to
proceed before a jury for punishment on the same day. After deliberation, the jury reached a verdict
and sentenced Rodriguez to forty years imprisonment.
Prior to the punishment stage of trial, Rodriguez’s trial counsel did not file any written pre-
trial motions. At trial, counsel did not call any witnesses and did not present any evidence while the
State called two witnesses: Desmond O’Neill, a law enforcement agent to whom Rodriguez
confessed, and the victim in the case.
STANDARD OF REVIEW
A defendant is entitled to effective assistance of counsel under both the United States and
Texas Constitutions. U.S. CONST . amend. VI; TEX . CONST . art. I, § 10; TEX . CODE CRIM . PROC.
ANN . art. 1.051 (Vernon Supp. 2008). To prove ineffective assistance of trial counsel on appeal, an
appellant must show that counsel’s assistance fell below an objective professional standard of
reasonableness and counsel’s actions thereby prejudiced appellant’s defense. Strickland v.
Washington, 466 U.S. 668, 687-88, 692 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999). To establish prejudice, appellant must prove, by a preponderance of the evidence, that
but for counsel’s unprofessional error, the outcome of his trial would have been different. Jackson
v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In reviewing an ineffective assistance of counsel claim, we consider the totality of counsel’s
representation in light of the particular circumstances of the case and presume that counsel acted
competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn, 785
S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for any allegation
-2- 04-07-00792-CR
of ineffectiveness must be affirmatively founded in the record. Thompson, 9 S.W.3d at 813. It is
very difficult for an appellant to establish ineffective assistance when the record does not specifically
mention counsel’s reasons for his actions and appellant does not develop an evidentiary record
through a hearing on a motion for new trial. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d).
Even if appellant is able to prove trial counsel’s performance was deficient, appellant must
also affirmatively prove that he was prejudiced by counsel’s actions. Thompson, 9 S.W.3d at 812.
Appellant must demonstrate a reasonable probability that the result of the proceeding would have
been different if trial counsel had acted professionally. Id. A reasonable probability is a probability
sufficient to undermine confidence in the trial’s outcome. Id.
ANALYSIS
Rodriguez alleges he received ineffective assistance of counsel because his trial counsel
failed to adequately prepare for the punishment phase of trial by failing to: (1) file any pre-trial
motions; (2) prepare a type-written application for probation and an election for punishment prior
to trial; (3) interview or subpoena defense witnesses, including a potential character witness, to
testify at sentencing; (4) ensure Rodriguez had proper clothing to wear to trial; (5) present evidence
of eligibility and requirements for probation; and (6) present evidence regarding requirements for
sex offender registration.
On November 29, 2007, a hearing was held on Rodriguez’s motion for new trial. At the
hearing, trial counsel testified that she had been practicing law for almost twenty years. She testified
that she opened her own criminal defense practice in 2004 and was appointed to Rodriguez’s case
in April of 2007. Trial counsel stated that Rodriguez’s case was her first jury trial for sexual assault,
-3- 04-07-00792-CR
but she also added she had tried at least three or four other felony jury trials.
Trial counsel admitted that she did not file any pre-trial motions. Trial counsel testified that
she did draft some pre-trial motions she thought she would need to present prior to trial in order to
obtain evidence; however, she did not file the motions because of the State’s open file policy. As
a result, she obtained copies of everything she needed, including Rodriguez’s confession and the
reports made by O’Neill, a witness, and the police. Trial counsel also admitted she did not file a
written motion to suppress Rodriguez’s confession or O’Neill’s statement. Although trial counsel
drafted motions to suppress the evidence, she and co-counsel believed they lacked grounds to
suppress either Rodriguez’s confession or the statement after interviewing O’Neill and conducting
additional research.
Trial counsel also admitted she did not prepare a type-written application for probation or
an election for punishment prior to trial. Trial counsel testified that her co-counsel filed a
handwritten application for probation and an election for punishment on the day of trial. Trial
counsel testified that her initial strategy was to proceed with a jury trial to determine Rodriguez’s
guilt or innocence; however, trial counsel changed her strategy after reviewing the evidence and
speaking to Rodriguez. Trial counsel testified that she did not make the decision to ask the jury to
give Rodriguez a light sentence or probation until the day of trial.
Trial counsel further testified she visited Rodriguez on September 28, 2007, and she and
Rodriguez reviewed all the evidence in detail, including Rodriguez’s confession and the reports
made by O’Neill and the police. Trial counsel testified Rodriguez voluntarily decided to plead guilty
to avoid putting his step-daughter, the victim, through any more trauma. Trial counsel added she and
co-counsel had a lengthy discussion with Rodriguez about his plea to ensure he made it freely and
-4- 04-07-00792-CR
voluntarily as well as understood what he was doing. Trial counsel testified that she then began to
prepare the case for the punishment phase of trial.
Trial counsel admitted she failed to question any defense witnesses prior to trial. Although
trial counsel interviewed O’Neill and attempted to interview the victim and her mother, it was her
understanding that Rodriguez did not want to call any witnesses. During a visit with Rodriguez, trial
counsel asked Rodriguez for a written list of witnesses; however, Rodriguez made the decision not
to call any witnesses. According to trial counsel, one of Rodriguez’s friends called counsel prior to
trial to testify as a character witness. Trial counsel explained that she mistakenly believed the friend
could not testify to Rodriguez’s good character unless the State first offered character evidence
against Rodriguez. Trial counsel did inform Rodriguez of the phone call. Trial counsel testified she
gave Rodriguez another opportunity to provide a written witness list, but Rodriguez remained
steadfast in his decision not to call any witnesses at punishment.
Trial counsel also testified she called a deputy in Bandera County a week before trial
regarding Rodriguez’s clothes. The deputy assured trial counsel that Rodriguez had civilian clothes
to wear, and at trial, Rodriguez wore blue jeans, tennis shoes, and a collared polo shirt.
Rodriguez also testified at the motion for new trial hearing. Rodriguez testified he was under
the impression that trial counsel filed a pre-trial motion to suppress evidence of his confession.
Rodriguez also testified he wanted certain witnesses to be called as character witnesses at his
punishment trial. He added that the witnesses were knowledgeable and familiar with his character
and work history, and he believed such facts were material for the jury to hear. Rodriguez testified
he met trial counsel only one time before trial and that he believed she did not make any effort to
investigate his background history or to prepare for the punishment hearing.
-5- 04-07-00792-CR
While Rodriguez properly filed a motion for new trial and raised his ineffective assistance
of counsel claim in that motion, the record fails to rebut the strong presumption that counsel rendered
effective assistance. The record in this case provides us with reasonable explanations concerning
counsel’s trial strategy in response to Rodriguez’s first four bases for claiming ineffective assistance.
For example, trial counsel prepared several drafts of pre-trial motions and reviewed them with co-
counsel. Her decision not to file them was based on trial strategy. See Saenz v. State, 103 S.W.3d
541, 545 (Tex. App.—San Antonio 2003, pet. ref’d); Mares v. State, 52 S.W.3d 886, 891 (Tex.
App.—San Antonio 2001, pet. ref’d) (“The failure to file pre-trial motions is not categorically
deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial
motions as part of his trial strategy.”). Additionally, the trial judge, as the sole judge of the
credibility of the witnesses, was free to believe counsel’s testimony that Rodriguez decided not to
call any witnesses at punishment, and trial counsel’s decision not to call any punishment witnesses
is a matter of trial strategy. See Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.–Houston [1st
Dist.] 2005, pet. dism’d); Acosta v. State, 160 S.W.3d 204, 210 (Tex. App.—Fort Worth 2005, no
pet.). When reviewing a claim of ineffective assistance of counsel, we are highly deferential to
counsel’s performance. Ex parte Welborn, 785 S.W.2d at 393. In this case, counsel provided
reasonable explanations of her trial strategy regarding Rodriguez’s case, and Rodriguez has failed
to rebut the presumption of effective assistance. See Thompson, 9 S.W.3d at 813.
Even assuming trial counsel’s actions fell below the objective standard of reasonableness,
we could not conclude that trial counsel’s actions resulted in prejudice to Rodriguez. Id. Other than
his conclusory claim, Rodriguez does not provide us with any evidence that a different result would
have occurred if trial counsel had acted differently. Thompson, 9 S.W.3d at 812.
-6- 04-07-00792-CR
In regard to the fifth and sixth bases on which Rodriguez claims ineffective assistance, the
record is silent as to the reason trial counsel did not present either evidence of eligibility and
requirements for probation or evidence regarding requirements for sex offender registration.
Consequently, Rodriguez’s complaint as to these issues is not firmly founded in the record. See
Thompson, 9 S.W.3d at 813. We will not speculate about the reasons for counsel’s trial strategy.
See Hernandez v. State, 198 S.W.3d 257, 269 (Tex. App.—San Antonio 2006, pet. ref’d). “A silent
record which provides no explanation for counsel’s actions will not overcome the strong
presumption of reasonable assistance.” Id. at 270. Therefore, Rodriguez has failed to rebut the
presumption that counsel made these trial decisions based on sound professional judgment. See id.
at 269-70.
CONCLUSION
Because trial counsel’s actions did not fall below the objective standard of reasonableness
or prejudice Rodriguez’s defense, we affirm the trial court’s judgment.
Rebecca Simmons, Justice
Do Not Publish
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