Gonzalez, Jesus

• Court: Texas Supreme Court
• Decided: February 18, 2015
• Docket: PD-0119-15
• Status: Published

Opinion

PD-0119-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/16/2015 3:19:50 PM Accepted 2/18/2015 8:45:31 AM ABEL ACOSTA CLERK NO. PD-0119-15 IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS

JESUS GONZALEZ Appellant v. THE STATE OF TEXAS Appellee

On Petition for Discretionary Review from the First Court of Appeals in No. 01-12-01115-CR, affirming the conviction in cause number 1307888 From the 177th District Court of Harris County, Texas

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT REQUESTED ALEXANDER BUNIN Public Defender Harris County, Texas MARK KRATOVIL Assistant Public Defender Texas Bar Number 24076098 1201 Franklin Street, 13th Floor Houston, Texas 77002 Telephone: (713) 274-6728 February 18, 2015 Facsimile: (713) 437-4339 mark.kratovil@pdo.hctx.net Counsel for Appellant IDENTITY OF PARTIES AND COUNSEL APPELLANT Jesus Gonzalez TDCJ # 01827388 Polunsky Unit 3872 FM 350 Livingston, Texas 77351 DEFENSE COUNSEL AT TRIAL Paul Decuir P.O. Box 9687 Houston, Texas 77213 PROSECUTOR AT TRIAL Adam Muldrow Assistant District Attorney Hans Nielsen Assistant District Attorney Harris County, Texas 1201 Franklin Street Houston, Texas 77002

PROSECUTOR ON MOTION FOR Mia Magness NEW TRIAL Assistant District Attorney Harris County, Texas 1201 Franklin Street Houston, Texas 77002

PRESIDING JUDGE The Honorable Ryan Patrick 177th District Court 1201 Franklin Street, 19th Floor Houston, Texas 77002

PROSECUTOR ON APPEAL Jessica Akins Assistant District Attorney Harris County, Texas 1201 Franklin Street Houston, Texas 77002 APPELLANT’S COUNSEL ON Mark Kratovil MOTION FOR NEW TRIAL Assistant Public Defender AND ON APPEAL Harris County, Texas 1201 Franklin Street, 13th Floor Houston, Texas 77002

ii TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................................. ii TABLE OF CONTENTS ............................................................................................................ iii INDEX OF AUTHORITIES ....................................................................................................... iv STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1 STATEMENT OF THE CASE ..................................................................................................... 1 STATEMENT OF THE PROCEDURAL HISTORY ...................................................................... 3 GROUND FOR REVIEW ........................................................................................................... 4 REASON FOR REVIEW ............................................................................................................. 4 STATEMENT OF FACTS............................................................................................................ 4 ARGUMENT .............................................................................................................................. 7 A. Case Law and the Texas Disciplinary Rules of Professional Conduct Definitive- ly Establish That Trial Counsel's File Belongs to the Appellant ........................... 7

B. Trial Counsel Cannot Refuse to Produce the File By claiming Attorney-Client Privilege ........................................................................................................................ 9

C. This Court Has the Authority to Order a Supplemental Hearing Without Va- cating the Appellant's Conviction ........................................................................... 10

PRAYER FOR RELIEF ............................................................................................................. 11 CERTIFICATE OF SERVICE .................................................................................................... 12 CERTIFICATE OF COMPLIANCE ........................................................................................... 13 APPENDIX A .......................................................................................................................... 14 APPENDIX B .......................................................................................................................... 16

iii INDEX OF AUTHORITIES

Cases

Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982) .................................................... 9

Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013) ..................................................... 10

Gonzalez v. State, 2014 WL 7205145, No. 01-12-01115-CR (Tex. App.—Houston [1st

Dist.] 2014) (not designated for publication) .............................................................. 3, 7

Joseph v. State, 3 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 1999, no pet.) .............. 9

Laughner v. United States, 373 F.2d 326 (5th Cir. 1967) ....................................................... 9

In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) .......................................... 1, 4, 8, 9

Reyes v. State, 82 S.W.3d 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.).............. 10

Statutes

Tex. R. App. Proc. 43.2 (West 2014) ................................................................................. 10

Tex. R. App. Proc. 43.6 (West 2014) ................................................................................. 10

Tex. R. App. Proc. 66.3 (West 2014) ................................................................................... 4

Secondary Sources

Tex. Discliplinary R. Prof’l Conduct 1.15 (2011) ........................................................... 7, 8

iv STATEMENT REGARDING ORAL ARGUMENT

Because the issue presented in this Petition for Discretionary Review involves

the application of relatively new precedent from this Court,1 the Appellant believes

that the opportunity to present oral argument would aid the Court in rendering a deci-

sion.

STATEMENT OF THE CASE

The Harris County District Attorney’s Office charged Jesus Gonzalez (“Appel-

lant”) by indictment with one count of murder. Specifically, the Appellant was alleged

to have caused the death of Alicia Gonzalez by stabbing her with a knife. No en-

hancement paragraphs were alleged in the indictment. (C.R. at 12)

Voir dire began on November 20, 2012, and a jury was seated that same day. (2

R.R. at 119-120). The Appellant was subsequently convicted of murder on December

4, 2012. (4 R.R. at 55-56; C.R. at 94) Punishment proceedings began the same day,

with the Appellant electing to have a jury assess punishment. (C.R. at 102) The jury

assessed a punishment verdict sentencing the Appellant to fifty (50) years confine-

ment in the Texas Department of Criminal Justice. (5 R.R. at 25; C.R. at 102). The

Appellant’s notice of appeal was certified by the trial court on December 5, 2012.

(C.R. at 108-109).

1 Specifically, the issue presented revolves around this Court’s decision in In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013).

1 A Motion for New Trial was filed by appellate counsel on January 4, 2013, re-

questing only a new punishment hearing and asserting three grounds for the requested

relief: 1) ineffective assistance of counsel at the punishment phase; 2) that the trial

court committed error in refusing to submit a sudden passion jury instruction at the

punishment phase; 3) and that a new trial should be granted in the interests of justice.

(Special C.R. at 2-13).2 Twelve supporting affidavits from friends and family members

of the Appellant were attached to the Motion for New Trial. (Special C.R. at 18-62).

On January 9, 2013, Judge Ryan Patrick denied the Motion for New Trial with-

out conducting an evidentiary hearing. (Supplemental C.R. at 2, 15). The Appellant

filed a Motion to Abate with the First Court of Appeals asserting that the trial court

abused its discretion in denying the Motion for New Trial without first conducting an

evidentiary hearing. This Motion to Abate was granted by the First Court of Appeals

and the trial court was ordered to conduct an evidentiary hearing. (Supplemental C.R.

at 3-14). After the conclusion of a live hearing on the Appellant’s Motion for New

Trial, the trial court again denied the motion on July 24, 2013. (Supplemental C.R. at

15).

2 There are two additional Clerk’s Records in the present case. First, there is a “Special Clerk’s Rec- ord” which was filed with the Court of Appeals on April 2, 2013 and contains the Appellant’s Mo- tion for New Trial and supporting affidavits. Second, there is a “Supplemental Clerk’s Record” which contains the abatement order from the Court of Appeals and the trial court’s ultimate ruling denying the Motion for New Trial. For purposes of clarity, references to these Clerks’ Records will specifically refer to each as either the “Special” or “Supplemental” Clerk’s Record.

2 STATEMENT OF THE PROCEDURAL HISTORY

The First Court of Appeals issued a unanimous, unpublished memorandum

opinion affirming the Appellant’s conviction on December 18, 2014. Justice Jennings

authored the opinion. In its opinion, the First Court of Appeals held that the Appel-

lant’s ineffective assistance of counsel claim failed to satisfy the prejudice prong of

Strickland. Gonzalez v. State, 2014 WL 7205145 at *11, No. 01-12-01115-CR (Tex.

App.—Houston [1st Dist.] 2014) (not designated for publication). In a footnote, the

First Court of Appeals declined to abate the case for a supplemental hearing regarding

trial counsel’s refusal and failure to surrender trial counsel’s file to appellate counsel.

Id. at fn. 4. No motion for rehearing was filed.

3 GROUND FOR REVIEW

The First Court of Appeals erred in failing to order a supplemental hearing in

the trial court where trial counsel for the defense would have been ordered to produce

and surrender his trial file for inspection by appellate counsel, as trial counsel previ-

ously ignored a subpoena to produce the file and refused to abide by his former cli-

ent’s wishes to have the file surrendered to appellate counsel.

REASON FOR REVIEW

The First Court of Appeals has decided an issue which conflicts with an

applicable decision of this Court. See Tex. R. App. Proc. 66.3(c). Specifically, this

Court reaffirmed the longstanding rule in In re McCann, 422 S.W.3d 701 (Tex. Crim.

App. 2013) (“a client owns his or her trial file and a former attorney is obligated to

follow his or her former client's last known wishes under these circumstances”), that a

client’s file belongs to a client. Trial counsel in the present case refused to surrender

the Appellant’s file to appellate counsel, despite the Appellant’s unambiguous order to

do so. In footnote four of its opinion, the First Court of Appeals briefly addressed

this issue and declined to order trial counsel to surrender the file in a supplemental

hearing. This aspect of the opinion of the First Court of Appeals is in conflict with

this Court’s precedent as stated in In re McCann.

STATEMENT OF FACTS

There is no question that the Appellant committed the crime he was charged

with. The Appellant confessed to murdering his wife—the complainant—and no

4 cognizable defense was presented at trial. (3 R.R. at 79-81, 92; 7 R.R. at 9; State’s Ex-

hibit 2; State’s Exhibit 5). The facts of the case, as presented by the First Court of

Appeals, are largely accurate and the Appellant takes no issue with the lower court’s

recitation of them. However, for purposes of this Petition for Discretionary Review,

the underlying facts of the case have no bearing on the legal issue at play.

The issue at the center of this appeal was the conduct of trial counsel in prepar-

ing for trial and at the punishment phase of the Appellant’s trial, where the defense

presented neither witnesses nor any mitigation case. At the hearing on the Appel-

lant’s Motion for New Trial, trial counsel for the Appellant testified. Trial counsel

acknowledged that he had received and signed a subpoena requesting that he produce

the file he had created cataloging his actions in preparing for the Appellant’s trial.

However, trial counsel ignored the commands of this subpoena and failed to bring

any documentation with him to the first day of the Motion for New Trial hearing. (2

R.R. (M.N.T.) at 34-35).

At the second day of the Motion for New Trial hearing, trial counsel brought

with him an item which he represented was the Appellant’s trial file, although he

acknowledged that he did not bring other items concerning the Appellant’s case

which would have substantiated many of the claims trial counsel made during his tes-

timony. Trial counsel explained his actions thusly: “I did bring the trial file. I didn’t

bring the investigation file because Lisa Jones has it and she is in Indiana at this time

and she was last week with her daughter who is having some difficulty in pregnancy,

5 but I brought the trial file with me.” (3 R.R. (M.N.T.) at 4). In explaining his reticence

to surrender the Appellant’s file to appellate counsel, trial counsel explained that he

feared his former client would file a grievance against him should he turn over the file.

According to trial counsel, “You know, I’m reluctant to turn the file over to them un-

less the Court orders me to turn it over because Mr. Gonzalez can come back and file

a grievance on me and then I would have all kind of problems with the State Bar.” (3

R.R. (M.N.T.) at 5).

After appellate counsel repeatedly asserted that the case file was a critical com-

ponent of the Appellant’s ineffectiveness claim and requesting that the trial court or-

der trial counsel to allow appellate counsel to inspect it, the trial court ordered trial

counsel to allow the trial court to conduct an ex parte investigation of relevant por-

tions of the file’s contents: “Mr. Decuir, what I’m going to ask you to do is to go

through your file. If there are any documents you have that relate specifically to any

witnesses, to punishment witnesses, anything that you – that’s memorialized in writing

as regarding punishment, if you would put those to the side, if any exist; and then

when I get back I will review those and then I’ll rule at that point.” (3 R.R. (M.N.T.)

at 39-40).

Following a break in proceedings, the trial court stated the following: “Mr.

Decuir just provided me with a document from his file pertaining to some names of

some potential punishment witnesses; and based on so far Mr. Decuir’s testimony and

what he’s presented to me, the Court, from his file, I don’t see anything at this point

6 that would require turning his file to counsel at this time.” (3 R.R. (M.N.T.) at 40).

Once again, appellate counsel objected and stated to the trial court that the file is the

“property of the client and that it should be turned over in its entirety to present

counsel.” (3 R.R. (M.N.T.) at 40-41). In addition, appellate counsel noted that he had

the Appellant sign a written instruction consenting to have trial counsel turn over the

file to appellate counsel. This instruction was subsequently filed with the court’s

clerk. (3 R.R. (M.N.T.) at 40-42).3 Nevertheless, the trial court stated that the request

for trial counsel to turn over the case file would be denied. (3 R.R. (M.N.T.) at 41).

In its opinion, the First Court of Appeals acknowledged in a footnote that the

Appellant had incorporated trial counsel’s failure to surrender the Appellant’s file into

his ineffective assistance of counsel claim and requested a supplemental hearing be-

fore the trial court as an alternative ground for relief. See Gonzalez, 2014 WL 7205145

at *11 fn. 4. Without analyzing the merits of this claim, the First Court of Appeals

held that it would not order such a hearing. Id.

ARGUMENT

A. Case Law and the Texas Disciplinary Rules of Professional Conduct De- finitively Establish That Trial Counsel’s File Belongs to the Appellant It is a well-established principle that the file belongs to the client. This rule has

been enshrined in the Texas Disciplinary Rules of Professional Conduct in Rule

3 A copy of this Instruction to Provide Entire File is attached to this Petition for Discretionary Re- view as Appendix A.

7 1.15(d), which establishes that “Upon termination of representation, a lawyer shall

take steps to the extent reasonably practicable to protect a client’s interests, such as . .

. surrendering papers and property to which the client is entitled[.] The lawyer may

retain papers relating to the client to the extent permitted by other law only if such

retention will not prejudice the client in the subject matter of the representation.”

Standing on its own, this rule would demonstrated that the Appellant was entitled to

have trial counsel surrender any and all files relating to his case to appellate counsel.

However, this rule does not need to stand on its own, as this Court has recently reaf-

firmed the sanctity of this principle.

Recently in the case of In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013),

this Court addressed the question of who owns a case file in the possession of prior

counsel when that prior counsel refuses to turn over the contents of that file. The

facts of that case are similar to the present case, in that the trial attorney declined to

turn over the client’s file to appellate counsel. Appellate counsel sought to compel

the trial attorney to turn over the file. However, in that case, the trial attorney’s re-

fusal to turn the file over was based on the trial attorney’s “understanding that his

former client wants him to hold the file until otherwise directed.” Id. at 709. In re-

solving this question, this Court held that the file belongs to the client and that the at-

torney in possession of the file must abide by the client’s wishes. “Assuming Turner

[the defendant] is legally competent (as the trial court found in this case), he is entitled

to choose not to turn over his trial file; and McCann [the trial attorney], as Turner’s

8 former counsel and agent, must honor that decision for the reasons that we have ex-

plained.” Id.

Although In re McCann had not yet been decided at the time of the Appellant’s

Motion for New Trial hearing, the principle that the client owns the contents of the

file was already well established in Texas. In Burnett v. State, 642 S.W.2d 765 (Tex.

Crim. App. 1982), the case upon which this Court heavily relied upon in deciding In re

McCann, the Court stated that the contents of the file, such as recordings “deeds,

notes, vouchers, documents and papers of a client, is the property of appellant.” Bur-

nett, 642 S.W.2d at 769. Further, this Court affirmed that the power to waive the at-

torney-client privilege belongs solely to the client. Id. at 770.

B. Trial Counsel Cannot Refuse to Produce the File By Claiming Attorney- Client Privilege Even without the instruction to turn over the file, the Appellant effectively

waived any attorney-client privilege that trial counsel was apparently asserting by rais-

ing the ineffective assistance claim. See, e.g., Laughner v. United States, 373 F.2d 326 (5th

Cir. 1967) (“The privilege is not an inviolable seal upon the attorney’s lops. It may be

waived by the client; and where, as here, the client alleges a breach of duty to him by

the attorney, we have not the slightest scruple about deciding that he thereby waives

the privilege as to all communication relevant to that issue.”); Joseph v. State, 3 S.W.3d

627, 637 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“It is well settled that a cli-

ent waives the attorney-client privilege when litigating a claim against his attorney for

9 a breach of legal duty.”). If trial counsel’s stated fear of having a complainant filed

against him with the State Bar by the Appellant, (3 R.R. (M.N.T.) at 5), is generously

read as an assertion of the attorney-client privilege, then his claim holds no merit.

C. This Court Has the Authority to Order a Supplemental Hearing Without Vacating the Appellant’s Conviction This Court has the authority under Texas Rules of Appellate Procedure 43.2(d)

to vacate the trial court’s judgment and remand this case for further proceedings.

However, under Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013), an appellate

court may not vacate a jury’s sentence for an error which occurs after a proper verdict

has been rendered. Id. at 372-373. Because the error committed by the trial court in

not commanding trial counsel to turn over his client’s file occurred following a verdict

and at a hearing on the Appellant’s Motion for New Trial, Cook appears to be applica-

ble and would bar reversal and remand on this ground alone. Therefore, this Court

has the power to abate the appeal and order a supplemental hearing on the Appel-

lant’s Motion for New Trial under Texas Rules of Appellate Procedure 43.6, permit-

ting the issuance of “any other appropriate order that the law and the nature of the

case require.” See Reyes v. State, 82 S.W.3d 351 (Tex. App.—Houston [1st Dist.] 2001,

no pet.).

10 PRAYER FOR RELIEF

For the reasons stated above, the Appellant prays that this Court grant his peti-

tion, and determine whether the First Court of Appeals erred in holding that the Ap-

pellant is not entitled to a supplemental hearing to inspect the contents of trial coun-

sel’s file.

Respectfully submitted, ALEXANDER BUNIN Chief Public Defender Harris County, Texas

/s Mark Kratovil____ MARK KRATOVIL Assistant Public Defender Texas Bar Number 24076098 1201 Franklin Street, 13th Floor Houston, Texas 77002 Telephone: (713) 274-6728 Facsimile: (713) 437-4339 mark.kratovil@pdo.hctx.net

11 CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney’s Appellate Division by electronic service on February 16, 2015. A

copy has been sent by electronic delivery to the State Prosecuting Attorney, also on

February 16, 2015.

/s Mark Kratovil____ MARK KRATOVIL

12 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 2,540 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced typeface using Garamond 14

point font in text and Garamond 12 point font in footnotes.

3. Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in complet-

ing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc.

9.4(j), may result in the Court's striking this brief and imposing sanctions against the

person who signed it.

13 APPENDIX A

Instruction to Provide Entire File

14 15 APPENDIX B

Jesus Gonzalez v. State of Texas, 2014 WL 7205145, No. 01-12-01115-CR (Tex. App.— Houston [1st App.] 2014) (not designated for publication).

16 Gonzalez v. State, Not Reported in S.W.3d (2014)

appellant “came out from the side driveway ... with his hands up” and appeared to have blood on his shirt. Tovar's 2014 WL 7205145 partner took appellant into custody. Family members told Only the Westlaw citation is currently available. Tovar that appellant and Alicia Gonzalez, his wife and the SEE TX R RAP RULE 47.2 FOR complainant, “were having a dispute and ... the grandmother DESIGNATION AND SIGNING OF OPINIONS. tried to intervene but couldn't .... [T]hey were just arguing and [appellant] pulled a knife and ... stabbed [the complainant] a MEMORANDUM OPINION few times.” DO NOT PUBLISH. TEX.R.APP. P. 47.2(B). Court of Appeals of Texas, HPD Officer R. de la Cruz testified that on May 26, 2011, Houston (1st Dist. he was also dispatched to the “cutting in progress” and arrived shortly after Officer Tovar. He proceeded into the Jesus Gonzalez, Appellant house, where he saw “an older lady, the mother of the v. [complainant],” and three children with “blood on them.” He The State of Texas, Appellee also saw “an open door leading to a bedroom and ... [the complainant] laying next to a bed with her throat cut.” NO. 01–12–01115–CR | Opinion issued December 18, 2014 HPD Homicide Officer E. Castaneda testified that upon arriving at the Gonzalez residence, he observed “blood on On Appeal from the 177th District Court, Harris County, the tile” and the complainant in the back bedroom, deceased. Texas, Trial Court Case No. 1307888 Castaneda explained, Attorneys and Law Firms [y]ou could tell that there was a Mark Kratovil, for Jesus Gonzalez. struggle there in the bedroom. The victim was ... sitting on the floor with Patricia Rae R. Lykos, Alan Curry, Jessica Akins, for State her back up against the bed. There was of Texas. just a large amount of blood on the floor, a large amount of blood on the Panel consists of Chief Justice Radack and Justices Jennings bed. You could tell there was a lot of and Keyes. blood splatter against the wall, against the back wall. It was a very violent scene. MEMORANDUM OPINION Two knives were located in a dresser drawer; one of which Terry Jennings, Justice had blood on it.

*1 A jury found appellant, Jesus Gonzalez, guilty of HPD Homicide Officer J. Sosa testified that he interviewed the offense of murder 1 and assessed his punishment at the complainant's mother following the incident. According confinement for fifty years. In his sole issue, appellant to Sosa, contends that he received ineffective assistance of counsel during the punishment phase of trial. [s]he was very upset. She practically witnessed the incident .... [S]he We affirm. heard her daughter crying or yelling for help ... [and] she immediately [got] out of her bedroom and r[an] towards ... [the complainant and Background appellant's] bedroom, and she [saw Houston Police Department (“HPD”) Officer N. Tovar appellant] attacking [the complainant]. testified that on May 26, 2011, he was dispatched to a “cutting She jump[ed] on his back to pull him in progress” at a residence. When Tovar arrived at the scene, off of [the complainant] and that's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Gonzalez v. State, Not Reported in S.W.3d (2014)

when [appellant] sliced or trie[d] to appellant about his wishes as to whether or not she would slice one of her arms. testify. Barron explained that appellant had treated her family well; would give advice to her children; was happy, generous, The complainant's mother saw appellant stab the complainant and had good credit; and would help people by working on multiple times. When he dropped the knives, the their cars. complainant's mother put them in the dresser drawer. Sosa also interviewed appellant, who admitted to having stabbed Fernando testified that he helped hire Decuir and met with the complainant with kitchen knives. him “to find out about the case” a total of “[a]bout ten” times, including “[t]wo or three” meetings “[i]n-person.” Decuir did Harris County Assistant Medical Examiner Darshan R. not interview Fernando “to find out what information [he] Phatak testified that he performed an autopsy on the might have about [appellant] or the case,” and he did not complainant's body and “[t]he cause of death was multiple discuss testifying with Fernando. Fernando explained that he sharp force injuries, and the manner of death is a homicide.” was present at trial and willing to testify. Although Decuir spoke to the family after the jury had returned its verdict of During the punishment phase of trial, two of the complainant guilty, Fernando could only understand little of what was said and appellant's children, who were present during the due to a language barrier. Fernando stated that appellant was stabbing, and the complainant's brother, Lauro Saldana, a mechanic; would help people using his skills and lend them testified for the State. Appellant's counsel did not cross- cars; was generous, charitable, and non-violent growing up; examine the children and only asked Saldana whether he and continued to pay his bills while incarcerated. He also had a Texas driver's license, which the State objected to as explained that a conflict existed between the complainant and irrelevant. No witnesses testified for the defense. appellant, the complainant would always contradict appellant and act contrary to his wishes, and appellant was frustrated *2 After the trial court entered its judgment, appellant filed and displeased with the complainant's behavior. a motion for new trial, requesting a new punishment hearing. He argued that he received ineffective assistance of counsel Finally, Decuir testified that appellant's family contacted him during the punishment phase of trial because his trial counsel to represent appellant, he spoke and met with the family had failed to interview and call available mitigation witnesses members “[s]everal times,” and he had had the most contact in his defense. The trial court held an evidentiary hearing and with Fernando and Barron. Decuir explained that he did received testimony from appellant's father, Enrique Gonzalez his own investigative work in the case and “conduct[ed] an Cortez, appellant's sister-in-law, Nancy Barron, appellant's independent investigation based on [the] information [he had] brother, Fernando Gonzalez (“Fernando”), and appellant's available.” trial counsel, Paul Decuir. The trial court also admitted into evidence the affidavits of Barron and Fernando as well as nine In preparation for the trial, Decuir “went out to the scene” other individuals. and “visited with [appellant] on several occasions ... to get the names of witnesses.” Although he “wanted to At the hearing, Cortez testified that although he was present subpoena someone who would support [appellant's] position at trial and was willing to testify, no one spoke to him about that he was a good worker ... [and] provider,” appellant testifying. He did not speak to Decuir prior to or during trial, “wouldn't give” him such information because “[h]e didn't and he was not aware of “whether or not [appellant had] told want ... to call witnesses.” Even though appellant would not [his] attorney to call [him] as a witness.” Cortez also testified provide him with “the names of any witnesses for either as to appellant's childhood, education, and character. the guilt/innocence or punishment stage,” Decuir did not “cease investigat[ing].” As a preliminary matter, he looked Barron testified that she was present at trial, prepared to into appellant's background and education and interviewed testify, and surprised that she did not testify. According to “several people,” including “four or five family members,” Barron, she was supposed to testify during the guilt phase of about appellant, but Decuir could not recall their names. trial. She had hired Decuir for appellant and met with him “They gave [him] some information about [the marriage], three times to prepare to testify. And he had discussed the where [the complainant and appellant] had lived, [and] the case with her. Although Barron had discussed with Decuir the children....” Through his investigation, Decuir became aware complainant and appellant's relationship, “who [appellant] of appellant's educational background, and the information was as a person,” and his background, she did not speak to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Gonzalez v. State, Not Reported in S.W.3d (2014)

he received from family members indicated that appellant “the importance of the punishment phase” and discussed did not have any problems while growing up. Although “the benefit [Barron] or [Fernando] could provide if they he did not ask appellant specifically about his childhood testified [during] punishment,” to which appellant responded during his investigation, Decuir did not find any evidence of “no witnesses.” After the guilt phase of trial, appellant's physical or sexual abuse, a learning disability, below-average main concern was to see whether the State's previous offer intelligence, addiction, or substance-abuse. Appellant had a of confinement for fifty years was still available. After the “stable home environment” and “the support of both of his prosecutor said that it was not, Decuir “conferenced with parents as he was growing up.” Appellant did not live in [appellant] and said, ‘Listen, we need to get some witnesses poverty or lack basic necessities, such as food, shelter, or to come up here,’ ” to which appellant responded, “No clothing. Decuir did not find any mitigation witnesses that witnesses.” And appellant also did not want to testify during would have been beneficial in the punishment phase of the the punishment phase of trial. trial. Following the evidentiary hearing, the trial court denied *3 Decuir noted that he specifically spoke with Barron appellant's motion for new trial. and Fernando about testifying as mitigation witnesses during the punishment phase, especially about appellant's good qualities. Barron agreed to testify, and Decuir believed that Standard of Review her testimony would not have been harmful, except that she would have to tell the truth about the “stormy relationship” To prove a claim of ineffective assistance of counsel, between appellant and the complainant. Decuir noted that appellant must show that (1) his trial counsel's performance Barron and Fernando were “the only witness [es] that ... came fell below an objective standard of reasonableness and (2) forward,” and appellant “would not give [Decuir] the names there is a reasonable probability that, but for counsel's of any witnesses, period.” Decuir did ask Barron whether she unprofessional errors, the result of the proceeding would have knew appellant's boss or other potential witnesses. He also been different. Strickland v. Washington, 466 U.S. 668, 687– spoke to Saldana, the complainant's brother, but believed that 88, 694, 104 S.Ct. 2052, 2064, 2068 (1984); Lopez v. State, his testimony would have actually been harmful to appellant. 343 S.W.3d 137, 142 (Tex.Crim.App.2011). “A reasonable And, although Decuir spoke with Cortez, appellant's father, probability is a probability sufficient to undermine confidence he did not interview him to determine if he should testify in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at during the punishment phase. Decuir knew Cortez was at the 2068. In reviewing counsel's performance, we look to the trial, but he did not speak with him about testifying after the totality of the representation to determine the effectiveness guilt verdict because appellant “told [Decuir] he didn't want of counsel, indulging a strong presumption that counsel's to call any witnesses.” Decuir noted, thus, that he did not performance falls within the wide range of reasonable “anticipate having to call punishment witnesses ... other than professional assistance or trial strategy. See Robertson Ms. Barron.” v. State, 187 S.W.3d 475, 482–83 (Tex.Crim.App.2006). Appellant has the burden of establishing both Strickland In his testimony, Decuir repeatedly emphasized that appellant prongs by a preponderance of the evidence. Jackson v. State, did not want him to call any witnesses “to support his 973 S.W.2d 954, 956 (Tex.Crim.App.1998). “An appellant's position.” And appellant refused to give him “information and failure to satisfy one prong of the Strickland test negates a the names of witnesses to help [him] mount a defense” or “put court's need to consider the other prong.” Williams v. State, witnesses on” to mitigate punishment. Decuir explained that 301 S.W.3d 675, 687 (Tex.Crim.App.2009). he “had several conversations with [appellant] with regard to calling witnesses, just to talk to his good character, his work Appellant presented his ineffective-assistance claim to the ethics, the support that he provided his family.” However, trial court in a motion for new trial and received a hearing appellant told him “[n]o witnesses” and that he “didn't want on his motion. We, therefore, analyze his issue under an to have any witnesses.” Appellant specifically “instructed” abuse of discretion standard as a challenge to the denial of his Decuir not to call witnesses and that he did not want his family motion. Biagas v. State, 177 S.W.3d 161, 170 (Tex.App.— members to testify. And appellant “would not let” Decuir call Houston [1st Dist.] 2005, pet. ref'd). We view the evidence Barron to testify during the punishment phase of trial and in the light most favorable to the trial court's ruling and told him, “No.” Decuir spoke to appellant “extensively” about uphold the trial court's ruling if it is within the zone of

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reasonable disagreement. Wead v. State, 129 S.W.3d 126, we focus on whether the investigation supporting counsel's 129 (Tex.Crim.App.2004). We do not substitute our judgment decision not to introduce mitigating evidence was reasonable. for that of the trial court, but rather decide whether the Wiggins v. Smith, 539 U.S. 510, 522–23, 123 S.Ct. 2527, trial court's decision was arbitrary or unreasonable. Webb v. 2536 (2003); Goody v. State, 433 S.W.3d 74, 80 (Tex.App. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007); Biagas, —Houston [1st Dist.] 2014, pet. ref'd). “While ‘Strickland 177 S.W.3d at 170. If there are two permissible views of the does not require counsel to investigate every conceivable line evidence, the trial court's choice between them cannot be held of mitigating evidence,’ ‘counsel can ... make a reasonable to be clearly erroneous. Riley v. State, 378 S.W.3d 453, 457 decision to forego presentation of mitigating evidence [only] (Tex.Crim.App.2012). A trial court abuses its discretion in after evaluating available testimony and determining that denying a motion for new trial only when no reasonable view it would not be helpful.’ ” Goody, 433 S.W.3d at 80–81 of the record could support the trial court's ruling. Webb, 232 (alterations in original) (quoting Wiggins, 539 U.S. at 533, S.W.3d at 112. 123 S.Ct. at 2541; Milburn v. State, 15 S.W.3d 267, 270– 71 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd)). An *4 We note that trial courts are in the best position to attorney's decision not to investigate or to limit the scope of “evaluate the credibility” of witnesses and resolve conflicts the investigation is given a “heavy measure of deference” and in evidence. See Kober v. State, 988 S.W.2d 230, 233 assessed in light of all circumstances to determine whether (Tex.Crim.App.1999). And a trial court may choose to reasonable professional judgment would support the decision. believe or disbelieve all or any part of the witnesses' Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. However, testimony. See id. at 234. a failure to uncover and present mitigating evidence cannot be justified when counsel has not conducted a thorough When, as here, the trial court makes no findings of fact investigation of the defendant's background. Shanklin v. regarding the denial of a motion for new trial, we should State, 190 S.W.3d 154, 164 (Tex.App.—Houston [1st Dist.] “impute implicit factual findings that support the trial judge's 2005, pet. dism'd). ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.” In addition to establishing a deficiency in counsel's Johnson v. State, 169 S.W.3d 223, 239 (Tex.Crim.App.2005); performance, the defendant must show that a reasonable Escobar v. State, 227 S.W.3d 123, 127 (Tex.App.—Houston probability exists that the jury's assessment of punishment [1st Dist.] 2006, pet. ref'd). would have been less severe in the absence of counsel's deficient performance. Bazan v. State, 403 S.W.3d 8, 13 (Tex.App.—Houston [1st Dist.] 2012, pet. ref'd). Our prejudice analysis turns on whether counsel's deficiency Ineffective Assistance of Counsel “made any difference to the outcome of the case.” Riley, 378 In his sole issue, appellant argues that the trial court erred S.W.3d at 458. It is not enough to show that trial counsel's in denying his motion for new trial because Decuir “failed errors had some “conceivable” effect on the outcome of the to conduct an adequate investigation and present mitigating punishment assessed; the likelihood of a different result must evidence from witnesses who were available and willing to be “substantial.” Harrington v. Richter, 562 U.S. 86, ––––, testify” during the punishment phase of his trial. 131 S.Ct. 770, 787, 792 (2011). An appellate court will not reverse a conviction for ineffective assistance of counsel A criminal defense lawyer must have a firm command during the punishment phase of trial unless the defendant of the facts of a case to render reasonable effective shows prejudice as a result of deficient attorney performance. assistance of counsel. Ex parte Ybarra, 629 S.W.2d 943, 946 Rivera v. State, 123 S.W.3d 21, 32 (Tex.App.—Houston [1st (Tex.Crim.App.1982); Ex parte Duffy, 607 S.W.2d 507, 516 Dist.] 2003, pet. ref'd). In reviewing whether a defendant (Tex.Crim.App.1980). Thus, counsel has the responsibility to has satisfied this showing, we accord “almost total deference make an independent investigation of the facts of the case and to a trial court's findings of historical fact as well as mixed seek out and interview potential witnesses. Ex parte Duffy, questions of law and fact that turn on an evaluation of 607 S.W.2d at 517. credibility and demeanor.” Riley, 378 S.W.3d at 458.

*5 Appellant argues that his trial counsel's failure to conduct ™In considering whether trial counsel conducted an an investigation and present mitigation evidence during the adequate investigation for potential mitigating evidence,

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punishment phase of trial prejudiced him because “[t]here appellant's brother, Fernando, testified at the evidentiary [w]as [a]mple [e]vidence of [his] [g]ood [c]haracter [f]rom hearing on his behalf. [a]vailable [w]itnesses.” He asserts that “[t]he members of [his] family who testified at the Motion for New Trial hearing Cortez testified that the family's economic situation, during described many good characteristics of ... [a]ppellant and appellant's childhood, was “[a] little critical.” Appellant gave information regarding his background.” And “[t]he attended school through highschool and received technical affidavits that were submitted by other family and friends ... training. He was not violent growing up or as an adult, was likewise provided ample potentially mitigating evidence a good father, and had a good relationship with his family describing [his] positive qualities.” According to appellant, and the complainant. Cortez did not speak to an attorney or “[i]t is reasonable to presume that had some quantum of investigator prior to or during trial, but he was present in the mitigation evidence been produced by the defense, the jury courtroom during appellant's trial and willing to testify. would have returned a[ ] ... lower number.” Barron testified that appellant always treated her family well, During the punishment phase of trial, the sixteen-year-old gave “advice” to her children, and was a “good uncle.” He son of the complainant and appellant recounted the events of was “happy,” “generous,” had “good credit,” and was a good the stabbing. He explained that when his grandmother came person. Appellant planned to assist Barron and her husband, into his room and told him what was happening, she was Fernando, with purchasing a home, and he helped people “scared” and “in shock,” which caused him to become “really by working on their cars. She had no direct knowledge of nervous” and “start[ ] to panic almost.” He felt “like, [his] a conflict in the complainant and appellant's relationship. mom, ... can't be dead.” When he went into the bedroom, he Barron acknowledged that she was aware of the complainant's saw the complainant on the floor in a puddle of blood. He injuries, the children were present in the home at the time told appellant to go outside and wait for the police because he of the stabbing, and appellant “blamed the murder on his did not want appellant around his brothers and grandmother, children.” She could not explain appellant's behavior, but she as he thought that appellant might “hurt” them. He noted believed it was “out of character.” Barron noted that she was that appellant did not try to resuscitate the complainant or prepared to testify at trial and believed she was to testify stop her bleeding. Instead, his youngest brother tried to stop during the guilt phase. 2 the bleeding with napkins. He then asked the jury not to be “merciful” on appellant, but instead “[t]o do justice.” *6 Fernando testified that appellant was a mechanic, who would use his skills “to help people.” Appellant planned Next, the fifteen-year old son of the complainant and to assist Barron and Fernando with purchasing a home, appellant testified about the stabbing. When he ran into the was a “generous person,” and would make contributions to complainant and appellant's room, he saw the complainant on “Children International.” Appellant was non-violent growing the floor and appellant standing over her. Although he tried up, made a “good living,” and continued to pay his bills to help his youngest brother stop the complainant's bleeding, while imprisoned, including his son's car insurance premiums appellant did not try to resuscitate her or stop her bleeding. and the taxes due on the house where his children live. Appellant then told him and his brothers that it was their Fernando also stated that there was a “conflict” between the “fault ... that he [had] killed [the complainant].” He also complainant and appellant, and he noted that the complainant requested that the jury not show “mercy” on appellant, but would “always” contradict appellant and “act[ ] contrary to instead “do justice.” his wishes.” Appellant had “express[ed] frustration” with the complainant's behavior, and he was “displeased that Saldana, the complainant's brother, testified that he is taking she would not follow his wishes.” Although Fernando and care of the three sons of the complainant and appellant. He appellant discussed this conflict “[s]everal” or “many” times, noted that when he saw his nephews and their grandmother Fernando did not “personally observe” the conflict. He also on the night of the stabbing “[t]hey were crying and they were noted that he was not interviewed by an attorney, but he was scared.” Although the children have “tried to be strong since prepared and willing to testify at trial. 3 then,” “[t]hey miss their mother.”

The trial court also admitted into evidence at the hearing the In support of appellant's motion for new trial, appellant's affidavits of nine other individuals. Jose Hernandez testified father, Cortez, appellant's sister-in-law, Barron, and that appellant, his son's godfather, is a “hard worker, very

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calm, and peaceful.” Hernandez “never saw him fight, or get scream[ ]” at his siblings, and was “well groomed.” mad at other people.” He noted that appellant “is a person She explained that appellant “wanted the children to be who fought to bring his family ahead and surpass. He always responsible” and “would put them to do [chores] around the wanted his children to surpass in their studies and that his house,” but the complainant would not agree. She noted that family and his wife would always be happy.... [H]e has always appellant is a good brother, father, son, husband, and friend. been respectful with everyone.” Hernandez noted that he was She stated, however, that he was distant with many of his not contacted by an attorney or investigator to testify on friends because the complainant “didn't want anyone to come appellant's behalf, but would have done so. over to the house.” Alejandra “never saw [appellant] try[ ] to pick a fight with anyone,” and he did not have problems with Ismael A. Toledo Barron (“Ismael”) testified that his wife is other people or law enforcement authorities. Alejandra noted appellant's sister. He explained that appellant “is a peaceful that she was not contacted by an attorney, but was ready to person, well organized and [a] hard worker. He is a person testify for appellant. that doesn't like problems and always wants the best for his children. He was always attentive to them and ... his wife.” *7 Juan Pablo Hernandez testified that he has known Ismael “never saw [appellant] fight or have a problem with appellant for nineteen years and he is a “family man,” a anyone” and has “never known him of doing drugs, or being “hard worker,” and a “good prideful person.” “He was not drunk.” However, on “several occasions” he saw appellant a problematic person, [but] a very passive person and a “scold his children,” and the complainant “did not like for him good person.” Hernandez noted that he was not contacted to scold them.” Ismael noted that he was not contacted by an by an attorney or investigator, but would have testified on attorney or investigator about testifying at trial, but “[i]f there appellant's behalf. is another trial, [he is] willing to testify if necessary.” Carolina Gonzalez (“Carolina”), appellant's cousin, testified Jose Luis Sanchez Vazquez testified that he has known that appellant is “a very peaceful, calm person,” who “did appellant since “adolescen[ce],” however, they “did not spend not drink or have bad vices.” He was “a lovable father to his a lot of time together because [appellant] was a very busy children,” “attentive to them,” and “a good person.” Carolina person. He had a full time job and during his days off, he never saw appellant drink or fight with the complainant. And would ... do[ ] mechanic work ... to give his family a good she explained that appellant “loved” his wife “very much” future.” Vazquez did not know appellant to be “a violent man and did not have problems with law enforcement authorities. or a drunk,” and he noted that appellant was dedicated to his According to Gonzalez, the children “said lies.” She noted family. One time, appellant told Vazquez “that he was going that she was present at trial and would have testified for to be a foster parent for Children's International, and that he appellant, but she was not asked to do so. had had problems with this wife because of that. And she wanted him to end that, but he stood firm, and he had to do Finally, Marie Diaz Sanchez and Ana Berta Gonzalez Diaz, this behind her back, so there would be no more problems.” appellant's mother and sister, testified that appellant “since Vazquez noted that no one contacted him to inquire about an early age[,] always demonstrated good conduct.” He appellant. “obtain[ed] good grades” and did not have “any problems” with his friends or teachers. They noted that appellant was Gabriel Diaz testified that he saw the complainant and “dedicated to” the complainant and “attentive” to her and appellant three days before the stabbing, and he “did not their children, and he gave “good advice to his siblings and see anything that seemed wrong.” On other occasions, parents.” Sanchez and Diaz noted that they would be “willing Diaz “never saw anything bad happening.” He explained to answer any interrogations ... or testify on the case if that appellant “would educate his children,” “was never necessary.” disrespectful,” did not “miss treat[ ][sic]” the complainant, and would give Diaz “good advice.” Diaz noted that he was As it relates to appellant, the majority of mitigation evidence not contacted by an attorney, but would have testified on introduced by appellant during the hearing on his motion appellant's behalf. for new trial centered on the opinions of family and friends that he was a happy, generous, non-violent, and peaceful Alejandra Gonzalez (“Alejandra”), appellant's sister, testified person. They all considered him to be a good person, husband, that appellant “is a very responsible person,” would “never father, and friend. And the majority of the witnesses described

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appellant's relationship with the complainant as conflict-free. credibility of this new-trial evidence. We are cognizant that We note, however, that much of this testimony contradicts in analyzing the prejudice under Strickland, we must accord appellant's own statement to law enforcement authorities, “almost total deference to a trial court's findings of historical which was presented to and considered by the jury during the fact as well as mixed questions of law and fact that turn on an punishment phase of trial. evaluation of credibility and demeanor.” Riley, 378 S.W.3d at 458. In his statement to Officer Sosa, appellant admitted that he and the complainant “ha[d] been having problems” and, Additionally, we note that some of appellant's mitigation on the night of the stabbing, they had talked about their evidence may not have benefitted him to the degree that “problems.” They “began talking and ... became upset,” he presumes, but instead actually highlights the conflict and the complainant “blame[d] [him] for everything,” noted that existed between him and the complainant that he that “everything was [his] fault,” and told him that he discussed in his statement to Officer Sosa. For instance, “was wrong.” Appellant explained that she was always “on” Fernando revealed in his testimony that he knew of a him, constantly contradicted him, and accused him of being “conflict” between the complainant and appellant, and he “unfaithful” his “whole life.” He noted that the complainant noted that appellant was frustrated with the complainant's “was wrong,” he was considering a divorce, and he “was behavior and “displeased that she would not follow going to leave his wife and get a house.” his wishes.” Additionally, other witnesses discussed the complainant and appellant's disagreements and problems, When asked about what had happened in the bedroom during which occurred prior to the stabbing. Such evidence, could the night of the stabbing, appellant responded that he “stabbed have actually harmed appellant rather than mitigate his her,” while she was “laying down,” with knives that he had punishment. See Ex parte McFarland, 163 S.W.3d 743, 758 taken from the kitchen. According to appellant, “We argued, (Tex.Crim.App.2005) (holding defendant did not establish we got mad, and it happened. I stabbed her.” He believed he prejudice where he failed to show witness testimony would stabbed her in her throat. Although the complainant “tr[ied] have benefitted him); Bone v. State, 77 S.W.3d 828, 834– to defend herself,” he “hit her with the knife. The devil got in 35 (Tex.Crim.App.2002) (explaining potential benefit of [him].” Appellant could not explain why he stabbed her, just additional testimony outweighed by risk of unfavorable that “[i]t happened in that moment of anger.” He also noted counter-testimony); Dillon v. State, No. 12–06–00135–CR, that he had previously “hit” the complainant when she would 2007 WL 4216253, at *7 (Tex.App.—Tyler Nov. 30, 2007, “challenge” him. pet. ref'd) (mem. op., not designated for publication) (holding defendant failed to show reasonable probability of different *8 We note that when presented with contradictory result where “any benefits to be gained from the use of evidence, trial courts are in the best position to “evaluate the character witnesses ... would be offset if not supplanted by credibility” of witnesses and resolve conflicts in the evidence. cross examination of those witnesses”). See Kober, 988 S.W.2d at 233. A trial court may choose to believe or disbelieve all or any part of the testimony Further, as to the witnesses who did not mention any conflict of mitigation witnesses, especially testimony presented in between the complainant and appellant, but instead testified affidavits and unsupported by live testimony. Riley, 378 that the complainant and appellant had a good relationship S.W.3d at 457; Kober, 988 S.W.2d at 234. Further, a trial and appellant had a peaceful, non-violent nature, the jury court is free to reject the credibility of new-trial evidence could have easily discredited such testimony given appellant's if it conflicts with evidence presented during trial. See own admissions of his on-going marital problems and that he Goody, 433 S.W.3d at 81 (holding defendant failed to show had previously “hit” the complainant. prejudice where trial court rejected credibility of evidence that conflicted with other evidence presented at punishment We also note that appellant did not demonstrate at the motion hearing). for new trial hearing that all of his mitigation witnesses were available to testify at his trial. See King v. State, Here, much of the evidence presented by appellant at the 649 S.W.2d 42, 44 (Tex.Crim.App.1983) (“Counsel's failure hearing on his motion for new trial directly contradicts to call witnesses at the guilt-innocence and punishment appellant's own admissions. And the trial court, in denying stages is irrelevant absent a showing that such witnesses appellant's motion for new trial, evidently rejected the were available and appellant would benefit from their

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testimony.”). Specifically, four of appellant's witnesses did any member of [Milburn's] defense team, they would have not state that they were available to testify at his trial, and testified had they been requested to, and they would have appellant presented no other evidence of their availability. asked the jury to consider the minimum punishment.” Id. We, therefore, do not consider their testimony in determining at 269. And Milburn's counsel testified that he had failed prejudice. See Ex parte McFarland, 163 S.W.3d at 758 to interview and call any witnesses during the punishment (holding defendant did not show prejudice where he failed phase of trial. Id. at 270. Thus, because Milburn's trial counsel to show witnesses available to testify); cf. Milburn, 15 readily admitted that he neither investigated nor evaluated S.W.3d at 269–71 (holding counsel's failure to investigate and available punishment evidence, the appellate court held his present mitigating evidence during punishment prejudiced performance deficient. Id. defendant where parties stipulated twenty witnesses would have testified as to their availability). In evaluating the second prong of the Strickland analysis, the appellate court noted that “[a]fter the State concluded *9 We further note that in regard to the testimony that its presentation of testimony and evidence to the jury appellant was organized, responsible, and a hard-worker, who showing [Milburn's] bad character, [Milburn's] trial counsel “fought to bring his family ahead” and give them “a good responded, ‘We're not going to put anything on.’ ” Id. The future,” it is also not likely that such evidence would have jury then “returned a sentence in excess of that requested affected the punishment assessed, given the strength of the by the State.” Id. The court concluded that Milburn had testimony of appellant's children and appellant's statement. demonstrated prejudice in the case because his “trial counsel Cf. Alfaro v. State, No. 01–13–0073–CR, 2014 WL 3606751, performed no investigation into any possible mitigating facts at *6–7 (Tex.App.—Houston [1st Dist.] July 22, 2014, no and failed to contact even a single family member or friend, pet.) (mem. op., not designated for publication) (concluding despite the availability of such mitigation evidence .... [And] testimony defendant responsible and worked unlikely to [t]his evidence would have provided some counterweight to affect punishment assessed in light of testimony of wife evidence of bad character ... received by the jury.” Id. at 270– and children about extensive abuse); Alvarado v. State, No. 71 (internal citations omitted). 04–03–00289–CR, 2006 WL 332536, at *9–10 (Tex.App. —San Antonio Feb. 15, 2006, pet. ref'd) (mem. op., not Appellant argues that “[a] similar result to Milburn is designated for publication) (denying defendant's ineffective- warranted in the present case” because “[t]here [is] ample assistance claim where uncalled witnesses would have evidence concerning ... [a]ppellant's good character that testified defendant responsible and hard worker); Dotson v. Decuir could have uncovered had he interviewed or contacted State, Nos. 14–98–00590–CR, 14–98–00591–CR, 1999 WL even a handful of the affiants.” Contrary to appellant's 1123037, at *4 (Tex.App.—Houston [14th Dist.] Dec. 9, assertion, however, Milburn is markedly dissimilar to the 1999, pet. ref'd) (not designated for publication) (holding present case. second prong of Strickland not satisfied where uncalled witnesses would have testified defendant hard worker with First, Milburn's trial counsel openly admitted that he did steady job). not investigate or interview any mitigation witnesses. Id. at 270. Here, however, appellant's trial counsel testified Given the foregoing, we are not persuaded that a reasonable at the hearing on appellant's motion for new trial that he jury would have imposed a less severe punishment had it been “conduct[ed] an independent investigation”; he looked into presented with appellant's mitigation evidence. Bazan, 403 appellant's background and education; and he interviewed S.W.3d at 13. several family members about appellant's marriage, where the complainant and appellant had lived, and their children. Finally, we note that appellant's reliance on our sister Decuir specifically spoke to Barron and Fernando about court's decision in Milburn is misplaced. In Milburn, the testifying as mitigation witnesses, especially about appellant's jury sentenced Milburn to confinement for forty years for good qualities. He also spoke with Saldana and tried to obtain possession with intent to deliver a controlled substance. 15 the name of appellant's boss. Although Decuir's testimony S.W.3d at 268. At the hearing on the motion for new trial, was not completely uncontroverted, we are not presented the parties stipulated to the testimony of twenty of Milburn's with a situation, as in Milburn, where appellant's trial counsel mitigation witnesses that “they had known [Milburn] for a readily admitted on the record at the new trial hearing that he long period of time, they were never contacted to testify by did nothing to investigate the case.

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CR, 2013 WL 2368258, at *5 (Tex.App.—San Antonio May 29, 2013, pet. ref'd) (mem. op., not designated for publication) *10 Second, the court in Milburn emphasized the fact that (concluding trial counsel not ineffective for not investigating the jury, when not presented with any mitigation evidence, or presenting mitigation testimony where defendant “failed imposed a sentence greater than the one requested by the to provide any contact information or have the witnesses State. Id. at 270. In contrast, here, although the State, call [counsel]”); Malek v. State, Nos. 03–10–00534–CR, in its closing argument, requested that the jury “sentence 03–10–00535–CR, 2012 WL 370551, at *4–5 (Tex.App.— [appellant] to life,” the jury, instead, assessed appellant's Austin Feb. 1, 2012, pet. ref'd) (mem. op., not designated punishment at confinement for fifty years. for publication) (overruling defendant's ineffective-assistance claim for failing to call mitigating character witnesses where Finally, here, unlike in Milburn, there is uncontroverted “record reflect[ed] that [he] did not want his friends or family evidence that appellant specifically instructed his trial counsel members involved in the trial”); Taylor v. State, No. 01–06– not to present any witnesses to testify on his behalf during 00971–CR, 2008 WL 597271, at *4 (Tex.App.—Houston [1st both the guilt and punishment phases of trial, including Dist.] Mar. 6, 2008, pet. ref'd) (mem. op., not designated for Barron, who counsel had prepared to testify. During the publication) (holding trial court did not abuse its discretion hearing on appellant's motion for new trial, Decuir testified in concluding defendant did not meet his burden to establish that he wanted to call someone to testify that appellant was ineffective assistance where defendant told counsel not to a good worker and provider, but appellant would not give contact family members); Hills v. State, No. 14–02–00379– him information and did not want him to call any witnesses. CR, 2003 WL 21402606, at *2 (Tex.App.—Houston [14th Further, appellant would not provide him with the “names Dist.] June 19, 2003, pet. ref'd) (mem. op., not designated of any witnesses for either the guilt/innocence or punishment for publication) (overruling defendant's ineffective-assistance stage.” Although Decuir had “several conversations with claim for failure to investigate and call mitigation witnesses [appellant] with regard to calling witnesses, just to talk to his where defendant “had not wanted anyone to participate in good character, his work ethics, the support he provided for his trial and ... refused to give his counsel the names of any his family,” appellant responded, “[n]o witnesses,” and that witnesses who might assist him”). he “didn't want to have any witnesses.”

*11 In order to establish prejudice, appellant must show that We have previously held that a defendant failed to establish a reasonable probability exists that the jury's assessment of prejudice under Strickland when he instructed his counsel to punishment would have been less severe in the absence of not present mitigation testimony, even when witnesses were counsel's deficient performance. Bazan, 403 S.W.3d at 13. present and available, and the defendant did not present any Even if we presume that trial counsel's representation was evidence at the new trial hearing “that, despite his earlier deficient in this case, appellant has not shown a substantial desire that trial counsel refrain from presenting additional likelihood of a different result. Harrington, 562 U.S. at ––––, mitigation evidence, he nonetheless would ... not have 131 S.Ct. at 787, 792. Accordingly, we hold that the trial court interfered with the mitigation testimony revealed at the new did not abuse its discretion in denying appellant's motion for trial hearing.” Bazan, 403 S.W.3d at 13–15; see also Schriro new trial. v. Landrigan, 550 U.S. 465, 475–77, 127 S.Ct. 1933, 1940– 42 (2007) (“If [defendant] issued such an instruction [not to offer any mitigating evidence], counsel's failure to investigate We overrule appellant's sole issue. 4 further could not have been prejudicial under Strickland.”); Ex parte Olvera, No. 05–11–01349–CR, 2013 WL 4052467, at *6 (Tex.App.—Dallas Aug. 12, 2013, pet. ref'd) (mem. Conclusion op., not designated for publication) (“[W]hen a defendant instructs his attorney not to interview certain witnesses, the We affirm the judgment of the trial court. defendant may not later claim his attorney's investigation was ineffective.”); Oseguera–Garcia v. State, No. 04–11–00896–

Footnotes 1 See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).

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2 At the hearing, the trial court admitted into evidence Barron's affidavit in which she did not provide any additional information beyond her live testimony. 3 The trial court also admitted into evidence Fernando's affidavit in which he further explained the on-going conflict between the complainant and appellant. 4 We note that although not presented as an issue separate from his ineffective-assistance claim, appellant asserts that the trial court erred in denying his request for Decuir to turn over to him his client file. He invites the Court, if it “believes that ... [a]ppellant has not met his burden under Strickland ... as [the record] currently stands, but believes that the failure of the trial court to order Decuir to turn the file over constitutes error which must be rectified,” to abate the appeal for a supplemental hearing on his motion for new trial. We decline to do so.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10