Opinion issued July 22, 2014.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00073-CR ——————————— IRSAN ALFARO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1316912
MEMORANDUM OPINION
Irsan Alfaro was indicted for “impeding the normal breathing” of his wife
“by applying pressure” to her throat or neck—a third-degree felony assault.1 The
jury convicted Alfaro and assessed punishment at the maximum allowed—ten
1 TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.01(b)(2)(B) (West Supp. 2013). years’ confinement and a $10,000 fine. In two issues, Alfaro contends he was
provided ineffective assistance of counsel because his counsel (1) failed to
challenge the admissibility of Alfaro’s statement to police that he “hit” his wife
and (2) inadequately presented mitigating witnesses during the punishment phase
of trial. We affirm.
Background
Alfaro and his wife, Angela, had been married more than 15 years when, in
August 2011, Alfaro was arrested for assaulting Angela in front of their children.
At trial, Angela and the children testified at length about the assault, including that
Alfaro hit her with his hands, whipped her with a belt, threw her to the ground,
knelt on her chest, and choked her with his hands as well as his belt. The children
were able to testify about the details of the assault because, according to them,
Alfaro forced them to witness it.2
Angela testified that she and Alfaro had an argument the afternoon of the
assault. Alfaro grabbed her by the hair and dragged her across the kitchen. The
fight stopped for a while but later Alfaro became angry again. According to
Angela, Alfaro took a knife from the kitchen and threatened her “not to provoke
him” or he would kill her or one of their children. When Angela attempted to block
2 The Alfaros have five children together. The youngest three testified that they witnessed the assault. The oldest two—who were no longer living at home— testified only during the punishment phase of the trial. 2 his entry to the children’s bedroom, she said, he stabbed the knife into the door.
Alfaro then called his children to the living room. Angela testified that “the only
thing left was for him to beat me.”
She explained what occurred next: “Again, he hit me. He threw me on the
ground. He grabbed me with his hands here on the neck . . . He threw me on the
floor . . . He hit me on my face.” She testified that Alfaro choked her with his
hands “to the point that I was not seeing clearly. It was very blurry.” Besides
choking her with his hands, she said he also put his belt around her neck, squeezing
with a “lot of pressure, very hard.” Angela testified that she thought she “was
going to die.” In fact, she said that Alfaro “asked the children if they wanted to see
their mother die.”
The children’s account was the same. They testified that he stabbed the knife
into the door when Angela attempted to close the door to protect them saying,
“You’re going to make me kill your children one day.” The children testified that
Alfaro told them to go to the living room and then began hitting Angela with his
hands, using the belt “like a whip,” and knocked her to the ground. “He got the belt
and put it around her neck . . . He put his knee in her chest.” They said that they
screamed at him to stop. The children also testified that Alfaro’s brother, Luis, who
lived with the family, was in the home when the assault occurred. Alfaro did not
call Luis as a defensive witness to deny these allegations.
3 Several days later, family members contacted police and requested they
conduct a welfare check on Angela. Harris County Constable Sergeant L. Gonzales
testified about his encounter with Alfaro that day and the visible bruises he
witnessed on Angela. Photographs of her injuries were shown to the jury. Her
children also testified that Angela had bruises and belt marks after the assault. T.
Dusang, a forensic nurse examiner, testified as an expert about the severity of the
injuries, including visible bruising on her neck, and that those injuries were
consistent with strangulation.
When Alfaro testified, he denied hitting Angela and offered that the
accusations against him were the result of a “conspiracy” led by his oldest
daughters. The jury found Alfaro guilty of assault of a family member by impeding
breathing.
During the punishment phase of the trial, Angela and the children recounted
years spent in fear of Alfaro and detailed numerous beatings. Alfaro’s uncle
provided contrary testimony, telling the jury that Alfaro would be a good candidate
for probation. During the uncle’s testimony, however, it became clear that he was
unaware of the abuse the family members had described, testifying he knew
nothing of it. In the end, he agreed that knowledge of the abuse changed his
opinion of Alfaro; yet he stated,“but now with this, maybe he would change.”
4 The jury assessed punishment at the maximum allowed—10 years’
confinement and a $10,000 fine.
Ineffective Assistance of Counsel
Alfaro raises two issues on appeal—both alleging that his counsel provided
him ineffective assistance in violation of the Sixth Amendment to the United States
Constitution. U.S. CONST. amend. VI.
A. Standard of review
In Strickland v. Washington, the United States Supreme Court recognized
that a criminal defendant has a Sixth Amendment right to effective assistance of
counsel, observing the “crucial role” the right to counsel plays in our adversarial
system. 466 U.S. 668, 685, 104 S. Ct. 2052, 2063 (1984); see Ex parte Jimenez,
364 S.W.3d 866, 882–83 (Tex. Crim. App. 2012). A criminal defendant claiming
that trial counsel was ineffective must prove that (1) trial counsel’s performance
fell below an “objective standard of reasonableness” and (2) the deficient
performance prejudiced his defense such that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064,
2068; Jimenez, 364 S.W.3d at 883.
To determine whether Alfaro has shown counsel’s performance was
deficient under the first prong of the Strickland analysis, we look to the totality of
5 the representation and the particular circumstances of the case at the time of trial,
ignoring the effect of “20/20 hindsight.” Jimenez, 364 S.W.3d at 883; Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We indulge a strong
presumption that counsel rendered adequate assistance. Strickland, 466 U.S. at
689, 104 S. Ct. at 2065; Jimenez, 364 S.W.3d at 883; Ex parte White, 160 S.W.3d
46, 51 (Tex. Crim. App. 2004). “To overcome the presumption of reasonable
professional assistance, ‘any allegation of ineffectiveness must be firmly founded
in the record[.]’” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005)
(quoting Thompson, 9 S.W.3d at 813). Because there are “countless ways” to
provide effective assistance, our scrutiny of trial counsel’s conduct must be highly
deferential. Ex parte Rogers, 369 S.W.3d 858, 862 (Tex. Crim. App. 2012)
(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
Under the second prong of the Strickland analysis, we determine whether
Alfaro has shown a reasonable probability that, but for his counsel’s deficient
performance, the result of the proceeding would have been different. See
Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159
S.W.3d 98, 102 (Tex. Crim. App. 2005). What is required to meet the “reasonable
probability” standard is a lesser burden that would be required under a more-likely-
than-not standard. Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.—Houston
[1st Dist.] 2005, pet. dism’d, improvidently granted). A reasonable probability is
6 “a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
“The two prongs of Strickland need not be analyzed in a particular order” on
appeal. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). If we
determine that Alfaro cannot establish prejudice as a result of the alleged error, we
need not consider whether trial counsel’s actions were ineffective. Id. at 904. We
turn first to Alfaro’s contention that his counsel was deficient by not challenging
the testimony of Sergeant Gonzales that Alfaro admitted to hitting his wife.
B. Failure to challenge testimony regarding Alfaro’s admission
Sergeant Gonzales testified at trial that he asked Alfaro during the police
welfare check if he hit Angela, and Alfaro said yes. Alfaro did not object or
otherwise attempt to counter this testimony. On appeal, Alfaro complains that his
“counsel provided ineffective assistance at the guilt-innocence phase of trial by
failing to object to and develop a record regarding potential custodial statements
made by [Alfaro] to Sergeant Gonzales.” Alfaro argues that the police officer’s
testimony should have been challenged because (1) Alfaro was under arrest when
he made the statement and (2) the police failed to provide him statutory or
Miranda warnings before the statement was made. Sergeant Gonzales disputed that
Alfaro was under arrest, stating that he was merely detained. Alfaro contends that
there could be no strategic reason for his counsel to allow his admission into
7 evidence unchallenged and characterizes the admission as a “confession” which
would be “necessarily harmful.” Because application of the second prong of the
Strickland test is dispositive of this issue, we begin there.
Under the Strickland second prong, we determine whether there is a
reasonable probability that, but for counsel’s actions alleged to be deficient, the
result of the proceeding would have been different. See Strickland, 466 U.S. at
687, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 102. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. We examine counsel’s alleged
errors in the context of the overall record. Ex parte Menchaca, 854 S.W.2d 128,
132 (Tex. Crim. App. 1993); Aldrich v. State, 296 S.W.3d 225, 256 (Tex. App.—
Fort Worth 2009, pet. ref’d). Relevant to our inquiry is the extent to which other
evidence existed supporting the jury’s determination of guilt and the comparative
significance the alleged error had on the outcome of the trial in light of that
evidence. See Sampson v. State, 689 S.W.2d 498, 501 (Tex. App.—Houston [14th
Dist.] 1985, no pet.) (“The evidence of guilt was overwhelming and could not have
been overcome by trial counsel.”).
1. Relationship of testimony to offense charged
The offense for which Alfaro was charged and convicted was third-degree
felony assault of a family member committed by impeding the victim’s normal
8 breathing. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.01(b)(2)(B). The
testimony Alfaro claims should have been challenged by his counsel was that
Alfaro admitted he had “hit” Angela, not that he choked her. Alfaro’s counsel
adequately explained the distinction between the two to the jury during closing
argument:
Now, what Sergeant Gonzales didn’t say is that Mr. Alfaro said: “I hit her, I chased her with a knife, then I choked her with my hands, and then I choked her with a belt.” If he is saying anything, he’s saying my client confessed to a Class A assault of hitting her at some point. We’re not even clear whether he allegedly confessed to something he did on the 17th [the date of the welfare check] or something on the 9th [the date Angela said Alfaro assaulted her]. That’s not clear. . . . [T]he only issue we’re dealing with is whether the felony assault of strangulation occurred. That’s all we’re here for. If other offenses occurred, they don’t come in. All we look at is that one issue.
Thus, contrary to Alfaro’s argument on appeal, the jury did not hear testimony that
Alfaro “confessed” to the charged offense; at most he admitted that he hit his wife.
We are not persuaded that there is a reasonable probability that—had
Alfaro’s counsel successfully excluded testimony that Alfaro “hit” Angela—the
result of his trial on the offense of assault by strangulation would have been
different. This is in part due to the distinction between the two acts discussed
above and, as discussed below, the other overwhelming evidence of guilt.
2. Overwhelming evidence of guilt
The evidence that Alfaro choked Angela was overwhelming. Angela
testified that Alfaro choked her with his hands to the point that she “was not seeing
9 clearly.” Besides choking her with his hands, she testified that he put his belt
around her neck, squeezing with a “lot of pressure, very hard.” The children’s
account was the same. They testified that Alfaro “got the belt and put it around her
neck . . . .” The children testified that Angela had bruises and belt marks after the
assault. Both Sergeant Gonzales and the expert forensic nurse testified about the
severity of Angela’s injures, including visible bruising on her neck. The forensic
nurse examiner testified further that Angela’s injuries were consistent with
strangulation. And the jury was shown photographs of those injuries.
Given this record, we cannot conclude that there is a reasonable probability
that the outcome of Alfaro’s trial would have been different had his counsel
successfully excluded evidence that Alfaro admitted that he hit his wife. See
Sampson, 689 S.W.2d at 501 (“The evidence of guilt was overwhelming and could
not have been overcome by trial counsel.”); Trybule v. State, 737 S.W.2d 617, 620
(Tex. App.—Austin 1987, pet. ref’d) (“[T]here was overwhelming evidence of
guilt, and the nature of the crime clearly warranted the punishment imposed.”); see
also Strickland, 446 U.S. at 696, 104 S. Ct. at 2069 (stating that trial is less likely
to be affected by error if evidence in record overwhelmingly supports conviction).
Because Alfaro has not met his burden on the second Strickland prong, we
overrule issue one. Id. at 694, 104 S. Ct. at 2068.
10 C. Failure to interview and call potential mitigation witnesses during punishment phase of trial
In his second issue, Alfaro contends that his trial counsel was ineffective
because he failed to interview or call three witnesses who would have testified
favorably for Alfaro during the punishment phase of the trial and failed to
“adequately prepare” the witness who was called on his behalf.
A criminal defense lawyer must have a firm command of the facts of the
case to render reasonably effective assistance of counsel. Ex Parte Ybarra, 629
S.W.2d 943, 946 (Tex. Crim. App. 1982); Ex parte Duffy, 607 S.W.2d 507, 516
(Tex. Crim. App. 1980). Counsel has the responsibility to seek out and interview
potential witnesses. Ex parte Duffy, 607 S.W.2d at 517. We cannot view defense
counsel’s conduct as evidence of a trial strategy if counsel has failed to conduct the
necessary factual investigation to enable him to develop an informed, rational trial
strategy. Id. at 526; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App.
1990); see also Shanklin, 190 S.W.3d at 164–65 (stating there can be no “strategy”
to not call witness if counsel had no knowledge concerning testimony witness
would have offered). Because application of the second prong of the Strickland test
is dispositive of this issue, we begin there.
Under the Strickland second prong, we determine whether there is a
reasonable probability that, but for counsel’s actions alleged to be deficient, the
result of the proceeding would have been different. See Strickland, 466 U.S. at
11 687, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 102. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.”
Id. at 694, 104 S. Ct. at 2068. Thus, we consider whether a reasonable probability
exists that the jury would have assessed a less severe punishment but for the
allegedly unprofessional representation. See Milburn v. State, 15 S.W.3d 267, 270
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). To do so, we consider the
omitted testimony in light of the other evidence presented to the jury for its
consideration during the punishment phase.
1. Punishment evidence presented to jury
All five children testified against their father, recounting years of abuse and
fear. Jessica, who was nineteen at the time of trial, testified that Alfaro beat them
from “the earliest memory that I have.” During one instance, Alfaro pulled
Jessica’s hair, slammed her head against the hood of a car, knocked Angela to the
ground, took a knife from the kitchen, and, according to Jessica, said that “he was
going to kill me.” Jessica testified that Angela ran to the bedroom of Alfaro’s
brother, Luis, who came out, took away the knife, and calmed Alfaro.
Dalia, then eighteen years old, testified that Alfaro often hit her mother and
the children. She testified at length about a different incident when Alfaro hit her
with a belt, grabbed her sister and hit her with the belt until she bled, pointed a
knife at another child, and stopped the assault only when her uncle, Luis,
12 intervened to calm him down. Dalia also testified about another incident when
Alfaro beat her with a belt and choked her. Again, the jury was told that Angela
asked Luis for help, and Luis intervened and stopped the attack.
Jennifer, their twelve-year-old, testified about these events and confirmed
that Alfaro often beat her as well, using his belt “like a whip.” She said the
beatings left her with bruises and, at least once, the belt drew blood.
Kenia, their fifteen-year-old daughter, also testified about Alfaro threatening
the family with a knife and Uncle Luis taking the knife away from him.
Irsan, who was sixteen, testified next. He said Alfaro once “pointed the knife
at us acting like he was going to stab me and my mom.” He stated that his father
would beat his mom “daily.” On at least one of these occasions, Irsan called for
Uncle Luis to come out of his bedroom and stop the assault.
Finally, the complainant testified. Angela discussed her fifteen-year
marriage to Alfaro, stating that he beat her almost from the beginning. She also
testified about an incident that occurred while she was at work and the oldest
children were at school. Alfaro left the house, abandoning their two-year-old and
one-year-old there without any supervision. Alfaro received two years’ deferred
adjudication probation for child abandonment. She testified about frequently
needing Luis to protect her and her children from Alfaro: “[H]e would try to help
my daughters and [me] in situations like this.”
13 Also during the punishment phase, Alfaro presented his uncle who testified
that Alfaro would be a good candidate for probation. During his testimony,
however, it became clear that the uncle was unaware of any abuse, testifying that
he knew nothing about it. In the end, he agreed that the knowledge he obtained at
trial changed his opinion of Alfaro; however, he offered that “now with this,
maybe he would change.”
2. Unoffered testimony
In support of his motion for new trial, Alfaro attached affidavits from three
family members who stated that they were available to testify on Alfaro’s behalf
during the punishment phase of the trial but were never interviewed or called as
witnesses. These individuals, their relation to Alfaro, and the testimony they aver
they would have offered is listed below:
Edwin is Alfaro’s brother. He states that he would have testified that “I know my brother and because of it I attest that he is responsible and worked.”
Hector is Alfaro’s brother-in-law. He would have testified as follows: “I know him and he has been a good father, responsible. The kids never lack anything. During the time that I knew his wife, everything was fine, there was not family abuse. He’s always been a working man and always watchful of his family. As far as I know he has never had any problems with the law. He has been an honest and tranquil man [who] has always maintained his home. He got along with his kids. His kids would always call him by phone. I knew that his second daughter had behavior problems.
Luis is Alfaro’s brother. He lived with the Alfaro family in 2011. He states in his affidavit: “All of his kids were accusing him. I Luis Alfaro in 2011 lived with my brother. I always thought that my nieces were wrong not my
14 brother. He always worked so that they lack nothing. Never asked for help to the government, that is why he worked hard.”
Alfaro does not contend that any of these witnesses’ testimony was relevant
to his guilt or that his attorney committed professional error by failing to call them
during the guilt-innocence phase of the trial. His complaint is limited to counsel’s
failure to call them as mitigating witnesses during the punishment phase.
During the guilt-innocence phase of the trial, Alfaro had emphatically denied
assaulting his wife. Through its verdict, the jury necessarily found more credible
the testimony of Alfaro’s wife and children. During the punishment phase of the
trial, Angela and the children testified that several incidents of abuse had ended
only when Uncle Luis intervened and stopped Alfaro. Had Alfaro’s counsel
allowed Luis to testify, he would have been subject to cross-examination which
possibly could have led to even more detailed accounts of the beatings and the
steps Luis found necessary, in the moment, to protect Alfaro’s wife and kids. He
either would have testified that the beatings occurred, which would have been
harmful to Alfaro’s case, or he would have testified that the beatings had not
occurred, which could have negatively impacted his credibility as a witness given
that he failed to testify at all in the guilt-innocence phase of the trial. Either way,
allowing Luis to testify and, by necessity, subjecting him to cross-examination may
have caused more harm than good.
15 Further, according to Alfaro, Luis would have testified that he thought the
family’s problems were the children’s fault. We note that Luis’s affidavit does not
deny that any beatings occurred; it merely asserts that his nieces—and not
Alfaro—were “wrong.” We are not persuaded that a reasonable jury would have
imposed a lesser sentence had Alfaro’s counsel elicited such testimony.
Edwin averred that he planned to testify that his brother “is responsible and
worked.” The absence of this testimony was unlikely to have affected the
punishment assessed given the lengthy testimony from Alfaro’s wife and children
recounting their abuse. See Dotson v. State, Nos. 14-98-00590-CR, 14-98-00591-
CR, 1999 WL 1123037, at *4 (Tex. App.—Houston [14th Dist.] Dec. 9, 1999, pet.
ref’d) (mem. op., not designated for publication) (finding appellant failed to
establish harm under second prong of Strickland regarding uncalled witnesses, who
would have testified appellant held steady job and was hard worker but who had
not acknowledged knowing anything of appellant’s extensive criminal record);
Alvarado v. State, No. 04-03-00289-CR, 2006 WL 332536, at *9–10 (Tex. App.—
San Antonio Feb. 15, 2006, pet. ref’d) (mem. op., not designated for publication)
(overruling ineffective assistance of counsel issue where counsel failed to call
witnesses who would have testified appellant was “responsible and hard worker”).
Hector’s affidavit indicated that he planned to testify more directly than the
other two about Alfaro’s relationship with his wife and children. Hector averred
16 that he would have described Alfaro as a “good father, responsible” and would
have testified that “there was not family abuse.” His affidavit described Alfaro as
“an honest and tranquil man that has always maintained his home. He got along
with his kids.” A reasonable probability does not exist that the outcome of the
sentencing would have been different had this witness—who did not testify in the
guilt-innocence phase—claimed during the punishment phase that the abuse simply
did not occur. See Alvarado, 2006 WL 332536, at *9–10 (finding persuasive
counsel’s statement that he did not call family members to testify during
punishment phase because attempts to re-litigate guilt are unhelpful).
The strong evidence supporting a finding of guilt in combination with the
detailed accounts of persistent abuse given by Angela and all of their children
likely would have overwhelmed any benefit that might have resulted from the
testimony of these three uncalled witnesses. We, therefore, conclude that the
absence of this testimony did not undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; cf. Trybule, 737 S.W.2d at 620
(“The harm alleged by appellant is that he received the maximum punishment
authorized for the crime charged. Our view of the evidence is that, even with the
best of representation, the jury would have probably assessed such punishment . . .
[T]here was overwhelming evidence of guilt, and the nature of the crime clearly
warranted the punishment imposed.”).
17 3. Preparedness of uncle who testified
Alfaro also complains that the mitigation witness who did testify on his
behalf during the punishment phase was ill-prepared by his counsel, specifically
stating that “it was apparent that Mr. Rivera [Alfaro’s uncle] was not fully
informed about the nature of the proceedings or its underlying facts.” Similar to the
other three witnesses, we conclude that Alfaro is unable to establish that his
counsel’s conduct, even if considered deficient, harmed him sufficiently to meet
the second prong of Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068.
Rivera testified on direct that Alfaro was, in his opinion, a good candidate
for probation who would follow the rules of the Court and the law if given
probation. He then states that the church they attended provides counseling
services, which he would encourage Alfaro to seek. On cross-examination, Rivera
indicated that he was unaware that Alfaro had been convicted of abuse, that he had
never been told of any abuse in the Alfaro home, and that he did not know Alfaro
has been the subject of a CPS investigation or been placed on probation for
abandoning his children at home without any supervision. Rivera did know that
one of the children previously ran away, though he did not know it was in response
to abuse. At the conclusion of the cross-examination, this exchange occurred:
Q. Now that you know all of these things, does that change your opinion about the defendant’s character? A. Does it change?
18 Q. Yes. Now that you know all of these things—you said that he has a good character. A. Yes, yes. Q. Does any of this change your opinion? A. Mine or his or whose? Q. Your opinion. A. Well, I believe so, yes. Q. How? A. For his behavior, the way he’s been behaving. Q. What does it change your opinion to then? A. I—I did not know of what was happening, but now with this, maybe he would change. Alfaro complains that Rivera reversed his opinion of Alfaro in front of the
jury and this harmed Alfaro’s chances for a more lenient sentence. While Rivera’s
position did alter from a beginning position of full support to a more neutral
position at the end, the record does not indicate that Rivera fully recanted his
support. Rivera concluded his testimony by stating that, after the trial, “maybe he
would change.” We view this statement as still somewhat supportive of Alfaro or,
at a minimum, neutral.
Viewing the totality of the record, as we are required to do in a Strickland
challenge, we do not conclude that the failure to provide Rivera more information
in preparation for his testimony undermined confidence in the outcome of the trial.
Thompson, 9 S.W.3d at 813; Estrada v. State, 882 S.W.2d 21, 23–34 (Tex. App.—
El Paso 1994, no pet.). Had he been given more detail, perhaps he would have been
19 unwilling to testify at all—in which case the jury would have been denied his more
positive comments.
Given the overwhelming evidence of guilt, the testimony from the entire
family of the abuse they endured, and the violent account of Alfaro choking
Angela, we do not conclude that the outcome would have been different, with
reasonable probability, had Rivera been provided more details of the trial
testimony concerning Alfaro’s violent past before Rivera testified on Alfaro’s
behalf.
Alfaro has not demonstrated that he was prejudiced by his counsel’s failure
to call the three witnesses he identified or to arm his uncle with more information
in preparation for his testimony. We, therefore, overrule Alfaro’s second issue.
Conclusion
Having overruled both of Alfaro’s issues, we affirm the judgment of the trial
court.
Harvey Brown Justice
Panel consists of Justices Keyes, Bland, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).