Joe Manuel Diaz v. State

380 S.W.3d 309, 2012 WL 3733972, 2012 Tex. App. LEXIS 7325

• Court: Court of Appeals of Texas
• Decided: August 30, 2012
• Docket: 02-11-00373-CR
• Status: Published

Opinions

OPINION

SUE WALKER, Justice.

I.INTRODUCTION

A jury found Appellant Joe Manuel Diaz guilty of Class A misdemeanor driving while intoxicated¹ (DWI) and assessed his punishment at 365 days’ confinement and a $4,000 fine. The trial court sentenced him accordingly. In a single point, Diaz argues that he received ineffective assistance of counsel. We will affirm.

II.Factual and Procedural Background

Diaz was arrested for DWI after North-lake Police Officer Chris Loftis observed him speeding and driving erratically. When Officer Loftis approached Diaz’s vehicle, he detected a strong odor of alcohol coming from Diaz. Officer Loftis radioed for a backup officer because Diaz was acting aggressively and in a threatening manner. Diaz refused to perform field sobriety tests and also refused to voluntarily provide a breath or blood sample. Based on Diaz’s driving and behavior, Officer Loftis obtained a search warrant for Diaz’s blood and took him to the hospital for the blood draw.

Diaz’s defense counsel filed a motion to suppress arguing that there was no probable cause to support the arrest or the search warrant for Diaz’s blood. The same trial judge who signed the search warrant for Diaz’s blood also presided over the hearing on the motion to suppress and at trial. After a pretrial hearing, the trial court denied the motion to suppress. At trial, defense counsel continued to object to the probable cause for the arrest and search warrant.

III.Effective Assistance of Counsel

In Diaz’s sole point, he argues that he received ineffective assistance of counsel because defense counsel did not pursue a motion to recuse the trial judge or otherwise complain or object that the same judge who had signed the blood warrant also presided over the suppression hearing and the trial.

To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App.2009).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89,104 S.Ct. at 2065. Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007).

The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, an appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697,104 S.Ct. at 2070.

The mere fact that the same judge signed a defendant’s search or arrest warrant and then presided in subsequent criminal proceedings does not establish bias. Kemp v. State, 846 S.W.2d 289, 306 (Tex.Crim.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). Judges are often called on to reconsider matters they have previously ruled on. See id. Generally, a judge is not required to be recused based solely on his prior rulings, remarks, or actions. Gaal v. State, 332 S.W.3d 448, 454 (Tex.Crim.App.2011). A judge’s bias or partiality may be grounds for a recusal motion only if the conduct shows a “ ‘deep-seated favoritism or antagonism that would make fair judgment impossible.’ ” Id. (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1150, 127 L.Ed.2d 474 (1994)).

Counsel is not required to file futile motions. Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App.1991); Hollis v. State, 219 S.W.3d 446, 456 (Tex.App.-Austin 2007, no pet.). Nor is counsel’s failure to file a pretrial motion categorically deemed ineffective assistance of counsel. Madden v. State, 911 S.W.2d 236, 241 (Tex.App.-Waco 1995, pet. ref'd) (holding that counsel was not ineffective for not filing a motion to recuse the judge who presided at trial when the judge had also prosecuted a prior case that was used to enhance the current case). A record that is silent as to defense counsel’s trial strategy and provides no explanation of counsel’s actions generally will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003); Edwards v. State, 280 S.W.3d 441, 445 (Tex.App.-Fort Worth 2009, pet. ref'd). Defense counsel’s performance should not be found deficient unless the conduct was “so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003).

Here, Diaz concedes that “the mere fact that a judge authorized arrest and search warrants involved in a case is not a barrier to that judge presiding over the trial of that case on its merits.” But Diaz argues that because his entire case rested on the validity of the search warrant, “[a] reasonable person would necessarily question the judge’s impartiality” because a judge would not invalidate a warrant he had authorized. Diaz further argues that defense counsel’s failure to pursue a motion to recuse the trial judge cannot be a strategic decision because there was “no hope of success” and “no conceivable scenario in which having the trial judge conduct the hearing would benefit Diaz.”

The fact that the validity of the search warrant was Diaz’s sole defense has no bearing on whether the trial judge was subject to recusal for bias. As conceded by Diaz, Texas case law makes clear that the fact that the same judge who signed a search warrant also presided over the subsequent proceedings, including a motion to suppress, is not enough to show that the judge acted with the “deep-seated favoritism or antagonism” that would give Diaz’s defense counsel cause to pursue a recusal motion. Gaal, 332 S.W.3d at 454; see Kemp, 846 S.W.2d at 306. The trial judge in this case made no comments, remarks, or other indications during the hearing on the motion to suppress or at trial that would cause Diaz’s defense counsel to think the judge was biased or prejudiced against Diaz’s case and subject to recusal.

Based on the record before us and the strong presumption of reasonable assistance, as well as the absence of any explanation regarding defense counsel’s strategy, we cannot say that Diaz has met his burden of showing by a preponderance of the evidence that his counsel’s failure to file a motion to recuse the trial court judge or failure to object that the same judge who had signed the blood warrant presided over the suppression hearing and the trial fell below the standard of prevailing professional norms.² See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Because Diaz has not satisfied the first prong of Strickland, we overrule his sole point. See id.

IV. Conclusion

Having overruled Diaz’s sole point, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a concurring opinion.

1 . See Tex. Penal Code Ann. § 49.09(a) (West Supp.2012) (providing that a second DWI offense constitutes a Class A misdemeanor).

2 . Contrary to the concurring opinion's position, the issue before us is not "the trial judge’s position as a witness and the necessary ramifications of the trial judge's position” but whether Diaz met his burden to obtain appellate relief on his claim of ineffective assistance of counsel based on counsel's failure to file a motion for recuse or to object to the trial judge hearing his motion to suppress or presiding at his trial.