Justin David Lopez v. the State of Texas

Opinion

NUMBER 13-22-00171-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JUSTIN DAVID LOPEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Jackson County, Texas.

OPINION

Before Justices Benavides, Longoria, and Tijerina Opinion by Justice Longoria

Appellant Justin David Lopez was found guilty by a jury for murder, a first-degree

felony. See TEX. PENAL CODE ANN. § 19.02. The jury sentenced appellant to life

imprisonment. By five issues which we reorganize and re-number as four, appellant

claims that (1) the evidence was legally and factually insufficient to support his conviction; (2) he was denied his right to due process and right to a jury trial because the verdict was

not unanimous; (3) the trial court abused its discretion in denying his motion to reduce

bail; and (4) his trial counsel provided ineffective assistance. We affirm.

I. FACTUAL BACKGROUND

The evidence at trial demonstrated that around midnight on November 4, 2019,

Jacob Hernandez slowly drove his father’s gray Ford truck, with Monica Luna, down

Ward Street in Edna, Texas. The truck’s windows were fully open and loud music played

as Jacob stopped the truck in front of Jose David Lopez Jr.’s 1 residence. At the time,

Jose was drinking beer in his front yard with others. Jose approached the truck and an

altercation ensued. Jacob and Jose yelled profanities at each other, spat at each other,

and threw items at each other before Jacob drove away.

In the early morning hours of November 5, 2019, Angel Lozano had phone

conversations with Jose. According to Lozano, Jose wished to fist fight Jacob at his

home. According to Jose, it was Jacob who wished to fight.

Subsequently, Lozano, Jacob, Jacob’s brother Eric Hernandez, Sabas Reynaldo

Mosqueda, James Andrew Guerra, and Isaac Andre Ybarra gathered in Eric’s red Nissan

truck; Lozano drove to Jose’s home. After Lozano parked in front of Jose’s driveway,

Ybarra exited Eric’s truck and walked towards Jose. The others in the truck also exited.

Shortly after, appellant ran up to Ybarra, pointed a firearm within inches of his face, then

shot Ybarra. Ybarra fell to the ground. According to Lozano, appellant pointed his gun at

him and Mosqueda and stated, “Y’all want some, too.” According to Mosqueda, appellant

1 The record demonstrates that Jose is appellant’s brother. 2 stated, “You bitch ass want some[,] too.” Immediately thereafter, Lozano, Jacob, and

Eric got back into Eric’s truck and drove away. At the same time, Mosqueda and Guerra

ran away from Jose’s residence on foot. According to Mosqueda, appellant thereafter

got into a car and drove off.

Officer Stacy Cavazos of the Edna Police Department and Deputy Jorge Franco

of the Jackson County Sheriff’s Department simultaneously arrived at Jose’s residence

around 1 a.m. Franco secured the scene while Cavazos attended to Ybarra, who had a

gunshot wound on his face originating at his left eye. Ybarra was non-responsive, and

an ambulance arrived minutes later. Cavazos took photos of Ybarra, which were

admitted into evidence. The photos depict Ybarra as he lay face-up on the road in front

of Jose’s residence, his head resting in a pool of blood. Ybarra was later pronounced

dead by a justice of the peace.

Appellant was not present at the scene when police arrived. Police did not find a

firearm or spent ammunition casings at the scene or inside Jose’s home. 2 An autopsy

of Ybarra was performed by a Travis County medical examiner. According to the medical

examiner, Ybarra’s death was a homicide, and the cause of death was a gunshot wound

in his left upper eyelid.

Lozano testified that he saw appellant’s face the night of the shooting and knew

him only as ‘Justo’ and that he picked ‘Justo’ out of a photo array provided by Texas

Ranger John Lingle. Likewise, Lingle testified that he made a note in the photo array

provided to Lozano that indicated he was “90-percent certain that [appellant] was the

2 The evidence demonstrated that police were provided consent to search Lopez’s home. 3 person that [Lozano] had witnessed shoot Isaac Ybarra.” The photo array was admitted

into evidence at trial. Further, Lozano made an in-court identification of appellant as the

shooter. In his testimony, Mosqueda identified appellant as the shooter and stated that

he recognized appellant’s voice when appellant spoke after shooting Ybarra. A warrant

for appellant’s arrest was filed on November 6, 2019. According to Lingle, appellant was

arrested by US Marshalls in Laredo, Texas on January 10, 2020.

II. PROCEDURAL BACKGROUND

Appellant was indicted for one count of murder, three counts of aggravated assault,

and one count of manslaughter. The murder count contained six paragraphs alleging six

alternate manner and means in committing the offense. The indictment also alleged that

appellant was a habitual offender based on four prior felony convictions: aggravated

assault of a deadly weapon, judgment rendered on January 6, 1998; aggravated assault

with a deadly weapon; possession of a prohibited substance in a correctional facility; and

tampering with physical evidence, all judgments rendered on November 30, 2010. See

TEX. PENAL CODE ANN. § 12.42(d) (setting punishment range at imprisonment for twenty-

five to ninety-nine years or life for habitual offenders with two prior felony convictions).

Prior to voir dire, the State abandoned three of the alternative manner and means of the

murder charge, all three counts of aggravated assault, and the manslaughter charge.

Appellant was tried for one count of murder, consisting of three alternate manner

and means under the indictment: (1) intentional murder, Count 1 paragraph 1, see id.

§ 19.02(b)(1); (2) committing an act clearly dangerous to human life with intent to cause

seriously bodily injury, Count 1 paragraph 2, see id. § 19.02(b)(2); and (3) felony murder,

4 Count 1 paragraph 5, see id. § 19.02(b)(3). Specifically, the indictment alleged in relevant

part as follows:

. . . [Appellant] . . . did then and there

COUNT 1 Paragraph 1 (Murder Intending Death)

intentionally or knowingly cause the death of an individual, namely Isaac Andre Ybarra, by shooting the said Isaac Andre Ybarra with a firearm.

Paragraph 2 (Murder Intending SBI)

. . . [Appellant,] did then and there with intent to cause serious bodily injury to an individual, namely, Isaac Andre Ybarra, commit an act clearly dangerous to human life, to-wit: by shooting the said Isaac Andre Ybarra with a firearm, thereby causing the death of the said Isaac Andre Ybarra.

....

Paragraph 5 ([Felony Murder]—Agg. Assault Threaten DW)

. . . [Appellant,] did then and there commit an act clearly dangerous to human life, to-wit: shooting Isaac Andre Ybarra with a firearm, that caused the death of the said Isaac Andre Ybarra, and the defendant was then and there in the course of intentionally or knowingly committing or attempting to commit a felony, to-wit: Aggravated Assault with a Deadly Weapon:

1. By intentionally and knowingly threatening another, namely Isaac Andre Ybarra, with imminent bodily injury by pointing a firearm in the direction of the said Isaac Andre Ybarra, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault; or

2. By intentionally and knowingly threatening another, namely Isaac Andre Ybarra, with imminent bodily injury by threatening to shoot the said Isaac Andre Ybarra, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault

Further, the death of Isaac Andre Ybarra was caused while the defendant was in the course of and in furtherance or [(SIC)], or in immediate

5 flight from, the commission or attempt to commit the felony of Aggravated Assault with a Deadly Weapon.

Each paragraph in the indictment tracked the statutory language contained in the relevant

subsections of the murder statute. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), (b)(2),

(b)(3). The trial court’s charge permitted the jury to find appellant guilty of murder if it

found beyond a reasonable doubt he committed murder by one of the three alternate

means as charged in the indictment and not abandoned by the State. The jury returned

a general verdict finding that appellant was “‘Guilty’ of the offense of the Murder of Isaac

Andre Ybarra as alleged in Count 1, paragraphs 1, 2, or 5 of the indictment.”

During the punishment phase, the jury found the habitual offender enhancement

allegations true and sentenced appellant to life imprisonment in the Correctional

Institutions Division of the Texas Department of Criminal Justice. See id. § 12.42(d). This

appeal followed.

III. SUFFICIENCY

In his first issue, appellant argues that the evidence was legally and factually

insufficient to support his murder conviction. The Texas Court of Criminal Appeals has

held that only one standard should be used to evaluate whether the evidence is sufficient

to support a criminal conviction beyond a reasonable doubt: legal sufficiency. Brooks v.

State, 323 S.W.3d 893, 905–07 (Tex. Crim. App. 2010) (plurality op.). Accordingly, we

will apply the legal-sufficiency standard when addressing appellant’s legal-sufficiency and

factual-sufficiency arguments. Id.

A. Standard of Review & Applicable Law

“In reviewing the sufficiency of the evidence to support a conviction, we consider

6 the evidence ‘in the light most favorable to the verdict’ to determine whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Delagarza v. State, 635 S.W.3d 716, 723 (Tex. App.—Corpus Christi–Edinburg

2021, pet. ref’d) (quoting Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App.

2020)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider both direct and

circumstantial evidence as well as all reasonable inferences that may be drawn from the

evidence and are not mere speculation. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.

App. 2017); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “We resolve

any evidentiary inconsistencies in favor of the verdict, keeping in mind that the factfinder

is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give

their testimony.” Delagarza, 635 S.W.3d at 723 (first citing Walker v. State, 594 S.W.3d

330, 335 (Tex. Crim. App. 2020); and then citing TEX. CODE CRIM. PROC. ANN. art. 38.04).

We measure the sufficiency of the evidence in reference to the elements of the

offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). “Such a charge [is] one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried.” Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d

at 240).

A person commits murder (1) if he intentionally or knowingly causes the death of

an individual, see TEX. PENAL CODE ANN. § 19.02(b)(1); or (2) if he intends to cause

7 serious bodily injury and commits an act clearly dangerous to human life that causes the

death of an individual, see id. § 19.02(b)(2); or (3) if he commits or attempts to commit a

felony, other than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt, he commits

or attempts to commit an act clearly dangerous to human life that causes the death of an

individual. See id. § 19.02(b)(3).

A person acts intentionally with respect to a result of his conduct or nature of his

conduct when it is his conscious objective or desire to engage in the conduct or cause

the result. Id. § 6.03(a). A person acts knowingly with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).

A person acts knowingly with respect to the nature of his conduct when he is aware of the

nature of his conduct. Id. § 6.03(b).

“A jury may infer intent or knowledge from any facts which tend to prove its

existence, including the acts, words, conduct of the accused, and the method of

committing the crime.” Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (cleaned

up). “Intent and knowledge are fact questions for the jury and (absent a confession) are

almost always proven through evidence of the circumstances surrounding the crime.”

Yates v. State, 505 S.W.3d 631, 644 (Tex. App.—Texarkana, 2016 no pet.) (citing Robles

v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984)). “The specific intent to kill may be

inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably

apparent that death or serious bodily injury could not result.” Vuong v. State, 830 S.W.2d

929, 934 (Tex. Crim. App. 1992). Intent to kill may also be inferred from the nature and

8 extent of the injuries inflicted on the victim. See Felder v. State, 848 S.W.2d 85, 90 (Tex.

Crim. App. 1992) (holding that the intent to kill could be inferred from location and depth

of a stab wound). A jury may also infer knowledge from such evidence. See Hart, 89

S.W.3d at 64.

B. Discussion

In his brief, appellant solely contends that no evidence supports the felony-murder

allegation submitted under § 19.02(b)(3). 3 The State does not dispute appellant’s

contention. Rather, the State asserts that appellant failed to raise a sufficiency of the

evidence challenge to the alternate theories of § 19.02(b)(1) intentional murder and

§ 19.01(b)(2) intent to cause serious bodily injury murder. Further, the State argues that

if there is sufficient evidence to support a conviction for intentional murder, review of

evidence to support felony murder is unnecessary.

The Texas Court of Criminal Appeals has addressed a similar insufficient evidence

argument. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (holding

in a capital murder case involving alternate theories, “the State need prove only one of

the underlying offenses charged in the indictment in order to support the conviction”).

When reviewing the insufficient evidence claim, the Court in Kitchens emphasized the

fact that the appellant had not challenged the sufficiency of the evidence supporting his

conviction under an alternative theory of guilt, and observed, “it is settled that ‘when a jury

returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the

3 In his brief, appellant proclaims that “No evidence presented at trial that [appellant] was attempting to commit Aggravated Assault with a Deadly Weapon[,]” and “every bit of evidence presented, and argument, was that this was an intentional and willful act of murder.” 9 verdict stands if the evidence is sufficient with respect to any of the acts charged.’”

Kitchens, 823 S.W.2d at 259 (quoting Turner v. United States, 396 U.S. 398, 420 (1970))

(emphasis added). The Court then overruled the insufficiency claim “[b]ecause appellant

does not contest the sufficiency of the evidence to prove [the alternate capital murder

allegation].” Id.

After Kitchens, the Court, in other contexts, has reiterated the rule that in homicide

offenses, “different legal theories involving the same victim are simply alternate methods

of committing the same offense . . . whether they are found in the same or different

[statutory] subsections, so long as the same victim is alleged for the predicate murder[.]”

Gamboa v. State, 296 S.W.3d 574, 583–84 (Tex. Crim. App. 2009). And “when a general

verdict is returned and the evidence is sufficient to support a finding under any of the

paragraphs submitted, the verdict will be applied to the paragraph finding support in the

facts.” Manrique v. State, 994 S.W.2d 640, 642 (Tex. Crim. App. 1999) (emphasis added)

(citing Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1987)).

Here, the evidence demonstrated that appellant shot and killed Ybarra with a

firearm. Two eyewitnesses—Lozano and Mosqueda—identified appellant as the shooter.

In particular, Lozano testified he recognized appellant’s face during the shooting and

identified appellant as the shooter when provided a photo array by Lingle. Mosqueda

testified appellant was the shooter and stated that he recognized appellant’s voice when

appellant spoke after the shooting. The autopsy confirmed that Ybarra’s death was a

homicide, specifically caused by a gunshot wound to his left eye. The jury could have

found that appellant intended to cause the death of Ybarra or to cause Ybarra serious

10 bodily injury. See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2); see also Hart, 89 S.W.3d at

64; Vuong, 830 S.W.2d at 934; Felder, 848 S.W.2d at 90. In addition, appellant left the

scene prior to the arrival of police or the ambulance, which is also suggestive of guilt. See

Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (explaining that evidence

of flight evinces consciousness of guilt); Hedrick v. State, 473 S.W.3d 824, 831 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (reiterating that flight shows consciousness of

guilt and that “[a] consciousness of guilt is perhaps one of the strongest kinds of evidence

of guilt.”). From this evidence, a jury could reasonably infer an intent to kill or that appellant

committed an act clearly dangerous to human life with intent to cause bodily injury. See

TEX. PENAL CODE ANN. § 19.02(b)(1)–(2).

Again, appellant solely challenges the legal sufficiency of the evidence for the

felony-murder allegation submitted under § 19.02(b)(3) and not the other alternative

theories submitted under § 19.02(b)(1)–(2). Because appellant does not challenge the

legal sufficiency of the evidence proving he caused Ybarra’s death by intentionally doing

so, or by committing an act clearly dangerous to human life with intent to cause serious

bodily injury, and we find there was sufficient evidence to support his conviction under

either of these theories, his legal insufficiency claim fails. See Gamboa, 296 S.W.3d at

583-84; Manrique, 994 S.W.2d at 642; Kitchens, 823 S.W.2d at 259. We overrule

appellant’s first issue.

IV. JURY UNANIMITY

In his second issue, appellant argues he was denied due process and right to a

jury trial because the verdict was not unanimous. Specifically, appellant points out that

11 the mens rea differs between the three theories of murder as charged in the indictment

and argues that the jury charge should have required the jury to unanimously agree on

his mens rea for murder.

Jury unanimity is required in all criminal cases. Young v. State, 341 S.W.3d 417,

422 (Tex. Crim. App. 2011). Simply put, “the jury must unanimously agree about the

occurrence of a single criminal offense, but they need not be unanimous about the specific

manner and means of how that offense was committed.” Id. Murder is a result of conduct

offense. Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003). “If the focus of

the offense is the result—that is, the offense is a ‘result of conduct’ crime—then different

types of results are considered to be separate offenses, but different types of conduct are

not.” Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008).

Various courts of appeals have rejected the argument that sections 19.02(b)(1),

19.02(b)(2), and 19.02(b)(3) constitute three separate offenses. See Diko v. State, 488

S.W.3d 855, 859–60 (Tex. App.—Fort Worth 2016, pet. ref’d) (“This court, on three

previous occasions, has rejected the argument . . . that sections 19.02(b)(1) and

19.02(b)(2) constitute two separate offenses . . . .”); Smith v. State, 436 S.W.3d 353, 378

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“Both the indictment and the jury

charge indicate that the only offense involved in this case was murder by any of the three

methods set forth in the Penal Code . . . . The jury was not required to agree unanimously

as to the manner and means by which appellant did so.”); London v. State, 325 S.W.3d

197, 206–07 (Tex. App.—Dallas 2008, pet. ref’d) (“We reject appellant’s argument that

the jury charge alleged two separate statutory offenses of murder . . .”).

12 Appellant’s argument that the differing mental states set forth in each subsection

of the murder statute requires jury unanimity has also been rejected. As previously set

out above, although the conduct is distinctly different, the three methods of committing

murder set forth in the statute are different manners and means of committing the same

offense, not distinct and separate offenses. Gandy v. State, 222 S.W.3d 525, 529 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d); Aguirre, 732 S.W.2d at 325–26 (holding that

when indictment contained two paragraphs, the first alleging murder under § 19.02(b)(1)

and the second alleging murder under § 19.02(b)(3), the allegations were merely two

different manners and means of committing same offense). “Where the legislature has

specified that any of several different mental states will satisfy the intent or mens rea

element of a particular crime, unanimity is not required on the specific alternate mental

state as long as the jury unanimously agrees that the State has proved the intent element

beyond a reasonable doubt.” Davis v. State, 268 S.W.3d 683, 712 (Tex. App.—Fort Worth

2008, pet. ref’d) (citing Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006));

see also Bundy v. State, 280 S.W.3d 425, 431–32 (Tex. App.—Fort Worth 2009, pet.

ref’d); Yost v. State, 222 S.W.3d 865, 877–78 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref’d). That is, the jury did not need to unanimously agree on the preliminary factual issue

of appellant’s mental state as long as it agreed on the bottom line—he murdered Ybarra.

See Davis, 268 S.W.3d at 712; see also Aguirre, 732 S.W.3d at 326.

Accordingly, we conclude there was no error in the jury charge as claimed by

appellant. We overrule appellant’s second issue.

13 V. BAIL REDUCTION

In his third issue, appellant argues that the trial court abused its discretion in

denying his motion to reduce bail.

Prior to trial, on August 27, 2020, appellant filed his “Application for Writ of Habeas

Corpus Motion to Release Defendant on Reduced Bond,” requesting the trial court reduce

his bail. The trial court denied appellant’s requested relief on September 30, 2020.

Subsequently, appellant was convicted of the underlying offense, and the trial court

rendered judgment and sentenced him to life imprisonment.

A defendant may file a pretrial writ of habeas corpus seeking bail reduction or

release on personal recognizance bond. TEX. CODE CRIM. PROC. ANN. arts. 11.24, 17.151.

However, “where the premise of a habeas corpus application is destroyed by subsequent

developments, the legal issues raised thereunder are rendered moot.” Bennet v. State,

818 S.W.2d 199, 200 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (quoting Saucedo

v. State, 795 S.W.2d 8, 9 (Tex. App.—Houston [14th Dist.] 1990, no pet.)). An appeal

from the denial of a pretrial writ of habeas corpus seeking bail reduction is rendered moot

if the defendant is tried and convicted. Ex parte Tucker, 3 S.W.3d 576, 576 (Tex. Crim.

App. 1999) (“The appellant having been tried during the pendency of this appeal, the

question of his pre-trial bond is moot.”); Martinez v. State, 826 S.W.2d 620, 620 (Tex.

Crim. App. 1992) (holding that appeal of denial of pretrial bond is rendered moot by

defendant’s conviction); Philips v. State, No. 10-09-00103-CR, 2009 WL 2264368, *1

(Tex. App.—Waco July 29, 2009 no pet.) (mem. op., not designated for publication)

(“Issues concerning pretrial bail are moot after the accused is convicted.”) (citing Oldham

14 v. State, 5 S.W.3d 840, 846 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)).

Because appellant has been convicted of the underlying offense and is no longer

subject to pretrial confinement, his issue regarding the denial of his application for a

pretrial writ of habeas corpus seeking bail reduction is moot. See Ex parte Tucker, 3

S.W.3d at 576; Martinez, 826 S.W.2d at 620; Philips, 2009 WL 2264368, at *1. There is

no action this Court can now make regarding the trial court’s decision on the amount of

the bail that will cause any effect. We overrule appellant’s third issue.

VI. INEFFECTIVE ASSISTANCE

In his fourth issue, appellant argues his counsel was ineffective in (1) failing to file

a motion to quash the indictment, (2) failing to preserve error regarding jury charge error,

and (3) filing a defective recusal motion.

Claims of ineffective assistance of counsel are evaluated under the two-part test

articulated by the Supreme Court in Strickland v. Washington. Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The

Strickland test requires the appellant to show that (1) counsel’s performance was deficient

and (2) but for the deficient performance the result of the proceeding would have been

different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 687. In determining the

validity of appellant’s claim of ineffective assistance of counsel, “any judicial review must

be highly deferential to trial counsel and avoid the deleterious effects of hindsight.”

Thompson, 9 S.W.3d at 813.

15 The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Id. Appellant must overcome the strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance and

that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689;

Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi–Edinburg 2006, no

pet.). A reviewing court will not second-guess legitimate tactical decisions made by trial

counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (explaining that

“unless there is a record sufficient to demonstrate that counsel’s conduct was not the

product of a strategic or tactical decision, a reviewing court should presume that trial

counsel’s performance was constitutionally adequate”). Counsel’s effectiveness is judged

by the totality of the representation, not by isolated acts or omissions. Thompson, 9

S.W.3d at 813; Jaynes, 216 S.W.3d at 851. To prove that trial counsel rendered

ineffective assistance, the defendant must show counsel’s performance was

substandard; that is, counsel has made errors so grave that counsel did not function as

guaranteed to the defendant under the Sixth Amendment. Strickland, 466 U.S. at 687. Or

in other words, that counsel’s assistance fell below an objective standard of

reasonableness. Id.

An allegation of ineffectiveness must be “firmly founded in the record,” and the

record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77

S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813–14);

“[I]n the vast majority of cases, the undeveloped record on direct appeal will be insufficient

for an appellant to satisfy the dual prongs of Strickland.” Thompson, 9 S.W.3d at 814 n.6.

16 “[W]e must presume that counsel is better positioned than the appellate court to judge the

pragmatism of the particular case, and that he made all significant decisions in the

exercise of reasonable professional judgment.” Jackson v. State, 877 S.W.2d 768, 771–

72 (Tex. Crim. App. 1994) (cleaned up) (concluding that “[d]ue to the lack of evidence in

the record concerning trial counsel’s reasons” for the alleged ineffectiveness, the court

was “unable to conclude that appellant’s trial counsel’s performance was deficient”).

The proper measure of the first prong, attorney performance, is “reasonableness

under prevailing professional norms.” Strickland, 466 U.S. at 688. The guarantees of the

Sixth Amendment rely on the legal profession’s maintenance of professional norms. Id.

Although no set of rules can satisfactorily take account of the multitude of circumstances

and choices a defense counsel should make when representing a criminal defendant,

representing a defendant entails certain basic duties like counsel having “to bear such

skill and knowledge as will render the trial a reliable adversarial testing process.” Id.

Even if professionally unreasonable, an error does not warrant setting aside the

judgment if there has been no prejudicial effect on the outcome. United States v. Morrison,

449 U.S. 361, 364–65 (1981). The test for prejudice requires the defendant to show 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 694. Therefore, the

court should consider whether the factfinder would have had reasonable doubt in respect

to guilt, absent counsel’s error. Id. at 695. In considering this question, a court adjudicating

an ineffectiveness claim must consider the totality of the evidence. Id. at 695. Some errors

might be trivial in comparison to the facts, and other errors might have a pervasive effect.

17 Id. at 695, 696.

B. Counsel’s Failure to File a Motion to Quash the Indictment

Appellant contends that his trial counsel was ineffective for failing to quash the

indictment. In his brief, appellant argues that counsel admitted to being aware of the

defect in the indictment and did nothing to cure the defect. However, appellant does not

explain the alleged defects of the indictment, 4 does not provide citations to the record

showing an admission by trial counsel as to his knowledge of any alleged defects in the

indictment, and does not provide pertinent legal authority related to the issue. See TEX.

R. APP. P. 38.1(i) (“[A] brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.”). Therefore, appellant

has waived this sub-issue through inadequate briefing. See id.; Wolfe v. State, 509

S.W.3d 325, 342–43 (Tex. Crim. App. 2017) (noting that we have no obligation to make

an appellant’s argument for him); Lucio v. State, 353 S.W.3d 873, 877–78 (Tex. Crim.

App. 2011) (finding a point of error inadequately briefed where the brief contains a single-

sentence assertion and is unaccompanied by any other argument or authorities).

C. Counsel’s Failure to Preserve Jury Charge Error

Appellant contends that his trial counsel was ineffective for failing to preserve

errors in the jury charge. We construe appellant’s reference to “errors in the charge” as

relating to his claim that the jury charge should have required the jury to unanimously

agree on his mens rea for murder as raised in his second issue. Having addressed

4 Appellant cites to a portion of the record relating to an exchange between trial counsel and the trial court regarding the proposed jury charge as it was presented at that time. Appellant does not otherwise explain how this exchange relates to any defects of the amended indictment. See TEX. R. APP. P. 38.1(i). 18 appellant’s unanimity claim and finding no error in the charge, we likewise find that

appellant has failed to demonstrate that his trial counsel was deficient in failing to object

to the jury charge on the same basis. See Strickland, 466 U.S. at 687; see also Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (“Unless appellant can prove both

prongs, an appellate court must not find counsel’s representation to be ineffective.”);

Thompson, 9 S.W.3d at 812. We overrule this sub-issue.

D. Counsel’s Failure to File a Proper Recusal Motion

Appellant contends that his trial counsel was ineffective for failing to file a proper

recusal motion that was timely, verified, and set forth grounds for recusal.

Texas Rule of Civil Procedure 18b provides multiple grounds for recusal of a judge.

See TEX. R. CIV. P. 18b(b); see also De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App.

2004) (“The procedures for recusal of judges set out in Rule 18a of the Texas Rules of

Civil Procedure apply in criminal cases.”). Potentially relevant to this case, rule 18b

provides, among other things, that a judge must recuse himself in any proceeding which:

(1) the judge’s impartiality might be reasonably questioned and (2) the judge has a

personal bias or prejudice concerning the subject matter or a party. See id. 18b(b)(1)–(2).

Rule 18a provides that a motion to recuse “must be verified,” “must assert one or more of

the grounds listed in Rule 18b,” and “must not be based solely on the judge’s rulings in

the case.” Id. R. 18a(a)(1)–(3). In addition, a motion to recuse must state “with detail and

particularity facts that[ ]are within the affiant’s personal knowledge, except that facts may

be stated on information and belief if the basis for that belief is specifically stated,]” “would

be admissible in evidence,]” and “if proven, would be sufficient to justify recusal.” Id. R.

19 18a(a)(4)(A)–(C).

“A motion to recuse must be filed as soon as practicable after the movant knows

of the ground stated in the motion.” Id. R. 18a(b)(1)(A). In addition, the motion must not

be filed “after the tenth day before the date set for trial or other hearing unless, before

that day, the movant neither knew nor reasonably should have known” “that the judge

whose recusal is sought would preside at the trial or hearing” or “that the ground stated

in the motion existed.” Id. R. 18a(b)(1)(B)(i)–(ii).

The record demonstrates that on March 16, 2022, appellant’s trial counsel filed a

motion to recuse the Honorable Judge Robert Bell, five days before commencement of

trial on March 21, 2022. In the recusal motion, appellant asserted the following:

[Appellant] has been a long time resident in Calhoun County and had been arrested several times in the past. At the time he was being prosecuted, Judge Robert Bell was then the District Attorney who handled the prosecution of all cases against [appellant]. During that time, [appellant] recalls that then DA Bell had stated to him that if he saw him in the court room again, he would seek to give him 25 years to life. While this statement was made with the intent to have the [appellant] stay out of trouble, the [appellant] believes that it would be prejudicial if Judge Bell oversaw the current case at hand. [Appellant] understands that Judge Bell is not responsible for deciding guilt or innocence, but he is respectfully filing this motion due to his beliefs.

The recusal motion was not verified. On March 17, 2022, the State filed a response to

appellant’s recusal motion and asserted that “Judge Bell served as the elected Criminal

District Attorney for Jackson County from January 1993 until August 2016,” and “retained

control over and familiarity with all felonies serving as lead counsel.” The State’s response

also listed all of appellant’s prior final felony convictions out of Jackson County, the

judgments of which were rendered between 1998 and 2010. However, the State’s

20 response did not contest that Judge Bell made the statement appellant alleged in his

recusal motion.

On March 18, 2022, the Honorable Judge Bell signed his “Order Opposing Motion

to Recuse,” by which he informed the parties he was opposing appellant’s recusal motion

and requesting the administrative judge to rule on appellant’s recusal motion.

Subsequently on the same day, the Honorable Judge Sid L. Harle, presiding judge of the

Fourth Administrative Judicial Region, signed an order denying appellant’s motion to

recuse stating that appellant’s recusal “[m]otion is denied without a hearing pursuant to

Rule 18a TRCP since it is untimely, does not state a basis for recusal, and is unverified.”

On appeal, appellant urges that “[i]t was fully within defense counsel’s ability to

verify [the recusal] motion” and argues that evidence in the record “demonstrate[s] that

defense counsel was aware of this issue over ten days prior to trial, as he conferred with

the State regarding it.” Appellant also argues that his counsel failed to set forth any

grounds for recusal, and that the motion’s assertions implicate grounds of recusal as

provided in Texas Rule of Civil Procedure 18b(1), (2). Appellant then concludes, without

analysis, that the result of his proceeding may have been different if the motion were filed

appropriately.

“To establish ineffective assistance of counsel, appellant must demonstrate that

the trial court would have erred in denying a properly filed written motion.” Richardson v.

State, 606 S.W.3d 375, 384 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d); see also

Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.—Houston [1st Dist.] 1994) aff’d, 931

S.W.2d 564, 567 (Tex. Crim. App. 1996) (holding that to prove ineffectiveness for failure

21 to object, defendant must demonstrate that the trial court would have erred in overruling

the objection). “It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons for

failing to do something do not appear in the record.” Menefield v. State, 363 S.W.3d 591,

593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

Appellant did not file a motion for new trial on ineffective assistance grounds. Thus, the

record provides no explanation of the motivation behind counsel’s decision to file the

motion to recuse in the manner he did. Nor is there evidence in the record regarding the

complained-of statement by the trial judge as alleged in appellant’s motion to recuse. 5

We cannot determine on this silent record whether the trial court would have erred had it

denied a proper recusal motion that was timely, verified, and set forth grounds for recusal.

See Thompson, 9 S.W.3d at 814 n.6.; Menefield, 363 S.W.3d at 592–93 (explaining that

direct appeal is usually an inadequate vehicle for raising an ineffective assistance of

counsel claim) (citing Goodspeed, 187 S.W.3d at 392).

As such, appellant has not shown a reasonable probability that the result of the

proceedings would have been different had his trial counsel filed a timely and verified

motion to recuse that set forth grounds for recusal. See Strickland, 466 U.S. at 687; see

also Lopez, 343 S.W.3d at 142; Thompson, 9 S.W.3d at 812. We overrule this sub-issue

and the entirety of appellant’s fourth issue.

5 We note that motions and pleadings are not evidence. CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 539–40 (Tex. 2016). 22 VII. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA Justice

Publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 6th day of July, 2023.