Kevin Antonio Caballero v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 31, 2023
• Docket: 01-19-00878-CR
• Status: Published

Opinion

Opinion issued March 31, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00878-CR NO. 01-19-00879-CR ——————————— KEVIN ANTONIO CABALLERO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case Nos. 1594160, 1594161

OPINION

Kevin Antonio Caballero was convicted of two counts of aggravated assault

with a deadly weapon and sentenced to 30 years’ confinement.1 The charges

1 See TEX. PENAL CODE § 22.02. stemmed from Caballero shooting two men during what was intended to be a

fistfight in his friend’s backyard.

In this direct appeal, Caballero raises a single issue—that he received

ineffective assistance of his retained counsel during the guilt-innocence and

punishment phases of his trial. The State points out that Caballero raised this same

issue in a denied motion for new trial and requests that we treat Caballero’s issue

as a challenge to the denial of his new-trial motion, which would invoke a more

deferential standard and require us to view the record in the light most favorable to

the trial court’s ruling.

We agree that the ineffective-assistance claim must be analyzed on appeal as

a challenge to the denial of Caballero’s motion for new trial in which he asserted

the same claim. But we conclude that the trial court abused its discretion in

denying the new-trial motion and, therefore, reverse and remand for a new trial.

Background

The events leading to Caballero’s conviction happened in the backyard of a

home owned by K. and E. Singleton.

K. Singleton had the idea that ongoing tensions between a young man living

in her home, Ashton Smading, and another man, Matt Brown, needed to be

resolved through a fistfight to avoid tensions erupting into a gunfight. Singleton

arranged for Smading and Brown to fight in her backyard. Each brought friends as

2 “backups” to protect them from being “jumped” during the one-on-one fight.

Smading brought Caballero. Brown brought three men: D. Byars, S. Bell, and Z.

All men, except Smading, went to the backyard. Smading stayed in the

house and left Caballero alone in the backyard with Brown and his three friends.

K. Singleton was also in the backyard. There is video evidence of what happened

next in the fight because the Singletons’ home surveillance videos were admitted

as evidence and played for the jury.

The first four videos show events leading to the shooting. In the first video,

Caballero is seen arriving alone to the Singleton/Smading home. In the next video,

K. Singleton is seen removing a trash can and recycling bin from the backyard

before the fistfight. In the third video, Brown and his three friends set their

belongings on the ledge of the privacy fence and gather for the fight in the

backyard. Brown is hopping up and down, punching the air. He engages in a brief,

friendly spar with one of his friends as he waits. In the fourth video, Caballero

walks to the far corner of the fenced yard and turns toward Brown and his friends

with no yard space behind him. The key video is the fifth video.

In the fifth video, all men appear to be waiting for Smading. Caballero is

seen squatting down, with his back to the far corner of the fenced yard. Brown and

Bell are standing near Caballero. Byars, Brown’s other friend, is standing on the

other side of the privacy fence. And Singleton is standing at the entrance of the

3 backyard gate. Brown and his friends are standing near Caballero. The men are

talking, but there is no audio on the recording to know what is being said or to

whom. Brown and Bell appear to be talking, and Bell points his finger at Caballero

and then walks away. Caballero stands, pauses, then walks toward a nearby gate in

the privacy fence. Byars and Singleton are standing at the gate opening. Caballero

backs away as he runs his hands through his hair. He then pushes forward to the

gate again and moves past Singleton and Byars, who turns but remains at the gate.

Brown, Bell, and Z move toward the gate. Caballero is in what appears to be a

space between the privacy fences of neighboring homes. Caballero then moves out

of view.

Brown and his three friends are at or around the gate, when, suddenly, they

lurch, duck, and run. Byars is seen collapsing on the other side of the privacy

fence. Caballero comes back into view. He is holding a gun, shooting toward the

men in the backyard. Brown jumps over the backyard fence for cover. Caballero

moves out of view again, just briefly. As he comes back into view, he is seen

reaching into his shorts pocket, pulling out a black object, and bringing it up

toward his gun. He moves out of view again. Bell also runs toward the backyard

fence and jumps over.

All men are out of view at this point, except Byars. Byars is lying on the

ground in the space between the privacy fences. His legs are visible, but his upper

4 body is obscured from view by a privacy fence. Caballero is not in view. Byars is

motionless until, suddenly, his leg twitches high into the air.2 After a moment,

Byars stands and hurries out of view. There are blood stains on his t-shirt. The

video ends with an empty backyard.

A. The State’s theory of the case

The State established its theory of the case in opening statements. The

prosecutor told the jury that Caballero brought “a gun to a fistfight” and “start[ed]

shooting at everyone execution style.” Caballero was trying “to kill” Brown and

his friends “pointblank, unprovoked.” The prosecutor characterized the two men

who were shot—Byars and Bell—as merely “in the wrong place, the wrong time,

not trying to hurt anybody.” They were “there because their friend was supposed to

be in a fistfight.” The evidence would show, the prosecutor said, that no one

approached or tried to beat up Caballero. More specifically, the prosecutor said

that Brown and his friends “never threaten[ed]” Caballero. Throughout trial, the

prosecutor framed the shooting as an unprovoked attempt to execute unarmed,

harmless bystanders.

The trial proceeded with the State calling witnesses without an opening

statement from the defense.

2 The jury was told that Byars’s leg rose suddenly because he was shot in the back, “execution”-style. 5 B. The State’s three witnesses

The first witness was K. Singleton. She testified about the layout of her

house and backyard. She authenticated the surveillance videos the police obtained

from her home security system and testified that they accurately represented what

happened that day. And she identified Caballero in the courtroom.

Singleton testified that there was supposed to be a fistfight in her backyard

between Brown and Smading. She invited them to her house to fight so that they

could resolve their disputes. She told them it would be a fistfight only, no weapons.

Singleton “patted down” Brown and his friends to make sure they did not have

weapons. She did not think to pat down Caballero, who arrived later.

She described Brown and his friends as being “hyped up” and “very

mouthy.” She told them there would be “no jumping” the other side. Asked what

happened when Caballero went around the corner, she testified that he “pulled out

a gun and started shooting.” She added, “The guys were trying to jump him.” At

that point, she ran and hid in her garage. She described the sound of gunfire,

stating that it “sounded like everybody was shooting.” The prosecutor did not ask

anything further about threatening conduct directed toward Caballero.

On cross-examination, Singleton said the men appeared to “have it out for”

Caballero. Caballero’s counsel asked her why she thought that. She said it was

based on what they were saying to Caballero. The State objected to testimony

6 about what Brown and his friends said, asserting it was hearsay. The court

sustained the objection. Caballero’s counsel abandoned any effort to obtain

testimony about threatening comments to Caballero. He did not make an offer of

proof to memorialize the testimony he was not allowed to elicit.

Rather than pursuing testimony about any threatening comments that could

lay the groundwork for a potential self-defense claim, counsel asked Singleton

whether it appeared to her, having been an eyewitness to the events, that Caballero

was in imminent danger. The State objected that the question called for

speculation. The trial court sustained the objection. Again, counsel did not make an

offer of proof to memorialize the testimony he was not allowed to elicit.

Throughout the cross-examination, the only question that pointed toward

any defensive theory was a question confirming Singleton’s testimony that she

thought Brown and his friends were going to “jump” Caballero.

The next witness was S. Bell. He said he was sitting in a bar with friends

when Brown got a text to meet at a neutral location to fight. They went to

Singleton’s backyard. He understood that it was supposed to be a one-on-one fight

between Brown and someone else. Bell approached Caballero in the backyard to

tell him to go get his friend for the fight. The “next thing” that happened was

gunshots. Bell was shot in the arm. He hid behind an air conditioner. While

Caballero reloaded, Bell ran. That is when he was shot in the back. Bell was

7 treated for a collapsed lung. His doctors did not remove the bullet from his back,

fearing the surgery would cause more damage. Bell identified only Caballero as the

shooter. He testified that Caballero was the only person who became violent.

The State’s third witness was S. Byars, the other man shot that day. He

testified that he was at a bar and asked Brown for a ride home. As they drove,

Brown took a phone call and then told Byars that they were going to another

location for Brown to fight someone. They went to the backyard, but the guy did

not come out. Byars got a “bad feeling” about it.

According to Byars, he did not hear Caballero being threatened. He did not

know Caballero, and he did not threaten Caballero. Byars testified that he saw

Caballero turn to leave and then turn back with a gun. Caballero said nothing. He

turned and shot. Byars was shot twice in the arm. He was shot again in the back

while lying on the ground. The gunshot to his back exited at his armpit, coming

within an inch of his heart. He had a metal plate placed in his arm, which reduced

his mobility. He identified Caballero as the shooter.

C. Caballero’s opening statement

The defense’s opening statement, where Caballero’s defensive theory was to

be presented to the jury, was only a single page of text in the trial transcript: 25

lines. Counsel told the jury the evidence would show that Caballero planned to tell

Brown that Smading was not coming out, that things got “kind of crazy,” that

8 Caballero was “walking out” but “folks begin to follow him,” that Caballero

determined he was “in mortal danger,” and that Caballero used a weapon to defend

himself because he was “in danger of his life.”

D. Caballero’s only witness: himself

Caballero called no witnesses other than himself. He said he and Smading

were friends. On the day of the shooting, after going to eat lunch, they returned to

Singletons’ house, where Smading lived. K. Singleton told Smading about the

planned fight. Smading said he was not going to come outside to fight. Smading

told Caballero to tell the others that he was not coming out.

Caballero testified that Smading handed him a gun. Caballero believed

Brown and his three friends were “there for something else, not for a one-on-one.”

He did not want to leave K. Singleton alone in the backyard with the other men. He

was concerned. He went to the corner of the backyard, with his back against the

fence. The other men were “talking recklessly, acting very violently” toward him.

He sat there for a minute or two. They were threatening him. He thought he was

“about to get beat up real bad.” He decided he needed to get out of there and tried

to leave. But when he saw the men follow him, he pulled out the gun and shot. He

did not think he could have fought them off. According to Caballero, he was

“literally trying to fight for [his] life.” The only description the jury heard, though,

9 about what may have been said to Caballero before the gunshots was that there had

been “aggressive talk” by the other men.

During this testimony, Caballero’s counsel repeatedly told him not to relay

what anyone had said to him, apparently trying to avoid eliciting hearsay. He had

Caballero vaguely confirm that the men said something to him, without specifying

what the men said. Because counsel did not pursue Caballero’s testimony about

any threatening comments to the point of eliciting a hearsay objection, no moment

arose for an offer of proof for the appellate record—assuming a sustained hearsay

objection—first, what threatening comments were made, and, second, evidence to

substantiate Caballero’s testimony that his life was in danger. Caballero’s defense

abandoned all effort to establish any threatening conduct toward Caballero or to

develop evidence of his state of mind as he drew the weapon.

On cross-examination, Caballero testified that he shot the men because they

were following him and he feared for his life. He thought they would pursue him

and “beat [him] to a pulp.” He felt he needed to shoot them to defend himself.

Caballero admitted to shooting Byars but denied he was the person who shot

the last bullet into Byars’s back while he was on the ground. The prosecutor asked

whether there were “some magic other bullets” that hit Byars in the back if it was

not bullets from Caballero’s gun. After some back and forth about whether

Caballero ever reloaded his gun, Caballero testified that his gun was empty before

10 Byars was shot in the back. Caballero then said Smading fired the shot through the

window that struck Byars in the back. The prosecutor responded, “Okay. Wow.

That is amazing. First time we’re hearing this.” The State dismissed Caballero’s

identification of Smading as a shooter as fanciful.

After Caballero’s testimony, both sides rested.

E. Closing arguments

In the State’s closing argument, the prosecutor argued that Caballero was not

legally justified in using deadly force unless he thought that Brown and Brown’s

friends were attempting to use deadly force against him. He argued there was no

evidence of that. Instead, the evidence indicated that Caballero turned and shot

men who were cornered in an enclosed backyard. He kept shooting even as they

ran away.

In the defense’s closing, Caballero’s attorney reminded the jury that

Singleton had testified—twice—that she thought Brown and his friends were going

to “jump” Caballero. He argued that Caballero felt threatened.

The State’s rebuttal focused on the gunshots after the men began to scatter.

Some bullets went through the privacy fence where some of the men were on the

other side running away. Another bullet went into Byars, who was on the ground,

injured. The prosecutor argued that none of those shots could be justified as

11 self-defense. Caballero was shooting at fleeing men. He shot an injured man, who

was already down, “execution”-style. Self-defense, he argued, did not apply.

The jury returned guilty verdicts on both aggravated assault charges. During

the punishment phase, Caballero’s sister and the mother of his young child both

testified, seeking leniency.

Caballero’s counsel also called Bell—one of the people Caballero was

convicted of shooting. Counsel asked Bell about sentencing. Bell said that

Caballero tried to take “years” from him and Byars and added, “So I mean, you

want my truth, 60 years.” Caballero’s counsel replied, “All right. That’s fair.”

Counsel asked for Bell’s agreement that Bell and the others’ presence might

have been “kind of intimidating” for Caballero. Bell testified that Caballero saw

Singleton pat him and his friends down for weapons, knew they did not have

weapons, knew he did have one, and still “made the choice to shoot [Bell] instead

of, if he was in fear for his life, to run when he had an opening.” Bell emphasized,

“He made that choice, not me.”

Caballero testified next. When asked about his statement that there was a

second shooter, Caballero testified that it was something someone had told him

happened. There were no follow-up questions about the possibility that Smading

shot Byars in the back and possibly did some of the other shooting as well.

Caballero asked for leniency, stating that he wanted to be a father to his son and to

12 help his sister. His counsel noted that Caballero was 27 years old and then asked

Caballero for a number to tell the judge. Caballero responded, “Something I can do

so I can be able to come out, 15 or so.” Caballero planned to become a truck driver

when he got out and to care for his child, his sister, and her child.

On cross-examination, the prosecutor asked Caballero about reloading his

gun and shooting Byars in the back. Caballero denied he did so. Caballero’s

counsel followed up on redirect. Caballero testified that, after the shooting,

Smading admitted to him that he shot bullets from an upstairs window of the

house. The jury never heard testimony about any admission by Smading during the

guilt-innocence phase of the trial.

Finally, during closing arguments, Caballero’s counsel asked the court to

sentence Caballero to the 15 years he requested, adding: “We were close to that

prior to going to trial.” Counsel noted that Caballero would be eligible for parole,

at the earliest, at 7.5 years if sentenced to 15 years. In turn, the State emphasized

that it was only luck that kept this from being a capital murder case, given that the

bullet passed only one inch from Byars’s heart. The State requested a sentence of

50 years.

The court sentenced Caballero to 30 years for each offense, to run

concurrently, with credit for the 3.5 years he was in custody awaiting trial.

13 F. Caballero moves for a new trial, arguing ineffective assistance of counsel

At the new-trial hearing, Caballero made several specific criticisms of his

prior counsel’s performance during all phases of his criminal trial. These criticisms

are not distinct or isolated from each other. The interplay between the alleged

deficiencies and how some created others necessarily affects our analysis. First, we

list the alleged harmful omissions of defense counsel. Caballero maintained his

counsel did not

• meet with him during the months and weeks leading up to trial;

• communicate a 15-year plea offer that was half the amount of his eventual sentence and equal to his requested sentence;

• meet with prospective witnesses who would have bolstered Caballero’s self-defense claim;

• engage an investigator to learn the facts of the case even though the trial court had authorized the hiring of an investigator;

• understand the basic facts of the shootings for which Caballero was being tried;

• show the jury that the complainants whom the State described as simply being in the wrong place at the wrong time had weapons in their cars that they used in a gunfight with each other just minutes after Caballero drove away; or

• understand the law well enough to o (1) overcome a frivolous hearsay objection that kept crucial self-defense evidence from the jury,

o (2) get critical self-defense-related instructions in the jury charge, or

14 o (3) know that Caballero did not need to testify for the jury to be instructed on self-defense. Second, we list what Caballero says his counsel actively did that was

prejudicial ineffective assistance. His counsel

• called Caballero to the stand without preparing him to testify, without understanding that threatening statements made to Caballero before he shot the complainants were admissible and could be recited in support of a self-defense claim, and without determining what facts Caballero might testify to; and

• called a complainant to the stand without having interviewed him, asked the complainant open-ended questions including what sentence the complainant wanted the court to impose, and when the complainant suggested a 60-year sentence, added to the already damaging effects of the testimony by responding, “That’s fair.” Caballero submitted affidavits in support of his motion for new trial. The

thrust of the evidence was that Caballero had a robust self-defense theory that the

jury never heard because of his counsel’s deficient representation.

The first affidavit is from K. Singleton. She was an eyewitness to the

shooting. She was on the State’s trial witness list. The State called her as a witness,

and Caballero’s trial counsel cross-examined her. In her affidavit, Singleton stated

that no one from the defense team ever contacted her.

Although the trial court authorized Caballero’s trial counsel to retain an

investigator to investigate the facts of the offense, there are no bills in the record to

indicate that the investigator investigated anything. But Singleton had key

information relevant to Caballero’s potential self-defense claim.

15 Singleton’s post-trial affidavit stated that Smading had asked Caballero to be

his backup in the fistfight. Once in her backyard, Brown and his three friends were

“all pumped up and ready to fight.” To her, Caballero looked scared. Caballero

“was squatted down in the corner just waiting for [Smading] to come out.” Brown

and his friends became impatient and menaced Caballero. She continued,

They were getting ready to attack [Caballero], I felt that. Next thing you know, I look over and these guys were trying to jump [Caballero]. [Smading] was nowhere to be found so [Caballero] was still alone up against these four guys. . . . [One of Brown’s friends,] S[.] Bell, the same one who asked me to turn off the video, was calling [Caballero] all kinds of names. He was telling him he was “going to kick his teeth down his throat.” [Caballero] was already squatted down so if he got a kick to the face that very well could have happened. [Bell] also said to me in front of [Caballero], “I just wanna let you know that we are gonna f– – Kevin up.”

She said that, once the shooting started, she heard a lot of shots. At first, she

thought Brown and his friends must have been shooting back, but then she found

out it was Smading shooting from inside the house. She explained,

I ran inside my house as soon as the shooting started. I heard a ton of shots so I thought that [Brown] and his friends must have snuck guns past me. I later found out that [Smading] was actually shooting at the backyard from a window inside the house.

Singleton confirmed that no one asked her about Smading as the second shooter

when she testified at trial.

At [Caballero’s] trial, I testified for the [S]tate after a subpoena was sent to me. The only thing they allowed me to talk about was my address, the video, identifying [Caballero], who was in the backyard of my house, and my actions leading up to the fight. I would have said

16 much more if I hadn’t been cut off. . . . [Caballero’s] attorney didn’t even know what to ask me because he had never talked to me before.

Finally, she confirmed her then-belief that Caballero was acting in self-defense.

I believe [Caballero] was acting in self-defense. I could see that he was scared and I felt that same fear which is why I ran into my house. I don’t think [Caballero] ever had any intention of hurting or shooting anyone. I would have told the jury all of this if I had had the opportunity and my testimony would have been favorable to [Caballero].

Singleton’s affidavit aligned with a second affidavit provided by her

husband, E. Singleton. He testified that Caballero’s defense counsel never

contacted him either. The prosecutor interviewed him and decided not to call him

as a witness. If he had been called as a witness, he would have testified that he was

inside the house with Smading when the shooting started.

Once we heard shots start to go off outside, [Smading] and I were the only two people inside of the house. [Smading] was in my bedroom and I was in the hallway. I heard him fire off at least four (4) shots from my bedroom. I could tell they were different shots than the ones coming from outside because they were closer to me and much louder. [Smading] told my wife and I he had to leave before the police got there because he had residue on his hands.

Other evidence in the record indicates that the prosecutor knew—at the time

of Caballero’s trial—that Smading had given a recorded statement to police on the

day of the shooting in which he admitted that he shot a gun from inside the

Singletons’ house into the backyard. Though the State knew this, it appears

defense counsel never did. Thus, Smading’s statement did not inform defense

17 counsel’s choice of questions for Singleton during her cross-examination or for

Caballero during his direct examination.

The third affidavit submitted in support of Caballero’s new-trial motion was

from a person who confirmed that she had listened to Smading’s statement and that

her attached transcription of it was correct to the best of her ability. In the

recording, Smading tells an officer that he shot a weapon that day in self-defense.

He was inside the house. There were “guys with guns” in his backyard. He was

asked, “Did you have to shoot outside the house to—from inside the house out—

to, to defend yourself or . . .? And Smading responded, “Yes, sir.” Thus, the

substance of Smading’s statement to the police on the day of the shooting was

consistent with what the Singletons said in their post-trial affidavits—that Smading

fired shots from inside the house.

The fourth affidavit was from Caballero’s trial counsel. Counsel conceded

that he provided deficient representation and that the deficiencies harmed

Caballero. He described his deficiencies by grouping them into six categories, but

those six categories do not fully cover all the claims of deficiency raised at the

new-trial hearing and on appeal. He admitted he was deficient in these ways:

(1) not engaging in plea negotiations or conveying any plea deal to Caballero “until the week before trial began”;

(2) not asking for a jury charge instruction on multiple assailants in connection with a self-defense claim;

18 (3) not offering evidence at trial that Brown and his friends had access to guns stored in their vehicles, that they had a gunfight with Smading in the Singletons’ front yard immediately after Caballero left, or that Smading shot into the backyard at Brown and his friends through a bedroom window; (4) advising Caballero that he had to testify to get a self-defense instruction even though, unknown to counsel, that is not the law; (5) asking a complainant during the punishment phase of the trial how long Caballero’s sentence should be, even though counsel had never interviewed the complainant and had no idea how the complainant might answer the question; and (6) filing an ineffective motion for new trial without contemporaneous representation of the client, without supporting evidence, and without setting the motion for hearing. Counsel did not include in his affidavit any discussion of his pretrial investigation.

Nor did he confirm what the Singletons said, which is that he never contacted them

to learn what they were able and willing to testify to, if called.

Counsel concluded his affidavit by stating that he “was ineffective as

[Caballero’s] counsel at many points throughout [the] representation . . . and [he]

take[s] responsibility for that.” He agreed “that cumulatively [the] deficient

performance was harmful to [Caballero] at both the guilt[-]innocence phase and

punishment phase of trial.” And he confirmed that he had no strategic reason for

the lapses in his representation outlined in the six points above.

The State’s presentation at the new-trial hearing had four parts. The first

concerned plea negotiations. Caballero claimed in his affidavit that he was never

told about a 15-year plea offer. The prosecutor testified at the new-trial hearing, 19 though, that he personally told Caballero of the 15-year offer a few days before

trial began, he left Caballero and his trial counsel alone for a private conversation

that he assumed was about the offer, and then counsel declined the offer. The trial

court was within its discretion to believe the prosecutor’s version of events.

The second part of the State’s presentation concerned Caballero’s role in the

shooting. The prosecutor testified to his belief about what happened in the

backyard the day Caballero shot Bell and Byars. His interpretation of the fifth

video was that Caballero had an open route to leave the backyard and left briefly,

the other men stayed “fairly stationary” (i.e., were not aggressively following

Caballero), yet Caballero turned back and shot these men who were, in the

prosecutor’s words, “cornered, for lack of a better word” in the backyard. In his

view, the video showed that Caballero reloaded his gun before moving offscreen to

shoot Byars in the back “execution”-style as Byars laid helpless on the ground. The

prosecutor stated his belief that Caballero was the only shooter in the backyard.

On cross-examination, the same prosecutor agreed that he had studied all

available evidence in preparation for Caballero’s trial. He admitted that he knew

about the recorded police statement Smading gave on the day of the shooting:

DEPUTY TCHUDY: [T]oday is June 4, 2018, it’s 10:30 p.m., Deputy Tchudy with the Harris County Sheriff’s Office, Violent Crimes Unit. What’s your name? ASHTON SMADING: Ashton Smading.

20 DEPUTY TCHUDY: Alright Ashton. Uh . . . what’d you wanna have to say? ASHTON SMADING: That I did shoot my weapon in self-defense. And they were on my property. And that’s all. DEPUTY TCHUDY: So you shot a - a weapon in self-defense earlier today. Where were you at when this happened? ASHTON SMADING: Inside of my house.

DEPUTY TCHUDY: Inside the house when you shot? Okay. Um . . . did uh, you weren’t outside the house when you were shooting? ASHTON SMADING: No.

DEPUTY TCHUDY: In the driveway? Okay. Um . . . and that was the gun that was found beneath, underneath your seat in your driver’s - ASHTON SMADING: Yes, sir.

DEPUTY TCHUDY: On the driver’s side of your car right? K. What type of gun is it, you know? ASHTON SMADING: Taurus thirty-eight special. DEPUTY TCHUDY: Thirty-eight special? Okay. So uh . . . you shot your gun in self-defense. Why did you feel in fear for your life or what - what were the circumstances surrounding that? ASHTON SMADING: Some random guys with guns around my house. I mean -

DEPUTY TCHUDY: Okay. In the backyard or front yard? ASHTON SMADING: In the backyard.

DEPUTY TCHUDY: Okay. And uh . . . so you were inside the house. Did you have to shoot outside the house to, from inside the house out to, to defend yourself or?

21 ASHTON SMADING: Yes, sir.

DEPUTY TCHUDY: Okay. Um . . . anything else you wanna tell me in reference to that? ASHTON SMADING: No, sir.

DEPUTY TCHUDY: Okay, um, I’m just confirming that you wanted to - to tell us about the guns to make sure that we understood why that the gun was shot and that it was shot and it was shot by you in self-defense. ASHTON SMADING: Yes, sir.

At the new-trial hearing, the prosecutor would not acknowledge that

Smading’s statement meant that Smading had fired shots into the backyard from

inside the house. But he did concede that Smading’s statement—however this

prosecutor was interpreting it—was inconsistent with his just-stated position and

the State’s trial theory that Caballero was the only shooter.

Still discussing Smading’s pretrial statement, Caballero’s new-trial-hearing

counsel and the prosecutor had a lengthy discussion about one exchange before the

jury during Caballero’s criminal trial. The prosecutor had been cross-examining

Caballero when he pressed Caballero about shooting Byars as he was lying on the

ground. Caballero denied doing that, stating that Smading fired that shot. The

prosecutor responded in front of the jury: “Okay, wow. That is amazing. First time

we’re hearing this.”

Caballero’s new-trial-hearing counsel characterized the prosecutor’s

response as a sidebar scoff at the idea of another shooter that made Caballero’s 22 claim of self-defense seem laughable to the jury. He asked the prosecutor how

Caballero’s implication of Smading could have been “amazing” or surprising as he

had explained given that the prosecutor knew of Smading’s statement before the

trial began. The prosecutor was already aware of Smading as a possible second

shooter when Caballero testified about it at trial.

The prosecutor explained that he was in “shock” that Caballero implicated

Smading so late in the trial. In the prosecutor’s view, Caballero had many

opportunities to develop the evidence of Smading being a shooter during the

cross-examination of K. Singleton and during his own direct examination, yet

Caballero never brought it up until this late point in his cross-examination. The

prosecutor stated, “My shock was: Why did you bring it up just now when you’ve

had all day to say otherwise?” In other words, he claimed he was reacting to the

defense waiting until the eleventh hour to implicate Smading, not to the idea that

Smading might have been a second shooter.

The third part of the State’s presentation went to the veracity of the

Singletons and defense counsel who submitted affidavits supporting the new-trial

motion. The State posited that the Singletons now had a reason to blame Smading

instead of Caballero: Smading died of an overdose and would face no

consequences from shifting blame to him to help Caballero. And defense counsel

was “falling on his sword” to help his former client.

23 The fourth part concerned trial counsel’s representation and any harm it

caused. According to the State, whether defense counsel was deficient is a “close

call.” But regardless, any deficiencies did not affect the criminal trial because there

was overwhelming evidence of guilt—Caballero admitted shooting these men and

there was video evidence of him doing it.

Defense counsel argued that there is a significant difference between a

scenario where a man shoots repeatedly, unprovoked at “cornered,” unarmed men,

including a wounded man lying on the ground, versus a scenario where a man is

about to be attacked by four men and shoots briefly in self-defense while another

man is shooting additional gunshots through a window, including the shot that

struck Byars while on the ground. The first scenario looks like an execution. That

is what the jury heard and imposed a 30-year sentence. The second scenario sounds

more like self-defense. But the jury never heard the second scenario.

The trial court denied the motion for new trial without issuing fact findings.

Analysis

Caballero contends he received ineffective assistance of counsel during both

the guilt-innocence and punishment phases of his criminal trial.

A. Proper framing of appellate issue to determine deference required

Caballero does not frame his appellate issue as a challenge to the denial of

his motion for new trial after a hearing. Instead, he directly appeals whether he

24 received ineffective assistance of counsel. Because Caballero raised his

ineffective-assistance claim in a denied motion for new trial, however, we analyze

the claim on appeal as a challenge to the trial court’s ruling on that motion, and we

review the ruling under an abuse-of-discretion standard. See Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by

TEX. R. APP. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905

n.5 (Tex. Crim. App. 2007); Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d); cf. Norris v. State, No. 05-16-00397-CR,

2017 WL 1075613, at *3 (Tex. App.—Dallas Mar. 21, 2017, no pet.) (mem. op.,

not designated for publication). We will reverse the trial court’s ruling only if the

decision to deny the new-trial motion was arbitrary or unreasonable, viewing the

evidence in the light most favorable to the ruling. Riley v. State, 378 S.W.3d 453,

457 (Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548

S.W.3d 497 (Tex. Crim. App. 2018); Starz, 309 S.W.3d at 118.

Trial courts are in a better position to evaluate the credibility of witnesses

and resolve conflicts in evidence than appellate courts, which must rely on a

submitted record. See Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App.

1999). Accordingly, we defer to the trial court’s decision to believe or disbelieve

all or any part of a witness’s testimony. See id. This same deference applies when

the testimony is by affidavit. See Manzi v. State, 88 S.W.3d 240, 243–44 (Tex.

25 Crim. App. 2002). If there are two permissible views of the evidence, the trial

court’s choice between them cannot be held to be clearly erroneous. Riley, 378

S.W.3d at 457. Thus, a trial court abuses its discretion in denying a motion for new

trial only when no reasonable view of the record could support the trial court’s

ruling. Id. at 457–58; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

When, as here, the trial court makes no findings of fact on the denial of a

motion for new trial, we “impute implicit factual findings that support the trial

judge’s ultimate ruling.” Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App.

2005). But there is a limitation on imputing factual findings: we will only impute

implicit factual findings that “are both reasonable and supported in the record.” Id.;

see Escobar v. State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d).

B. Standard for ineffective assistance of counsel

The Sixth Amendment of the United States Constitution guarantees an

accused’s right to the reasonably effective assistance of counsel in criminal

prosecutions. U.S. CONST. amend. VI; Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011) (right to counsel “does not provide a right to errorless counsel,

but rather to objectively reasonable representation”). To prove a claim for

ineffective assistance of counsel, an appellant must establish, by a preponderance

of the evidence, that (1) his trial counsel’s representation fell below an objective

26 standard of reasonableness and (2) there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez, 343

S.W.3d at 142. In determining whether there was a reasonable probability of a

different result but for the ineffective assistance, courts look for a “probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

When conducting a Strickland analysis of alleged ineffective assistance of

counsel, we look to the totality of the representation to determine counsel’s

effectiveness. Cf. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App.

2006) (setting forth standard on direct appeal). The purpose of the Strickland

two-pronged test is to assess whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be said to have produced

a reliable result. See Strickland, 466 U.S. at 686.

The appellant bears the burden to establish both prongs, and his “failure to

satisfy one prong of the Strickland test negates a court’s need to consider the other

prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see

Lopez, 343 S.W.3d at 142 (“Unless appellant can prove both prongs, an appellate

court must not find counsel’s representation to be ineffective.”).

27 C. Deficient performance: failure to investigate and prepare a coherent defensive theory

Caballero argues that he received ineffective assistance of counsel at trial

when his trial counsel failed to, among other things, (1) do any meaningful

preparation or investigation for trial, (2) interview witnesses, or (3) present

evidence in support of a self-defense theory. We address these three arguments

together because adequately investigating and preparing for trial includes, among

other things, interviewing and presenting witnesses, including the

defendant. See Perez v. State, 403 S.W.3d 246, 251 (Tex. App.—Houston [14th

Dist.] 2016), aff’d, 310 S.W.3d 890 (Tex. Crim. App. 2010).

A criminal defense attorney “must have a firm command of the facts of the

case as well as governing law before he can render reasonably effective assistance

of counsel.” Ex parte Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App. 1990).

Counsel has a duty to make reasonable investigations or to make a reasonable

decision that a particular investigation was unnecessary. Strickland, 466 U.S. at

691. Counsel’s failure to conduct an adequate investigation may constitute

ineffective assistance. See Wiggins v. Smith, 539 U.S. 510, 521–52 (2003).

Part of the duty to investigate is counsel’s responsibility to seek out and

interview potential witnesses. Ex parte Welborn, 785 S.W.2d at 394. To

demonstrate ineffective assistance of counsel based on an uncalled witness, an

appellant must show two things: (1) the witness would have been available to

28 testify and (2) the witness’s testimony would have been of some benefit to the

defense. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007); Ex parte

White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004).

A decision by counsel to not conduct a particular investigation is directly

assessed for reasonableness in all the circumstances, and appellate courts are

required to provide a heavy measure of deference to counsel’s judgments.

Strickland, 466 U.S. at 691; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App.

1986); Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.]

2018, no pet.). An appellant cannot show ineffective assistance based on failure to

investigate and adduce evidence without showing what the investigation would

have revealed that reasonably could have changed the outcome. See Stokes v. State,

298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); see also

Butler, 716 S.W.2d at 55. To determine whether an appellant was prejudiced from

a failure to investigate and present evidence, this Court must “compare the

evidence presented by the State with the ‘evidence the jury did not hear due to trial

counsel’s failure to investigate.’” Perez v. State, 310 S.W.3d 890, 896 (Tex. Crim.

App. 2010) (quoting Butler, 716 S.W.2d at 56).

An appellate court will not reverse a conviction based on failure to

investigate unless the consequence of that failure “is that the only viable defense

available to the accused is not advanced.” Donald, 543 S.W.3d at 477; see

29 Muirhead v. State, No. 02-20-00089-CR, 2021 WL 4472626, at *6 (Tex. App.—

Fort Worth Sept. 30, 2021, no pet.) (mem. op., not designated for publication);

Bahr v. State, 295 S.W.3d 701, 712 (Tex. App.—Amarillo 2009, pet. ref’d).

Case law is not fully developed on the issue of what constitutes an available

defense being “advanced” to preclude reversal or “not advanced” to compel

reversal for ineffectiveness. A defense is advanced when counsel vigorously

presents the defensive theory through lengthy cross-examination of witnesses. See

Flores v. State, No. 01-20-00213-CR, 2022 WL 961554, at *16–17 (Tex. App.—

Houston [1st Dist.] Mar. 31, 2022, pet. filed) (mem. op., not designated for

publication). On the other hand, it is not advanced when counsel fails to interview

any witnesses, fails to follow up on a lead from his client about a possible alibi

witness, records less than two hours of work in preparation for trial, and fails to put

on any evidence at trial. See Perez, 403 S.W.3d at 251. Here, counsel’s defensive

actions fall in the middle.

Caballero’s counsel presented a defense to the extent he told the jury that

Caballero claimed self-defense; elicited a single, vague statement from

K. Singleton during cross-examination that she thought the group of men was

going to “jump” Caballero; and elicited statements from Caballero on direct

examination that he did not think he could get away from the men who were acting

violently and that he felt that he was fighting for his life.

30 But counsel did not present to the jury a coherent explanation of why

Caballero felt threatened enough to resort to lethal force. While the jury heard the

word “self-defense,” they never heard a sufficient explanation for Caballero’s fear.

That was, at least in part, due to counsel actively avoiding any questions to

witnesses that might elicit direct quotes of any threatening statements made to

Caballero in the backyard. On appeal, Caballero argues that counsel’s tactic was an

ill-conceived attempt to avoid a hearsay objection. He points to places in the trial

transcript where counsel told witnesses that they could not repeat what someone

else said, thus closing off all testimony about any threats Caballero received before

he drew a gun.3

Not only did counsel fail to present any coherent explanation for any need

for self-defense, but counsel also failed to adduce evidence of how Byars was shot

while lying on the ground already injured. The State argued to the jury that the

3 Here though, hearsay would not apply. The statements would not be offered for the truth of the matter asserted but, rather, for how they made Caballero feel and to gain insight into Caballero’s claim that he needed to defend himself. In other words, a statement by a declarant that he is going to “kick in [someone]’s teeth”— which K. Singleton claims in her post-trial affidavit Bell said to Caballero—would be offered for how it made Caballero feel and to explain Caballero’s response, not for the truth of whether Bell would really kick Caballero’s teeth in. See TEX. R. EVID. 801(d)(2); McGowan v. State, 188 S.W.3d 239, 243–44 (Tex. App.—Waco 2006, pet. ref’d) (complainant’s statement “I know you don’t want to go to war over $50” was not hearsay because it was offered for declarant’s state of mind, not statement’s truth). Alternatively, the statement could qualify as an exception to hearsay as a then-existing mental or emotional condition. See TEX. R. EVID. 803(3); Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (en banc) (complainant’s statement that she was afraid of appellant was indicative of her state of mind and fell within exception to rule against hearsay). 31 final bullet fired into Byars was shot by Caballero, who attempted to execute a

defenseless, injured man long after everyone else had fled. To mount his own

defense, Caballero spontaneously asserted on cross-examination that Smading fired

that last gunshot at Byars. When Caballero made that isolated statement without

context or supporting testimony, the prosecutor openly scoffed that Caballero’s

claim was “new” and derided it as “magic bullets.” Defense counsel advanced

nothing during guilt-innocence in support of the defensive theory that someone

else shot Byars as he was lying on the ground. Caballero’s counsel’s post-trial

affidavit states that he had no strategic reason for failing to present such evidence.

That failure left the jury with no way to connect Caballero’s isolated statement,

which the State mocked, to other details of the shooting to develop an

understanding of what happened and why.

Case law does not tell us whether counsel uttering the word “self-defense” in

addition to one-off statements by the defendant about another shooter and by one

State’s witness about men possibly “jumping” the defendant qualify as having a

defensive theory “advanced” so that a failure to investigate or interview witnesses

is not deficient performance. The trial court necessarily determined that they do,

because it denied Caballero’s motion for new trial requesting relief on this basis.

We, then, must determine whether the trial court abused its discretion in denying

the new-trial motion.

32 The State argues that the standard of review for a denial of a new-trial

motion involves a great deal of deference to the trial court. Applying that

deference, it argues, we must conclude that the trial court found witnesses with

testimony in support of the denial were credible and that witnesses with testimony

opposing denial were not credible. The State further argues that defense counsel’s

failure to admit to inadequate investigation and inadequate interviews of potential

witnesses and failure to explain why he failed to do these things require this Court

to presume a strategic reason for his inaction. We do not agree that the applicable

standard of review insulates counsel’s performance to the degree the State asserts.

Caballero’s counsel admitted in his post-trial affidavit that there were

several points during Caballero’s trial that he acted without any strategic reason

and that his errors harmed Caballero. After pointing to specific errors, including in

the plea negotiations, charge conference, presentation of evidence on guilt or

innocence, presentation of evidence on punishment, and in the handling of

post-judgment motions, counsel stated: “I believe I was ineffective as [Caballero’s]

counsel at many points throughout my representation . . . and I take responsibility

for that. I acknowledge that cumulatively my deficient performance was harmful to

[Caballero] at both the guilt[-]innocence phase and punishment phase of trial.”

Counsel’s affidavit did not specifically admit to a lack of investigation as

one of his enumerated deficiencies. He did not admit to failing to visit Caballero in

33 the Harris County Jail for the 15 months he represented Caballero to understand

Caballero’s version of events and prepare him to testify. He did not admit to failing

to interview the Singletons. He did not admit to failing to investigate whether

Smading fired shots from the upstairs window or to not knowing that Smading

gave a recorded statement to police on the day of the shooting admitting to

shooting from the upstairs window. Counsel did not refute Caballero’s contentions.

While it is true that Caballero’s counsel was silent on these aspects of alleged

deficient performance, we do not agree that the record is silent as to whether

counsel failed to investigate or act strategically.

First, the Harris County jail records confirm that Caballero’s counsel never

once visited him in custody to learn his version of events and develop leads to hand

over to an investigator. See AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE

STANDARDS FOR THE DEFENSE FUNCTION 4-3.3(b) (4th ed. 2017),

https://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionF

ourthEdition/ (“Counsel should interview the client as many times as necessary for

effective representation, which in all but the most simple and routine cases will

mean more than once.”). Had counsel done this, he would have learned about the

possibility of Smading as a second shooter, the detailed facts of any self-defense

claim, and the need for further investigation of these two items. Although counsel

was mistaken that Caballero needed to testify to receive a self-defense instruction,

34 the need to prepare Caballero to testify would have prompted visits to the jail.

Instead, based on counsel’s misunderstanding of the hearsay rules, Caballero had

to wait until the State cross-examined him to present his self-defense testimony,

which landed without any support from other evidence.

Second, Caballero’s counsel admitted in his affidavit that he had no strategic

reason for failing to present evidence that Smading shot from the upstairs window.

There is an order from the trial court in the appellate record authorizing defense

counsel to hire an investigator to assist with case development, which could have

included interviewing Smading before he died. Yet there is no record of an

investigator submitting a bill for payment, which can only be reasonably

understood to mean that no investigator interviewed witnesses to be eligible for

payment. Though counsel did not explicitly admit that he failed to investigate the

Smading matter, he admitted that he had no strategic reason for keeping that

defensive evidence from the jury. See Aldrich v. State, 296 S.W.3d 225, 244–45

(Tex. App.—Fort Worth 2009, pet. ref’d) (failure to investigate based on

misapprehension of law was not strategic and constituted deficient performance);

see also AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE STANDARDS FOR THE

DEFENSE FUNCTION 4-4.1(a), (c) (4th ed. 2017), https://www.americanbar.org/grou

ps/criminal_justice/standards/DefenseFunctionFourthEdition/ (“Defense counsel

has a duty to investigate in all cases, and to determine whether there is a sufficient

35 factual basis for criminal charges. . . . Defense counsel’s investigative efforts

should commence promptly and should explore appropriate avenues that

reasonably might lead to information relevant to the merits of the matter . . .

[including] potential avenues of impeachment of prosecution witnesses[] and other

possible suspects and alternative theories that the evidence may raise.”).

Third, K. Singleton said in her post-trial affidavit that no one from the

defense interviewed her before the trial. E. Singleton said the same. Even if

counsel did not specifically admit that he failed to engage an investigator to

interview the Singletons and visit the scene of the shooting, the lack of an invoice

for an investigator supports the Singletons’ statements. Had counsel been aware of

a possible second shooter and the alleged threats Caballero received before he fired

his weapon and how to navigate the hearsay rules, the jury could have been

presented with a potentially colorable self-defense claim and heard evidence that

contradicted the State’s depiction of Caballero as an executioner. See Frangias v.

State, 450 S.W.3d 125, 138–44 (Tex. Crim. App. 2013) (failure to secure

deposition or request continuance to bring late-discovered witness to trial to

advance sole defense was ineffective assistance of counsel); Ex parte Amezquita,

223 S.W.3d 363, 368 (Tex. Crim. App. 2006) (failure to investigate cell phone

records pointing to another suspect was ineffective assistance of counsel).

36 This is not a silent record as to counsel’s strategic choices. When all

evidence in the new-trial record indicates that counsel failed to visit his client at

the jail or interview witnesses and counsel admitted to ineffective assistance of

counsel at “many points throughout my representation” in both the guilt-innocence

and punishment phases of trial, including presenting a defensive theory that

Smading shot at least some of the bullets that day, the normal presumption that

accompanies a “silent record” should not apply. Indeed, counsel was given the

opportunity to explain his trial strategy. See State v. Frias, 511 S.W.3d 797, 811

(Tex. App.—El Paso 2016, pet. ref’d).

We conclude the record demonstrates that Caballero’s counsel was deficient

in failing to investigate or interview witnesses to assist in presenting a coherent

defense at trial. He neither conducted a reasonable investigation nor made a

reasonable decision that made interviewing these eyewitnesses unnecessary. See

Wiggins, 539 U.S. at 521–22. Because of counsel’s failures, no cogent defense was

advanced. The first prong of the ineffective-assistance test is met.

The State points out that the Singletons may have been lying in their

post-trial affidavits. Smading died after Caballero’s conviction. With Smading no

longer facing the possibility of criminal punishment for the shooting, perhaps the

Singletons decided to shift blame to Smading to help Caballero. But this theory

ignores that the Singletons’ affidavits are consistent with Smading’s own version

37 of events that he gave to the police on the day of the shooting. Smading told the

police that he shot from inside the house. E. Singleton’s affidavit states that he

heard Smading shoot from inside the house. Further, K. Singleton stated in her

affidavit that there were so many shots fired, she thought more people were firing

weapons than just Caballero.

Even if the trial court doubted the Singletons and determined that counsel’s

silence left open the possibility that there was a strategic basis for his decisions,

that deficient performance will be excused only if we can conceive of a reasonable

trial strategy that counsel could have been pursuing with the challenged tactics. See

Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). When a reviewing

court cannot conceive of any reasonable trial strategy that would support the

actions or inactions of counsel, then counsel’s performance is deficient. See id. It is

not enough that this trial court might have viewed the affidavit from Caballero’s

trial counsel with skepticism. There still must be a conceivable and reasonable trial

strategy that could have informed counsel’s trial tactics.

Here, where an investigation would have revealed possible defensive

evidence that there was an additional shooter and specific, articulable testimony

about alleged threats to harm and “f– – up” the defendant just before his defensive

maneuvers, the failure to undertake that investigation or interview those witnesses

has no strategic basis. See Strickland, 466 U.S. at 690–91 (“[S]trategic choices

38 made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.”); Johnson v. State, 172 S.W.3d

6, 20 (Tex. App.—Austin 2005, pet. ref’d) (“It cannot be effective trial strategy to

forego trial strategy [through lack of investigation].”). Smading admitted in a

recorded statement to police that he shot a weapon into the backyard from inside

the Singletons’ house. That evidence never reached the jury. Nor was the second

shooter theory coherently presented to the jury, even without evidentiary support.

If nothing more, the audio of Smading’s statement would have corroborated key

aspects of the Singletons’ testimony to aid counsel in evaluating whether additional

investigation into the Singletons’ recollection was worthwhile, even if the audio

did not, itself, make it into evidence.

Defense counsel’s (1) lack of knowledge of the underlying facts of the case

combined with (2) his acquiescence to inapplicable hearsay objections and (3) his

poor preparation and management of his client’s testimony and the

cross-examination of the State’s witness left Caballero without an articulated

self-defense theory of his case. The jury was left with no intelligible explanation

for the shooting other than the State’s theory of “unarmed” victims, who were “not

trying to hurt anybody” and did not threaten anyone, being gunned down

39 “execution”-style while simply being in “the wrong place” at “the wrong time.”

“[A] thorough factual investigation is the foundation upon which effective

assistance of counsel is built[.]” Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.

Crim. App. 1982) (citing Powell v. Alabama, 287 U.S. 45, 52 (1932)). Being

uninformed to the point of inability to meaningfully advance the only viable

defensive theory is simply not strategic. The trial court abused its discretion in

determining otherwise.

D. Prejudice

To demonstrate prejudice, the defendant must show that there is a reasonable

probability that, but for his attorney’s errors, the jury would have had a reasonable

doubt about his guilt. See Perez, 310 S.W.3d at 893. In giving meaning to the Sixth

Amendment’s requirement that an accused receive effective assistance of counsel,

“we must take its purpose—to ensure a fair trial—as the guide” in assessing

prejudice. Strickland, 466 U.S. at 686. A fair trial has certain features that are

missing here:

[A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled. . . . That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel

40 because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

Id. at 685 (citations omitted).

A defendant must show more than “that the errors had some conceivable

effect on the outcome of the proceeding,” Perez, 310 S.W.3d at 894

(quoting Strickland, 466 U.S. at 693). “Rather, he must show that ‘there is a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.’” Id. (quoting Strickland, 466 U.S. at 695). We

must ask whether there is a “reasonable probability sufficient to undermine

confidence in the outcome that, but for counsel’s errors, the outcome of the

proceeding would be different.” Everage v. State, 893 S.W.2d 219, 224 (Tex.

App.—Houston [1st Dist.] 1995, pet. ref’d).

This is more than the simple evaluation of the sufficiency of the evidence.

“The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Butler, 716

S.W.2d at 54 (quoting Strickland, 466 U.S. at 686).

The prejudice standard is met on this record. Caballero had a viable

defensive theory that, due to his counsel’s deficient performance, was never

advanced at trial. Unbeknownst to counsel, at least three witnesses were available

41 to testify that after Smading failed to emerge from the Singletons’ house, Brown

and his three friends “were trying to jump” Caballero and threatening they would

“kick in his teeth” and “f– – him up.” The jury could have heard that the men had

weapons nearby and engaged in a shootout after leaving the Singletons’ backyard.

If advanced, Caballero could have presented evidence to support a theory of the

case to refute the State’s theory that Brown and his three friends were not innocent

bystanders in the wrong place at the wrong time. This evidence would have

countered the State’s theory that no one threatened anyone that day except

Caballero. The witnesses also could have told the jury that there was a second

shooter. The State repeatedly portrayed the final shot at Byars as he was lying on

the ground as an attempted execution of a wounded man unable to fight back.

Evidence that someone other than Caballero shot that bullet at Byars would have

considerably altered the narrative at trial.

Yet the jury heard none of this. Counsel failed to investigate and interview

witnesses to gain a basic understanding of who was doing what where to present a

coherent explanation of the alleged need for self-defense and the limits of

Caballero’s role in the shooting. See Andrus v. Texas, 140 S. Ct. 1875, 1883

(2020) (failure to sufficiently investigate and prepare led to counsel not knowing

whether one of his witnesses was truthful in negatively characterizing defendant

and being unable to rebut aggravating evidence). This failure to meet with

42 Caballero, conduct a reasonable investigation, prepare witnesses to testify,

understand the exceptions to the hearsay rule, and present the jury with a cogent

self-defense theory permeated the entire trial. See Holmes v. State, 277 S.W.3d

424, 429 (Tex. App.—Beaumont 2009, no pet.) (omitting investigation and

discovery of key evidence precluded trial strategy and preparation); Johnson, 172

S.W.3d at 19 (discussing ripple effects of failure to investigate). Counsel’s conduct

so undermined the proper functioning of the adversarial process that we cannot

have confidence that Caballero’s trial produced a just result. See Butler, 716

S.W.2d at 54.

We therefore conclude that the trial court abused its discretion in denying

the motion for new trial based on ineffective assistance of counsel.

Conclusion

We reverse and remand for a new trial.

Sarah Beth Landau Justice

Panel consists of Justices Landau, Hightower, and Rivas-Molloy.

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