Oscar Perez, Jr. v. State

403 S.W.3d 246, 2008 WL 5220302, 2008 Tex. App. LEXIS 9293
Court of Appeals of Texas·Decided December 11, 2008·No. 14-07-00414-CR·Published·Cited by 18 cases

Opinions

MAJORITY OPINION

JOHN S. ANDERSON, Justice.

A jury found appellant, Oscar Perez, Jr., guilty of aggravated robbery. See Tex. Penal Code Ann. §§ 29.02, 29.03 (Vernon 2003). The trial court assessed appellant’s punishment at thirty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In his sole point of error, appellant contends he received ineffective assistance of counsel. We affirm.

Factual And Procedural Background

On November 30, 2005, appellant and Marcus Antonio Tavira, each armed with a knife, kicked in the door to Maria Rangel’s [248]*248home and committed robbery. Both men wore handkerchiefs around their faces, but Mr. Tavira’s handkerchief slipped down during the course of the robbery, thereby exposing his face. Maria identified Mr. Tavira, but she could not identify appellant because she never saw his face and did not pay attention to his body. Maria’s son Ernesto, who was thirteen at the time of the robbery, recognized both appellant and Mr. Tavira as the offenders. Maria and Ernesto disagreed whether the robbery occurred about 8:00 p.m. or 10:00 p.m., but they both agreed that it lasted about ten minutes total.

At trial, Maria, Ernesto, and the officer who investigated the scene of the robbery testified for the State. The defense did not present any witnesses or other evidence.

The jury found appellant guilty of aggravated robbery, and the trial court sentenced him to thirty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. After the trial, appellant’s trial counsel, Mark Racer, filed a motion to withdraw, and the court appointed appellant new counsel. Appellant filed a motion for new trial alleging, among other things, that he received ineffective assistance of counsel at trial. Specifically, appellant alleged Mr. Racer failed to (1) interview and present an alibi witness or (2) do any meaningful preparation or investigation for trial. At the request of appellant’s new counsel, the court appointed an investigator to speak with appellant regarding Mr. Racer and to investigate and interview potential witnesses. The investigator interviewed appellant’s mother, his sister, and two alibi witnesses.

In response to appellant’s motion for new trial, the trial court held a hearing during which appellant, Mr. Racer, the State’s attorney, the investigator, appellant’s mother, and an alibi witness testified.

Mr. Racer testified that from the time the court administrator appointed him to defend appellant, he understood appellant was charged with aggravated robbery, and that it was an habitual offender first-degree felony case. Appellant testified that prior to trial, Mr. Racer visited him only twice while he was in jail. In fact, on his fee voucher, Mr. Racer only recorded these two visits. Mr. Racer testified his notes revealed one additional meeting, and he alleged he met with appellant several other times. However, he has no record of those meetings. The only preparation for trial Mr. Racer recorded on his fee voucher is an hour and a half the weekend before trial began.

Appellant testified he wrote several letters to the court administrator stating his attorney was not visiting him, and Mr. Racer testified he received a letter from appellant in which appellant complained Mr. Racer would not comply with his requests or even respond to him. Appellant’s mother testified she called Mr. Racer several times on his office phone and his cell phone with questions about the case but he did not answer. She further testified she began calling from an un-recog-nized number, at which point he answered her calls and stated he would call her back when he had information for her concerning the case. She testified, however, the only time Mr. Racer called her back was during the trial to ask for the number of an alibi witness. Appellant’s mother further testified Mr. Racer did not tell her the dates of any hearings or of the trial.

Mr. Racer testified appellant told him about Christina Pereda, an alibi witness, during their first meeting, which was a year and a half before trial. According to Mr. Racer, he called Ms. Pereda on several occasions, but she never returned his calls. [249]*249Ms. Pereda, however, testified she never received any phone calls, messages, or letters from Mr. Racer. She further testified she did not even know who Mr. Racer was. The only attempt to contact Ms. Pereda that Mr. Racer noted in his file was a phone call on the day trial began. Mr. Racer testified he never visited the witness’s home, never moved for a continuance to interview the witness, and never subpoenaed the witness.

Mr. Racer testified that as a court appointed attorney, he understood he had a duty to investigate. Despite this duty, he did not interview Ms. Pereda, and he did not investigate whether there were any other possible witnesses. At no point did Mr. Racer ask the court to appoint an investigator to contact Ms. Pereda or to determine whether there were any other witnesses. Mr. Racer testified he did not ask for an investigator because he could not get in contact with Ms. Pereda and because appellant did not state a specific event that he and the witness attended at the time of the robbery.

At the hearing, Ms. Pereda testified she did not personally know appellant’s whereabouts the night of the robbery, but she stated that Roselie Padilla might know. She further testified if Mr. Racer had contacted her before trial, she would have provided him this information.

Ms. Padilla did not attend the hearing, but she provided an affidavit in which she testified she lived with appellant in a small house along with several other people, including Ms. Pereda. She did not provide a specific event that she and appellant attended the night of the robbery, rather she only testified generally that appellant was always home about 10:00 p.m., and the week of the robbery was no different.

At the hearing, appellant testified Mr. Tavira, the co-defendant, would have provided favorable testimony. The record reveals Mr. Tavira accepted a plea bargain, which required him to waive all appeals before appellant’s trial. Mr. Racer testified he was unaware of the plea bargain and assumed Mr. Tavira’s case was still pending; therefore, he made no attempts to interview Mr. Tavira.

The trial court denied appellant’s motion for new trial, and this appeal followed.

Discussion

In his single issue on appeal, appellant argues he received ineffective assistance of counsel at trial because his trial counsel failed to (1) interview and present an alibi witness or (2) do any meaningful preparation or investigation for trial. Therefore, appellant contends the trial court erred in denying his motion for new trial.

I. Standard of Review

A. Motion for New Trial

We review the denial of a motion for new trial for an abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995).

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Oscar Perez, Jr. v. State, 403 S.W.3d 246, 2008 WL 5220302, 2008 Tex. App. LEXIS 9293 (Tex. Ct. App. 2008).

403 S.W.3d 246 (Oscar Perez, Jr. v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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