AFFIRMED and Opinion Filed August 19, 2019
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00126-CR
SILVINO RICARDO AREVALO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F-1624895
MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Bridges A jury convicted appellant Silvino Ricardo Arevalo of capital murder (murder in the course
of committing or attempting to commit robbery), and the trial court sentenced him to life
imprisonment without the possibility of parole. Appellant raises nine issues on appeal. In his first
two issues, he challenges the sufficiency of the evidence to support his conviction. He challenges
the admission of extraneous offenses in issues three, four, and five. In his sixth issue, he challenges
the admission of jail phone calls that the State allegedly intercepted in violation of his
constitutional rights. In his seventh issue, he asserts he suffered egregious harm when the trial
court failed to sua sponte instruct the jury on lack of voluntary act. He alleges in his eighth issue
that his constitutional rights were violated when the trial court sentenced him to mandatory life imprisonment without the possibility of parole. Finally, he contends he received ineffective
assistance of counsel. We affirm.
Background
On the evening of November 10, 2016, Tanisha Macias hung out at the home of David
Martinez and his girlfriend Adrianna Ortega. Appellant, a friend of Martinez, was also hanging
out. Macias, who was an exotic dancer at the time, was not working that night and mentioned she
was looking to make some extra money. Martinez suggested Lupitas, a bar in Garland known as
a location where men paid women for drinking and spending time with them. The foursome left
for Lupitas in Ortega’s black Chrysler 300. When they arrived, Macias and Ortega went in first.
The men followed about ten minutes later.
Around 9 p.m., Daniel and Ishmael Mendez arrived at Lupitas, ordered drinks, and rented
a pool table. As they finished their last game, Macias approached them and started flirting.
Ishmael continued talking with her and at some point, he slapped her bottom. They were not
aggressive towards her, and surveillance video did not show her reacting angrily towards the men
after the incident. However, because she was drinking and “ha[d] a memory of something
happening” to her, she “got angry after a while.” After a little more conversation, she demanded
money from Ishmael for the time she spent with them. She could not remember exactly what she
said, but something like, “[I]f you’re going to touch my bottom, at least give me money or
something.” Ishmael had no interest in her continued advances, and the men decided to leave.
Macias became “very aggressive” and followed them out.
Roberto Negrete was the security guard for Lupitas and described the night as starting out
“calmly.” However, when Daniel and Ishmael were leaving, Negrete observed Macias following
them. Negrete told Ishmael, “I’m watching y’all, and I see that they’re the ones getting
aggressive.”
–2– Macias threw her beer on Ishmael. Despite her behavior, Ishmael remained calm, ignored
her, and left. Negrete ordered Macias to leave; however, she ignored him. He grabbed her arm,
and Macias hit him in the eye as he forced her to leave. Ortega also hit him. Negrete then used
pepper spray in his continued efforts to get the women off the property. Macias testified that
although she felt violated by Ishmael’s actions, she did not get angry until Negrete got involved.
Negrete heard Daniel or Ishmael yell something like, “That’s what you get for hitting
people,” as they drove away in Daniel’s white car. It was not said in anger but in a “teasing”
manner. Macias allegedly heard one of the brothers yell, “You’re dead, B.” No one else heard the
threat, and she kept it to herself.
Macias wanted to get the white car’s license plate number so she could file a police report.
She also threatened to sue the bar. She admitted she was not really going to sue the bar, but was
irritated and “just saying that stuff.” She did not remember telling Martinez and appellant to drive
after the white car. Rather, she remembered screaming and crying from the pepper spray.
The foursome got in Ortega’s black car to leave. Appellant was in the front passenger seat
and Macias sat behind him. Martinez drove while Ortega sat behind him. Surveillance video
showed the two cars left Lupitas within a few minutes of each other. Macias could not tell where
they were driving.
As Daniel and Ishmael approached the intersection of Ferguson and Gus Thomasson,
Daniel heard a car “going fast and stopped really fast, real hard.” The black car stopped to the left
of their car, and Daniel heard gunshots. Bullets missed his head by inches. Daniel identified
appellant as the man who pulled the trigger.
Macias recalled hearing two gunshots. She ducked and grabbed Ortega because she
thought they were being shot.
–3– Daniel drove away quickly, but Martinez continued in pursuit. Daniel estimated they were
driving over seventy or eighty miles per hour. Daniel eventually wrecked his car into another car
that turned in front of him. The passenger of that vehicle described the impact as “very hard and
violent.”
Daniel testified to the following events surrounding the shooting. Martinez approached
and pulled Daniel out of the car. Appellant pulled Ishmael from the passenger side. Martinez
demanded Daniel’s gold chains, which he surrendered. Martinez also took a gold ring from him.
Martinez then pistol-whipped Daniel in the head. About the same time, Daniel heard a gunshot.
When Daniel checked on Ishmael, he saw a gunshot wound to his head and Ishmael died within
seconds in Daniel’s hands. Although Daniel did not see appellant shoot Ishmael, Daniel saw
appellant running away from where Ishmael died. The men returned to the car and drove away.
When Daniel talked to detectives later that night, he told them the shooter “had to be somebody
that followed us from Lupitas.”
Macias testified she felt their car stop and heard both front doors open. Neither man said
anything about what they planned to do. She then heard one gunshot. Macias never saw anything,
but recalled the men returning and driving her home. She repeatedly asked them what happened,
but they never answered her.
Katelyn Sorrels lived in an apartment near the accident scene. About 1 a.m., she was
leaving her complex and heard the car crash. She called 911. She saw two men jump out of a
black car. One ran to the passenger’s side and the other ran to the driver’s side. She “heard [] the
bang and seen the flash in my rear view,” but did not see any interaction between the men.
Isabel Rivera was asleep in her apartment when the loud crash from the car wreck woke
her up. When she looked out her window, she saw two men approaching the white car, one on the
passenger side and one on the driver’s side. She described the man that walked to the driver’s side
–4– as “fat” and the other one as “skinny.” As she walked from her window to the front door to get a
better look, she heard the gunshot. She did not see who fired the gun or either man with a gun in
their hand as they returned to the black car. The “fat” man got in the driver’s side, and the “skinny”
one got in the passenger’s side of the car.
Kathryne Juarez, who lived nearby, asked a “skinny guy” if he needed any help, but he did
not answer her. Instead, he walked back to the car and left. She did not see this man with a gun
and did not pay attention to which side of the car he went to.
Detective Brian Worsham served as lead investigator. He described the scene upon arrival
as very chaotic. He observed the wrecked cars, a deceased individual, a distraught relative, and
numerous witnesses. Once he assessed the scene, he assisted in transporting witnesses to the police
station for interviews. Once he learned the incident began at Lupitas, he went to the bar and
obtained surveillance video. He also reviewed reports from the previous night and learned of
Negrete’s assault. Detective Worsham followed up on that incident and recovered a cell phone.
From the cell phone, he started identifying potential suspects.
The day after the murder, Macias said appellant asked Martinez if she “needed to be green
lit,” meaning have a hit out on her because of her knowledge of the events. She said she was not
going to talk to anyone or ask questions.
Detectives interviewed Macias, Ortega, and Martinez, but they denied seeing appellant
with a gun or firing a gun. Eventually, all four were transferred to Lew Sterrett jail. While they
were waiting, Martinez told Macias appellant planned to confess to everything.
Based on the initial investigation, appellant and Martinez were charged with murder.
Detective Worsham acknowledged “the girls are kind of what started this whole incident,” but they
were not involved in anything that happened after they left Lupitas. The murder charge was
upgraded to a capital crime after Daniel told investigators they stole his neck chains. Detective
–5– Worsham also heard a 911 call in which one of the men said, “Give me that bread.” On the street,
“bread” referred to money.
Dr. Reade Quinton, the deputy chief medical examiner, performed Ishmael’s autopsy. He
determined the gunshot wound to Ishmael’s forehead was “atypical.” Because the wound did not
have any gunshot residue or soot within it, he surmised the gun was not fired at close range,
meaning it was not a contact gunshot wound. He could not estimate the distance from which the
gun was fired because detectives never recovered the murder weapon. However, he believed it
was likely fired from more than a few feet from Ishmael’s head. Dr. Quinton classified the manner
of death as homicide.
The jury convicted appellant of capital murder. The trial court sentenced him to mandatory
life imprisonment without the possibility of parole. This appeal followed.
Sufficiency of the Evidence
In his first two issues, appellant argues the evidence is legally insufficient to support his
conviction because the State failed to establish his principal or party liability as the shooter or his
specific intent to commit capital murder. The State responds the evidence is sufficient to prove
appellant’s identity as the shooter and his intent to commit capital murder.
When reviewing the sufficiency of the evidence, an appellate court considers all of the
evidence in the light most favorable to the verdict to determine whether the jury was rationally
justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–
19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Appellate courts are
required to determine whether any rational juror could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. An appellate court is required
to defer to the jury’s credibility and weight determinations because the jury is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Id. All evidence, whether
–6– properly or improperly admitted, will be considered when reviewing the sufficiency of the
evidence. Id.
If the record supports conflicting inferences, we must presume the factfinder resolved the
conflicts in favor of the State and defer to that determination. Id. at 326. Further, direct and
circumstantial evidence are treated equally: “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Texas Penal Code section 19.03(a)(2) states that a person commits capital murder if he
commits murder, as defined under section 19.02(b)(1) (intentionally or knowingly causing the
death of an individual), and he intentionally commits the murder in the course of committing or
attempting to commit a robbery (intentionally, knowingly, or recklessly causing bodily injury to
another in the course of committing theft with intent to obtain or maintain control of property).
TEX. PENAL CODE ANN. §§ 19.03(a)(2), 29.02. Intent to commit murder may be inferred by
circumstantial evidence, including a defendant’s acts, words, and the extent of a victim’s injuries.
Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014). Evidence is sufficient to prove
an underlying robbery for purposes of a capital murder conviction if it shows the defendant formed
an intent to obtain or maintain control of property before or contemporaneously with the murder.
Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006). If there is evidence from which
a rational jury could conclude beyond a reasonable doubt “that the defendant formed the intent to
obtain or maintain control of the victim’s property either before or during the commission of the
murder, then the [prosecution] has proven that the murder occurred in the course of robbery.”
Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995).
–7– Appellant has not challenged the sufficiency of the evidence of the underlying robbery, but
instead challenges his identity as the shooter and his intent to commit murder. We consider each
argument in turn.
Appellant first argues the evidence is insufficient to establish his identity as the shooter
because no one testified to seeing him shoot a gun, witness testimony was inconsistent with the
forensic evidence, and Macias’s hearsay testimony was inherently unreliable.
The State may prove a defendant’s identity by either direct or circumstantial evidence,
coupled with all reasonable inferences from that evidence. Gardner v. State, 306 S.W.3d 274, 285
(Tex. Crim. App. 2009). The absence of an in-court identification does not in and of itself render
the evidence insufficient on the issue of identity. Espinoza v. State, 571 S.W.3d 427, 434 (Tex.
App.—Fort Worth 2019, pet. ref’d).
Macias testified that when the foursome left Lupitas, appellant was sitting in the front
passenger seat. They drove quickly and she recalled hearing two gunshots. Her testimony aligns
with Daniel’s testimony that a black car chased them and two shots were fired towards him from
the passenger side of the black car. He identified appellant as the person who shot at him.
When the black car stopped, Macias heard the front doors open and both men get out.
Witnesses that heard the car wreck testified two men exited the car. The “fat one” went to the
driver’s side of Daniel’s car and the “skinny one” went to the passenger side. One witness
identified the “fat one” as the driver of the black car.
Daniel testified Martinez had a gun, but he only used it to pistol-whip him. The jury could
infer that the one gunshot several witnesses heard after the men exited the car came from
appellant’s gun. Daniel saw appellant running away from where Ishmael died. One witness
testified the “skinny one” ran to the passenger side of the black car after the shooting.
–8– Ramirez later told Macias that appellant accidentally shot the gun. During a subsequent
jailhouse call, Martinez said appellant needed to “step up” and take responsibility for what he did.
In another jailhouse call, appellant said the gun went off accidentally.
The day after the murder, appellant threatened to “green light” Macias if she talked about
the shooting. Evidence of threats may establish a “consciousness of guilt”; therefore, the jury
could reasonably infer he threatened her because he was the shooter. See Torres v. State, 794
S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also Rocha v. State, No. 05-15-01401-
CR, 2017 WL 85420, at *2 (Tex. App.—Dallas Jan. 10, 2017, no pet.) (mem. op., not designated
for publication).
Appellant emphasized Daniel was never shown a line up to confirm which man pistol-
whipped him. However, Daniel told detectives the passenger in the car began shooting at them at
the intersection of Ferguson and Gus Thomasson. A video from moments before they approached
the intersection showed defendant in the front passenger seat. The jury was free to weigh any
conflicting evidence and disbelieve that appellant and Martinez switched positions in the car,
meaning Martinez was the passenger who shortly thereafter exited the passenger side of the car
and killed Ishmael.
Based on Daniel’s account and other witness statements, Martinez was the man who pistol-
whipped Daniel. Thus, the jury could reasonably infer appellant shot Ishmael. It was within the
province of the jury, as the fact finder, to weigh and evaluate the credibility of the evidence, and
we will not substitute our judgment for that of the jury. Jackson, 443 U.S. 319. Accordingly, the
evidence is legally sufficient to support the conclusion that appellant murdered Ishmael.
Appellant’s first issue is overruled.
–9– We now consider whether the evidence is sufficient to establish appellant intended to kill
Ishmael. Appellant claims the forensic evidence along with testimony that the shooting was
accidental negates specific intent.
By its nature, a culpable mental state must generally be inferred from the circumstances.
Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018). The culpable mental state for
murder can be inferred from a defendant’s motive or the extent of the victim’s injuries. Id. A jury
may also consider the acts, words, and conduct of the accused, and the method of committing the
crime. Hebert v. State, No. 05-02-00208-CR, 2003 WL 1870558, at *2 (Tex. App.—Dallas Apr.
14, 2003, no pet.) (mem. op., not designated for publication). The circumstances accompanying
the use of a deadly weapon may support a finding that a defendant had the specific intent to cause
the death of another. Cordova v. State, 698 S.W.2d 107, 112 (Tex. Crim. App. 1985). If a deadly
weapon is used in a deadly manner, the inference is almost conclusive the defendant intended to
kill. Id. (citing Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986)).
Here, it is undisputed Ishmael died from a single gunshot wound to the head. Appellant’s
use of a deadly weapon in a deadly manner is a strong inference of his intent to kill Ishmael. Id.
Further, during the recorded 911 call, the brothers were told “You’re dead B” and ordered to “Give
me that money. Hurry up, I’ll beat yo ass. Hurry up ho. Give me that bread.” Within seconds,
there was a gunshot. Then a voice said, “yea wassup.” The jury could infer from these words
appellant intended to kill in the course of committing or attempting to commit robbery.
To the extent the jury heard evidence that the shooting was accidental, the jury was free to
disbelieve such testimony. The jury could have believed the suggestion that the shooting was
accidental was self-serving. Moreover, the medical examiner testified Ishmael was not shot at
close range thereby negating the likelihood that the gun fired accidentally during a struggle
between the two men.
–10– To the extent the jury saw a picture of a bullet hole in the back of Daniel’s car and another
on the side of the car that was consistent with being fired from behind, such forensic evidence does
not discredit Daniel’s testimony that he saw appellant shooting at them from the passenger side.
Rather, we assume the jury resolved such conflict in evidence in favor of the State. Jackson, 443
U.S. at 319.
Viewing the evidence in the light most favorable to the verdict, a rational fact finder could
have found beyond a reasonable doubt that appellant, in the course of robbing or attempting to
commit robbery, intended to kill Ishmael. We overrule appellant’s second issue.
Extraneous Offenses
In issues three, four, and five, appellant argues the trial court erroneously admitted
extraneous offenses that were irrelevant and unduly prejudicial in violation of his rights to due
process. See TEX. RS EVID. 403, 404. The extraneous offenses related to appellant’s gang
affiliation, his drug use, and his threat to “green light” Macias. The State responds appellant failed
to preserve his issues for review.
To preserve an issue for appellate review, a party must timely object, stating the specific
legal basis for the objection. TEX. R. APP. P. 33.1(a). The failure to object in a timely and specific
manner during trial forfeits complaints about the admissibility of evidence. Saldano v. State, 70
S.W.3d 873, 889 (Tex. Crim. App. 2002). Appellant concedes he failed to object to Detective
Vann’s testimony regarding his affiliation with the gang unit, which the jury could have inferred
meant appellant was a gang member. Appellant also concedes he failed to object to Macias’s
testimony regarding appellant’s drug use. Thus, he failed to preserve his issues for review. See,
e.g., Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980) (“failure to object waives any
error in admission of evidence tending to show an extraneous offense”). Appellant’s third and
fourth issues are overruled.
–11– Appellant objected to Macias’s testimony that she felt “intimidated because [Martinez] had
told me that he had said something about green lighting me if I said anything” as hearsay. On
appeal, he challenges the statement under rules 403 and 404. A defendant’s objection on appeal
must comport with the specific objection made at trial. Pena v. State, 285 S.W.3d 459, 464 (Tex.
Crim. App. 2009). A complaint is not preserved if the legal basis of the complaint raised on appeal
varies from the complaint made at trial. Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.
2009). Because appellant’s argument on appeal does not comport with his trial objection, he failed
to preserve error, if any, for review. TEX. R. APP. P. 33.1; Grubbs v. State, No. 05-15-01429-CR,
2016 WL 5851921, at *1–2 (Tex. App.—Dallas Oct. 6, 2016, no pet.) (mem. op., not designated
for publication). We overrule appellant’s fifth issue.
Admission of Jail Phone Calls
In his sixth issue, appellant contends his rights under the Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments to the Constitution (and corresponding Texas constitutional provisions)
were violated when the trial court admitted illegally intercepted jail phone calls. In one call,
appellant claimed the gun fired accidentally. In another call, Martinez told someone appellant
needed to take responsibility for his actions. The State responds appellant failed to preserve his
issue for review, and the substance of his complaint was solicited by defense counsel’s attempt to
attack the State’s allegation that he intentionally shot Ismael.
An appellant cannot make an appellate error of an action he induced. See Vennus v. State,
282 S.W.3d 70, 74 (Tex. Crim. App. 2009). Here, the State did not introduce the phone calls or
discuss the phone calls during its case-in-chief. The phone calls were brought to the jury’s
attention through defense counsel’s cross-examination of Detective Worsham.
More importantly, neither appellant nor the State objected to the testimony regarding the
jail phone calls. To preserve an issue for appellate review, a party must timely object, stating the
–12– specific legal basis for the objection. TEX. R. APP. P. 33.1(a). Because appellant failed to object
to the testimony, he failed to preserve error, if any, for review. We overrule appellant’s sixth issue.
Jury Charge Error
In his seventh issue, appellant argues he suffered egregious harm when the trial court failed
to sua sponte submit an instruction on lack of voluntary act. The State responds, assuming the trial
court erred, the record does not establish egregious harm.
We review alleged charge error by considering two questions: (1) whether error existed in
the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo v.
State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
Appellant presented evidence the shooting at the site of the wrecked vehicle was
involuntary. Based on the evidence, appellant contends the court should have included a
“voluntary act” instruction. See TEX. PENAL CODE ANN. § 6.01(a) (“A person commits an offense
only if he voluntarily engages in conduct, including an act, an omission, or possession.”). Even
assuming the trial court’s omission was error, because appellant argues jury charge error for the
first time on appeal, we can reverse his conviction only if the error caused him egregious harm.
Estrada v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.). Errors result in egregious
harm when they affect the very basis of the case, deprive the defendant of a valuable right, or
vitally affect a defensive theory. Id. To make this determination, we examine the entire jury
charge, the state of the evidence, the arguments of counsel, and any other relevant information
revealed by the record of the trial as a whole. Id.
As discussed in detail above in the sufficiency review of the evidence, the jury could have
reasonably concluded appellant did not accidentally shoot Ishmael. Daniel’s testimony belies such
a conclusion. More importantly and perhaps even more persuasive, is the content of the 911 call
in which the brothers were told they were dead shortly before the shooting occurred. There was
–13– no evidence in the record of a struggle prior to the shooting; therefore, there was no accidental
discharge of the weapon.
Defense counsel cross-examined witnesses and challenged the State’s theory that appellant
intentionally killed Ishmael. Thus, he was not denied presentation of a viable defensive theory.
Moreover, the jury instructions provided that if the jury had a reasonable doubt that he was guilty
of capital murder or aggravated robbery, it should find appellant guilty of the lesser-included
offense or acquit. Accordingly, considering the state of the evidence, the jury charge, and the
record as a whole, appellant did not suffer egregious harm from the alleged charged error. We
overrule appellant’s seventh issue.
Constitutionality of Mandatory Life Imprisonment Without Parole
In his eighth issue, appellant argues his mandatory life sentence without parole is an
unconstitutional sentence for capital murder and violates his rights under the Eighth and Fourteenth
Amendments of the Constitution as well as article I, sections 10, 13, and 19 of the Texas
Constitution. He asserts his sentence imposes cruel and unusual punishment without the
opportunity to present mitigating evidence, “an archaic concept” that “does not comport with
evolving standards of decency.” The State responds the constitutionality of penal code section
12.31(a)(2) is settled, and appellant provides no reason to reconsider it. See TEX. PENAL CODE
ANN. § 12.31(a)(2) (“an individual adjudged guilty of a capital felony in a case in which the state
does not seek the death penalty shall be punished by imprisonment in the Texas Department of
Criminal Justice for . . . life without parole, if the individual committed the offense when 18 years
of age or older”).
The Supreme Court has concluded an automatic life sentence without parole does not
violate the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994–96 (1991).
Multiple courts, including this one, have continued to follow Harmelin, holding that the Eighth
–14– Amendment does not guarantee adult defendants an individualized punishment hearing when
sentenced to life in prison without the possibility of parole for capital murder. See Kim, 2015 WL
1935948, at *6; see also Simms v. State, No. 06-18-00181-CR, 2019 WL 2479845, at *10 (Tex.
App.—Texarkana June 14, 2019, pet. filed) (mem. op., not designated for publication); Cormier
v. State, 540 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); Lewis v. State,
448 S.W.3d 138, 147 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Buhl v. State, 960
S.W.2d 927, 935–36 (Tex. App.—Waco 1998, pet. ref’d). Appellant has not presented any new
arguments to distinguish these cases other than arguing Harmelin is outdated and does not comport
with “evolving standards of decency.” We overrule appellant’s eighth issue.
Ineffective Assistance of Counsel
In his ninth issue, appellant argues his appointed counsel was not qualified for appointment
pursuant to article 26.052 of the code of criminal procedure, and therefore, should have refused
appointment to his case. Because counsel was not statutorily qualified to take the case, appellant
contends the face of the record demonstrates ineffective assistance of counsel. Appellant further
argues defense counsel performed deficiently because he failed to file any pretrial motions,
including a motion for discovery under the Michael Morton Act. The State responds article 26.052
does not apply to his case, and the record fails to demonstrate any deficient conduct to support an
ineffective assistance claim.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the Strickland two-step analysis, a
defendant must demonstrate that (1) counsel’s performance fell below an objective 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. Id. at 687–88, 694; Nava v. State,
415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An appellant bears the burden of proving his claims
–15– by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).
Appellate review of counsel’s representation is highly deferential, and we must “indulge
in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at 307–08.
To overcome this presumption, claims of ineffective assistance of counsel must be firmly founded
in the record and affirmatively demonstrate the alleged ineffectiveness. See Salinas v. State, 163
S.W.3d 734, 740 (Tex. Crim. App. 2005). However, a reviewing court will rarely be in a position
to fairly evaluate the merits of an ineffective assistance of counsel claim on direct appeal because
the trial record is usually undeveloped and inadequate to reflect the motives behind trial counsel’s
actions. Id. Rather, trial counsel should have the opportunity to explain his actions before being
condemned as ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Therefore, when the record is silent as to trial counsel’s strategy, we assume counsel had a sound
strategy, unless the challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Lopez
v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
Appellant first argues defense counsel was deficient for failing to decline appointment to
his case because at the time of defense counsel’s appointment, he was not on the list of those
attorneys qualified to accept appointments. The State contends article 26.052 does not apply to
appellant’s case. We agree.
Article 26.052 states, “this article establishes procedures in death penalty cases for
appointment and payment of counsel to represent indigent defendants at trial and on direct appeal
and to apply for writ of certiorari in the United States Supreme Court.” TEX. CODE CRIM. PROC.
–16– ANN. art. 26.052(a). Although the State concedes the written record does not contain a waiver of
the death penalty, the trial record establishes that the State was not seeking the death penalty. The
trial court informed the potential jurors during voir dire, “This is not a death penalty case. So I
want to make sure you’re aware of that up front.” The State later reemphasized “death is not being
considered in this case” while discussing punishment with the potential jurors. And finally, the
State indicated the death penalty was not at issue during its closing argument.
The plain language of article 26.052 applies only to death penalty cases. The State was not
seeking the death penalty. Nothing in the record indicates defense counsel believed the State was
seeking the death penalty when he accepted the appointment. Nothing in the record indicates
appellant was misled by the State and believed the death penalty was a possible punishment. Thus,
the record does not support appellant’s claim that counsel’s performance fell below an objective
standard of reasonableness because he was unqualified to accept the appointment. See Salinas,
163 S.W.3d at 740 (claims of ineffective assistance of counsel must be firmly founded in the record
and affirmatively demonstrate the alleged ineffectiveness). Because appellant cannot satisfy the
first Strickland prong, his ineffective assistance of counsel claim based on article 26.052 fails.
Appellant’s contention that counsel was ineffective because he failed to file pretrial
motions likewise fails. In general, counsel’s failure to file pretrial motions does not result in
ineffective assistance of counsel. See Martinez v. State, 449 S.W.3d 193, 208 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d). Rather, appellant must show a pretrial motion had merit and
a ruling on the motion would have changed the outcome of the case. See Roberson v. State, 852
S.W.2d 508, 511 (Tex. Crim. App. 1993); see also Straight v. State, 515 S.W.3d 553, 565 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d).
Appellant has not identified any specific pretrial motion counsel should have filed other
than “an absence of a written motion for discovery under the Michael Morton Act.” First, article
–17– 39.14 does not require an attorney to file a discovery request, but instead states “as soon as
practicable after receiving a timely request from the defendant the state shall produce and permit
the inspection” of certain documents. TEX. CODE CRIM. PROC. ANN. art. 39.14. Further, appellant
has not indicated what he could or should have received had counsel filed such a motion, how such
evidence would have changed the outcome of the case, or that he was prejudiced in any way.
Accordingly, appellant fails to show how counsel was deficient or articulate a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. See Strickland, 466 U.S. 668, 687; see also Hoffman v. State, No. 09-17-00172-
CR, 2018 WL 5930308, at *8 (Tex. App.—Beaumont Nov. 14, 2018, pet. ref’d) (mem. op., not
designated for publication) (ineffective assistance of counsel claim failed because appellant made
no showing trial counsel’s failure to obtain discovery would have changed outcome of trial or that
it prejudiced her in any way). Appellant’s ninth issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/ DAVID L. BRIDGES JUSTICE
Do Not Publish TEX. R. APP. P. 47 180126F.U05
–18– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SILVINO RICARDO AREVALO, On Appeal from the 291st Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F-1624895. No. 05-18-00126-CR V. Opinion delivered by Justice Bridges. Justices Brown and Nowell participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 19, 2019
–19–