Ramon Armendariz v. State

No. 04-99-00307-CR Ramon ARMENDARIZ, Appellant v. The STATE of Texas, Appellee From the County Court, La Salle County, Texas Trial Court No. 3738 Honorable Jimmy P. Patterson, Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Tom Rickhoff, Justice Alma L. López, Justice Paul W. Green, Justice Delivered and Filed: March 22, 2000 AFFIRMED In two issues, appellant Ramon Armendariz challenges his conviction for assault.(1) In his first issue, Armendariz complains the trial court erred by failing to hold a hearing on his motion for new trial. In his second issue, Armendariz argues his conviction was the result of ineffective assistance of counsel. We affirm the trial court's judgment. Facts Armendariz was charged with assault following his intervention in an altercation between his wife and the complainant, Delta Garcia. The fight occurred following a board meeting of a "peewee" football league founded by Armendariz and his wife and in which Garcia's son participated. Hearing on Motion for New Trial Armendariz filed a motion for new trial based on ineffective assistance of trial counsel. Among other things, Armendariz argued counsel was ineffective because she only met with him and his wife to discuss their trial testimony approximately twenty minutes before trial started, resulting in a disjointed and inadequate presentation of their version of the facts. Armendariz also claims counsel did not properly investigate the incident to determine the existence of potential witnesses, although two other possible eye witnesses existed who might have provided exculpatory evidence. Both these allegations depend on the development of facts outside the record in the case. The motion for new trial was timely filed; however, Tex. R. App. P. 21.6 also requires the defendant to "present" a motion for new trial to the trial court within ten days of filing. Mere filing is insufficient to constitute presentment of the motion to the trial court. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). The record must show the movant for new trial "sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court." See Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). Tex. R. App. P. 21.6 does not authorize presentment to the court clerk. See Carranza, 960 S.W.2d at 79 n.5 (discussing former Tex. R. App. P. 31(c)(1), now Tex. R. App. P. 21.6). The record in this case reflects Armendariz' motion for new trial, proposed order and blank fiat requesting a hearing were filed with the clerk, but nothing in the record shows the motion and request for hearing were presented to the trial court. The trial judge's signature or notation is not present on the proposed order, and no hearing was set on the docket. See Carranza, 960 S.W.2d at 77-79 (holding the filing of a blank order and blank fiat does not show presentment); cf. Butler v. State, 6 S.W.3d 636, 641 & n.7 (holding presentment shown by form in the record showing hearing set, then rescheduled, with court coordinator); Torres v. State, 4 S.W.3d 295, 297 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (holding presentment shown by form in the record signed by defense counsel and the State, indicating a hearing was requested, parties and the court agreed on date, and hearing was set on specific date). Armendariz' motion was overruled by operation of law 75 days after imposition of sentence. See Tex. R. App. P. 21.6. Because the motion for new trial was not properly presented to the trial court, the trial court did not err by failing to hold a hearing on the motion for new trial. Armendariz' first issue is overruled. Ineffective Assistance of Counsel Armendariz next argues his conviction must be reversed because it resulted from ineffective assistance of counsel. The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. Doherty v. State, 781 S.W.2d 439, 441 (Tex. App.-Houston [1st Dist.] 1989, no pet.). Rather, a defendant is entitled to counsel reasonably likely to render and rendering reasonably effective assistance. See Doherty, 781 S.W.2d at 441. We begin with the presumption that counsel rendered adequate assistance and all significant decisions were made in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U.S. 668, 690 (1984); Roberson v. State, 852 S.W.2d 508, 512 (Tex. Crim. App. 1993). Further, we evaluate counsel's performance based on the totality of the representation and from counsel's perspective at the time of trial. Strickland, 466 U.S. at 689; Doherty, 781 S.W.2d at 441. If counsel's performance was so deficient that he or she was not functioning as the counsel guaranteed by the constitutions of the United States and the State of Texas, we must further determine whether there is a reasonable probability that, "but for" counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App. 1992), overruled in part on other grounds, Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); see also Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex. Crim. App. 1999) (applying Strickland to review of effective assistance under the Texas Constitution). This standard does not require a defendant to show the outcome of his case was "more likely than not" altered by counsel's failures. See Doherty, 781 S.W.2d at 442. Rather, according to Strickland, reasonable probability of a different result is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Doherty, 781 S.W.2d at 442. Armendariz complains of counsel's failure (1) to make objections, (2) to properly impeach witnesses, (3) to make an opening statement, (4) to effectively present defense witnesses and (5) to present a cohesive theory of defense. Armendariz' counsel made many proper objections, and consistently posed questions to prosecution witnesses that were designed to question their recollection of events or highlight inconsistencies in their testimony. She presented closing argument on all possible theories of defense, including self-defense and defense of a third party. The record shows conflicting testimony from almost all the witnesses to this brief and heated encounter. Each of the witnesses saw or heard a different aspect of the altercation. The jury was free to believe or disbelieve any of this evidence. Certainly there is ample evidence in the record to support either the jury's verdict or the defense theories of self-defense and defense of a third party. In hindsight, we may speculate on how the defense presentation could have been more polished or that another approach to the case may have been more effective. However, our review of the record reveals counsel's performance, evaluated as a whole, was not so deficient that Armendariz was deprived of the assistance guaranteed to him. Additionally, we hold counsel's performance was not such that but for counsel's errors, the result of the proceeding would have been different. We overrule Armendariz' second issue. Conclusion Because Armendariz waived his complaint about the lack of a hearing on the motion for new trial and because the representation provided to Armendariz does not constitute ineffective assistance of counsel, we affirm the judgment. PAUL W. GREEN, JUSTICE DO NOT PUBLISH 1. See Tex. Pen. Code Ann. 22.01 (Vernon 1999).