Francisco Perez v. State

NUMBER 13-05-567-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG FRANCISCO PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Kleberg County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion by Justice Garza Appellant, Francisco Perez, was convicted by a jury of attempted capital murder, sentenced to 60 years= imprisonment, and assessed a $10,000 fine. See Tex. Pen. Code Ann. '' 15.01 (a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp. 2005). In a single issue, appellant argues that he was denied effective assistance of counsel. For the reasons that follow, we affirm the conviction. I. Standard of Review This Court uses the two‑pronged Strickland test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex. App.BCorpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show (1) his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.BCorpus Christi 2000, no pet.). Our review of counsel's representation is highly deferential; appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Munoz, 24 S.W.3d at 434. AIn the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.@ Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.BCorpus Christi 1996, no pet.). II. Ineffective Assistance of Counsel In his sole issue, appellant argues he was provided ineffective assistance of counsel because his trial counsel (1) failed to file a verified motion to transfer venue, (2) failed to secure a ruling on the motion to transfer,[1] (3) failed to introduce appellant=s mental health records at the hearing on the motion to suppress and at the punishment phase of trial,[2] and (4) failed to hire a psychiatrist to assist him during the hearing on the motion to suppress appellant=s confession and during the punishment phase of trial.[3] Even assuming, arguendo, that trial counsel=s representation fell below an objective standard of reasonableness, appellant has not alleged or developed any argument as to how the outcome of his trial would have been different had his lawyer filed an adequate motion to transfer venue, introduced his mental health records, and hired an expert witness to assist in his defense. Appellant states only that Atrial counsel=s representation, taken in its totality, fell far below the standard of reasonable, legal representation,@ and Athe legal work that was not performed for the appellant, causes any reasonable person to have serious doubts regarding the fairness of the appellant=s trial@ and Aregarding the fairness of punishment.@ Appellant has not shown how trial counsel's failure, if any, to perform the complained-of legal work undermines confidence in the outcome of his trial. See Tex. R. App. P. 38.1(h), 44.2(a); see also Strickland, 466 U.S. at 693. Appellant=s issue is overruled. We affirm the trial court=s judgment. _______________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 18th day of May, 2006. [1] With respect to appellant=s first and second arguments on appeal, the record reflects that appellant=s trial counsel filed a motion to transfer venue, but failed to include the affidavit as required by article 31.03 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 31.03 (Vernon 1989). However, the record also reflects that appellant=s trial counsel abandoned the motion to transfer venue. The record further reflects that the State urged its own motion to transfer venue. When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably. See Mallett v. State, 65 S.W.3d 59, 62‑63 (Tex. Crim. App. 2001); see also Ortiz v. State, 93 S.W.3d 79, 88‑89 (Tex. Crim. App. 2002) (en banc) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."). [2] With respect to appellant=s third argument on appeal, the record reflects that the substance of the records appellant complains should have been introduced (that appellant had an eighth grade education, had been a patient at the center for Mental Health and Mental Retardation in the past and had been prescribed medication by the doctors at the center) was admitted via appellant=s own testimony and the testimony of his mother at the hearing on the motion to suppress, at the guilt-innocence phase, at the punishment phase of trial, and at the hearing on appellant=s motion for new trial. [3] In particular, appellant argues that his trial counsel should have offered expert testimony to assist the jury in determining the voluntariness of his confession and to assist during the punishment phase of trial. Generally, trial counsel's failure to call witnesses is irrelevant unless appellant shows that such witnesses were available and would have provided beneficial testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.BAustin 2000, pet. ref'd). When an appellant complains of trial counsel's failure to call an expert witness, he must show that the expert would have testified in a manner beneficial to him. See Cate v. State, 124 S.W.3d 922, 928 (Tex. App.BAmarillo 2004, pet. ref'd); McCain v. State, 995 S.W.2d 229, 246 (Tex. App.BHouston [1st Dist.] 1999, no pet.). Nothing in this record shows that any expert would have been willing to testify as appellant desired. Although we can assume, given appellant=s treatment at the MHMR center, that such testimony may exist, it is mere speculation whether or not such a mitigation expert existed or whether there was testimony that would have benefitted appellant. We will not engage in such speculation. The record does not substantiate appellant's claim that he received ineffective assistance of counsel with regard to the issue of the expert.