Joseph Fernandez v. State ( 2019 )

Affirmed and Opinion filed July 9, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00353-CR
NO. 14-18-00416-CR
JOSEPH FERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause Nos. 1517476, 1517452
OPINION
Appellant Joseph Fernandez pleaded guilty to two counts of aggravated
robbery with a deadly weapon and was sentenced to 40 years’ confinement.
Appellant asserts on appeal that he received ineffective assistance of counsel in the
underlying proceeding. For the reasons below, we affirm.
BACKGROUND
Appellant was charged with two counts of aggravated robbery with a deadly
weapon under two separate cause numbers. The offenses arose from two incidents
that occurred on July 17, 2016. The following descriptions of the incidents
summarize relevant witness testimony from Appellant’s punishment hearing.
Jessie Bautista and Carlos Lujan were at a gas station when Appellant
approached them and asked for a ride to his mother’s house. Bautista and Lujan
agreed to give Appellant a ride and Appellant rode in the back seat of their car.
When Bautista and Lujan reached Appellant’s destination, Appellant grabbed
Bautista and began stabbing him in the head with a screwdriver. Appellant then
moved into the car’s front seat, kicked Bautista out of the vehicle, and proceeded
to drive away. Bautista, who was still connected to the vehicle by his seatbelt, was
dragged for approximately half a mile before Appellant came to a stop. Appellant
fled from the scene on foot.
Shortly thereafter, Appellant approached Crystal Gonzalez as she sat outside
a Sonic drive-in. Appellant asked Gonzalez for her number and requested that she
take a picture with him; Gonzalez refused and walked to her car. Appellant
approached Gonzalez with a knife in his hand and took her purse. Appellant told
Gonzalez, “Don’t scream, don’t do anything or I’m going to stab you. Give me
your stuff.” Appellant took Gonzalez’s keys and drove off in her vehicle.
After his arrest, Appellant pleaded guilty to two counts of aggravated
robbery with a deadly weapon. The State called the following six witnesses at
Appellant’s punishment hearing, all of whom opined that Appellant should receive
a sentence of life imprisonment:
 Jeremy Johnson: Shot eight times by Appellant in a separate incident.
Stated that Appellant should not “ever get out of prison.”
 Isaiah Bautista: Jesse Bautista’s son. Stated that life imprisonment
would be a “fair and reasonable” sentence.
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 Carlos Lujan: Opined that Appellant “needs to be tortured with life.”
 Jesse Bautista: Testified that Appellant should receive “[l]ife in
prison.”
 Robin Pouland: Witnessed the incident involving Jesse Bautista.
Stated that Appellant should “have everything in his life taken away.”
 Crystal Gonzalez: Testified that Appellant “should receive life.”
In his closing statement, the State’s prosecutor also recommended the trial court
sentence Appellant to life in prison. Appellant’s trial counsel did not object to the
witnesses’ or the prosecutor’s statements regarding a punishment recommendation.
The trial court sentenced Appellant to 40 years’ imprisonment. Appellant
timely appealed.
ANALYSIS
Appellant asserts he received ineffective assistance of counsel because his
trial counsel failed to object to the State’s witnesses’ and prosecutor’s statements
that the trial court should sentence Appellant to life imprisonment.
I. Standard of Review
To prevail on a claim for ineffective assistance of counsel, an appellant must
show that (1) trial counsel’s performance fell below the objective standard of
reasonableness; and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011). Failure to satisfy either prong of the Strickland
test defeats an ineffective assistance claim. Strickland, 466 U.S. at 697; Nichols v.
State, 494 S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
To satisfy the first prong, an appellant must prove by a preponderance of the
evidence that trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Lopez, 343 S.W.3d at
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 142. We consider the totality of the circumstances to determine whether counsel
was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);
Nichols, 494 S.W.3d at 857. Trial counsel’s performance is subject to a “highly
deferential” review and there “is a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assistance.” Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005). Thus, any allegation of ineffective
assistance must be firmly founded in the record. Menefield v. State, 363 S.W.3d
591, 592 (Tex. Crim. App. 2012).
Direct appeal usually is an inadequate vehicle for raising an ineffective
assistance claim because the record generally is undeveloped. Id. at 592-93. Trial
counsel ordinarily should be given an opportunity to explain his actions and, if
counsel is not given that opportunity, we should not conclude that his performance
was deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava v. State, 415 S.W.3d 289, 308 (Tex.
Crim. App. 2013).
To satisfy the second Strickland prong, an appellant must show a reasonable
probability that, but for trial counsel’s deficient actions, the result of the
proceeding would have been different. Lopez, 343 S.W.3d at 142. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id.
II. Application
Appellant raises through direct appeal his claim that trial counsel was
ineffective for failing to object to the State’s witnesses’ and prosecutor’s
sentencing recommendations. The record does not support the conclusion that
these failures to object fell below an objective standard of reasonableness.
In general, a witness may not recommend a particular punishment to the trier
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of fact. See Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989);
Johnson v. State, 987 S.W.2d 79, 87 (Tex. App.—Houston [14th Dist.] 1998, pet.
ref’d). But opinion testimony on this point may be permitted as part of a broader
strategy. See, e.g., Martin v. State, No. 01-03-00524-CR, 2004 WL 1585282, at *3
(Tex. App.—Houston [1st Dist.] July 15, 2004, no pet.) (mem. op., not designated
for publication); Dominguez v. State, No. 13-98-405-CR, 1999 WL 33757665, at
*4 (Tex. App.—Corpus Christi Aug. 12, 1999, no pet.) (not designated for
publication).
Here, after the State’s witnesses opined regarding an appropriate sentence,
Appellant’s trial counsel also elicited from Appellant testimony regarding an
appropriate punishment. Acknowledging that his actions were “horrible,”
Appellant said he thought he “should be in prison . . . for the rest of [his] life.”
Similarly, when trial counsel asked Appellant if the court “would be justified
putting [him] in prison for the rest of his life,” Appellant responded: “I do. I do
think that’s the — that’s only right. That’s only right.” Thus, instead of objecting
to the State’s questions and the witnesses’ answers regarding punishment, trial
counsel capitalized on this testimony for the defense’s use during Appellant’s
direct examination, perhaps as part of a broader strategy to show Appellant as
contrite and sympathetic with the victims of his crimes. On these facts, we
conclude that trial counsel’s decision not to object to the punishment
recommendations was not so deficient or lacking in tactical or strategical decision-
making as to overcome the presumption that counsel’s performance was
reasonable and professional. See Martin, 2004 WL 1585282, at *3; Dominguez,
1999 WL 33757665, at *4.
We reject Appellant’s ineffective assistance claim.
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CONCLUSION
We overrule Appellant’s issue on appeal and affirm the trial court’s
judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Hassan, and Poissant.
Publish — Tex. R. App. P. 47.2(b).
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