Eber Martinez v. State , 449 S.W.3d 193 ( 2014 )

Opinion issued October 7, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00698-CR
———————————
EBER MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 12-DCR-060497
OPINION
After a bench trial, the trial court convicted appellant, Eber Martinez, of the
first-degree felony offense of aggravated sexual assault, assessed punishment at
confinement for seventeen years and 200 days, and ordered appellant to pay a
$2,000 fine. 1 In three issues, appellant contends that (1) he did not knowingly and
intelligently waive his right to a jury trial; (2) he should receive a new trial because
the trial court violated Article 36 of the Vienna Convention concerning contacting
consular authorities; and (3) his trial counsel rendered constitutionally ineffective
assistance.
We affirm.
Background
A grand jury indicted appellant for the offense of aggravated sexual assault
of the complainant, J.B.M., appellant’s estranged common-law wife. At
appellant’s initial appearance before a magistrate judge, the magistrate judge
informed appellant, a Honduran national, of his right to contact his consular
authorities. According to appellant, he did not speak with his consular authorities
at that time because the Honduran consulate would not accept collect calls from the
Fort Bend County Jail.
Before trial, appellant moved for the appointment of a Spanish-language
interpreter, and the trial court granted this motion and appointed an interpreter.
Appellant then sought to waive his right to a jury trial, and the State consented.
The interpreter read the written waiver to appellant in open court, and the record
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i) (Vernon Supp. 2014).
2
reflects that appellant signed the waiver before the trial court. Appellant and the
trial court then had the following exchange:
The Court: Mr. Eber Martinez, you’ve heard that the State and
the—and your attorney have announced that they
are waiving their right to a jury trial on both the
guilt/innocence and the punishment phase of this
trial. Is that your desire?
[Appellant]: Yes.
The Court: So you do consent to trying it to the Court rather
than to a jury?
[Appellant]: Yes.
The Court: All right. And you have signed such a waiver in
which both your attorney and you have waived
your right to a jury trial and choose to have this
submitted to the Judge; is that correct?
[Appellant]: Yes.
The Court: And that’s the document that has been handed to
the Court by your attorney and signed by the State
and you?
[Appellant]: Yes.
The Court: All right. The Court will accept same and will
proceed with a bench trial.
The trial court then released the jury panel.
After accepting appellant’s jury trial waiver and upon learning that appellant
was a citizen of Honduras, the trial court asked appellant whether he had had an
opportunity to speak with his consular authorities. Appellant responded, “Never.”
The trial court then asked defense counsel to contact the Honduran consulate for
3
appellant and recessed the proceedings to allow this to occur. After appellant
spoke with his consular authorities, he had the following discussion with the trial
court:
[Appellant]: The female attorney [at the consulate] told me that
the article—the Article [36 of the Vienna
Convention] was violated. After having been for
14 months here, Fort Bend County never
communicated me with the consulate. She said
she doesn’t have any report or any information
concerning my being here.
The Court: All right. Do you recall when you were first
brought before a Court?
[Appellant]: Yes, of course.
The Court: Did you sign a number of papers regarding the
charges against you and were advised by the Judge
of your rights at that time?
[Appellant]: Yes, of course. It was Judge Pedro Ruiz. Pedro
Ruiz asked me if I wanted the consulate to
contact—to contact me. And never, never.
The Court: So you were advised of your right to contact the
consulate?
[Appellant]: Exactly, but it was never.
The Court: Did you contact the consulate after being advised
of that?
[Appellant]: Never because they don’t take any collect calls
from the jail.
The Court: All right. Then we have complied with the
consulate treaty rights by advising you of your
right to contact consulate, and it’s your duty to
contact your consulate. The fact that the consulate
doesn’t collect—take collect calls is a problem the
4
consulate has, not your—not a problem this Court
has.
The trial court then discussed the potential adverse immigration consequences that
could occur due to a conviction, and appellant indicated that he had discussed that
with his counsel and that he understood the potential consequences.
At trial, J.B.M. testified that she had a disagreement with appellant
concerning their daughter on the afternoon of April 27, 2012. The disagreement
ended with J.B.M. telling appellant to leave her alone and that she did not wish to
see him. J.B.M. went out that evening to celebrate a friend’s birthday, and
appellant repeatedly called her while she was out, but she refused to answer. She
returned home around 2:00 a.m., and after she got out of her car in her driveway,
appellant grabbed her around her neck. Appellant ripped J.B.M.’s clothes off and
dragged her through several yards, occasionally pulling her by her hair.
Throughout the encounter, appellant tried to choke J.B.M., he hit her head against
the ground, and he scratched her on her face and neck. At one point while
appellant had his hands around J.B.M.’s throat, he told her, “This is as far as we
go. This is as far as you go.” J.B.M., who was in fear for her life, told appellant to
think of their daughters. Appellant stopped strangling her, but he then sexually
assaulted J.B.M. She testified that she did not want to have sex with appellant and
that she was afraid he would get angry with her again if she did not participate.
5
J.B.M. identified appellant in court as her attacker. The State introduced
pictures and testimony concerning J.B.M.’s injuries. The trial court also admitted
DNA test results indicating that appellant was a source of DNA for the vaginal
swabs taken from J.B.M.
Defense counsel did not call any witnesses, nor did he introduce any
evidence concerning appellant’s good character. During closing argument at the
guilt/innocence phase, defense counsel conceded, “There’s a sexual assault
occurring under these facts,” but he argued that the evidence reflected that, at the
time the sexual assault happened, J.B.M. was no longer in fear for her life, and, as
a result, appellant was potentially guilty of the lesser-included offense of sexual
assault, not the charged offense of aggravated sexual assault. The trial court found
appellant guilty of aggravated sexual assault as charged in the indictment.
J.B.M. testified during the punishment phase as well. She testified
concerning an incident that occurred in 2011, in which she woke up to see
appellant standing over her and her daughters, who were asleep, while holding an
axe and making a chopping motion. J.B.M. called 9-1-1, but when the police
arrived, appellant spoke with the officers and told them that they had called the
police because they heard thieves outside the house. She also testified concerning
an incident that occurred in March 2012, in which appellant brought a gun to work,
and another co-worker told J.B.M. that appellant had purchased the gun “just in
6
case [appellant] ever saw [J.B.M.] with someone else.” Defense counsel did not
object to this testimony on any grounds. Defense counsel cross-examined J.B.M.
about both extraneous incidents.
Defense counsel did not call any witnesses in the punishment phase or
attempt to put on any mitigating evidence. During closing argument, the State
referenced the extraneous acts on three occasions.
In pronouncing appellant’s sentence, the trial court stated:
The actions that occurred on the night of this event are not simply a
fight between a husband and a wife. It was a brutal assault that
escalated across a yard in public. It involved brutalization of another
person, who led to that person fearing for her life because of
defendant’s actions. That alone is sufficient for a number of years in
the penitentiary.
The trial court did not mention the extraneous bad acts. The court then assessed
punishment at confinement for seventeen years and 200 days and a $2,000 fine.
Appellant did not file a motion for new trial.
Waiver of Right to Jury Trial
In his first issue, appellant contends that he did not knowingly and
intelligently waive his right to a jury trial. Appellant contends that the trial court
failed to inform him that a jury could have considered lesser-included offenses and
that a jury could, if appellant met certain requirements, recommend that the court
place appellant on community supervision for aggravated sexual assault, a right not
present in a bench trial.
7
A defendant has an absolute right to a jury trial. Hobbs v. State, 298 S.W.3d
193, 197 (Tex. Crim. App. 2009); see also U.S. CONST. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State . . . .”); TEX. CONST. art. I, § 15 (“The right of trial by
jury shall remain inviolate.”). A defendant may, however, waive this right and
instead have a bench trial. See Hobbs, 298 S.W.3d at 197. Code of Criminal
Procedure article 1.13(a) provides:
The defendant in a criminal prosecution for any offense . . . shall have
the right, upon entering a plea, to waive the right of trial by jury,
conditioned, however, that . . . the waiver must be made in person by
the defendant in writing in open court with the consent and approval
of the court, and the attorney representing the state. The consent and
approval by the court shall be entered of record on the minutes of the
court, and the consent and approval of the attorney representing the
state shall be in writing, signed by that attorney, and filed in the
papers of the cause before the defendant enters the defendant’s plea.
TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (Vernon Supp. 2014). When a defendant
challenges a jury-trial waiver on appeal, the State must establish through the trial
record an express, knowing, and intelligent waiver of that right. Hobbs, 298
S.W.3d at 197 (citing Guillett v. State, 677 S.W.2d 46, 49 (Tex. Crim. App.
1984)); Smith v. State, 363 S.W.3d 761, 767 (Tex. App.—Austin 2012, pet. ref’d).
Here, before the trial court summoned the jury panel for voir dire, the State
announced that appellant was about to finalize a jury-trial waiver and that the State
consented to proceeding in a bench trial. The court-appointed interpreter read the
8
waiver to appellant, who then signed the document in open court. The trial court,
defense counsel, and appellant then had the following exchange:
The Court: What says the defense?
[Defense counsel]: We’re in agreement. And by my signature, my
client, Eber Martinez’s, signature, we waive our
right to have a jury trial and wishes—the client
wishes to proceed with a trial before the Judge.
The Court: That includes both the guilt/innocence and
punishment?
[Defense counsel]: That’s correct.
The Court: Mr. Eber Martinez, you’ve heard that the State and
the—and your attorney have announced that they
are waiving their right to a jury trial on both the
guilt/innocence and the punishment phase of this
trial. Is that your desire?
[Appellant]: Yes.
The Court: So you do consent to trying it to the Court rather
than to a jury?
[Appellant]: Yes.
The Court: All right. And you have signed such a waiver in
which both your attorney and you have waived
your right to a jury trial and choose to have this
submitted to the Judge; is that correct?
[Appellant]: Yes.
The Court: And that’s the document that has been handed to
the Court by your attorney and signed by the State
and you?
[Appellant]: Yes.
The Court: All right. The Court will accept same and will
proceed with a bench trial.
9
The court then released the jury panel. Appellant’s written jury-trial waiver,
signed by himself, defense counsel, the State, and the court-appointed interpreter is
included in the clerk’s record for this case.
There is no indication in the record that appellant did not knowingly and
voluntarily waive his right to a jury trial. See Hoang v. State, 825 S.W.2d 729, 732
(Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (holding that Vietnamese-
speaking defendant, who required translation of jury-trial waiver, knowingly and
voluntarily waived right to jury trial when trial court asked defendant if he was
aware that he had constitutional right to jury trial, whether he understoodwhat jury
trial is, and whether he wanted to waive right and have matter heard by court).
Indeed, the trial court itself questioned appellant and determined that appellant
wished to proceed with a bench trial instead of a jury trial. The record supports the
trial court’s implicit determination that appellant knowingly and voluntarily
waived his right to a jury trial. See Smith, 363 S.W.3d at 768; Hoang, 825 S.W.2d
at 732.
Appellant contends, however, that he did not knowingly and voluntarily
waive his right to a jury trial because no one informed him that (1) juries may
consider lesser-included offenses and (2) the trial court could impose community
supervision for aggravated sexual assault only upon recommendation of the jury,
10
but it cannot consider this punishment option in a bench trial. Appellant’s
contentions are not meritorious.
Appellant first contends that, in signing the jury-trial waiver, he
unknowingly relinquished his right to have a jury consider the lesser-included
offense of sexual assault. This right, however, is not limited to jury trials. “In a
bench trial, the prosecution is not required to submit a lesser included offense
charge to the trial judge. The trial court is authorized to find the appellant guilty of
any lesser offense for which the State provides the required proof.” Shute v. State,
877 S.W.2d 314, 314 (Tex. Crim. App. 1994); see also Davis v. State, 89 S.W.3d
725, 731 (Tex. App.—Corpus Christi 2002, no pet.) (stating same); Leach v. State,
35 S.W.3d 232, 237 (Tex. App.—Austin 2000, no pet.) (stating same). Thus, if the
evidence presented justified the submission of a lesser-included offense charge on
sexual assault to a jury, the trial court could have considered that lesser charge in a
bench trial. Appellant therefore did not relinquish his right to the consideration of
a lesser-included offense warranted by the evidence presented when he waived his
right to a jury trial.
Appellant also contends that he unknowingly relinquished his right to have a
jury recommend community supervision for aggravated sexual assault, an option
11
not open to the trial court in a bench trial. 2 Appellant is correct that the Code of
Criminal Procedure generally prohibits the trial court from imposing community
supervision as a punishment for aggravated sexual assault. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 3g(a)(1)(E) (Vernon Supp. 2014) (stating that provisions
of Code allowing trial court to impose community supervision do not apply to
defendant adjudged guilty of aggravated sexual assault). A jury, however, may
recommend community supervision for an aggravated sexual assault offense if
certain other conditions are met, and, if it does so recommend, the trial court is
required to place the defendant on community supervision. See id. art. 42.12,
§ 4(b).
Appellant does not, however, cite any authority holding that the trial court
should have ensured that appellant had been informed of these principles before he
signed the jury-trial waiver. See Huynh v. State, 833 S.W.2d 636, 640 (Tex.
App.—Houston [14th Dist.] 1992, no pet.) (“We find no cases to support the
position that a trial judge has a duty to inquire of the defendant or his attorney what
specific legal advice concerning waiver of jury trial was given.”). Here, as in
Huynh, the trial court discussed the jury-trial waiver on the record with both
appellant and defense counsel, and the court appeared satisfied that appellant had
received legal advice on the matter and that appellant knowingly and intelligently
2
Appellant does not argue that he received erroneous advice concerning community
supervision before he waived his right to a jury trial.
12
waived his right to a jury trial. See id. Appellant has presented no evidence, other
than his argument in his appellate brief, demonstrating that no one informed him
that the trial court could not impose community supervision as a punishment for
aggravated sexual assault in a bench trial. We conclude that appellant has not
demonstrated that he did not knowingly and voluntarily waive his right to a jury
trial on this basis.
We hold that the record supports a conclusion that appellant knowingly and
voluntarily waived his right to a jury trial.
We overrule appellant’s first issue.
Vienna Convention
In his second issue, appellant contends that he is entitled to a new trial
because the trial court violated Article 36 of the Vienna Convention by not
providing him with a phone call to his consular authorities until the day of his trial.
Article 36 of the Vienna Convention “addresses communication between an
individual and his consular officers when the individual is detained by authorities
in a foreign country.” See Sanchez-Llamas v. Oregon, 548 U.S. 331, 337, 126 S.
Ct. 2669, 2674 (2006). Article 36, entitled “Communication and contact with
nationals of the sending State,” provides:
1. With a view to facilitating the exercise of consular functions
relating to nationals of the sending State:
13
(a) consular officials shall be free to communicate
with nationals of the sending State and to have
access to them. Nationals of the sending State
shall have the same freedom with respect to
communication with and access to consular
officers of the sending State;
(b) if he so requests, the competent authorities of the
receiving State shall, without delay, inform the
consular post of the sending State if, within its
consular district, a national of that State is
arrested or committed to prison or to custody
pending trial or is detained in any other manner.
Any communication addressed to the consular post
by the person arrested, in prison, custody or
detention shall also be forwarded by the said
authorities without delay. The said authorities
shall inform the person concerned without delay of
his rights under this sub-paragraph.
(c) consular officers shall have the right to visit a
national of the sending State who is in prison,
custody or detention, to converse and correspond
with him and to arrange for his legal
representation. They shall also have the right to
visit any national of the sending State who is in
prison, custody or detention in their district in
pursuance of a judgment. Nevertheless, consular
officers shall refrain from taking action on behalf
of a national who is in prison, custody or detention
if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said
laws and regulations must enable full effect to be given to the
purposes for which the rights accorded under this Article are
intended.
14
Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77,
595 U.N.T.S. 261 (emphasis added).
“In other words, when a national of one country is detained by authorities in
another, the authorities must notify the consular officers of the detainee’s home
country if the detainee so requests.” Sanchez-Llamas, 548 U.S. at 338–39, 126 S.
Ct. at 2675; see also Medellin v. Texas, 552 U.S. 491, 499, 128 S. Ct. 1346, 1353
(2008) (“[Article 36] provides that if a person detained by a foreign country ‘so
requests, the competent authorities of the receiving State shall, without delay,
inform the consular post of the sending State’ of such detention, and ‘inform the
[detainee] of his righ[t]’ to request assistance from the consul of his own state.”);
Sierra v. State, 218 S.W.3d 85, 87 (Tex. Crim. App. 2007) (“[Article 36] ‘grants a
foreign national who has been arrested, imprisoned or taken into custody a right to
contact his consulate and requires the arresting government authorities to inform
the individual of the right ‘without delay.’”).
Article 36 does not guarantee any consular assistance; rather, it “secures
only a right of foreign nationals to have their consulate informed of their arrest or
detention—not to have their consulate intervene . . . .” Sanchez-Llamas, 548 U.S.
at 349, 126 S. Ct. at 2681 (emphasis in original). The Court in Sanchez-Llamas
also noted that, if a defendant raises an Article 36 violation at trial, “a court can
make appropriate accommodations to ensure that the defendant secures, to the
15
extent possible, the benefits of consular assistance.” Id. at 350, 126 S. Ct. at 2682;
see also Sierra, 218 S.W.3d at 88 (noting that Supreme Court has held that if
defendant raises Vienna Convention violation at trial, trial court can make
accommodations to ensure benefits of consular assistance).
Here, after the trial court accepted appellant’s jury-trial waiver, the court
inquired about appellant’s citizenship and then had the following exchange with
appellant and defense counsel:
The Court: Have you had the opportunity to visit with the
Honduran consulate or representatives regarding
your rights under the various treaties?
[Appellant]: Never.
The Court: Have you discussed that with your attorney?
[Appellant]: No.
The Court: Do you wish to do so?
[Appellant]: Yes, of course.
The Court: All right. If you’ll, [defense counsel], take him
over and let him contact—I believe the Honduran
authorities have a representative here in the
Houston area. If you can get him that phone
number and have him contact them and explain to
him what treaty rights I’m talking about—
[Defense counsel]: Right. I—the reason why we never contacted
them was because he understood—we talked about
deportation, the fact that he had an ICE hold.3 We
3
An “ICE hold” or “ICE detainer” is a notice that the Department of Homeland
Security issues to federal, state, and local law enforcement agencies to inform the
agency that Immigration and Customs Enforcement (“ICE”) “intends to assume
custody of an individual” in the law enforcement agency’s custody. See ICE
16
talked about everything, and he had never
indicated that he wanted to speak to them, but I
will.
The trial court then took at least a thirty-minute recess while appellant spoke with
officials at the Honduran consulate.
When the trial reconvened, appellant confirmed that he had spoken with an
attorney at the Honduran consulate. He stated that the consular attorney told him
that Article 36 had been violated, and he had the following discussion with the trial
court:
[Appellant]: After having been for 14 months here, Fort Bend
County never communicated me with the
consulate. [The attorney] said she doesn’t have
any report or any information concerning my being
here.
The Court: All right. Do you recall when you were first
brought before a Court?
[Appellant]: Yes, of course.
The Court: Did you sign a number of papers regarding the
charges against you and were advised by the Judge
of your rights at that time?
[Appellant]: Yes, of course. It was Judge Pedro Ruiz. Pedro
Ruiz asked me if I wanted the consulate to
contact—to contact me. And never, never.
The Court: So you were advised of your right to contact the
consulate?
[Appellant]: Exactly, but it was never.
Detainers: Frequently Asked Questions, U.S. DEP’T OF HOMELAND SEC.,
https://www.ice.gov/news/library/factsheets/detainer-faqs.htm (last visited on Oct.
2, 2014).
17
The Court: Did you contact the consulate after being advised
of that?
[Appellant]: Never because they don’t take any collect calls
from the jail.
The Court: All right. Then we have complied with the
consulate treaty rights by advising you of your
right to contact consulate, and it’s your duty to
contact your consulate. The fact that the consulate
doesn’t collect—take collect calls is a problem the
consulate has, not your—not a problem this Court
has.
Appellant acknowledges on appeal that, at his initial hearing before a
magistrate, the magistrate judge informed him of his right to contact his consular
authorities. Defense counsel indicated at trial that he and appellant never contacted
the Honduran consulate, however, due to appellant’s “ICE hold” and that appellant
never indicated that he wished to speak to his consular authorities. Furthermore,
after appellant brought the alleged violation to the attention of the trial court, the
court recessed the trial and allowed appellant to speak with his consular authorities,
which appellant did. On appeal, appellant has offered no indication of what
benefits, if any, his consular authorities would have provided to him had the
authorities been notified at the time of his arrest as opposed to the day of his trial.
We therefore conclude that the trial court in this case, by taking a recess and
allowing appellant to contact his consular authorities, made “appropriate
accommodations” to ensure that appellant secured, “to the extent possible, the
18
benefits of consular assistance.” See Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct.
at 2682; Sierra, 218 S.W.3d at 88.
We hold that because the magistrate informed appellant of his Vienna
Convention rights shortly after arrest and the trial court recessed the trial
proceedings to allow appellant the opportunity to speak with his consular
authorities, the court did not violate appellant’s Vienna Convention rights, and a
new trial is not warranted on this basis.
We overrule appellant’s second issue.
Ineffective Assistance of Counsel
In his final issue, appellant contends that his trial counsel rendered
constitutionally ineffective assistance. Specifically, appellant contends that his
trial counsel: (1) failed to warn him of immigration consequences; (2) advised him
to waive his right to a jury trial, which caused him to forfeit the submission of a
lesser-included offense; (3) failed to request notice from the State of extraneous
offense evidence; (4) failed to present good character evidence during the
guilt/innocence phase to “show that it is improbable that he committed the charged
offense”; and (5) failed to present mitigating evidence during the punishment
phase.
19
A. Standard of Review
To establish that trial counsel rendered ineffective assistance, an appellant
must demonstrate, by a preponderance of the evidence, that (1) his counsel’s
performance was deficient and (2) there is a reasonable probability that the result
of the proceeding would have been different but for his counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010); Cannon
v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure
to make either of the required showings of deficient performance and sufficient
prejudice defeats the claim of ineffective assistance. Rylander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of
the Strickland test negates a court’s need to consider the other prong.”).
The appellant must first show that his counsel’s performance fell below an
objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). The second prong of Strickland requires the appellant to demonstrate
prejudice—“a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a
20
probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review
is highly deferential to counsel, and we do not speculate regarding counsel’s trial
strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To
prevail on an ineffective assistance claim, the appellant must provide an appellate
record that affirmatively demonstrates that counsel’s performance was not based
on sound strategy. Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
see Thompson, 9 S.W.3d at 813 (holding that record must affirmatively
demonstrate alleged ineffectiveness).
In the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65
S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct.
1690, 1694 (2003) (“If the alleged error is one of commission, the record may
reflect the action taken by counsel but not the reasons for it. The appellate court
may have no way of knowing whether a seemingly unusual or misguided action by
counsel had a sound strategic motive or was taken because the counsel’s
21
alternatives were even worse. The trial record may contain no evidence of alleged
errors of omission, much less the reason underlying them.”) (internal citations
omitted). Because the reasonableness of trial counsel’s choices often involves
facts that do not appear in the appellate record, the Court of Criminal Appeals has
stated that trial counsel should ordinarily be given an opportunity to explain his
actions before a court reviews the record and concludes that counsel was
ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.
B. Failure to Warn of Immigration Consequences
Appellant first argues that his trial court rendered ineffective assistance
because his counsel did not adequately warn him of the adverse immigration
consequences following a conviction. Appellant cites the United States Supreme
Court’s decision in Padilla v. Kentucky for the proposition that his trial counsel
had a duty to warn him of the adverse immigration consequences that he faced.
The State argues that Padilla is inapplicable, as appellant did not plead guilty to
the charged offense, but instead was found guilty after a full bench trial on the
merits. We agree with the State.
In Padilla v. Kentucky, an ineffective assistance of counsel case, the United
States Supreme Court addressed the question of whether defense counsel had an
obligation to inform his client of the adverse immigration consequences that may
occur following the client’s guilty plea. See 559 U.S. 356, 360, 130 S. Ct. 1473,
22
1478 (2010). The Court answered the question in the affirmative, concluded that
“advice regarding deportation is not categorically removed from the ambit of the
Sixth Amendment right to counsel,” and held that “counsel must inform her client
whether his plea carries a risk of deportation.” Id. at 366, 374, 130 S. Ct. at 1482,
1486. The Court noted that “informed consideration of possible deportation can
only benefit both the State and noncitizen defendants during the plea-bargaining
process.” Id. at 373, 130 S. Ct. at 1486. The Court held that Padilla’s counsel,
who explicitly told Padilla that he would not have to worry about immigration
consequences prior to his entering a guilty plea, rendered constitutionally
ineffective assistance, and the Court remanded the case for Padilla to demonstrate
prejudice under Strickland; that is, whether a reasonable probability existed that,
but for counsel’s deficient advice, the result of the proceeding would have been
different. Id. at 374, 130 S. Ct. at 1487.
In the context of a guilty plea, to establish prejudice, and, therefore,
ineffective assistance, under Strickland, the defendant “must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 370 (1985); see also Ex parte Moussazadeh, 361 S.W.3d 684,
690–91 (Tex. Crim. App. 2012) (“On a claim of involuntary plea, the standard for
the analysis of harm under the Strickland protocol as expressed in these cases may
23
be stated generally as ‘but for the erroneous advice of counsel, the applicant would
not have plead[ed] guilty.’”) (quoting Ex parte Harrington, 310 S.W.3d 452, 458
(Tex. Crim. App. 2010)).
In this case, appellant argues that he received ineffective assistance of
counsel pursuant to Padilla because his trial counsel failed to warn him of the
adverse immigration consequences that he faced upon conviction. The record,
however, does not reflect that appellant was unaware of the potential immigration
consequences that he faced should he be convicted. The trial court, defense
counsel, and appellant all discussed on the record appellant’s “ICE hold” that was
in place, and appellant indicated his understanding that he had the immigration
hold regardless of the outcome of the current trial and that the immigration court,
and not the trial court, would make the ultimate decision regarding deportation.
Furthermore, unlike in Padilla, appellant did not plead guilty to the charged
offense of aggravated sexual assault. Instead, he had a full trial on the merits of
the offense. This is, therefore, not a situation in which appellant can argue that,
had he received appropriate advice concerning adverse immigration consequences,
he would not have pleaded guilty but would have instead gone to trial. Here,
appellant did go to trial. Thus, he cannot contend that, had he received sufficient
information regarding the adverse immigration consequences, a reasonable
probability exists that the result of the proceeding would have been different. See
24
Padilla, 559 U.S. at 374, 130 S. Ct. at 1487; Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068.
Appellant attempts to analogize Padilla and this case, which he contends
involves “the failure to warn of such immigration consequences of a jury waiver,”
but he provides no authority showing that this case, in which he waived his right to
a jury trial but still had a full trial on the merits of his offense before the trial court,
should be treated the same as Padilla, in which the defendant judicially confessed
to the charged offense via guilty plea. Appellant has provided no authority that the
waiver of the jury trial itself has any immigration consequences separate and apart
from the consequences that occur as a result of any conviction, such as deportation
if the defendant is convicted of certain offenses. Appellant waived his right to a
jury; he did not, as the defendant did in Padilla, waive his right to a trial. We
therefore conclude that appellant has not demonstrated, by a preponderance of the
evidence, that his trial counsel rendered ineffective assistance by failing to warn
him of adverse immigration consequences.
C. Advising Appellant to Waive the Right to a Jury Trial
Appellant next argues that his trial counsel rendered ineffective assistance
when he advised appellant to waive his right to a jury trial because the evidence at
25
trial supported the submission of the lesser-included offense of aggravated assault,
which a jury could have considered.4
Sexual assault is a lesser-included offense of aggravated sexual assault.
Curtis v. State, 89 S.W.3d 163, 178 (Tex. App.—Fort Worth 2002, pet. ref’d). As
we have already held, the right to the submission of a lesser-included offense when
properly raised by the evidence is not limited to a jury trial.
In a bench trial, the prosecutor is not required to submit a lesser-included
offense charge to the trial court, but the court may find the defendant guilty of any
lesser-included offense for which the State provides the required proof. See Shute,
877 S.W.2d at 314; Davis, 89 S.W.3d at 731; Leach, 35 S.W.3d at 237. Thus, even
in this bench trial, if the evidence presented had justified the submission of a
charge on the lesser-included offense of sexual assault, the trial court could have
considered that evidence and found appellant guilty of the lesser-included offense
instead of the charged offense. Appellant’s trial counsel understood that the trial
court could consider finding appellant guilty of the lesser-included offense of
4
Specifically, appellant contends that the submission of the lesser-included offense
of sexual assault was appropriate because J.B.M.’s testimony indicated that, at the
time the sexual assault occurred, she was not in fear for her life and had no
subjective fear of imminent death or serious bodily injury. He also contends that a
lesser-included offense was appropriate because the evidence reflected that
J.B.M., while injured during the assault, did not suffer serious bodily injury. See
TEX. PENAL CODE ANN. § 1.07(a)(46) (Vernon Supp. 2014) (defining “serious
bodily injury” as “bodily injury that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ”).
26
sexual assault and argued during closing argument of the guilt/innocence phase of
the trial that, although “[t]here’s a sexual assault occurring under these facts,” the
assault did not rise to the level of an aggravated sexual assault, and counsel argued
instead that the court should find appellant guilty of second-degree sexual assault.
Because a trial court in a bench trial may consider lesser-included offenses
when warranted by the evidence presented at trial, just as a jury may, trial
counsel’s advice that appellant waive his right to jury trial when the trial evidence
potentially raised a lesser-included offense—a matter we need not decide—does
not constitute ineffective assistance of counsel.
D. Failure to Request Notice of Extraneous Offense Evidence
Appellant further contends that he received ineffective assistance of counsel
because his trial counsel failed to request that the State provide notice of
extraneous offenses and bad acts pursuant to Code of Criminal Procedure article
37.07. Specifically, appellant contends that, due to his counsel’s failure, he had no
notice that the State intended to present evidence during the punishment phase of
his trial that (1) appellant stood over J.B.M. and their daughters while they were
asleep while holding an axe and making chopping motions; (2) that when the
police arrived after J.B.M. called 9-1-1 in response to this behavior, appellant lied
and said they had called 9-1-1 because they heard thieves outside their home; and
(3) appellant allegedly possessed a gun while at work and a co-worker informed
27
J.B.M. that appellant purchased the gun “just in case [appellant] ever saw [J.B.M.]
with someone else.”
Code of Criminal Procedure article 37.07, section 3(a)(1) provides:
Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the
defendant as to any matter the court deems relevant to sentencing,
including but not limited to the prior criminal record of the defendant,
his general reputation, his character, an opinion regarding his
character, the circumstances of the offense for which he is being tried,
and, notwithstanding Rules 404 and 405, Texas Rules of Evidence,
any other evidence of an extraneous crime or bad act that is shown
beyond a reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally responsible,
regardless of whether he has previously been charged with or finally
convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2014). On
timely request by the defendant, the State shall give notice of its intent to introduce
evidence under this section “in the same manner required by Rule 404(b), Texas
Rules of Evidence.” Id. art. 37.07, § 3(g); see TEX. R. EVID. 404(b) (providing that
evidence of defendant’s other crimes or bad acts may be admissible for purposes
other than character conformity “provided that upon timely request by the accused
in a criminal case, reasonable notice is given in advance of trial of intent to
introduce in the State’s case-in-chief such evidence other than that arising in the
same transaction”). The State is only required to give such notice if the defendant
makes a timely request for the notice. See TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 3(g).
28
In general, trial counsel’s failure to file pre-trial motions, such as a request
for notice of intent to introduce extraneous offense evidence, does not result in
ineffective assistance of counsel. See Autry v. State, 27 S.W.3d 177, 182 (Tex.
App.—San Antonio 2000, pet. ref’d) (noting that trial counsel may have received
oral notice from State and that appellant “has not stated what steps he would have
taken if he had received written notice of the State’s intent to introduce extraneous
evidence”).
Even if, however, appellant could establish that his trial counsel’s failure to
request notice of extraneous bad acts pursuant to article 37.07, section 3(g)
constituted deficient performance, a matter we do not decide, appellant has not
demonstrated, by a preponderance of the evidence, that, had he received timely
notice, the trial court’s assessment of punishment would have been less severe in
the absence of counsel’s deficient performance. See Milburn v. State, 15 S.W.3d
267, 270 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“[W]e must
determine whether there is a reasonable probability that the jury’s assessment of
punishment in this case would have been less severe in the absence of counsel’s
deficient performance.”); see also Shanklin v. State, 190 S.W.3d 154, 165 (Tex.
App.—Houston [1st Dist.] 2005, pet. dism’d) (considering, in determining whether
trial counsel rendered ineffective assistance at punishment phase, whether
29
reasonable probability exists that sentence would have been less severe but for
deficient performance).
Defense counsel cross-examined J.B.M. about both instances of extraneous
bad acts, and counsel gave no indication that the lack of notice regarding the
extraneous bad acts hampered his ability to cross-examine J.B.M. about them.
Furthermore, although the State referenced the extraneous bad acts on three
occasions during its closing argument in the punishment phase, the trial court
stated the following before pronouncing appellant’s sentence:
The actions that occurred on the night of this event are not simply a
fight between a husband and a wife. It was a brutal assault that
escalated across a yard in public. It involved brutalization of another
person, who led to that person fearing for her life because of
defendant’s actions. That alone is sufficient for a number of years in
the penitentiary.
The trial court then assessed punishment at seventeen years and 200 days’
confinement and imposed a $2,000 fine, a punishment that is at the lower end of
the punishment range for a first-degree felony. See TEX. PENAL CODE ANN.
§ 12.32 (Vernon 2011) (providing that punishment range for first-degree felony is
imprisonment for five to ninety-nine years or confinement for life and that fact
finder may impose fine of up to $10,000).
In assessing appellant’s punishment, the record reflects that the trial court
focused on the facts of the charged offense instead of the evidence of extraneous
bad acts that the State introduced during the punishment phase. The evidence from
30
the guilt/innocence phase established that appellant attacked J.B.M., his estranged
common-law wife, in the yard in front of her house, repeatedly choking and hitting
her while dragging her down the street before sexually assaulting her. The trial
court explicitly mentioned the circumstances of this offense before assessing
punishment. We conclude that appellant has not established that, had his trial
counsel requested that the State provide notice of its intent to offer extraneous bad
acts evidence, a reasonable probability exists that the trial court would have
assessed a less severe sentence. See Autry, 27 S.W.3d at 182 (“[Appellant] has not
demonstrated that a different outcome would have been possible if trial counsel
had been in possession of written disclosure from the State of its plan to introduce
extraneous offenses during punishment phase.”); see also Hinson v. State, 166
S.W.3d 331, 332–33 (Tex. App.—Waco 2005, pet. ref’d) (concluding that
appellant did not demonstrate prejudice from trial counsel’s failure to request
notice of extraneous offenses).
E. Failure to Present Good Character and Mitigating Evidence
Finally, in related issues, appellant contends that his trial counsel rendered
ineffective assistance because, at the guilt/innocence stage, he failed to present
evidence of a “specific good-character trait to show that it is improbable that
[appellant] committed the charged offense [which] would have been relevant,”
and, at the punishment phase, counsel failed to present mitigating evidence
31
concerning “the defendant’s life and characteristics.” We analyze these complaints
together. 5
Appellant cites this Court’s opinion in Melgar v. State for the proposition
that the accused in a criminal case “is permitted to introduce evidence of a specific
good-character trait to show that it is improbable that he committed the charged
offense, when that character trait is relevant to the offense.” 236 S.W.3d 302, 306–
07 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). At the punishment phase,
evidence relevant to the assessment of punishment includes “information about the
defendant’s life and characteristics.” Minor v. State, 91 S.W.3d 824, 830 (Tex.
App.—Fort Worth 2002, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art.
37.07(a)(1) (providing that evidence relevant to sentencing includes evidence
relating to defendant’s “general reputation, his character, [and] an opinion
regarding his character”).
Here, although appellant argues that his trial counsel should have presented
good-character evidence at the guilt/innocence phase of trial and mitigating
evidence at the punishment phase of trial, he has presented no specific indication
of the evidence that he claims should have been introduced by his trial counsel, nor
is there any indication that such evidence actually exists. See Narvaiz v. State, 840
S.W.2d 415, 434 (Tex. Crim. App. 1992) (“[S]ince appellant does not explain what
5
We note that appellant does not contend that his trial counsel failed to conduct an
adequate investigation into potential good-character and mitigating evidence.
32
mitigating evidence his trial counsel should have proffered, we cannot possibly
find that a failure to proffer such evidence constituted ineffective assistance.”); cf.
Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (per curiam)
(“When challenging an attorney’s failure to call a particular witness, an ‘applicant
must show that [the witness] had been available to testify and that his testimony
would have been of some benefit to the defense.’”) (quoting Ex parte White, 160
S.W.3d 46, 52 (Tex. Crim. App. 2004)); Barnett v. State, 344 S.W.3d 6, 14 (Tex.
App.—Texarkana 2011, pet. ref’d) (“A claim of ineffective assistance based on
trial counsel’s failure to call a witness cannot succeed absent a showing that the
witness was available to testify and that the witness’ testimony would have
benefitted the defense.”). Appellant has pointed to no specific good-character or
mitigating evidence that, if it had been developed at trial, probably would have led
to a not guilty verdict or a lesser punishment. See Bone, 77 S.W.3d at 837 (“The
court of appeals obviously felt that counsel should have introduced more
mitigating evidence, but there is no reason to believe that such evidence existed.”).
To prevail on his ineffective assistance claim, appellant needed to present an
appellate record that affirmatively demonstrates that his counsel’s actions were not
based on sound trial strategy. See Mallett, 65 S.W.3d at 62–63; Thompson, 9
S.W.3d at 813 (holding that record must affirmatively demonstrate alleged
ineffectiveness). By failing to provide any indication of whether good-character or
33
mitigating evidence was available to appellant and what constituted that evidence,
appellant has not established that his trial counsel rendered ineffective assistance
for failing to introduce such evidence at trial. See Narvaiz, 840 S.W.2d at 434;
Rodriguez v. State, 292 S.W.3d 187, 190 (Tex. App.—Amarillo 2009, no pet.)
(“Without record evidence of what, if any, mitigating evidence was available to
appellant and counsel’s reasons for not offering such evidence as existed, appellant
is unable to overcome the presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.”); Beard v. State, 243 S.W.3d 783, 785
(Tex. App.—Amarillo 2007, pet. ref’d) (noting, in overruling appellant’s
ineffective assistance claim, that appellant did not “cite us to any evidence
illustrating that favorable mitigating evidence actually existed”).
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Publish. TEX. R. APP. P. 47.2(b).
34