Jerry Perez v. State ( 2011 )

OPINION
No. 04-10-00122-CR
Jerry PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2009-CRR00-366-D3
Honorable Elma T. Salinas-Ender, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 24, 2011
AFFIRMED
Appellant Jerry Perez was charged with aggravated robbery and theft. A jury convicted
Perez and the court sentenced him to nine years for the robbery and two years for the theft. On
appeal Perez raises three issues involving ineffective assistance of trial counsel: (1) counsel had
an actual conflict of interest, and the trial court erred by not holding a Garcia hearing; (2)
counsel failed to object to the State’s alleged bolstering during its closing argument, and the trial
court failed to act sua sponte; and (3) counsel failed to object or request a limiting instruction on
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inadmissible hearsay testimony either during examination or when the State referred to it during
closing argument. We affirm the trial court’s judgment.
BACKGROUND
Moises Navarro worked for Wilkinson Brothers Iron & Metal, Inc. and handled monies
for the company. On September 3, 2008, Navarro and Manuel Escalante were in a company
truck taking cash to one of the company sites. While the truck was stopped at the entrance gate,
a man approached the truck, pointed a gun at Navarro, and demanded money. The assailant
struck Navarro with the gun and fled with the cash box.
Three days later, Perez’s brother told police investigating an unrelated domestic dispute
that Perez had been involved in a recent robbery. Based on this information, Detective Flores
separately showed Navarro and Escalante a photo lineup that included a photograph of Jerry
Perez. Both men identified Perez as the person who assaulted and robbed Navarro on September
3. On October 7, 2008, then-Webb County Assistant District Attorney Eduardo Castillo signed
an Arrest Warrant Approval Form for the arrest of Jerry Perez. Without taking any further action
in the case, Castillo left the District Attorney’s office and went into private practice.
Perez was initially represented by an attorney from the public defender’s office, but she
withdrew because she knew the victim. Later, Perez received a different appointed counsel:
Castillo. During a pretrial hearing, Castillo questioned Perez on the record about a potential
conflict of interest based on Castillo having signed the arrest warrant. Perez said he waived his
right to appeal on that issue and asked to proceed to trial with Castillo as his defense counsel.
Perez’s counsel also presented, and the court approved, a motion in limine prohibiting the State
from mentioning Castillo’s name or referring to the fact that Castillo was the person who
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approved the arrest warrant. Perez was convicted by a jury on both counts and now appeals his
convictions.
ACTUAL CONFLICT OF INTEREST AND GARCIA HEARING
In his first issue, Perez asserts he received ineffective assistance of counsel because his
court-appointed attorney had an actual conflict, and the trial court erred by not holding a Garcia
hearing. See United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).
A. Standard of Review
Most claims of ineffective assistance of counsel are reviewed under Strickland v.
Washington, 466 U.S. 668 (1984), but claims involving an actual conflict of interest are reviewed
under Cuyler v. Sullivan, 446 U.S. 335 (1980). Acosta v. State, 233 S.W.3d 349, 356 (Tex.
Crim. App. 2007); Chavez v. State, 6 S.W.3d 66, 73 (Tex. App.—San Antonio 1999, pet. ref’d).
Cuyler’s less burdensome standard applies if the appellant can show defense counsel had an
actual conflict of interest. Acosta, 233 S.W.3d at 356; see Monreal v. State, 947 S.W.2d 559,
565 (Tex. Crim. App. 1997).
B. Cuyler Exception to Strickland Standard
1. Alleged Conflict of Interest
To invoke the Cuyler exception to Strickland, the appellant must show (1) counsel had an
actual conflict of interest and (2) that conflict adversely affected counsel’s performance at trial.
Cuyler, 446 U.S. at 350; Acosta, 233 S.W.3d at 355. We presume prejudice if an appellant
shows both. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999) (citing Strickland,
466 U.S. at 692).
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2. Actual Conflict
Counsel has an actual conflict of interest if he “‘is required to make a choice between
advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own)
to the detriment of his client’s interest.’” Acosta, 233 S.W.3d at 355 (quoting Monreal, 947
S.W.2d at 564); see also Mickens v. Taylor, 535 U.S. 162, 171 (2002) (clarifying the phrase
“actual conflict of interest” in a remand instruction in a previous case by stating “we think ‘an
actual conflict of interest’ meant precisely a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties”). “An appellant must identify specific
instances in the record that reflect a choice that counsel made between possible alternative
courses of action, such as ‘eliciting (or failing to elicit) evidence helpful to one [interest] but
harmful to the other.’” Gaston v. State, 136 S.W.3d 315, 318 (Tex. App.—Houston [1st Dist.]
2004, pet. struck) (en banc) (quoting Ramirez v. State, 13 S.W.3d 482, 488 (Tex. App.—Corpus
Christi 2000, pet. dism’d)). “[A] potential conflict may become an actual conflict, but [an
appellate court need not] speculate about a strategy an attorney might have pursued . . . in the
absence of some showing that the potential conflict became an actual conflict.” Routier v. State,
112 S.W.3d 554, 585 (Tex. Crim. App. 2003) (referencing the analysis in James v. State, 763
S.W.2d 776, 781 (Tex. Crim. App. 1989)). “‘[U]ntil a defendant shows that his counsel actively
represented conflicting interests, he has not established the constitutional predicate for his claim
of ineffective assistance.’” Acosta, 233 S.W.3d at 355 (quoting Cuyler, 446 U.S. at 349–50).
3. Adverse Effect
To show that an actual conflict of interest adversely affected counsel’s performance, the
appellant must show “that trial counsel actually acted on behalf of those other interests during
the trial.” Id. The appellant must show that his trial counsel “had to forego a strategy in the
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appellant’s trial that he would have otherwise pursued if he had not represented [a conflicting
interest].” See Routier, 112 S.W.3d at 586.
4. Voluntary Waiver
A defendant can waive the right to conflict-free counsel if he does so knowingly and
voluntarily. Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981); Brink v. State, 78
S.W.3d 478, 485 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also United States v.
Greig, 967 F.2d 1018, 1021 (5th Cir. 1992). A waiver should show that the defendant
understands all three elements: (1) he is aware of the conflict of interest, (2) he realizes the
consequences of continuing with such counsel, and (3) he is aware of his right to obtain other
counsel. Greig, 967 F.2d at 1022; Prejean, 625 S.W.2d at 733 (citing Gray v. Estelle, 616 F.2d
801, 804 (5th Cir. 1980)).
5. Garcia Hearing
When a court is alerted to or aware of an actual conflict, it must conduct a hearing to
ensure that a defendant is knowingly, intelligently, and voluntarily waiving his right to conflict-
free counsel. Cuyler, 446 U.S. at 346–47; Ramirez, 13 S.W.3d at 487 (citing Greig, 967 F.2d at
1022). This hearing is commonly referred to as a Garcia hearing. See United States v. Garcia,
517 F.2d 272 (5th Cir. 1975). The court is required to conduct a Garcia hearing only if the court
“knows or should reasonably know of an actual conflict.” Gaston, 136 S.W.3d at 324 (Higley,
J., concurring) (emphasis altered) (citing Cuyler, 446 U.S. at 347).
C. Potential Conflict Insufficient
To invoke Cuyler’s lesser burden, Perez must show an actual conflict, not just a potential
conflict. See Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex. Crim. App. 2005) (citing
Routier, 112 S.W.3d at 585–86); Monreal, 947 S.W.2d at 565; see also Mickens, 535 U.S. at
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171. A potential conflict is not enough. See Mickens, 535 U.S. at 171; Ex parte Meltzer, 180
S.W.3d 252, 256 (Tex. App.—Fort Worth 2005, no pet.) (op. on reconsideration) (citing Routier,
112 S.W.3d at 581–82). Perez asserts an actual conflict existed because Castillo formerly
represented the State: he signed the arrest warrant approval form. But the mere fact that Castillo
formerly represented the State does not prove an actual conflict. See Routier, 112 S.W.3d at 581.
Perez must show that Castillo advanced the State’s interest to the detriment of Perez’s interest.1
See Acosta, 233 S.W.3d at 355.
1. State’s Interest
The State’s interest was manifest in the bench conference on Perez’s motion in limine:
the State wanted to rebut the defense’s theory that the investigation was sloppy and incomplete—
a rush to judgment that mistakenly identified Perez as the culprit. The State wanted to tell the
jury that Castillo signed the warrant so that it could defend its investigation and obtain a
conviction. Castillo had to believe that there was probable cause when he signed the warrant,
and therefore the State wanted to show the warrant process—and by implication the rest of the
investigation—was carefully conducted, and the State had not rushed to judgment.
2. Perez’s Interest
On the other hand, Perez’s interest was also clear: he wanted to vigorously pursue a
mistaken identity defense. Perez wanted to show that the State had conducted a sloppy
investigation, had failed to pursue other possible suspects, and had failed to conduct a number of
steps that are often performed in an investigation. Perez wanted to attack the investigation to
show that others, not Perez, had committed the charged offenses and the State’s sloppy
investigation had mistakenly identified Perez.
1
Neither Perez’s brief nor his oral argument specifically identifies the State’s interest that Castillo advanced at
Perez’s detriment. See Gaston, 136 S.W.3d at 318 (failing to comply with Gaston’s requirements).
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3. Motion in Limine
During a bench conference just before the court granted the motion in limine, Castillo
conceded that the State had probable cause to issue the warrant. He suggested that the State
could tell the jury that the District Attorney’s office had approved the arrest warrant, but asked
that the jury not hear that he signed it. Castillo repeatedly asserted that he was advancing a
mistaken identity defense based on a sloppy investigation after the warrant issued. The court
granted the motion in limine: the State could show that the District Attorney’s office approved
the arrest warrant but could not disclose who signed the form.
4. No Actual Conflict
The record shows that Castillo did not advance the State’s interest in preserving the
integrity of its investigation. When cross-examining the lead detective, Castillo vigorously
attacked all of the four points in the arrest warrant approval form that linked Perez to the crime.
Castillo challenged the initial report from Perez’s brother Cruz in which Cruz said Perez had
recently committed a robbery. Castillo challenged the process by which the report was given to
the lead detective. Castillo challenged both Navarro’s and Escalante’s separate identifications of
Perez from an array of photographs. Thus, Castillo did not advance the State’s interest at Perez’s
expense. Further, Perez does not identify, and the record does not show, how Castillo advanced
any other State interest to his detriment. See Gaston, 136 S.W.3d at 318. Therefore, we hold
that Castillo’s former representation of the State did not become an actual conflict of interest.
See Acosta, 233 S.W.3d at 355; Routier, 112 S.W.3d at 582; see also Mickens, 535 U.S. at 171.
D. Adverse Effect
Even if we assume arguendo that an actual conflict existed, Perez must also show that the
actual conflict had an adverse effect on Castillo’s performance. See Mitchell, 989 S.W.2d at 748.
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Perez argues that Castillo’s cross-examination of the State’s witnesses was chilled when the
State told the court it would show the jury that Castillo signed Perez’s arrest warrant if Castillo
attempted to argue that the warrant was improperly prepared or that the lead detective failed to
properly investigate the case. However, Perez’s motion in limine was granted; the State did not
tell the jury that Castillo signed the form. Further, Castillo vigorously cross-examined the lead
detective, including challenging his investigation on at least thirteen separate points. Perez also
asserts that Castillo “was limited in his ability to put on a vigorous defense or to pursue other
plausible defense strategies and/or tactics because of the conflict of interest.” But Perez not only
fails to identify a specific conflict of interest, he also fails to specify any defense element, any
plausible strategy, or any tactic that Castillo failed to use. See Gaston, 136 S.W.3d at 318. Perez
has not shown any adverse effect on Castillo’s performance and thus we do not presume
prejudice. See Mitchell, 989 S.W.2d at 748.
E. Garcia Hearing
Perez argues that the trial court erred when it failed to conduct a Garcia hearing because
it was aware of a conflict of interest. See Cuyler, 446 U.S. at 346–47; Ramirez, 13 S.W.3d at
487. However, a Garcia hearing is required only if the court “knows or should reasonably know
of an actual conflict.” See Gaston, 136 S.W.3d at 324 (emphasis altered); United States v.
Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (citing United States v. Carpenter, 769 F.2d
258, 263 (5th Cir. 1985)); see also Cuyler, 446 U.S. at 347 (“Unless the trial court knows or
reasonably should know that a particular conflict exists, the court need not initiate [a conflict of
interest] inquiry.”). Texas courts have reiterated that a Garcia hearing is unnecessary where a
defendant has failed to show that an actual conflict of interest exists. See, e.g., Thompson v.
State, 94 S.W.3d 11, 20 (Tex. App—Houston [14th Dist.] 2002, pet. ref’d) (citing Calloway v.
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State, 699 S.W.2d 824, 829–30 (Tex. Crim. App. 1985)); Ramirez, 13 S.W.3d at 487. Because
there was no actual conflict, the trial court was not required to hold a Garcia hearing. See
Cuyler, 446 U.S. at 347; Garcia-Jasso, 472 F.2d at 245; Pina v. State, 127 S.W.3d 68, 73 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).
F. Voluntary Waiver
Perez filed an affidavit stating certain facts regarding his defense: (1) that he knew there
was a potential conflict of interest, (2) that he had seen the arrest warrant bearing Castillo’s
signature, (3) that he chose to waive his right to appeal on that issue, and (4) that he wanted
Castillo to continue to represent him. Further, during a pretrial hearing, Perez testified that he
was aware of the potential conflict, but was choosing to waive his right to appeal on that issue
and still wanted Castillo to represent him.
At oral argument, Perez’s appellate counsel argued that Perez did not fully understand the
consequences of having Castillo represent him at trial when he waived his right to conflict-free
counsel. However, Perez’s own testimony during the pretrial hearing shows that Castillo briefed
Perez on the scope and breadth of his participation in preparing the State’s case against Perez.
See Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981); Brink v. State, 78 S.W.3d
478, 485 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). During the same pretrial hearing,
Castillo requested that Ray Rodriguez be appointed as co-counsel, which the court granted. See
Prejean, 625 S.W.2d at 733 (deciding that the appellant was aware that he could obtain other
counsel because the court had already appointed counsel for him). Given Perez’s first court-
appointed counsel withdrew and was replaced by another court-appointed attorney (Castillo) and
the court appointed an additional attorney (Rodriguez) shortly before trial, Perez knew that he
could have obtained other counsel in lieu of Castillo had he wished to do so. See id.
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Considering Perez’s testimony, affidavit, and changes in appointed counsel, we hold that
Perez knowingly and voluntarily waived his right to appeal on the issue of conflict of interest.
See Greig, 967 F.2d at 1021; Prejean, 625 S.W.2d at 733; Brink, 78 S.W.3d at 485.
G. Strickland Analysis
Under Strickland v. Washington, the reviewing court does not presume prejudice; the
appellant must affirmatively prove prejudice. Strickland, 466 U.S. at 693; Jackson v. State, 877
S.W.2d 768, 770–71 (Tex. Crim. App. 1994). “The [appellant] must show that 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 694; Jackson, 877 S.W.2d at 771.
Here, Perez did not brief or argue that he met Strickland’s prejudice prong. See TEX. R.
APP. P. 38.1(i); Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). He did
not present facts from the record bearing on Castillo’s performance that undermine confidence in
the trial court’s judgment. See Martinez, 195 S.W.3d at 730 n.14. Therefore, he has failed to
meet his burden to show prejudice. See Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771.
H. Conclusion
Perez has not shown that his defense counsel suffered from an actual conflict, that his
defense suffered an adverse effect, or that he was entitled to a Garcia hearing. Further, Perez
knowingly and voluntarily waived his right to conflict-free counsel. Finally, Perez failed to meet
his burden to show prejudice. Because Perez has not proven ineffective assistance of counsel or
shown his right to a Garcia hearing, we overrule his first issue.
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CLOSING ARGUMENT
In his second issue, Perez asserts that his counsel was ineffective or the trial court erred
when the court failed to declare a mistrial or issue a limiting instruction for the prosecutor’s
allegedly improper closing argument.
A. Standard of Review
A defendant is entitled to effective assistance of counsel under both the United States and
Texas Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC.
ANN. art. 1.051 (West 2005 & Supp. 2011). On appeal, to prove ineffective assistance of trial
counsel an appellant must show that counsel’s assistance fell below an objective professional
standard of reasonableness and counsel’s actions thereby prejudiced appellant’s defense.
Strickland v. Washington, 466 U.S. 668, 687–88, 692 (1984); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). To prove prejudice, an appellant must show by a preponderance of
the evidence that but for counsel’s unprofessional error, the outcome of his trial would have been
different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In reviewing an ineffective assistance of counsel claim, we consider the totality of
counsel’s representation in light of the particular circumstances of the case and presume that
counsel acted competently and made decisions based on a reasonable trial strategy. See
Strickland, 466 U.S. at 689, 695; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App.
1990). To rebut this presumption, the basis for any allegation of ineffectiveness must be
affirmatively founded in the record. Thompson, 9 S.W.3d at 813. “[W]e commonly assume a
strategic motive if any can be imagined and find counsel’s performance deficient only if the
conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v.
State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Even if the appellant proves trial counsel’s
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performance was deficient, the appellant must also prove that he was prejudiced by counsel’s
actions. Thompson, 9 S.W.3d at 812. Appellant must demonstrate a reasonable probability that
the result of the proceeding would have been different if trial counsel had acted professionally.
Id. A reasonable probability is a probability sufficient to undermine confidence in the trial’s
outcome. Id.
B. Ineffective Assistance by Failure to Object
Perez asserts that Castillo’s assistance was ineffective when Castillo failed to object and
to seek a limiting instruction following an alleged bolstering comment in the State’s closing
argument. The prosecutor said:
You heard his [Navarro’s] testimony which is evidence. Okay.
Let me see. When Moises [Navarro] went up there he not only told you
that this happened. But he told you, I saw his face. I saw the gun. And he was
honest. How do we know he was honest? How do we know he was telling the
truth? Besides that, he swore to tell the truth. Because he told you and he told us.
I—I was not sure of his build. If he was going to lie, he could have lied then. He
could [have] told you he was—he was honest. I saw his face. I saw the gun. He
was sitting in the truck and Jerry Perez was standing outside.
Perez complains that Castillo’s failure to object or request a limiting instruction violated Perez’s
Sixth Amendment right to counsel.
1. Bolstering
Jury argument may include: (1) summation of the evidence, (2) reasonable deduction
from the evidence, (3) answer to argument of opposing counsel, and (4) pleas for law
enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992) (emphasis added).
An argument that goes beyond one of these areas is error but is reversible only if “the argument
is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful
to the accused, into the trial.” Id. at 95. Inferences drawn from the evidence are permissible if
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they “are reasonable, fair, legitimate, and offered in good faith.” Smith v. State, 842 S.W.2d 401,
407 (Tex. App.—Fort Worth 1992, pet. ref’d) (citing Gaddis v. State, 753 S.W.2d 396, 398 (Tex.
Crim. App. 1988)).
2. Reasons for Remaining Silent
Here, the record is silent as to why Castillo chose not to object to the State’s closing
argument or to the testimony of Officer Cortez. Perez asserts that “the record clearly
demonstrates that no plausible purpose was served by [Castillo’s] failure to object to [testimony
with respect to Cruz’s statements to Officer Cortez],” that “no plausible purpose was served by
[Castillo’s] soliciting additional commentary from Officer Cortez with respect to [Cruz’s
statement],” and that “[t]here is no plausible strategy to pass over the admission and references
of the only evidence linking [Perez] to any crime.” But Perez failed to question Castillo on the
record as to why he remained silent, and the record does not show why Castillo chose as he did.
See Thompson, 9 S.W.3d at 813.
3. Deficient Assistance
Perez’s conclusory assertions of counsel’s errors are not persuasive in light of the strong
presumption that counsel acted competently and made decisions based on a reasonable trial
strategy. See Thompson, 9 S.W.3d at 812; Ex parte Welborn, 785 S.W.2d at 393. Perez’s mere
conclusory assertions require this court to speculate on why Castillo decided as he did, and this
court need not do so. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)
(deciding not to speculate on defense counsel’s motives); Delrio v. State, 840 S.W.2d 443, 447
(Tex. Crim. App. 1992).
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4. Prejudiced Defense
Even assuming arguendo that Castillo’s failure to object or request a limiting instruction
based on the alleged bolstering in the State’s closing argument was deficient, Perez must still
demonstrate a reasonable probability that his trial result would have been different if Castillo had
acted professionally. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 813. If Castillo
had objected to the argument and asked for a limiting instruction, the State could have merely
rephrased the comment, repeated the same summary of Navarro’s testimony, and the jury could
have reached the same conclusion. Further, the jury heard Detective Flores’s testimony that
Escalante separately identified Perez as the assailant, and other evidence and witnesses that
tended to corroborate Navarro’s testimony. Having “consider[ed] the totality of the evidence
before the judge or jury,” Perez has not shown a reasonable probability of a different outcome.
See Strickland, 466 U.S. at 695; Thompson, 9 S.W.3d at 812.
Finally, Perez also complains that the trial court erred when, on hearing the State’s
argument, it failed to sua sponte issue a limiting instruction or declare a mistrial. Perez does not
cite any authority to support his assertion. For the reasons set forth above, we find this argument
unpersuasive. We overrule Perez’s second issue.
HEARSAY TESTIMONY
In his third issue, Perez complains that Castillo’s assistance was deficient and prejudicial
when Castillo failed to object to hearsay and seek a limiting instruction regarding Officer
Cortez’s testimony. Castillo objected to hearsay when Cortez, on direct examination, began to
say that Perez’s brother told him that Perez was involved in a recent robbery. However, on
cross-examination, Castillo asked Cortez about his conversation with Perez’s brother, essentially
introducing the previously objected to testimony. Further, Castillo did not object to the State’s
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closing argument when the prosecutor repeated Cortez’s statement from Perez’s brother about
Perez’s involvement in a recent robbery.
A. Deficient Assistance
In his brief, Perez asserts that “the record clearly demonstrates that no plausible purpose
was served by [Castillo’s] failure to object to [testimony with respect to Cruz’s statements to
Officer Cortez],” that “no plausible purpose was served by [Castillo’s] soliciting additional
commentary from Officer Cortez with respect to [Cruz’s statement],” and that “[t]here is no
plausible strategy to pass over the admission and references of the only evidence linking [Perez]
to any crime.” But the record does not show that Castillo was ever asked why he made these
choices. Further, Perez must overcome the strong presumption that counsel acted competently
and made decisions based on a reasonable trial strategy. See Thompson, 9 S.W.3d at 812.
Moreover, absent outrageous attorney conduct, we assume defense counsel acted or refrained
based on a strategic motive. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
Perez’s conclusory assertions of deficient assistance do not overcome the presumption of
competent representation or show outrageous conduct. See id.; De Los Santos v. State, 219
S.W.3d 71, 75 (Tex. App.—San Antonio 2006, no pet.). Castillo almost certainly benefited
Perez’s defense by questioning Cortez on whether he got the right Jerry Perez—and having
raised doubts about which Jerry Perez was detained, Castillo may have felt the State’s reference
in closing argument merely restated a point he had successfully deflected.
B. Prejudiced Defense
Even if Castillo’s conduct was deficient, Perez must still demonstrate prejudice—a
reasonable probability that his trial result would have been different if Castillo had acted
professionally. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. However, if the
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jury had never heard that Perez’s brother told police that Perez had been in a robbery, the jury
would still have heard (1) Navarro’s testimony identifying Perez as the assailant, (2) testimony
that Navarro and Escalante each separately identified Perez as the assailant, (3) and other
evidence and testimony that tended to corroborate Navarro’s testimony. Having “consider[ed]
the totality of the evidence before the judge or jury,” Perez has not shown a reasonable
probability of a different outcome. See Strickland, 466 U.S. at 695; Thompson, 9 S.W.3d at 813
(“Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.”). We overrule Perez’s third issue.
CONCLUSION
Appellant Jerry Perez has failed to show that he received ineffective assistance of counsel
or that the trial court erred. Therefore, we affirm the trial court’s judgment.
Rebecca Simmons, Justice
PUBLISH
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