Oscar Perez, Jr. v. State ( 2008 )

Affirmed and Majority and Dissenting Opinions filed December 11, 2008

Affirmed and Majority and Dissenting Opinions filed December 11, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00414-CR

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OSCAR PEREZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 51,650

D I S S E N T I N G   O P I N I O N

The court correctly determines that appellant=s attorney=s actions, in failing to interview and present a potential alibi witness, fell below the prevailing professional standards as required in the first prong of the Strickland test.  Contrary to the majority=s conclusion, however, the second prong of Strickland is satisfied.

Under the second prong of Strickland, an appellant must show by a preponderance of the evidence that there is a reasonable probability that, but for his trial counsel=s deficient performance, the result of the proceeding would have been different.  See Salinas v. State, 163 S.W.3d 734,740 (Tex. Crim. App. 2005).  An attorney has the professional obligation to present all available testimony and other evidence to support a client=s defense.  State v. Thomas, 768 S.W.2d 335, 336 (Tex. App.CHouston [14th Dist.] 1989, no pet.).  A defendant=s trial counsel has the responsibility to seek out and interview potential witnesses, and failure to do so supports a claim for ineffective assistance of counsel if any viable defense available to the defendant is not advanced.  Id.  Though the decision to call a witness to testify is generally a matter of trial strategy, the failure to interview a witness is deemed ineffective assistance of counsel when such inaction precludes an accused from advancing a viable defense.  Id.  A conviction will not be reversed for failure to investigate unless the appellant=s only viable defense available is not advanced and reasonable probability exists that but for the failure, the result of the proceeding would have been different.  See McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).

According to the record from the hearing on appellant=s motion for new trial, appellant=s attorney learned in his first meeting with appellant that Christina Pereda could offer alibi evidence as to appellant=s whereabouts on the night in question.  Appellant confirmed this information and testified that he gave his attorney Pereda=s name and phone number at this meeting. The attorney testified that he called Pereda several times before trial, but she did not return his calls.  The attorney acknowledged, however, that his file reflects only a single call to Pereda on the day of trial.  The attorney testified that he did not interview any witnesses prior to trial nor did he call any witnesses to testify.  He explained he did not pursue the alibi further because Pereda did not return his calls.  The attorney did not ask for a court-appointed investigator to investigate the alibi nor did he file a motion for continuance on this basis.  He did not subpoena any witnesses for trial.

At the hearing, Pereda testified that appellant=s trial counsel did not contact her by phone or letter.  Pereda confirmed that, at the time of the offense, appellant lived with her in a home she shared with others.  Pereda testified that a roommate, Roselie Padilla, could confirm whether appellant was at the home on the night in question.  Pereda testified that she would have provided this information and Padilla=s contact information to appellant=s attorney had she been contacted before trial. 

An investigator was appointed by the trial court to investigate appellant=s claims for the motion for new trial.  At the hearing on appellant=s motion for new trial, the investigator testified that with information he learned from Pereda, he pursued Padilla to investigate the potential alibi evidence.  By sworn affidavit, Padilla indicated that for two months she shared a home with appellant and Pereda. During this time, appellant slept on a couch in the living room, and Padilla slept on the floor beside the couch with her son.  Padilla explained that they went to bed at about 10:00 p.m.  She was certain appellant was sleeping on the couch every night during the week in which the offense occurred, and that there was no night that appellant was absent nor any night that he left.  She indicated that appellant=s attorney did not contact her prior to trial.

Testimony at trial suggested that the offense occurred at around 10:00 p.m.  Padilla=s affidavit provides that she and appellant went to bed at around that time every night that week.  The evidence in this case establishes that appellant=s only viable defense was an alibi defense, and this defense was not advanced due to appellant=s trial counsel=s failure to interview and investigate alibi witnesses.  See In re K.J.O., 27 S.W.3d 340, 345 (Tex. App.CDallas 2000, pet. denied) (concluding attorney wholly failed to investigate the appellant=s involvement in offense and reasonable probability existed that had appellant=s trial counsel questioned the available witnesses, appellant could have established an alibi and the result of the proceeding would have been different); Thomas, 768 S.W.2d at 337 (holding claim for ineffective assistance of counsel was supported by attorney=s failure to call witnesses for defense of consent in case of aggravated sexual assault).  On this record, there is a reasonable probability that but for appellant=s trial counsel=s deficient performance, the result of the proceeding would have been different.  Thus, the failure to investigate prejudiced appellant=s defense.

The majority distinguishes the facts of this case from those of Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986), on the basis that the alibi witness in Butler could testify in detail that the defendant was doing something else at the time of the offense.  The facts in this case are strikingly similar to those of Butler in which appellant=s trial counsel was faced with a positive identification of appellant by a single complainant but no physical evidence.  Butler, 716 S.W.2d at 55.  As in Butler, the logical way to refute the complainant=s positive identification would be to produce witnesses to say that appellant was not the perpetrator because appellant was seen elsewhere at the time of the robbery.  See id.  Like the defense counsel in Butler, appellant=s defense counsel in this case ,when faced with the necessity of disproving the positive identification, sought no potential witnesses and did not interview the potential witnesses whose names he knew.  See id.  Though the trial counsel in this case indicated fear that upon cross-examination the alibi witnesses would be impeached for bias or motive, fear of having a witness impeached does not justify a failure to investigate by interviewing witnesses. See id. at 56. 

The Butler court concluded that the appellant was prejudiced by the trial counsel=s failure to interview and call alibi witnesses, but not on the basis of the amount of detail in the alibi witness=s testimony, as the majority indicates.  See id.  The Butler court found prejudice because A[t]he evidence the jury did not hear due to trial counsel=s failure to investigate consisted of the sworn testimony of . . . a third witness that appellant was somewhere else at the exact time of the robbery.@  Id. (emphasis in original).  According to the Butler court, alibi testimony at the hearing on the motion for new trial in that case consisted of Afar more substance to appellant=s alibi defense than was presented to the jury.  [The alibi witness] testified that she had seen appellant in the apartment at the time of the robbery, and that she would have testified to that effect at trial.@  Id. at 55.  The facts of the case at hand are not distinguishable because, as in Butler, the evidence the jury did not hear at trial was from Padilla that appellant was somewhere else at a time when one complainant, Ernesto, alleged the robbery occurred.  See id. at 56. Such testimony had far more substance to appellant=s alibi defense than what was presented to the jury.  See id. at 55.  As stated in Butler, A[w]e are concerned here, however, not with counsel=s failure to present the testimony of these witnesses, but with his decision not to perform the investigation that would have uncovered the testimony.@  Id. at 56. Appellant=s trial counsel had no idea the evidence even existed because he did not investigate the alibi and the contact information appellant gave him at their first meeting.  This failure to investigate resulted in no alibi evidence being presented to the jury at all.  See id.

Given the information from both Pereda and Padilla, appellant could have established an alibi defense for the jury=s consideration.  See In re K.J.O., 27 S.W.3d at 345.  The attorney=s failure to advance the one defense apparently available to appellant made the attorney=s assistance ineffective.  See Shelton v. State, 841 S.W.2d 526, 527 (Tex. App.CFort Worth 1992, no pet.).  Reasonable probability exists that with this information, the result of the proceeding would have been different.  See id.  Therefore, the appellant=s trial counsel=s deficient performance prejudiced appellant=s defense.  See Thomas, 768 S.W.2d at 337.

Because appellant was prejudiced in his defense by not being able to present evidence of an alibi on the night of the robbery, appellant has been denied effective assistance of counsel.  Therefore, when appellant presented this complaint in his motion for new trial, supported by the evidence in the record, the trial court abused its discretion in denying appellant=s motion.^[1] Accordingly, this court should reverse the trial court=s judgment and remand for a new trial.  Because the court instead affirms appellant=s conviction, I respectfully dissent. 

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority and Dissenting Opinions filed December 11, 2008.

Panel consists of Justices Anderson, Frost, and Hudson.^* (Anderson, J., majority).

Publish C Tex. R. App. P. 47.2(b).

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^[1]  In regard to appellant=s testimony at the hearing on his motion for new trial that co-defendant Marcus Tavira would have provided favorable testimony for appellant, this person did not provide either testimony at the hearing or a sworn affidavit of his knowledge.  Therefore, as the majority correctly concludes, we cannot speculate on this silent record, with respect to this particular potential witness, that appellant suffered prejudice.  See Melancon v. State, 66 S.W.3d 375, 381 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  However, appellant presents no appellate contention regarding this specific witness.

^*  Senior Justice Harvey Hudson sitting by assignment.