Manuel Reyna Cantu v. the State of Texas ( 2021 )

NUMBER 13-20-00211-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MANUEL REYNA CANTU, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
NUMBER 13-20-00212-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ARACELY GARZA CANTU, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Longoria
Appellants Manuel Reyes Cantu and Aracely Garza Cantu challenge the trial
court’s denial of their writ for habeas corpus pursuant to article 11.072 of the code of
criminal procedure. See TEX. CODE CRIM. PRO. ANN. art. 11.072. By two issues, appellants
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assert that the trial court erred by: (1) denying their claims for relief based upon receiving
ineffective assistance of counsel, and (2) failing to hold an evidentiary hearing. We affirm.
I. BACKGROUND
In March 2004, following a jury trial, appellants were convicted of money
laundering in excess of $20,000, but less than $100,000. See TEX. PENAL CODE ANN. §
34.02. Pursuant to an agreement between appellants and appellee the State of Texas,
Manuel was sentenced to a term of eight years’ imprisonment and was placed on
community supervision for a term of ten years, and Aracely was sentenced to a term of
five years’ imprisonment and was placed on community supervision for a term of ten
years. Appellants appealed their convictions and this Court affirmed. See Cantu v. State,
No. 13-04-00146-CR, 2005 WL 1706507, at *2 (Tex. App.—Corpus Christi–Edinburg July
14, 2005, no pet.) (mem. op., not designated for publication).
Appellants successfully completed their terms of community supervision, and in
April 2014, the court discharged appellants from community supervision, set aside the
guilty verdicts and judgments of conviction, and dismissed their indictments. See TEX.
CODE CRIM. PRO. ANN. art 42.12, § 20. In January 2020, appellants filed a joint application
for post-conviction habeas corpus relief pursuant to Texas Code of Criminal Procedure
Article 11.072 arguing they received ineffective assistance of counsel, which the State
refuted. The trial court denied appellants’ application, and these consolidated appeals
followed.
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II. POST-CONVICTION WRIT OF HABEAS CORPUS
A. Standard of Review
We review the trial court’s denial of habeas corpus relief under an abuse-of-
discretion standard and consider facts in the light most favorable to the trial court’s ruling.
See Ex parte Reed, 402 S.W.3d 39, 41 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
(citing Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006)). We afford almost
complete deference to the trial court’s determination of historical facts supported by the
record, especially when those factual findings rely upon an evaluation of credibility and
demeanor. Id. at 42. “We apply the same deference to review the trial court’s application-
of-law-to-fact questions, if the resolution of those determinations rests upon an evaluation
of credibility and demeanor; if the outcome of those ultimate questions turns upon an
application of legal standards, we review the trial court’s determination de novo.” Id. To
prevail upon a post-conviction writ of habeas corpus, the applicants bear the burden of
proving, by a preponderance of the evidence, the facts that would entitle them to relief.
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).
B. Ineffective Assistance of Counsel
By their first issue, appellants argue they were deprived of the effective assistance
of counsel in their 2004 trial because their trial counsel: failed to obtain a pretrial ruling on
their motions to suppress evidence, opened the door to otherwise inadmissible evidence,
elicited otherwise inadmissible evidence as to Manuel’s criminal record, failed to request
a severance, and failed to seek exclusion of drug testing evidence.
To establish ineffective assistance of counsel, appellants must show that their trial
counsel’s performance fell below an objective standard of reasonableness and, but for
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counsel’s deficiency, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005). A reasonable probability is a “probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s
performance, we look to the totality of the representation to determine counsel’s
effectiveness, indulging a strong presumption that counsel’s performance fell within the
wide range of reasonable professional assistance or trial strategy. Strickland, 466 U.S. at
689; see Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012); Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
1. Motion to Suppress
Appellants first contend their trial counsel was ineffective for failing to obtain a
ruling on their motion to suppress. Prior to trial, appellants filed a motion to suppress the
physical evidence seized and their statements made to police, arguing that the stop was
unlawfully prolonged by the officer, and therefore Manuel’s consent to search the vehicle
was involuntary.
Trial counsel may decide not to file pretrial motions as part of a trial strategy;
therefore, failure to file pretrial motions is not categorically deemed ineffective assistance
of counsel. Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th Dist.]
1997, no pet.). Likewise, failure to obtain a ruling on pretrial motions does not necessarily
constitute ineffective assistance of counsel. Wills v. State, 867 S.W.2d 852, 857 (Tex.
App.—Houston [14th Dist.] 1993, pet. ref’d); see also Martinez v. State, No. 13-03-070-
CR, 2004 WL 2095108, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 27, 2004, no
pet.) (mem. op., note designated for publication). Moreover, unless an appellant shows
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that a pretrial motion had merit “and that a ruling on the motion would have changed the
outcome of the case, counsel will not be ineffective for failing to assert the motion.”
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v. State,
852 S.W.2d 508, 510–12 (Tex. Crim. App. 1993)). Any claim for ineffectiveness of counsel
must be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. See Thompson, 9 S.W.3d at 814.
Here, the record is silent as to trial counsel’s strategy in not obtaining rulings on
the pretrial motion to suppress. At the conclusion of the habeas hearing, the court found
that the delay was not unreasonable and that the detention was justified as the officer
investigated matters that extended beyond the initial reason for the stop. Appellants argue
that the trial court’s finding is incorrect. The Texas Court of Criminal Appeals has found
that “there may be instances when a person’s conduct viewed in a vacuum, appears
purely innocent, yet when viewed in light of the totality of the circumstances, those actions
give rise to reasonable suspicion.” Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.
1997). Appellants argue that the officer was required to diligently pursue the traffic
investigation and that “other than asking [Manuel] for his license and registration, [the
officer] took no further steps to pursue the traffic investigation.” However, as the trial court
found, the officer noted several reasons for his suspicion that a crime was afoot, including
the nervousness of appellants and their inability to make eye-contact, the time and
location of the traffic stop, and appellants’ inconsistent answers regarding their travel.
These facts, viewed in light of the officer’s training and experience in the South Texas
Specialized Crimes and Narcotics Task Force, gave rise to enough suspicion to justify a
detention. See id. Appellants have failed to demonstrate how obtaining rulings on the
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pretrial motion to suppress would have changed the outcome in the case. Therefore,
counsel was not ineffective for failing to obtain a ruling on the pretrial motion to suppress.
See Jackson, 973 S.W.2d at 957. 1
2. Collateral Forfeiture Evidence
Next, appellants argue that trial counsel was ineffective at trial by “opening the
door to otherwise inadmissible evidence” when cross-examining the arresting officer
about the collateral forfeiture case brought by the State. The State appears to concede
that trial counsel erred by asking questions related to the forfeiture case but contends that
such error was inconsequential given the “overwhelming evidence” against appellants.
A sound trial strategy may be imperfectly executed, and the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel. See
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “It is not sufficient that
the appellant show, with the benefit of hindsight, that his counsel’s actions or omissions
during trial were merely of questionable competence.” Mata v. State, 226 S.W.3d 425,
430 (Tex. Crim. App. 2007). Rather, to establish that the attorney’s acts or omissions
were outside the range of professionally competent assistance, appellant must show that
counsel’s errors were so serious that he was not functioning as counsel. See Patrick v.
State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
Appellants argue that counsel’s cross-examination regarding the forfeiture case
allowed the State to then use documents from that case against appellants in their
criminal trial. Without said documents, appellants contend that the “State had no direct
1 We note that appellants also argue that Manuel’s consent to the search of the vehicle was
involuntary “as it was tainted by the unlawful, prolonged detention.” Having determined that the detention
was not unlawful, we need not address appellants’ voluntariness-of-the-consent argument.
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evidence that the seized money was, in fact, derived from criminal activity, and its
circumstantial case as to [appellants’] specific knowledge was weak.” The forfeiture
documents, however, were just part of the evidence put forth by the State. As this Court
stated in the direct appeal in this case:
At trial, Special Agent Edward Cruz testified that $48,950 in cash was found
hidden in the engine compartment of Mr. Cantu’s car. Mrs. Cantu was a
passenger in the car. A videotape was admitted into evidence containing
conversations between appellants while sitting in the back seat of the patrol
car. The statements made by appellants on the videotape show that they
both had knowledge that something was hidden in the engine compartment.
Additionally, the comments made by appellants indicate they knew their
actions were illegal. A handwritten note found in possession of appellants
evidenced their knowledge that they were transporting money.
Cantu, 2005 WL 1706507, at *1. Our analysis in the direct appeal explained that the
evidence was legally and factually sufficient to support the conviction with no mention of
the forfeiture documents. Id. at *2. Accordingly, appellants have not met their burden
under Strickland to establish that but for their counsel’s errors related to the forfeiture
testimony, the result of the proceeding would have been different. See Strickland, 466
U.S. at 695.
3. Manuel’s Criminal History and Severance
Appellants next argument is two-fold: first, trial counsel was ineffective for eliciting
testimony regarding Manuel’s prior criminal history, and second, trial counsel for Aracely
should have sought a severance because there was a previous admissible conviction
against Manuel. We address each argument in turn.
a. Criminal History
According to appellants, trial counsel erroneously chose to cross-examine the
arresting officer regarding Manuel’s prior criminal history. During this exchange, trial
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counsel asked the arresting officer about Manuel’s prior arrest record, and the arresting
officer testified that a background check on Manuel revealed a history of prior offenses,
though he did not specify whether Manuel had been convicted of these offenses. Trial
counsel noted that he was under the impression that there were no previous arrests, but
suggested they revisit the topic once it could be confirmed. Trial counsel did not revisit
the topic. Appellants argue that counsel should have performed a better investigation to
know his client’s criminal history, and they further argue that the testimony was damaging
to Manuel’s credibility as the jury was able to “consider this evidence in any manner that
it chose.”
However, during the traffic stop, the arresting officer determined from Manuel
himself that he had previously been arrested. In that exchange, there was also no mention
of whether a conviction arose from the offense. As previously discussed, the right to
effective assistance of counsel does not entitle a defendant to errorless or perfect
counsel. See Robertson, 187 S.W.3d at 483. Even assuming we agree that it may have
been error for trial counsel to elicit this testimony where the State would not have been
able to, we must look at whether this error is such that there is a reasonable probability
that, but for this error, the result of the trial would have been different. See Strickland, 466
U.S. at 695. Again, given the evidence properly before the jury, as well as trial counsel’s
conduct during the remainder of trial, we cannot conclude there is a reasonable probability
that counsel’s deficiency as set out above was such as to allow us to find a reasonable
probability that without the deficiency, the result would have been different. Id.; see also
Wilson v. State, No. 06-00-00008-CR, 2002 WL 992108, at *5 (Tex. App.—Texarkana
May 16, 2002, no pet.) (mem. op., not designated for publication) (concluding there was
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no reversible error where trial counsel committed an error by introducing evidence of
appellant’s prior convictions but conducted the remainder of the trial appropriately and
there was proper evidence of appellant’s guilt presented to the jury).
b. Severance
Aracely contends that once trial counsel elicited testimony regarding Manuel’s
criminal history, her trial counsel should have requested a severance of her case. See
Robinson v. State, 449 S.W.2d 239, 240–41 (Tex. Crim. App. 1969) (providing that
severance is mandatory where “one defendant has no prior criminal record or at least no
prior admissible convictions and the co-defendant has a prior conviction or convictions
which are admissible”). In their own argument, however, appellants concede that Manuel
“had no admissible arrests or convictions at the guilt-innocence phase,” but contend that
the jury merely hearing testimony regarding potential criminal history was enough to move
to sever. We disagree. As no admissible prior conviction was established in this case,
severance was not necessary, and trial counsel did not err in failing to move to sever.
See id.
4. Drug Testing Evidence
Appellants also argue counsel was ineffective for failing to exclude testimony
relating to the drug testing of the wrappers around the cash bundles located in the vehicle.
Here, the trial court found no error because the drug testing was not dispositive and was
more helpful to the defense than to the State. Whether or not the evidence is dispositive,
appellants argue that it was harmful testimony that should have been excluded.
However, “[t]he mere failure to file appropriate pretrial motions may not be
categorically deemed ineffective assistance of counsel.” Miranda v. State, 993 S.W.2d
10323, 327 (Tex. App.—Austin 1999, no pet.) (citing Ryan v. State, 937 S.W.2d 93, 104
(Tex. App.—Beaumont 1996, writ ref’d); Hills v. State, 867 S.W.2d 852, 857 (Tex. App.—
Houston [14th Dist.] 1993, writ ref’d)). In fact, “counsel may decide not to file pre-trial
motions as part of his trial strategy.” Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—
San Antonio 2001, pet. ref’d).
Here, the record does not contain any evidence of trial counsel’s strategy on this
point. Accordingly, we are constrained to presume that trial counsel’s performance was
effective. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Thompson,
9 S.W.3d at 813; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005) (holding that in cases where the record is silent as to the trial counsel’s reasoning,
the appellate court should find ineffective assistance only if the challenged conduct is so
outrageous that no competent attorney would have engaged in it). The testimony was
that the drug testing performed was likely done incorrectly. The State’s own expert
testified that it was inconclusive and could have been user error that resulted in the
inability to conclusively establish whether drugs were present. Trial counsel could have
strategically determined it was best for the jury to hear evidence of the State’s inability to
adequately perform the drug testing and to call into question the abilities of the arresting
officer who performed the testing. While another trial counsel may have chosen a different
strategy in attempting to keep out the evidence of drug testing, we conclude appellants
have failed to overcome the recognized presumption in favor of a viable trial strategy. See
Hernandez v. State, 84 S.W.3d 26, 36 (Tex. App.—Texarkana 2002, pet. ref’d).
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5. Overwhelming Evidence
Finally, appellants argue that the evidence against them was not so overwhelming
as to negate trial counsel’s ineffective assistance in failing to exclude the drug testing.
We disagree. Having previously determined the evidence against appellants was factually
and legally sufficient to support their convictions, we do not disturb that decision. See
Cantu, 2005 WL 1706507, at *2. Even if there were no evidence of drug testing, there
was ample testimony relating to the method by which the money was wrapped being
consistent with drug trafficking and illegal smuggling, as well as the testimony by officers
that given their experience, the way in which the money found in the car was bundled,
rubber-banded, and vacuum-sealed in wrappers is a common method used by drug
traffickers for transporting money. See id.
6. Summary
We hold that appellants have failed to meet their burden to show that trial counsel’s
performance fell below a reasonable standard of conduct or that but for trial counsel’s
alleged errors, the result of the proceeding would have been different. See Strickland,
466 U.S. at 695. We overrule appellants’ first issue.
III. EVIDENTIARY HEARING
Appellants requested an evidentiary hearing before the trial court “to develop the
record.” Upon receiving a habeas corpus application, the trial court may dispose of it in
one of two ways. “If the court determines from the face of an application or documents
attached to the application that the applicant is manifestly entitled to no relief, the court
shall enter a written order denying the application as frivolous.” TEX. CODE CRIM. PRO.
ANN. art. 11.072, § 7(a). “In all other cases, a second procedure applies, and the trial
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court cannot rule on the application without entering findings of fact and conclusions of
law.” Ex parte Baldez, 510 S.W.3d 492, 495 (Tex. App.—San Antonio 2014, no pet.). In
this case, the trial court entered findings of fact and conclusions of law, meaning that the
court did not find the application frivolous on its face. We review a trial court’s decision to
hold an evidentiary hearing to evaluate a non-frivolous habeas petition for abuse of
discretion. Ex Parte Salazar, 510 S.W.3d 619, 626–27 (Tex. App.—El Paso 2016, pet.
ref’d).
“Article 11.072 does not require a hearing when the issues can be resolved without
one.” Ex parte Arjona, 402 S.W.3d 312, 319 (Tex. App.—Beaumont 2013, no pet.); see
also Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). The
courts of appeals generally agree that no evidentiary hearing is per se required when an
applicant brings an Article 11.072 claim for ineffective assistance of counsel. See Ex parte
Salazar, 510 S.W.3d at 627; see also Ex parte Crook, No. 08-08-00313-CR, 2010 WL
2961580, at *4 (Tex. App.—El Paso July 28, 2010, pet. ref’d) (mem. op., not designated
for publication) (noting in ineffective assistance of counsel case that “[f]rom the plain
language of the statute it is clear that the decision whether to hold a hearing is within the
discretion of the trial court”). The trial court may consider affidavits attached to an
application as evidence without a hearing. See Ex parte Cummins, 169 S.W.3d at 757.
On this record, which included the entirety of appellants’ clerk’s records and reporter’s
records in the underlying matters, as well as declarations of both appellants, we agree
that the pleaded ineffective assistance issues could be decided without resorting to in-
court testimony. See Ex parte Franklin, 310 S.W.3d 918, 922–23 (Tex. App.—Beaumont
2010, no pet.) (holding that trial court is not required to hold oral hearing when determining
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whether to deny habeas application alleging ineffective assistance of counsel); see also
Ex Parte Vallejo, No. 13-10-00577-CR, 2012 WL 114134, at *4 (Tex. App.—Corpus
Christi–Edinburg Jan. 12, 2012, no pet.) (mem. op., not designated for publication).
Appellants’ second issue is overruled. 2
IV. CONCLUSION
The judgment of the trial court is affirmed. 3
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
28th day of October, 2021.
2As part of the relief requested in their second issue, appellants sought to have this cause abated
and remanded to the trial court for an evidentiary hearing. Construing this request as a motion to abate the
appeal, we deny the motion as moot as a result of our resolution of appellants’ second issue.
3 In its appellate brief, the State argued that appellants’ requested relief was barred by the doctrine
of laches. Because we have affirmed the trial court’s judgment and overruled appellants’ issues on appeal,
we need not address this argument. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a
written opinion that is as brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”).
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