Rafael Rojas v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed June 29, 2023
In The
Fourteenth Court of Appeals
NO. 14-21-00436-CR
RAFAEL ROJAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1619638
MEMORANDUM OPINION
Appellant Rafael Rojas entered a guilty plea without an agreed
recommendation of punishment from the prosecutor and elected that the trial court
assess his punishment for the offense of aggravated assault with a deadly weapon.
After the presentence investigation hearing, the trial court sentenced him to five
years’ imprisonment in the Texas Department of Criminal Justice. In a single issue,
appellant alleges that his trial counsel failed to render effective assistance of counsel
during the punishment phase of trial. We affirm.
Background
The facts of this case are not in dispute. On December 5, 2018, appellant
arrived at Sabrina Bolado’s 1 residence in the early morning and asked if he could
0F
use the restroom. Bolado allowed appellant into the residence. After using the
restroom, appellant checked on his children in their bedrooms. Appellant also peered
into his old bedroom where he discovered Paul Flores asleep in Bolado’s bed.
Appellant immediately went downstairs to his vehicle and came back with an object
resembling a tire iron. Appellant returned to the room where Flores was asleep and
began to strike him repeatedly with the object. Flores struggled to protect himself
and locate his prescription glasses and cellphone. Flores managed to escape the
apartment, and his injuries were treated at a nearby hospital. It was later discovered
that Flores sustained a hairline fracture in his skull.
Appellant was charged by indictment for the offense of aggravated assault
with a deadly weapon. On September 2, 2020, appellant entered a guilty plea without
an agreed recommendation of punishment from the prosecutor to the offense charged
in the indictment. Appellant also agreed with the affirmative finding that he used or
exhibited a deadly weapon. Appellant elected that the trial court assess punishment
following a presentence investigation report and hearing. After the presentence
investigation hearing, the trial court sentenced appellant to five years’
imprisonment. 2 Appellant filed this appeal, contending that his trial counsel
1F
rendered ineffective assistance of counsel at the punishment phase of trial.
1
Appellant and Bolado were in a relationship for several years and had five children
together. Both agreed they were “separated” from each other at the time of the incident forming
the basis of the charged offense.
2
At the presentence investigation hearing, appellant’s trial counsel argued that appellant
should be placed on deferred adjudication while the State argued that appellant should be sentenced
to six years’ imprisonment.
2
Discussion
In appellant’s sole issue on appeal, he asserts that his trial counsel failed to
render effective assistance at the punishment phase of trial, alleging that trial counsel
“gave bad advice and executed a strategy at punishment phase . . . based on a
misunderstanding of law.” We disagree.
The Sixth Amendment to the United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.
amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Claims of
ineffective assistance of counsel are evaluated under the two-pronged Strickland test
that requires a showing that counsel’s performance was deficient and the defendant
suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 689 (1984);
see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Essentially,
appellant must show his counsel’s representation fell below an objective standard of
reasonableness based on prevailing professional norms and 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 693; Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011).
Any allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9S.W.3d at 813. In most cases, the record on direct appeal is simply undeveloped and
cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998). Judicial scrutiny of counsel’s performance
must be highly deferential, and we are to indulge a strong presumption that counsel
was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We
presume counsel’s actions and decisions were reasonably professional and that they
were motivated by sound trial strategy. Id. Moreover, it is appellant’s burden to rebut
3
this presumption by a preponderance of the evidence, through evidence illustrating
why trial counsel did what he did. Id.A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect
representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). It
is not sufficient for the appellant to 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.” Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App.
1995). We may not assume a lack of sound trial strategy on the part of trial counsel
merely because we are unable to discern any particular strategic or tactical purpose
in counsel’s trial presentation. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.
App. 2002). If appellant proves his counsel’s representation fell below an objective
standard of reasonableness, he still must affirmatively prove prejudice as a result of
those acts or omissions. Strickland, 466 U.S. at 693. If appellant fails to make the
required showing of either deficient performance or prejudice, his claim fails.
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
In this case, presuming without deciding that counsel’s performance was
deficient, satisfying the first prong of Strickland, appellant’s ineffective assistance
claim still fails because the second Strickland prong is not satisfied. Appellant has
not shown a reasonable probability that, but for counsel’s presumptively deficient
performance, the result of the trial would have been different. See Strickland, 466
U.S. at 694; Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
4
While the notion that an attorney would advise his client that he was eligible
for probation when a statute unequivocally disallows it is presumptively deficient
performance, appellant was eligible for a different category of community
supervision—deferred adjudication. See Tex. Code Crim. Proc. art. 42A.054(b)
(providing that judge-ordered community supervision “does not apply to a defendant
when it shown that a deadly weapon . . . was used or exhibited.”); see also id. art.
42A.053(a) (“[T]he judge may . . . defer further proceedings without entering an
adjudication of guilt and place the defendant on deferred adjudication community
supervision.”). The record reflects that counsel unequivocally requested that the trial
court sentence appellant to deferred adjudication. Additionally, appellant’s
punishment was well within the statutory range. See Tex. Penal Code § 12.33 (“An
individual adjudged guilty of a felony of the second degree shall be punished by
imprisonment in the Texas Department of Criminal Justice for any term of not more
than 20 years or less than 2 years.”). Given appellant’s history of multiple arrests
and convictions for violent acts against separate family members, the trial court
could have considered these aggravating factors in imposing appellant’s sentence of
five years’ imprisonment. Thus, we are not persuaded that the outcome of the trial
would have been different.
Accordingly, we find that appellant’s sole issue on appeal is without merit and
conclude that he failed to establish the “prejudice” part of the Strickland test. See,
e.g., Ramirez v. State, 422 S.W.3d 898, 903–04 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d); see also Strickland, 466 U.S. at 696.
Conclusion
Because appellant has not met his burden to show ineffective assistance, we
overrule appellant’s only issue on appeal and affirm the trial court’s judgment.
5
/s/ Frances Bourliot
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).
6