NUMBER 13-06-461-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RANDY RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee. On appeal from the 377th District Court of Victoria County, Texas MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez
This is an appeal from a conviction for aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006). Appellant, Randy Rodriguez, pleaded guilty to one count of aggravated sexual assault of a child and was sentenced, pursuant to a plea agreement, to 15 years in the Institutional Division of the Texas Department of Criminal Justice and fined $1,000. By two issues, appellant contends that he was denied effective assistance of counsel and that his plea was not freely and voluntarily given. We affirm. I. Background On the advice of retained counsel, appellant entered into a plea bargain with the State, under which the State would only pursue one count of aggravated sexual assault and recommend fifteen years' incarceration and a $1,000 fine. As part of the plea bargain, appellant waived his right to a jury trial and his right against self-incrimination and entered a plea of guilty. After questioning appellant, the trial court convicted him of one count of aggravated sexual assault of a child under fourteen years of age and imposed sentence pursuant to the plea bargain agreement. Appellant filed a motion for new trial which was denied. The trial court granted appellant permission to appeal. II. Ineffective Assistance of Counsel Appellant contends, in his second issue, that his retained trial counsel fell below the standard of effective representation and, therefore, denied him his right to effective assistance of counsel. We disagree. A. Standard of Review and Relevant Law We review a claim of ineffective assistance by conducting an inquiry as set out by the Supreme Court in Strickland. Appellant must show that counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Mallet v. State, 65 S.W.3d. 59, 62-63 (Tex. Crim. App. 2001). Judicial scrutiny of counsel's performance must be highly deferential, making every effort to eliminate the distorting effects of hindsight, and indulging a strong presumption that counsel's conduct falls within the wide range of professional assistance. Strickland, 466 U.S. at 695. In order to defeat this strong presumption of reasonable assistance, any allegations of ineffectiveness must be firmly founded in the record. Mallet, 65 S.W.3d. at 63. Furthermore, appellant must affirmatively prove that counsel's unprofessional actions or omissions prejudiced the defense and that there is a reasonable probability that, without these errors, a different outcome would have resulted. Strickland, 466 U.S. at 693-94; Mallet, 65 S.W.3d. at 62-63. B. Analysis Appellant contends that his trial counsel was ineffective because he failed to prepare for trial or provide the most basic defenses for appellant. Specifically, appellant asserts that his counsel was ineffective because he: (1) failed to file motions for discovery, (2) failed to meet with potential witnesses or issue subpoenas, (3) failed to timely object to the State's notice of intent to use a videotape of testimony of the victim, (4) failed to view the video testimony in advance of the trial date, (5) failed to complete items (1) through (4) before announcing ready for trial, (6) told appellant that the State was offering five years' deferred adjudication, (7) told appellant he could not view the videotape, (8) told appellant he could not talk to his family before entering a plea, and (9) told appellant that he was going to jail before trial because either the district attorney was raising the bond and/or counsel would surrender the bond. 1. Failure to Conduct Discovery Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overruled on other grounds, 983 S.W.2d 249, 264 n.18 (Tex. Crim. App. 1998) (citing Strickland, 466 U.S. at 691). Appellant argues that the lack of any discovery motions is evidence that counsel provided ineffective assistance. Although counsel testified that he filed no motions in the case, he noted that discovery motions were unnecessary, since the State had an "open-file" policy. Furthermore, appellant points to no evidence which his trial counsel should have discovered through these efforts and which would have otherwise aided his defense. See Passmore v. State, 617 S.W.2d 682, 685 (Tex. Crim. App. 1981), overruled on other grounds, Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988) (noting that there was no support in the record of the evidence that defendant claimed should have been discovered by the motion, and no showing of what type of informal discovery occurred). 2. Failure to Meet or Subpoena Witnesses In order to have a firm command of the facts of his client's case, counsel has a responsibility to seek out and interview potential witnesses. See Ex parte Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App. 1990) (en banc). Counsel's failure to seek out and interview potential witnesses, where the consequence is that the only defense available to the defendant is neglected, constitutes ineffective assistance of counsel. Henson v. State, 915 S.W.2d 186, 196 (Tex. App.-Corpus Christi 1996, no pet.). However, an attorney's failure to present witnesses will not support an ineffective assistance claim if the defendant fails to show that the witnesses were available and their testimony would have benefitted the defendant. Ex parte McFarland, 163 S.W.3d 743, 748 n.48 (Tex. Crim. App. 2005). Appellant contends that his trial counsel failed to subpoena or meet with any potential witnesses and thus provided ineffective assistance. Appellant argues that counsel should have subpoenaed Jason and Esther Sandoval who would purportedly have testified as to similar, unfounded threats that the outcry witness's mother made against Jason Sandoval in the past. Appellant also argues that counsel should have subpoenaed the CPS workers who investigated the child-neglect reports he made against the outcry witness shortly before these charges of sexual assault were brought against him. Although trial counsel testified at the hearing on the motion for new trial that he did not subpoena any witnesses, he explained that appellant had provided names of only character witnesses, not witnesses who could testify as to the actual incident. Appellant also failed to identify the potential CPS workers and failed to present evidence that any of the witnesses were available to testify or that their testimony might have aided his defense. Id. In order to rebut the strong presumption that counsel provided reasonable professional assistance, appellant is required to prove any such failure by a preponderance of the evidence. Castellano v. State, 49 S.W.3d 566, 573 (Tex. App.-Corpus Christi 2001, pet. ref'd). Appellant's uncorroborated testimony fails to satisfy this standard. See Rangel v. State, 972 S.W.2d 827, 838 (Tex. App.-Corpus Christi 1998, pet. ref'd) (noting that the record failed to establish the availability of beneficial witnesses without supporting affidavits, which were excluded because not timely filed). 3. Failure to Suppress Videotaped Testimony Appellant argues that trial counsel's failure to object to the untimely notice of intent to use the videotaped testimony of the victim also demonstrated ineffective assistance of counsel. However, appellant fails to show that counsel's failure to suppress the videotaped testimony was deficient and prejudicial performance on his part. See Strickland, 466 U.S. at 693-94; Mallet, 65 S.W.3d. at 62-63. When the record is silent on trial counsel's motives, an appellant cannot ordinarily overcome the strong presumption that counsel's conduct was reasonable. Mallet, 65 S.W.3d. at 63. It is entirely possible that the lack of any motion to suppress the videotaped testimony reflected sound trial strategy to avoid compelling personal testimony of the child victim that might have been given at trial. See id. at 68 (noting that each alleged deficiency of counsel could have been an exercise of reasonable professional judgment.) 4. Failure to View Video Testimony Appellant also argues that his trial counsel provided ineffective assistance by failing to view the videotaped testimony well in advance of the trial date. This contention is in conflict with counsel's testimony that he did view the videotape. However, even if appellant were to establish that counsel did not view the videotape before trial, appellant still failed to show how this alleged error in his counsel's performance would have prejudiced the outcome of the case. See Strickland, 466 U.S. at 693-94; Mallet, 65 S.W.3d. at 62-63. Appellant concedes that counsel viewed the video testimony before the pretrial hearing. Therefore, his trial counsel was fully informed of its content and persuasive value when he advised his client to accept the plea. Furthermore, counsel would have been aware of its content and probative value should appellant have chosen to go to trial. Because appellant fails to establish the prejudice element of the Strickland test, we need not address the deficient assistance element. See Strickland, 466 U.S. at 697. 5. Announcing Ready for Trial without being Prepared Appellant argues that his counsel's announcement of "ready" for trial at two previous hearings represents evidence of ineffective assistance. Again, however, this allegation is contradicted by counsel's testimony that he was ready to go forward with the trial in both instances. Absent some evidence of unpreparedness firmly founded in the record, which we are unable to find, appellant has not carried his burden of proof on this allegation. See Mallet, 65 S.W.3d. at 63; Castellano, 49 S.W.3d at 573. 6. Plea Offer Appellant further asserts that his trial counsel provided ineffective assistance by holding out a plea bargain offer of five years' deferred adjudication only to tell appellant, directly before the pre-trial hearing, that the State had withdrawn this offer and was now offering fifteen years' incarceration. Appellant claims that counsel told him that he must accept this offer immediately or, as appellant relates: "you're going to get two counts, five to 99, you'll never be able to get out." Appellant's mother and sister both testified at the hearing that counsel had told them about the State's alleged five-year offer of probation. Trial counsel disputed this allegation denying that he told appellant that the State was offering five years' deferred adjudication. Even assuming that counsel had previously told appellant the State was offering a plea bargain of five years' deferred adjudication and that he should now accept the current offer of fifteen years or he would face a much longer sentence, appellant fails to show how this prejudiced the outcome of the case. See Strickland, 466 U.S. at 693-94. In order to succeed on a claim of ineffective assistance, appellant must prove that, without his counsel's error, there is a reasonable probability that a different outcome would have resulted. See id. at 694. Appellant's own testimony states that he rejected the alleged offer of five years' probation before counsel could even ask him about it. Furthermore, the record reflects that appellant entered the plea fully aware of the terms of the actual plea bargain. Appellant testified that counsel coerced him to entering a plea by "scaring" him with the possibility that, if he did not accept the plea bargain, he would face life in prison. There is no evidence that such advice constituted ineffective assistance of counsel. The risks which counsel relayed were real, since the statute clearly provided five to 99 years or life in prison for each count alleged. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006); cf. Ex parte Battle, 817 S.W.2d 81, 84 (Tex. Crim. App. 1991) (en banc) (finding counsel provided ineffective assistance where he failed to advise his client that he was ineligible for probation). The record also reflects appellant's testimony before the court that he was voluntarily pleading guilty because he was, in fact, guilty and that he was satisfied with the services of his counsel. We find nothing in the record to contradict these sworn statements. 7. Refusing Access to the Video Testimony Appellant claims that he asked to see the video testimony of the victim before he entered his plea and counsel refused because it was "too graphic." However, trial counsel's testimony contradicts this allegation. Counsel testified that he never refused to show the video testimony to appellant and that he had previously asked appellant if he wished to see the video and appellant had declined. Appellant argues that counsel's refusal to permit him to view the video testimony of the victim constitutes ineffective assistance of counsel. However, appellant points to nothing in the record, besides his own testimony, which supports his allegation. Therefore, appellant fails to satisfy his burden of proof on the defective assistance element of the Strickland test. See Mallet, 65 S.W.3d. at 63; Castellano, 49 S.W.3d at 573. 8. Refusing Access to Appellant's Family In addition, appellant contends that counsel provided ineffective assistance when he refused to allow appellant to talk with his family before entering his guilty plea. Appellant's own testimony contradicts this allegation. Appellant testified that he was not able to call his mother before entering his plea, but counsel let appellant borrow his phone for that purpose. Appellant clearly fails to satisfy his burden of proof on the defective assistance element of the Strickland test in this allegation as well, see Mallet, 65 S.W.3d. at 63; Castellano, 49 S.W.3d at 573, since appellant points to no further evidence of this in the record and even his own testimony appears to contradict his claim. 9. Conflict of Interest as Appellant's Bondsman Finally, appellant argues that counsel represented conflicting interests as appellant's bondsman and attorney. Appellant claims the conflict adversely affected counsel's performance as appellant's attorney when he chose to protect his interest as surety on appellant's bond at the expense of appellant's freedom. Appellant contends that, since counsel was unprepared for trial, it was crucial that appellant be able to help prepare his defense. Therefore, counsel's threat to surrender his bond if he did not plead guilty injured appellant's right to a fair trial. We review a claim that counsel rendered ineffective assistance due to a conflict of interests by determining whether counsel "actually represented conflicting interests" and "an actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692 (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980)); Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). In such an instance, prejudice is presumed. Id. Acting as surety on appellant's bond does not create a conflict of interest per se, so we must look to the record to determine if such a conflict exists. See Akridge v. State, 13 S.W.3d 808, 810 (Tex. App.-Beaumont 2000, no pet.); see also Tex. Occ. Code Ann. § 1704.163 (Vernon Supp. 2006) (providing that an attorney is exempt from the bail bond license requirements if he executes the bond in the course of representing the principal). Appellant testified that counsel told him "If you don't sign today you're going to jail, no matter what." Counsel testified that he told appellant that he was prepared to go to trial, but if appellant wished to go to trial "he may well have to await trial in custody so that I would assure that he would be at the trial." Even if counsel stated he would surrender appellant's bond if he did not plea, thus, arguably establishing that counsel actually represented conflicting interests, appellant did not establish that the alleged conflict of interest adversely affected counsel's performance. See Strickland, 466 U.S. at 692. Appellant has not proven that counsel was unprepared for trial, as he now contends. Therefore, appellant has not established that counsel rendered ineffective assistance due to a conflict of interests. Accordingly, appellant has failed to show, in any of his ineffective-assistance allegations, that counsel's performance was deficient and that this deficient performance, if any, prejudiced his defense. See id. at 687; Mallet, 65 S.W.3d. at 62-63. We, therefore, overrule appellant's second issue. III. Involuntary Plea In his first issue, appellant argues that his plea was invalid since it was not freely and voluntarily given. We disagree. A. Standard of Review and Relevant Law We review the claim that a plea was involuntary by weighing the totality of the circumstances in light of the entire record. Ramirez v. State, 89 S.W.3d 222, 229 (Tex. App.-Corpus Christi 2002, no pet.). Proper admonishment by the trial court creates a prima facie showing that a guilty plea was made knowingly and voluntarily. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.-San Antonio 1997, no pet.). Furthermore, if the record shows that a defendant demonstrated at the plea hearing an understanding of the consequences of the plea, a heavy burden is placed on the defendant to later show a lack of voluntariness. Ramirez, 89 S.W.3d at 229 (citing Solomon v. State, 39 S.W.3d 704, 707 (Tex. App.-Corpus Christi 2001, no pet.)). B. Analysis Appellant contends that his plea was made involuntarily, arguing that his counsel used his role as appellee's bondsman to coerce him into accepting a plea. This claim actually raises the ineffective assistance of counsel claim, which we have addressed. Moreover, as set out above, §the record reflects that appellant testified before the court that he was voluntarily pleading guilty because he was, in fact, guilty and that he was satisfied with the services of his counsel. There is nothing in the record to contradict these sworn statements. Weighing the totality of the circumstances, in light of the entire record, we cannot conclude appellant's plea was made involuntarily. Ramirez, 89 S.W.3d at 229; Crawford, 890 S.W.2d at 944. We overrule appellant's first issue. IV. Conclusion Accordingly, we affirm the judgment of the trial court. NELDA V. RODRIGUEZ Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this 26th day of July, 2007. | 
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