
NO. 07-99-0162-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 28, 2001

______________________________


RICKY DON MINDIETA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 106TH DISTRICT COURT OF GARZA COUNTY;

NO. 98-1980; HONORABLE GENE DULANEY, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
	Appellant Ricky Don Mindieta appeals from his conviction and sentence of 15 years
incarceration for assaulting a deputy sheriff of Garza County who was discharging an
official duty.  Appellant asserts that he received ineffective assistance of counsel at the
guilt-innocence stage of trial.  We affirm.  

 Background
 The events which resulted in appellant's conviction began outside George's restaurant
in Post, Texas, at approximately 10:30 p.m. on November 13, 1998.  The State presented
four witnesses to prove what happened.  Appellant, who had a long history of involvement
with law enforcement authorities, testified and contradicted the State's witnesses. 
	Trecia Heying, was the first witness for the State.  She was an off-duty employee of
the restaurant who had returned to pick up some food. According to Heying, appellant
approached her in the parking lot of the restaurant.   She testified that appellant  asked her
to go inside the restaurant and request particular customers of the restaurant to come outside
and meet him.  Both patrons refused the request.  According to Heying, appellant then asked
her to purchase "some more" beer for him.  Appellant appeared to Heying to be intoxicated. 
The second time Heying went into the restaurant at appellant's request, she had  spoken to
Sandra Mary Landa, an on-duty restaurant waitress, about the disturbance appellant was
causing.  Landa called the police.  Jerrod Bell, a Garza County deputy sheriff, and Kyle
Edwards, a Department of Public Safety officer, responded.  Each officer was in the uniform
of his respective law enforcement agency, and driving a vehicle marked with law enforcement
insignia.  
	The State's second witness was Landa, who was a cousin of appellant.  Landa
observed appellant in the parking lot.  He was being "loud" and appeared to be drunk.  She
later saw Deputy Bell and Trooper Edwards trying to handcuff appellant and get him into
Bell's patrol car.  She recalled another Garza County deputy, Cliff Laws, appearing on the
scene briefly.  It appeared to Landa that appellant was cussing, yelling, not cooperating, and
was trying to hit and kick the officers.  She was familiar with epileptic seizures from
experience with her mother's epilepsy.  Although she had not seen appellant have a seizure
before, it did not appear to her as though he was having a seizure that night.  It appeared to
her as though the officers were trying to calm appellant down.  She did not believe that any
of the officers used excessive force on appellant.  Landa was in the parking lot while much
of the interaction between appellant and the officers was taking place, because she stayed
there with Heying for a while.  Heying's husband, Randy Baker, appeared at the parking lot,
took Heying home, then returned to confront appellant.  Baker had been drinking when he
returned, but was not arrested by the officers.             
	Both Deputy Bell and Trooper Edwards testified for the State.  Bell recalled being
dispatched to George's at about 11:00 p.m. because of the reported disturbance.  Because
of his prior experiences with appellant, he called for Edwards to back him up.  Edwards was
also familiar with appellant from prior encounters.  Bell arrived at the restaurant shortly before
Edwards.   
	After they arrived and investigated the situation, the two officers concluded that
appellant was intoxicated.  Bell arrested appellant for public intoxication.  Appellant made it
clear by actions and words that he did not want to be arrested or taken to jail.  He resisted
the officers' attempts to handcuff him and place him in Bell's vehicle.  A struggle ensued.  At
some point Deputy Laws also arrived and assisted.  Appellant was eventually handcuffed. 
During the process of appellant's handcuffing, appellant kicked Bell in the leg and injured Bell. 
According to Edwards, appellant had previously used the same tactic of kicking the person
behind him.  Edwards saw appellant kick Bell and believed that the kick was completely
intentional on appellant's part. 
	Appellant lost his balance and fell.  The struggle continued.  Appellant could not be
persuaded to get up and walk to the patrol car, so Bell had to bring his vehicle to appellant,
and the officers had to lift appellant into the vehicle.  As they placed him into the back seat,
he continued to try to kick them.  
	Appellant was transported to the sheriff's office in the back seat of Bell's vehicle. 
When they arrived at the county jail, appellant had to be carried from the car because he
refused to walk.  The officers took appellant directly to the "drunk tank" cell because of his
intoxication and his agitated condition.  At the jail Bell and Edwards were joined again by
Deputy Laws.  Once appellant was in the drunk tank cell, the officers began removing
appellant's clothes, except for his underwear.  The officers testified that while they were
removing appellant's handcuffs, shirt and coat, appellant kicked them and intentionally struck
Edwards in the mouth with his hand.  The struggles were of such nature that even with Laws
helping them, the officers could not control appellant, and Bell eventually had to use pepper
spray to cause appellant to submit.   
	After the State rested, appellant testified.  His testimony clashed categorically with
that of the State's witnesses.  He denied drinking any alcoholic beverages on the evening
in question.  According to appellant, he had been to a friend's house and was walking
home when he came upon Heying, her pickup truck, and the large dog which she had in
her truck.  The dog began barking at him and appellant was concerned that the dog would
bite him, so he stopped walking.  He denied going on the restaurant property and denied
talking to Heying or asking her to go into the restaurant to get customers to come outside. 
He denied asking Heying to buy beer for him.  He eventually started walking slowly away,
still concerned that Heying's dog would somehow bite him.  He knew Bell, Edwards and
Laws were law enforcement officers when they arrived.  He denied cussing the law
enforcement officers or kicking Bell in George's parking lot.  He maintained that the
officers cussed him, arrested him for public intoxication, used unreasonable force during
his arrest and treated him badly.  He claimed that the abuse was because he had
previously called LULAC and State Senator Duncan to report the officers' prior similar
treatment of him.  While the officers were in the process of handcuffing his wrists behind
his back, he had an epileptic seizure.  He recalled nothing else of what occurred until he
began waking up from his seizure as he was being dragged into the drunk tank at jail by
the officers.
	Appellant testified that when he began coming out of his seizure, he asked the
officers if he could make telephone calls.  He was not allowed to do so.  He wanted to call
State Senator Duncan, the chief of the Texas Rangers and the F.B.I.  Instead of allowing
him to make any phone calls, appellant asserted that Bell, Edwards and Laws began
slamming him onto the floor of the drunk tank, jerking his arms while he still had the
handcuffs on, kneeing him in different places, and "fighting and beating on me in the drunk
tank."  Appellant maintained that he did not fight back and that he did not hit Edwards in
the face, but rather that he put his open hand on Edwards' chest and shoved Edwards
backwards during the beating.  
	Appellant claimed that he was not given his epilepsy medications while he was in
jail.  He also specifically denied assaulting any of the officers.  His testimony was
frequently rambling and nonresponsive to the questions of his attorney as well as to those
of the prosecutor.  For example, in response to his attorney's question as to whether he
kicked Deputy Bell in the parking lot at George's restaurant, appellant denied kicking Bell,
but he  volunteered that "I'll do the best to protect myself on how I've been assaulted and
almost killed by officers, I will just do it if they do major use of force on me or aggravated
assault on me."  And, in response to his attorney's question about whether he had been
convicted for the aggravated assault on a police officer which was included in the
indictment as enhancement, appellant answered "Yes," then volunteered that "I've been
convicted of more than once, yes sir."      
	The injury to Bell during the struggles in the parking lot at George's restaurant was
the basis for the charge in cause number 98-1980, out of which this appeal arises.  The
injury to Edwards during the struggles at the county jail was the basis for a separate
charge of assault on a public servant performing his duty.  The two charges were tried
together.  Appellant was convicted of both charges.  He was sentenced by the court to serve
concurrent 15 year terms of confinement.
	By his sole issue, appellant asserts that trial counsel rendered ineffective
assistance of counsel in violation of the Sixth Amendment to the United States Constitution
and article One, Section Ten of the Texas Constitution.  The issue is founded on three
bases: (1) during trial, counsel both actively elicited evidence of and opened the door to
additional evidence of extraneous crimes, wrongs, and bad acts by appellant; (2) counsel
placed appellant's character in issue; and (3) counsel failed to object to hearsay evidence
that a doctor had diagnosed appellant as not having the epilepsy which appellant claimed
to have, and which evidence undercut one of the defense's theories.  In urging the issue,
appellant notes that trial counsel's defensive strategy is "fairly apparent from the record. 
It centered around eliciting evidence in order to establish a possible self-defense claim and
to enable him to request instructions on certain lesser-included offenses in the charge." 
Appellant's brief then notes that the strategies appear facially sound, appellant's trial
counsel acted consistently with them, the self-defense claim was based on appellant's
extensive history with law enforcement and appellant's claim that he was a seizure-prone
epileptic, and that through his strategy, trial counsel was able to get most of his defensive
requests included in the jury charge.  Trial counsel is criticized, however, for his tactical
management of the defensive theories by eliciting and allowing a "landslide" of damaging
evidence, "most of which" either was not or would not have been admissible otherwise. 
The conclusion drawn by appellant on appeal, in hindsight, is that the evidence
complained of was only "loosely relevant" to the defensive theories, and taken as a whole,
was far more damaging to appellant's defense than it was beneficial.  The further
conclusions asserted by appellant are that (1) the eliciting of and allowing introduction of
the complained of evidence could not have been part of any conceivable trial strategy, and
(2) the deficiencies complained of are such that confidence in the outcome of the trial is,
to a reasonable probability, undermined.  We disagree.      


LAW
 When confronted with an ineffective assistance of counsel claim, we apply the
two-pronged analysis which was set forth by the United States Supreme Court in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for determining
ineffective assistance of counsel claims under the Sixth Amendment to the United States
Constitution: (1) did the defense attorney's representation fall below an objective standard
of reasonableness under the prevailing professional norms, and if so, (2) was there a
reasonable probability that but for counsel's unprofessional errors, the result of the
proceedings would have been different.  See Hernandez v. State, 726 S.W.2d 53, 57
(Tex.Crim.App.1986) (adopting Strickland as applicable standard under Texas
Constitution).  Judicial review of an ineffective assistance of counsel claim must be highly
deferential to the counsel and avoid using hindsight to evaluate counsel's actions.  Ingham
v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984).  There is a strong presumption that
counsel's conduct fell within the wide range of reasonable professional assistance. 
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.  Appellate courts look to the totality of the
representation and the particular circumstances of each case in evaluating the
effectiveness of counsel.  Ex Parte Felton, 815 S.W.2d 733,735 (Tex.Crim.App. 1991).
  	The burden is on appellant to prove by a preponderance of the evidence that
counsel was ineffective.  Cannon v. State, 668 S.W.2d 401,403 (Tex.Crim.App. 1984). 
The appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.  Jackson v. State, 877 S.W.2d
768, 771 (Tex.Crim.App. 1994).  The appellant asserting ineffective assistance must
present a record with evidence of the reasons that the alleged ineffective assistance
actions or omissions were not trial strategy.  If the record is silent about the reasons for
the questioned actions or omissions, then an appellate court would have to speculate as
to the reasons for the actions or alleged omissions on the part of trial counsel. A decision
based on speculation would be based on no evidence; even though the actions or
omissions complained of might be objectively unreasonable representation under the first
prong of the Strickland test.  Id. 
	If appellant demonstrates deficient assistance of counsel, it is then necessary that
appellant also affirmatively prove prejudice as a result of the deficient assistance. 
McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996).  In proving prejudice,
appellant must prove a reasonable probability that but for counsel's errors, the result of the
proceeding would have been different.  A reasonable probability is a probability sufficient
to undermine confidence in the outcome.  Hernandez, 726 S.W.2d at 55.  
ANALYSIS
	No hearing was held on appellant's motion for new trial.  Trial counsel's motives for
his actions are not the subject of proof in the record.  Appellant relies heavily on Anaya v.
State, 988 S.W.2d 823 (Tex.App.--Amarillo 1999, no pet.), to overcome the requirement
that he must offer proof of or point to record evidence of trial counsel's motives for actions
or omissions which are bases for ineffective assistance claims.  Appellant cites Anaya for
the proposition that in some instances, when the adequacy of trial counsel's assistance
is based on acts of commission, the record itself is sufficient proof of ineffective
assistance. 
	The majority opinion in Anaya made the observations cited by appellant.  Justice
Quinn, however, in his concurring opinion, opined that although the alleged ineffective
assistance was based on acts reflected by the record, it was still incumbent on appellant
to prove that counsel's actions were not motivated by sound trial strategy, and appellant
did not do so.  See Anaya, 988 S.W.2d at 827 (Quinn,J.,concurring).   Regardless of which
approach we use in the case before us, however, appellant does not overcome the
presumption that trial counsel's actions were motivated by sound trial strategy.  
	In examining the record for proof of counsel's motivation, we find none.  In
evaluating whether certain actions by trial counsel themselves, without separate proof of
motives of trial counsel in taking the actions, prove counsel ineffective, this record does
not contain such actions.  We must consider the totality of the representation and the
particular circumstances of the case in evaluating the effectiveness of counsel.  See Ex
parte Felton, 815 S.W.2d at 735.  In doing so as to appellant's trial counsel, we begin with
appellant's brief.  In the brief, appellant's able appellate counsel acknowledges (even
without separate proof of motive, see Jackson, 877 S.W.2d at 771) that trial counsel had
a facially sound trial strategy, and acted consistently with that strategy.  The allegation of
ineffectiveness is based on the conclusion, looking back on the trial, that trial counsel so
poorly executed the "facially sound" strategy as to have failed to function as effective
counsel by going too far and introducing an exhibit outlining the extraneous offenses,
crimes, wrongs and bad acts which the State had disclosed to counsel over a week before
trial, failing to object to testimony that appellant had at one time injured Landa's mother,
by calling a witness to testify that appellant acted properly around her grandchildren and
in her house, and by failing to object to one piece of hearsay evidence concerning a
doctor's diagnosis that appellant did not suffer epilepsy, as he claimed he did.     
	The record reflects that trial counsel was faced with a not untypical choice: how to
defend against several seemingly credible witnesses who testified that the defendant did
what the State charged.  In this case, the State presented testimony of Heying, who was
effectively a stranger to appellant with no apparent motive to fabricate testimony,
appellant's cousin Landa, and two law enforcement officers.  The testimony of those
witnesses was unequivocal and consistent.  The record evidences no witness to the
incidents (other than appellant) who would reasonably have contradicted the State's
witnesses.  Heying's husband Randy was a witness to some of the incident, but he was
angry at appellant for allegedly harassing Heying.  Deputy Laws did not testify, but the
record contains no inference that he would have testified adversely to Edwards and Bell. 
That left, as is so many times the situation, the defendant.  If appellant did not testify
differently from the State's witnesses, there was no need to have him testify.  If appellant
testified and contradicted the State's witnesses, as he did, he was going to be impeached
by the State with a great deal, if not all, of the evidence about which appellant makes
complaint.  Appellant's counsel introduced the impeachment evidence on direct
examination of appellant and was thus able to allow appellant to explain the extraneous
crimes and bad acts in his own way, without being under the pressure of impeachment
cross-examination by what the record shows to have been a well-prepared and able district
attorney.    
	Landa's non-responsive testimony on cross-examination by appellant's counsel, to
the effect that her mother had previously had difficulties with appellant, opened the door
through which the State was able to elicit the specifics of the problems.  Even if we assume
that admission of such testimony was due to errors by counsel, however, in light of the
evidence against appellant, such testimony, as well as the testimony that a doctor
diagnosed appellant as not having epilepsy, and the rebuttal testimony complained of as
being brought about by counsel's placing appellant's character in question, do not prove
to a reasonable probability that the result of the proceeding would have been different. 
The complained of errors, given this record, are not sufficient to undermine confidence in
the outcome.  Hernandez, 726 S.W.2d at 55.  
	We conclude that under this record, appellant has not met the burden of proving
that counsel was ineffective and that appellant was prejudiced by the matters complained
of.  See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064-66, 2068; Hernandez, 726 S.W.2d
at 55, 57. We overrule appellant's sole issue.  The judgment of the trial court is affirmed.

								Phil Johnson
								     Justice

Do not publish.

T OF TEXAS
 
                                                                  AT
AMARILLO
 
                                                                      PANEL
B
 
                                                            NOVEMBER
10, 2010
                                                ______________________________
 
 
                                                         ANTHONY
CALDERON,
 
Appellant
 
                                                                             v.
 
                                                          THE STATE OF TEXAS,
 
Appellee
                                             _________________________________
 
               FROM THE COUNTY
COURT AT LAW NO. ONE OF LUBBOCK COUNTY;
 
                 NOS. 2007-445080, 2009-456184;
HON. STUART MESSER, PRESIDING
                                               _______________________________
 
                                                           On
Motion to Dismiss
                                               _______________________________
 
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Anthony
Calderon, by and through his attorney, has filed a motion to dismiss his appeals
because he no longer desires to prosecute them. 
Without passing on the merits of the case, we grant the motions to
dismiss pursuant to Texas Rule of Appellate Procedure 42.2(a) and
dismiss the appeals.  Having dismissed
the appeals at appellant=s request, no motions for
rehearing will be entertained, and our mandates will issue forthwith.
 
Do
not publish.                                                            Per Curiam                           
