                                      NUMBER 13-06-116-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


SAMUEL ESPINOZA,                                                                               Appellant,

                                                       v.

THE STATE OF TEXAS,                                                                            Appellee.


   On appeal from the 214th District Court of Nueces County, Texas.


                                MEMORANDUM OPINION

                     Before Justices Yañez, Rodriguez, and Vela
                       Memorandum Opinion by Justice Yañez

       A jury convicted appellant, Samuel Espinoza, of solicitation to commit capital

murder1 and assessed his punishment at sixty years in prison. In three issues, appellant

contends (1) the trial court erred in failing to make findings of fact and conclusions of law

concerning the voluntariness of his confession; (2) he was denied effective assistance of


       1
           See T EX . P EN AL C OD E A N N . §§ 15.03(a), (d)(1) (Vernon 2003), 19.03(a)(3) (Vernon Supp. 2007).
counsel; and (3) the trial court erred when it conducted a hearing on his motion for new trial

without his presence. We affirm.

                                                 Background

        Because appellant does not challenge the sufficiency of the evidence supporting his

conviction, only a brief recitation of the facts is necessary.2 Arnoldo Campos, a confidential

informant, testified that he met with appellant’s girlfriend and co-defendant, Herminia

(“Alicia”) Ozuna,3 and her father, Augustine Perez, to discuss a potential drug deal.

Campos negotiated to purchase thirty kilos of cocaine from Ozuna. Ozuna arranged for

Campos to meet appellant, who had “connections,” to provide the cocaine for sale. Ozuna

and appellant were acting as “brokers” for the drug deal. Campos testified that Ozuna and

appellant’s profit from the proposed drug sale would be about $20,000 to $25,000.

        Campos testified that at a meeting with Ozuna and Perez, Ozuna told Campos that

she wanted to find someone to kill her common-law husband, Federico Hernandez.

Eventually, Campos tape-recorded one of his conversations with Ozuna, in which they

discussed the drug deal and Ozuna’s desire to have her husband killed. Campos testified

that Ozuna said that appellant knew of her plan to have her husband killed. Campos told

Ozuna it would cost about $5,000 to hire someone to kill her husband, and she agreed to

pay that amount.

        Campos met with Ozuna and appellant at a ranch to discuss the details of the drug


        2
            See T EX . R. A PP . P. 47.1.

        3
            Appellant and Ozuna were charged in the sam e indictm ent with solicitation to com m it capital m urder.
After trial began, Ozuna pleaded “guilty,” and appellant’s case was severed from Ozuna’s. Ozuna appeals
in appellate cause num ber 13-05-624-CR. Appellant pleaded “not guilty,” and his case was tried to a jury.
The record in 13-05-624-CR has been incorporated into this cause for purposes of appeal.

                                                         2
deal. Campos told Ozuna he had found a “hit man” to kill her husband. According to

Campos, appellant did not act surprised by the murder-for-hire discussion, and when

Campos asked him if he was “okay” with the plan, appellant said he was and “was just

gonna do everything possible to help [Ozuna] out.” Campos testified that Texas Ranger

Roberto Garza was advising him as to how to set up a meeting between Ozuna and an

undercover agent portraying a prospective “hit man.” Pursuant to Garza’s instructions,

Campos called Ozuna and told her to meet the “hit man” at a specific room at a motel in

Corpus Christi. Campos testified that based on his conversation with Ozuna and appellant,

appellant “knew exactly what was gonna happen” in the murder-for-hire plan.

        John Lubbock, a retired officer with the narcotics unit of the Texas Department of

Public Safety, testified that he agreed to work undercover as the “hit man” hired by Ozuna.

Lubbock met appellant and Ozuna at the Corpus Christi motel room. Garza and local law

enforcement officers had arranged to videotape the meeting in the motel room. The

videotape was shown to the jury.4 Lubbock identified appellant as the person in the

videotape with Ozuna. He testified that Ozuna gave him a picture of Hernandez (the

intended victim), a note with Hernandez’s address on it, and forty dollars as down payment

for the murder. On cross-examination, Lubbock testified that during the meeting, appellant

indicated that he wanted the victim killed with a pistol by holding his hand like a pistol and

saying, “I want it done that way.”5

        4
           The record contains a transcript of the audio portion of the videotape. However, the various
speakers are not identified. W hen the videotape was adm itted, appellant’s counsel stated that he “had a
pretrial objection regarding the search warrant, et cetera. So we renew that objection.” The trial court
overruled the objection.

        5
          The transcript reflects that som eone (apparently Lubbock) said, “You want him shot and m ake it look
like an accident. No problem .”

                                                      3
        Garza testified that he arranged to videotape the meeting and was in the adjacent

hotel room during the meeting “ready to kick the door down” “in case something went

wrong.” A day or so later, Garza obtained warrants to arrest Ozuna and appellant. Garza

read appellant his rights, witnessed his waiver of rights, and obtained appellant’s written

statement. Appellant’s written statement was admitted at trial without objection.

        The trial court conducted a pre-trial hearing to hear various motions filed by

appellant.6 After the trial court heard appellant’s arguments regarding his “motion for

hearing on competency,” “motion for discovery and inspection,” “motion for voir dire prior

to expert giving his opinion,” and “request for evidence of bad acts,” appellant’s counsel

stated, “we have an absolute right to the hearing on the voluntariness of any statement by

the Defendant.” When asked if he was “talking about a motion to suppress the statement,”

counsel responded, “Well, Your Honor, actually, I was just trying to determine whether or

not there were actually voluntary statements. I didn’t file it as a motion to suppress. I

guess we could term it that.”7 The trial court stated it would proceed on appellant’s motion

to suppress and that appellant’s counsel would be “able to question [the officer who took

appellant’s statement] on the voluntariness of the statement.”




        6
          Appellant’s counsel filed eight pre-trial m otions on the sam e day: “Request for Evidence of Bad Acts
and Request for Jury Charge,” “Defendant’s Objection to Jury Charge” (no jury had been chosen and no
charge had been filed), “Motion for Voir Dire Prior to Expert Giving His Opinion,” “Motion to Exam ine
Prosecutor’s Perem ptory Strike List,” “Motion to Suppress any Statem ent Made by the Defendant and/or for
Hearing on the Voluntariness of any Statem ent m ade by the Defendant,” “Request for Evidence of Organized
Crim inal Activity,” “Motion for Discovery and Inspection,” and “Objection to Sending Exhibits to the Jury
Room .”

        7
          Appellant’s m otion to suppress urged only that appellant “has the absolute right to a hearing on the
voluntariness of any statem ent m ade by the defendant regardless of how the [S]tate chooses to characterize
the statem ent.” The m otion did not identify any statem ent by appellant as involuntary, nor did it assert that
any statem ent was involuntary.

                                                       4
       The State began by stating it would “assume the burden” and called Garza as a

witness. Garza testified that he advised appellant of his rights and took his statement.

Garza stated that there was no indication appellant was mentally impaired and that he was

not coerced or threatened in any way. The State also presented the testimony of Edward

Gonzalez, a Department of Public Safety narcotics officer. Gonzalez testified that he

witnessed Garza’s interview of appellant. According to Gonzalez, appellant understood

English, was advised of his rights, and gave a voluntary statement. Appellant presented

no witnesses. Appellant’s counsel argued to the trial court that there was “some issue” as

to whether appellant understood what occurred, that appellant was instructed to answer

in English, and that he therefore would “ask the court to suppress this confession as being

voluntary [sic] and in conformity [sic] with all Miranda warnings.” The trial court denied

appellant’s motion to suppress.

                    Failure to file Findings of Fact and Conclusions of Law
                                        as to Voluntariness

       In his first issue, appellant contends the trial court erred in failing to file findings of

fact and conclusions of law, as required by section 6 of article 38.22 of the code of criminal

procedure,8 as to the voluntariness of his written statement. The State responds that the



       8
           See T EX . C OD E C R IM . P R O C . A N N . art. 36.22 § 6 (Vernon 2005). Section 6 provides, in pertinent part:

       In all cases where a question is raised as to the voluntariness of a statem ent of an accused,
       the court m ust m ake an independent finding in the absence of the jury as to whether the
       statem ent was m ade under voluntary conditions. If the statem ent has been found to have
       been voluntarily m ade and held adm issible as a m atter of law and fact by the court in a
       hearing in the absence of the jury, the court m ust enter an order stating its conclusion as to
       whether or not the statem ent was voluntarily m ade, along with the specific finding of facts
       upon which the conclusion was based, which order shall be filed am ong the papers of the
       cause.

Id.

                                                             5
trial court is required to file such findings “only where the appellant has raised some

underlying challenge to the voluntariness of the confession,” and that here, appellant has

not done so. We agree.

        When a question is raised as to the voluntariness of a statement of an accused, the

trial court must hold a hearing outside the presence of the jury to determine if the accused

made the statement freely and voluntarily.9 The State bears the burden of proof to show

that the statement was voluntary.10 Written findings of fact and conclusions of law are only

required when a defendant has raised the issue of the voluntariness of his statement.11

        Here, the trial court held a hearing and provided appellant an opportunity to cross-

examine the State’s witnesses and present evidence regarding the voluntariness of

appellant’s written statement.                     During the hearing, neither appellant nor the State

presented any evidence raising a fact issue on voluntariness. Appellant did not testify at

the hearing and presented no witnesses or evidence. Ranger Garza and Officer Gonzalez

testified that appellant was given Miranda12 warnings before he was interviewed, that he

waived his rights, was not given any promises, and was not coerced or threatened in any

way. Appellant cross-examined the State’s witnesses, but did not raise any question that

either contradicted the officers’ testimony or touched on the issue of voluntariness.13 We

        9
            See id.; Jackson v. Denno, 378 U.S. 368, 380 (1964).

        10
             Ashcraft v. State, 934 S.W .2d 727, 737 (Tex. App.–Corpus Christi 1996, pet. ref’d).

        11
             See T EX . C OD E C R IM . P R O C . A N N . art. 36.22 § 6 .

        12
             See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

        13
           Appellant’s counsel asked questions concerning the taking of appellant’s statem ent. At one point,
counsel asked Garza if he knew whether appellant could read. Garza stated that he had appellant read the
first page of the voluntary statem ent aloud.

                                                                  6
conclude appellant failed to present any evidence raising a fact issue as to the

voluntariness of his written statement.14 Accordingly, the trial court was not required to

make written findings of fact and conclusions of law.15

        To the extent appellant’s counsel attempted to argue that there was “some issue”

as to whether appellant understood what occurred, and whether he understood English

sufficiently, we find his argument to be without merit.16 Ranger Garza testified that he

verified appellant’s ability to read English by having him read a portion of the statement

aloud. Officer Gonzalez testified that appellant seemed to understand English and did not

appear to be under the influence of any narcotic drugs or alcohol during the interview.

        We hold the trial court did not err in failing to make findings of fact and conclusions

of law regarding the voluntariness of appellant’s written statement. We overrule appellant’s

first issue.

                                          Ineffective Assistance


        14
            In Hartfield v. State, 28 S.W .3d 69, 72 (Tex. App.–Texarkana 2000, pet. ref’d), the appellant
challenged the adm issibility of his written statem ent in which he adm itted that he strangled his wife. Id. at 71.
During trial, he obtained a hearing on his m otion to suppress the statem ent. Id. at 72. At the hearing, the only
ground he argued was that he had not had an opportunity to read his statem ent after it was prepared. Id. The
court of appeals held that his claim did “not constitute a contention of involuntariness.” The court also held
that no findings of fact were required because the appellant did not challenge the voluntariness of his
statem ent. Id.

        15
            See Lindley v. State, 635 S.W .2d 541, 544-45 (Tex. Crim . App. 1982) (holding findings of fact and
conclusions of law not required where appellant did not specifically raise issue of voluntariness of his
statem ents, did not object to adm issibility of statem ents on grounds that statem ents were involuntary, and did
not present any evidence on issue of voluntariness); Braddock v. State, 5 S.W .3d 748, 754 (Tex.
App.–Texarkana 1999, no pet.) (noting findings of fact and conclusions of law not required where appellant
failed to object to adm issibility of statem ent as involuntary and failed to present any evidence on the issue);
Mowbray v. State, 788 S.W .2d 658, 663 (Tex. App.–Corpus Christi 1990, pet. ref’d) (holding absent evidence
which raises an issue of voluntariness, no finding on voluntariness is required); Miller v. State, 666 S.W .2d
269, 273 (Tex. App.–Dallas 1984, pet. ref’d) (holding findings of fact and conclusions of law not required
where there is no evidence creating a fact issue as to the voluntariness of the appellant’s statem ents).

        16
           See Lindley, 635 S.W .2d at 545 (noting officer’s statem ent that appellant “seem ed to appear not
to be him self” was am biguous and insufficient to establish that statem ents were not voluntary).

                                                         7
        By his second issue, appellant contends he was denied effective assistance of

counsel. Appellant claims his trial counsel was ineffective at the suppression hearing by

failing to (1) have appellant testify and (2) call Raul R. Capitaine, M.D., P.A.,17 concerning

appellant’s mental ability to comprehend his legal rights. Appellant contends his counsel

was ineffective at the guilt-innocence stage of trial by failing to (1) have appellant testify on

the issues of entrapment and “aid[ing] and abetting” Ozuna; (2) call Dr. Capitaine to testify

concerning appellant’s mental condition on the issues of the entrapment defense, the “aid

and abetting” issue, and the insanity defense; (3) call any defense witnesses; and (4)

present any defense. Appellant contends his counsel was ineffective at the punishment

stage by failing to (1) have appellant testify and (2) have Dr. Capitaine testify on appellant’s

mental condition in mitigation of punishment.

        Strickland v. Washington,18 sets forth the standard of review for effectiveness of

counsel.19 Strickland requires a two-part inquiry.20 The defendant must first show that

counsel's performance was deficient, in that it fell below an objective standard of




        17
            Dr. Raul R. Capitaine, a forensic psychiatrist, was appointed by the trial court to evaluate appellant
for purposes of determ ining his com petency to stand trial and whether he was insane at the tim e of the
offense. Although Dr. Capitaine’s report was not adm itted at trial, it is included in the appellate record
pursuant to appellant’s bill of exceptions. See T EX . R. E VID . 103(a)(2). Appellant does not challenge the
exclusion of the report on appeal. Dr. Capitaine found appellant was com petent to stand trial, was not insane
at the tim e of the offense, and that although appellant’s intellectual functioning was “below average,” he was
not m entally retarded.

        18
             Strickland v. W ashington, 466 U.S. 668, 687 (1984).

        19
          See Ex parte Ellis, 233 S.W .3d 324, 339 (Tex. Crim . App. 2007); Thompson v. State, 9 S.W .3d 808,
812 (Tex. Crim . App. 1999).

        20
             Thompson, 9 S.W .3d at 812.

                                                        8
reasonableness.21 Second, the defendant must further prove there is a reasonable

probability that but for counsel's deficient performance, the result of the proceeding would

have been different.22 A reasonable probability is a probability sufficient to undermine

confidence in the outcome.23

       The determination regarding whether a defendant received effective assistance of

counsel must be made according to the facts of each case.24 An appellate court looks to

the totality of the representation and the particular circumstances of the case in evaluating

counsel's effectiveness.25

       The appellant bears the burden of proving by a preponderance of the evidence that

counsel was ineffective.26 There is a strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance.27 To defeat the presumption of

reasonable professional assistance, “any allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.”28

       Generally, the record on direct appeal will be insufficient to show that counsel’s

       21
            Id.

       22
            Id.

       23
            Id.

       24
            Id.

       25
            Id.

       26
            Id. at 813.

       27
            Id.

       28
            McFarland v. State, 928 S.W .2d 482, 500 (Tex. Crim . App. 1996).

                                                     9
representation was so deficient as to meet the first part of the Strickland standard.29 We

will not speculate to find trial counsel ineffective when the record is silent on counsel’s

reasoning or strategy.30 In rare cases, however, the record can be sufficient to prove that

counsel’s performance was deficient, despite the absence of affirmative evidence of

counsel’s reasoning or strategy.31

        Here, appellant filed a motion for new trial, but did not raise the issue of ineffective

assistance of counsel.32 At the hearing on the motion for new trial, appellant complained

that (1) the jury was prejudiced against appellant by the evidence regarding the drug deal,

and (2) the indictment included Ozuna, but her “name was not read at either stage of the

trial.” Thus, no motion for new trial was filed on the issue of counsel’s alleged ineffective

assistance and the record is silent as to why counsel acted as he did.

        Each alleged error is an error of omission. We cannot determine the reasons that

counsel did not call appellant to testify (at any stage of the proceedings), did not call Dr.



        29
             Mitchell v. State, 68 S.W .3d 640, 642 (Tex. Crim . App. 2002).

        30
             See Robinson v. State, 16 S.W .3d 808, 813 n.7 (Tex. Crim . App. 2000).

        31
             Id.

        32
           W e note that the m otion for new trial was filed by appellant’s trial counsel. As the Texas Court of
Crim inal Appeals has noted,

        In m ost cases, the record on direct appeal is “inadequate to develop an ineffective assistance
        claim ” because “the very ineffectiveness claim ed m ay prevent the record from containing the
        inform ation necessary to substantiate such a claim .” [quoting Ex parte Torres, 943 S.W .2d
        469, 475 (Tex. Crim . App. 1997)]. Therefore, when an applicant files an application for a writ
        of habeas corpus, the record can be supplem ented by the trial court gathering facts. This
        “provides an opportunity for a dedicated hearing to consider the facts, circum stances, and
        rationale behind counsel's actions at that juncture of trial.” [quoting Thompson v. State, 9
        S.W .3d 808, 814-15 (Tex. Crim . App. 1999)].

Ex parte Varelas, 45 S.W .3d 627, 629-30 (Tex. Crim . App. 2001).

                                                       10
Capitaine to testify (at any stage of the proceedings), or call any defense witnesses. When

the record is silent, we may not speculate about why counsel acted as he did.33 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.”34 “Rather, the record

must affirmatively demonstrate trial counsel's alleged ineffectiveness.”35 Because there

is no record to show trial counsel’s reasons for acting or failing to act in the manner

challenged, appellant has failed to establish that his counsel was ineffective.36

        Moreover, appellant has failed to address or explain why the purported failures by

trial counsel would have caused a different result. We conclude that appellant has not

established the second prong of Strickland because he has failed to show in reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been

different.37 We overrule appellant’s second issue.

                           Absence from Motion for New Trial Hearing

        By his third issue, appellant complains that the trial court erred in holding a hearing

on his motion for new trial in his absence. At the hearing, appellant’s counsel explained




        33
          Jackson v. State, 877 S.W .2d 768, 771 (Tex. Crim . App. 1994); Ozuna v. State, 199 S.W .3d 601,
612 (Tex. App.–Corpus Christi 2006, no pet.). Sim ilarly, when the appellate record is silent as to why trial
counsel fails to take an action, the appellant has failed to rebut the presum ption that trial counsel's decision
was in som e way— be it conceivable or not— reasonable. Mata v. State, 226 S.W .3d 425, 431 (Tex. Crim .
App. 2007).

        34
             Mata, 226 S.W .3d at 430.

        35
             Id.

        36
             See Jackson, 877 S.W .2d at 771.

        37
             See Ellis, 233 S.W .3d at 330; Strickland, 466 U.S. at 694.

                                                       11
that his attempt to secure appellant’s presence by bench warrant had been unsuccessful.38

Appellant’s counsel expressly stated that he wished to go forward without appellant and

that he waived appellant’s right to be present. Counsel also stated that even if appellant

was present, he would not testify at the hearing.

        A defendant may waive his right to be present at a hearing on his motion for new

trial.39 We conclude appellant waived his right to be present, and the trial court did not err

in conducting the hearing without his presence.40 We overrule appellant’s third issue.

                                                  Conclusion

        We affirm the trial court’s judgment.




                                                            LINDA REYNA YAÑEZ,
                                                            Justice



Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum opinion delivered and filed
this the 22nd day of May, 2008.




        38
           At the hearing on appellant’s m otion for new trial, the trial court asked the sheriff’s office why
appellant was not produced by the bench warrant. The court was advised that the bench warrant, which was
prepared by appellant’s counsel’s office, was defective because it did not contain certain required inform ation,
including appellant’s TDC num ber.

        39
           See W hitaker v. State, 977 S.W .2d 869, 877 (Tex. App.–Beaum ont 1998, pet. ref'd) (holding
appellant’s counsel waived appellant’s right to be present at m otion for new trial hearing where appellant was
not bench warranted and counsel elected to proceed with hearing); Coons v. State, 758 S.W .2d 330, 339
(Tex. App.–Houston [14th D ist.] 1988, pet. ref'd); Escarcega v. State, 711 S.W .2d 400, 402 (Tex. App.–El
Paso 1986), pet. dism'd, improvidently granted, 767 S.W .2d 806, 807 (Tex. Crim . App. 1989).

        40
             See W hitaker, 977 S.W .2d at 877.

                                                      12
