                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-19-00244-CR

                                        Christopher KINES,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 81st Judicial District Court, Wilson County, Texas
                                  Trial Court No. 16-07-153-CRW
                              Honorable Lynn Ellison, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: April 15, 2020

AFFIRMED

           A jury convicted Christopher Kines of the murder of Jessica Edens and of tampering with

evidence. The trial court assessed punishment at fifty years’ confinement for murder and twenty

years’ confinement for tampering with evidence. Thereafter, Kines filed a motion for new trial,

which the trial court denied after a hearing. In a single issue on appeal, Kines argues the trial court

erred in denying his motion for new trial because he received ineffective assistance of counsel.

We affirm the trial court’s judgment.
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                           STANDARD OF REVIEW & APPLICABLE LAW

A.      MOTION FOR NEW TRIAL

        A trial court’s ruling denying a defendant’s motion for new trial is reviewed for an abuse

of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). “We do not substitute our

judgment for that of the trial court, but rather decide whether the trial court’s decision was arbitrary

or unreasonable.” Id. “A trial court abuses its discretion in denying a motion for new trial only

when no reasonable view of the record could support the trial court’s ruling.” Holden v. State, 201

S.W.3d 761, 763 (Tex. Crim. App. 2006).

B.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Under the Sixth Amendment, a defendant in a criminal case is guaranteed the right to

assistance of counsel. U.S. CONST. amend. VI. The right to assistance of counsel includes the

right to “reasonably effective assistance of counsel.” Bridge v. State, 726 S.W.2d 558, 571 (Tex.

Crim. App. 1986). When considering a claim of ineffective assistance of counsel, we use the two-

pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the

defendant must prove by a preponderance of the evidence that (1) his counsel’s performance was

deficient and (2) the deficient performance prejudiced his defense. See id. at 687; Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Failure to show either deficient performance or

prejudice defeats an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999).

        In considering whether counsel’s performance was deficient, the defendant must prove that

counsel’s representation fell below an objective standard of reasonableness, which is measured by

prevailing professional norms.      Strickland, 466 U.S. at 687–88.         Our review of counsel’s

performance is highly deferential and “every effort [must] be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to


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evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Thus, we will “judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of

the time of counsel’s conduct.” Id. at 690. We must “then determine whether, in light of all the

circumstances, the [challenged conduct] . . . [was] outside the range of professionally competent

assistance.” Id. When making that determination, we “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689.

The defendant bears the burden to “overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michael v.

Louisiana, 350 U.S. 91 (1955)).

       Assuming counsel’s performance was deficient, the defendant must prove the deficient

performance prejudiced his defense. Id. at 687. To do this, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

                                              ANALYSIS

       Kines contends that he received ineffective assistance of counsel because his trial counsel

failed to conduct a meaningful investigation of Kines’s case, particularly by failing to interview

and present any corroborating or impeachment witnesses and by failing to adequately

communicate with him.

A.     FAILURE TO INTERVIEW AND PRESENT WITNESSES

       Trial counsel has a duty to make an independent investigation of the facts of the case, which

includes seeking out and interviewing potential witnesses. Cantu v. State, 993 S.W.2d 712, 718

(Tex. App.—San Antonio 1999, pet. ref’d). However, the duty to investigate is not absolute. Id.

Rather, “counsel has a duty to make reasonable investigations or to make a reasonable decision


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that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In considering

counsel’s decision not to investigate or to limit the scope of their investigation, we assess the

reasonableness of counsel’s decision in light of all the circumstances, “applying a heavy measure

of deference to counsel’s judgments.” See id.

         At the motion for new trial hearing, Kines named several witnesses he claims should have

been interviewed and presented at trial. We assess whether counsel’s decision not to interview

and present a particular witness “was reasonable under all the circumstances, giving heavy

deference to counsel’s judgment.” Alvarado v. State, No. 04-03-00289-CR, 2006 WL 332536, at

*4 (Tex. App.—San Antonio Feb. 15, 2006, pet. ref’d) (mem. op., not designated for publication).

We will reverse a conviction only if the consequence of counsel’s inaction prevents the accused

from advancing his only viable defense, and there is a reasonable probability that, but for counsel’s

failure to advance the defense, the result of the proceeding would have been different. Cantu, 993

S.W.2d at 718. Additionally, “[c]ounsel’s failure to call witnesses at the guilt-innocence and

punishment stages [of trial] is irrelevant absent a showing that such witnesses were available and

appellant would benefit from their testimony.” King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.

1983).

         a.     Trial Evidence

                1.      Jacobs’s, Marroquin’s, and Casias’s Testimony

         In its case-in-chief, the State primarily relied on the testimony of Ronald Jacobs, Alejandro

Marroquin, and Emilee Casias. These witnesses each described an alleged assault on an unnamed

female that occurred earlier on the night of Edens’s murder.

         Jacobs testified that, on May 10, 2016, he and Marroquin arrived at the home of Jacobs and

Kines and saw a female tied up on the floor of Kines’s room. Jacobs observed Kines and Stuart

Fraser place the female in a vehicle, and then Marroquin drove the female away from the house.


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Marroquin testified that he drove the female to an open area near a school, where he left her bound

inside the vehicle. He then walked back to the house.

       Casias testified that Kines, Fraser, and Edens had beaten, robbed, and restrained the female

with duct tape in Kines’s room. Jacobs and Marroquin then arrived, placed the female in her

vehicle, and drove her away. When Jacobs and Marroquin arrived back at the residence, they told

Kines they “took care of that.”

       According to all three witnesses, after they returned, Fraser demanded that no one leave

the house until the next morning. At that time, Jacobs, Marroquin, Casias, Edens, Fraser, and

Kines were present in the house.

       Jacobs testified that, at some point during the night of May 10–11, 2016, Edens wanted to

leave, but Fraser and Kines refused to let her go. After repeated efforts by Edens to leave the

house, Edens became upset and Fraser hit her with the butt of a gun. According to Jacobs, Kines

told him to leave the house, and when he returned about twenty minutes later, he observed Edens

dead on the floor, covered in a white blanket.

       Marroquin similarly testified, adding that Kines had placed duct tape on Edens’s mouth

and threatened to hit her if she took it off. After she removed the duct tape, Kines and Fraser

moved her to the floor and started punching her. When Edens attempted to crawl toward the back

door, Fraser stomped on her twice and hit Edens on the head with an aluminum cane, and Kines

hit her on the head with a moonshine bottle that looked like a gallon jug. Next, Fraser hit Edens

on the head with a table saw. Kines then got on top of Edens and “it looked like [Kines] was trying

to smother her.” Marroquin believed Edens was dead after Kines got off of her.

       Casias offered a similar version of the events, again relaying Edens’s attempts to leave and

the actions by Kines and Fraser, respectively. Medical expert testimony established that Edens’s

cause of death was strangulation and head trauma, in concert.


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           Jacobs, Marroquin, and Casias also testified similarly about events that transpired after the

murder. All three testified that Fraser left the house after Edens’s murder. According to Jacobs

and Marroquin, Kines ordered them to wrap Edens’s body in a blanket and a blue tarp and to place

the body in the trunk of Edens’s vehicle. The three and Kines drove to a pawnshop to pawn a TV

and jewelry. The group then drove to a dollar store to buy shovels and then to Calaveras Lake,

where they attempted unsuccessfully to bury Edens’s body. They ultimately pulled over on the

side of a country road in the area of Floresville, Texas, where Kines burned her body. They then

drove back to San Antonio where they disposed of the shovels. As the group drove through an

alley near the house where Kines and Jacobs lived, Jacobs jumped out of the vehicle. Kines then

drove to a convenience store where he bought a can of butane. He then drove into a vacant lot,

where the vehicle got stuck on a slab of concrete. Casias testified that, while Marroquin was

putting lighter fluid on the vehicle, she took off running towards her aunt’s house. Kines walked

off towards the direction Casias went, and Marroquin walked back to the house. Jacobs and

Marroquin later returned to the vehicle and, as instructed by Kines, Jacobs lit the vehicle on fire.

                    2.       Kines’s Testimony

           Kines was the only defense witness. Kines testified that, on May 10, 2016, Casias and

Edens spent the night at his house. Around 2 a.m., Edens visited Priscilla Fonseca’s house but

returned about 30 minutes later. The following afternoon around 1 p.m., Kines, Casias, Jacobs,

and Marroquin drove to Calaveras Lake to fish, and Edens let him use her vehicle. Edens had

stayed behind at their residence to do drugs with Jacobs’s uncle, Baylum. 1 The group left

Calaveras Lake at about 6 p.m., stopped at a convenience store, and then headed back home. When

they arrived back at the house, Edens and Baylum were still there. Jacobs and Marroquin



1
    The record does not indicate this individual’s full name.


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discovered drugs were missing from their room and accused Baylum and Edens of stealing it.

Baylum blamed Edens, and Jacobs and Marroquin wanted Edens to come up with the money for

the stolen drugs. Marroquin, Jacobs, Casias, and Edens then left in Edens’s vehicle. Kines stated

that was the last time he ever saw Edens. Kines denied any knowledge about the alleged assault

on the unnamed female, Edens’s murder, the disposal of Edens’s body, and the destruction of

Edens’s vehicle.

       b.      Motion for New Trial Hearing

       At the motion for new trial hearing, only Kines and his trial counsel testified. None of the

potential witnesses either testified at the motion for new trial hearing or provided a sworn affidavit.

Although Kines stated at the motion for new trial hearing that each potential witness was willing

to testify for him, the record does not show these witnesses were available to testify on the date of

his trial. See Alvarado, 2006 WL 332536, at *9 (“The record does not show . . . that [the witnesses]

would have been available to testify on the date of trial; therefore, counsel’s failure to call [the

witnesses] cannot constitute ineffective assistance.” (citing King, 649 S.W.2d at 44)). We address

each of the potential witnesses Kines complains of below.

             1.        Baylum

       Kines contends that his trial counsel should have interviewed and presented Baylum as a

corroborating witness to the timeline of events at trial. According to trial counsel, Kines instructed

him not to pursue Baylum as a witness and claimed Baylum was not his biological uncle, had

abused him as a child, and would not be good for his case because Baylum would be “pro-Ronald

[Jacobs].” Kines denied instructing trial counsel not to pursue Baylum as a witness.

       The trial court alone determines the credibility of the witnesses and has the discretion to

believe or disbelieve all or any part of the witnesses’ testimony. See Colyer v. State, 428 S.W.3d

117, 122 (Tex. Crim. App. 2014). Here, the trial court could have concluded that trial counsel was


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not deficient for failing to investigate and present Baylum as a witness at trial because Kines had

instructed him not to do so. See Ex parte Olvera, No. 05-11-01349-CR, 2013 WL 4052467, at *6

(Tex. App.—Dallas Aug. 12, 2013, pet. ref’d) (mem. op., not designated for publication). Here,

the record reflects Kines himself testified to a timeline of events, and Baylum was not shown to

be an available witness. See Alvarado, 2006 WL 332536, at *7 (concluding prejudice was not

shown by counsel’s failure to present a potential alibi witness when the defendant was able to

establish his alibi defense through his own testimony); see also King, 649 S.W.2d at 44.

             2.        Priscilla Fonseca

       Similarly, Kines contends Priscilla Fonseca was a possible and willing corroborating

witness to the timeline of events he presented in his defense. Trial counsel testified that the value

of her testimony regarding the timing of events was outweighed by the potential for harm from

testimony that would further implicate Kines. Trial counsel testified that Fonseca may have

testified on cross-examination that Kines had gone to Fonseca’s house after Edens’s murder

looking for Casias. The jury could have reasonably questioned Kines’s innocence after hearing

testimony that, following Edens’s murder, Kines went searching for Casias, a purported witness

to the very crime for which Kines was being prosecuted.

       Based on this record, we conclude that trial counsel’s decision not to develop and use

Fonseca as a witness did not fall below an objective standard of reasonableness. See Bone, 77

S.W.3d at 835.

             3.        John Waclawczyk and Terence Lamont Mason

       Kines contends that Waclawczyk, while incarcerated, heard Marroquin state Kines was not

involved in Edens’s murder.       Kines contends Terrence Lamont Mason shared a cell with

Marroquin and that Mason heard Marroquin admit to lying to police in order to implicate someone

else. Trial counsel testified these statements benefited Fraser, not his client. The State’s theory


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was that Kines and Fraser, in concert, murdered Edens. Thus, the statements would have had little

to no benefit for Kines because the jury still could have concluded that he murdered Edens. Kines

does not complain of trial counsel’s performance during trial, and the record shows that counsel

cross-examined Marroquin extensively about the inconsistencies between his statements to police

and his trial testimony, as well as between his testimony and that of Jacobs and Casias. Because

the record is silent as to trial counsel’s reasons for not investigating or presenting an impeachment

witness, Kines cannot overcome the strong presumption of reasonable assistance. Jaynes v. State,

216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.); see Bone, 77 S.W.3d at 836

(“The defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible

professional reason for a specific act or omission.”).

             4.        Genevieve Ramos

       Kines contends Genevieve Ramos would have testified that Marroquin told her that the

“real killer” was Fraser and that Marroquin intended to provide a written statement clearing

Kines’s name. The record indicates Ramos appeared by bench warrant and was interviewed by

counsel, who ultimately determined Ramos could not benefit Kines. For the same reasons outlined

above, we determine counsel’s decision did not fall below an objective standard of reasonableness.

             5.        Jennifer Debner

       According to Kines, Jennifer Debner was Edens’s best friend, and would have testified that

Casias is a “toxic person,” that Debner and her friends had always joked that Casias would end up

killing Edens, and that Casias’s brother did not believe anything Casias said. Trial counsel testified

that, like Fonseca, Debner on cross-examination may have claimed Kines had tried to force his

way into Fonseca’s house looking for Casias following Edens’s death. Additionally, the record

shows that trial counsel cross-examined Casias extensively about the inconsistencies in her trial

testimony, as well as her admitted drug use and its effect on her apparent lack of recollection as to


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certain details of Edens’s murder. Under the circumstances, it was reasonable for counsel to

determine that the potentially beneficial impeachment testimony that Debner could have provided

was outweighed by the risk of eliciting potentially incriminating testimony that could have

weakened Kines’s innocence defense. See Bone, 77 S.W.3d at 835. Moreover, trial counsel’s

failure to present Debner as a witness did not preclude Kines from advancing his defensive strategy

to impeach Casias’s credibility. See Alvarado, 2006 WL 332536, at *8. We conclude that trial

counsel’s decision did not fall below an objective standard of reasonableness.

                 6.         Kines’s Mother 2

           Kines contends that his trial counsel should have interviewed his mother prior to her death.

According to Kines, his mother died at some point in 2017. Kines contends his mother would

have provided testimony about a post-arrest incident that involved Fraser, whom she believed had

broken into her house and threatened her.

           Kines’s trial counsel recalled his client telling him about the alleged break-in but did not

have an opportunity to speak with Kines’s mother before her death. His attorney-fee voucher was

admitted into evidence. The fee voucher indicates that counsel was appointed in September 2017.

The record does not reflect the date Kines’s mother died. Additionally, Fraser did not testify at

trial, and Kines does not show how his mother’s testimony would have benefited his defense or

negated the prosecution’s theory. See King, 649 S.W.2d at 44.

                 7.         Kines’s Neighbors

           Kines contends his neighbors would have served as character witnesses and testified that

nothing out of the ordinary occurred on the night of Edens’s murder. However, Kines provides no




2
    The record does not identify Kines’s mother by name.


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record as to these purported neighbors to overcome the presumption of reasonable assistance. See

Jaynes, 216 S.W.3d at 851.

       On this record, Kines cannot show that the trial court erred in denying his motion for new

trial based on ineffective assistance of counsel.

B.     FAILURE TO COMMUNICATE

       Kines also contends his trial counsel failed to prepare him to rebut the State’s evidence at

trial by failing to sufficiently communicate with him about anticipated evidence.

       “To prevail on a claim of ineffective assistance of counsel for failing to adequately prepare

the client to testify, a movant must demonstrate that the alleged error caused the client prejudice;

[meaning], that better preparation would have benefitted the client and led to a better result.”

Shamim v. State, 443 S.W.3d 316, 324 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

       Here, Kines has failed to show that additional preparation and communication between

Kines and his counsel prior to trial would have changed the outcome of the proceeding. According

to Kines, lack of communication and preparation had four harmful effects. First, had he been

prepared, he would have advised the jury that Edens’s death occurred because she allegedly stole

drugs from Jacobs and Marroquin. However, Kines testified to this alleged drug theft on direct

examination at trial. Similarly, the State introduced both a cap that was found in Edens’s vehicle

and video from the convenience store of Kines wearing the same cap. According to Kines, had he

been prepared, he would have testified that he left the cap in Edens’s vehicle after his fishing trip

with Casias. However, even without additional preparation, Kines provided the jury with an

explanation as to how his cap ended up in Edens’s vehicle when he testified that he drove Edens’s

vehicle to the lake for his fishing trip with Casias. Third, the State introduced a picture that

depicted a bottle of bleach in Kines’s room. Kines complains that, had he been prepared, he would

have testified that he used the bottle of bleach to clean up after his puppies. However, Kines was


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given the opportunity to explain the bleach’s purpose at trial but did not do so. When referencing

Kines’s original statement to police, the State asked Kines on cross-examination, “you told them

you were trying to use that bleach to clean, right?” Kines stated in response, “I don’t remember

telling them anything like that.” Last, Edens’s body was found wrapped in a comforter or bed

sheet. The State introduced a picture of Kines’s room, which depicted a bare mattress. According

to Kines, had he been prepared, he would have testified that the comforter or sheet could not have

come from his bed because he never had a comforter or sheets on his mattress. Even assuming

that better preparation would have elicited this testimony, Kines has not shown there is a

reasonable probability that had the jury heard this bit of testimony, the result of the proceeding

would have been any different. See Strickland, 466 U.S. at 694.

       We conclude Kines has failed to show that additional preparation and communication

between Kines and his counsel prior to trial would have changed the outcome of the proceeding.

                                          CONCLUSION

       Viewing the totality of trial counsel’s representation, we conclude Kines has failed to show

deficient performance or prejudice, and therefore affirm the trial court’s denial of his motion for

new trial.

                                                  Rebeca C. Martinez, Justice

DO NOT PUBLISH




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