      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00509-CR



                               Benito Garcia Hinojosa, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
        NO. D-1-DC-08-904010, HONORABLE JON N. WISSER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Benito Garcia Hinojosa of voluntary manslaughter, see Act of

May 23, 1973, 63rd Leg., R.S., ch. 399, § 19.04, 1973 Tex. Gen. Laws 883, 913, and sentenced him

to twenty years in prison. Hinojosa argues that there was error in the jury charge, that he was denied

due process when his attorney made a misstatement of the law, and that the evidence was insufficient

to support the conviction. We affirm the judgment of conviction.

               Appellant Benito Garcia Hinojosa became acquainted with Edward Chavez, Jr.,

through their employment in construction work. One of the companies for which they worked

provided housing for them at an Exel Inn in Austin. Hinojosa and Chavez were roommates. On the

night of August 6, 1993, the two men went to a dance. Both men became highly intoxicated and,

on the way home, began arguing. They fought violently in the parking lot of the hotel and again in

the hotel room. Eventually, Hinojosa became “desperate” and attempted to restrain Chavez with a
telephone cord. Hinojosa then left the premises in Chavez’s car. According to Hinojosa, when he

left, Chavez was moving and talking. When Hinojosa returned to the Inn, he saw police, assumed

he was in trouble, and left for Mexico, where he learned of Chavez’s death.

               According to the medical examiner, Chavez died of asphyxia resulting from injuries

to the face and neck and from the manner in which he had been tied—his body was found face down

with the phone cord looped from his mouth to his feet, with his feet suspended in the air behind him.

The medical examiner further opined that Chavez had been unconscious when tied up because his

hands were not tied, and Chavez could have—and presumably would have—removed the cord from

his mouth if he had been conscious.

               Two years later, on February 10, 1995, Hinojosa was indicted on one count of murder.

Twelve years later, on February 7, 2007, Hinojosa contacted the Austin police department and gave

a voluntary statement, which was substantially the same as his testimony at trial. On March 20,

2007, Hinojosa was re-indicted on two counts of murder, one count of voluntary manslaughter, and

one count of aggravated robbery. The State eventually abandoned the aggravated robbery charge and

dismissed the 1995 indictment. Following trial, a jury found Hinojosa not guilty of the two murder

counts but guilty of the lesser-included offense of voluntary manslaughter. The jury also found that

Hinojosa had used a deadly weapon—his hands and a “ligature.” Punishment was assessed by the

jury at twenty years in prison and a $10,000 fine.

               In his first point of error, Hinojosa argues that inconsistencies between the indictment

and the jury charge violated his right to due process. More specifically, the due process violation

resulted from the use of the disjunctive in the jury charge describing the offense rather than the



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conjunctive, as used in the indictment—“[t]he alleged means of commission of murder had been

changed from hand and ligature, to hands or strangling with a ligature.” Hinojosa contends that he

“did not receive notice that the state alleged that the means of the commission of the alleged offense

included striking with hands only, in addition to hands and ligatures.”

               When reviewing allegations of charge error, an appellate court must undertake

a two-step review: first, the court must determine whether error actually exists in the charge, and

second, the court must determine whether sufficient harm resulted from the error to require reversal.

Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). When a timely objection is

made, error in the jury charge requires reversal if the error was “calculated to injure the rights

of defendant”—that the error was not harmless. See Tex. Code Crim. Proc. Ann. art. 36.19

(West 2006); see also Abdnor, 871 S.W.2d at 731-32.

               Where, as here, no timely objection was made at trial, any error found will not

warrant reversal unless the error is so egregious that the defendant was not given a fair and impartial

trial. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). An error in the jury

charge is egregious if “it affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory.” Id. We determine the actual degree of harm in light of

the entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel, and any other relevant information revealed by the

record of the trial as a whole. Almanza, 686 S.W.2d at 171.

               Based on the indictment, the jury was required to find beyond a reasonable doubt that

Hinojosa caused Chavez’s death by using both a hand and a ligature as deadly weapons. We first



                                                  3
note that the offense for which Hinojosa was convicted was voluntary manslaughter, not murder,

and the language about which he complains appears nowhere in the voluntary manslaughter portion

of the jury charge. Rather, after the jury had found Hinojosa not guilty of murder, the jury was

instructed to determine, “as alleged in the indictment,” whether Hinojosa “intentionally or knowingly

cause[d] the death of” Chavez by “striking [him] about the face or neck or by hog-tying [him], while

acting under the influence of sudden passion arising from and [sic] adequate cause.” Hinojosa was

not convicted of the greater offense in which the complained-of language appears, but of a lesser

offense in which the complained-of language does not appear. Thus, even if there is charge error,

it is part of a greater offense for which Hinojosa was not convicted and, therefore, caused no harm.

See Tex. Code Crim. Proc. Ann. art. 36.19; see also Abdnor, 871 S.W.2d at 731-32.

               Even if the language about which Hinojosa complains had appeared in the voluntary

manslaughter portion of the charge, there would have been no charge error. The Texas Constitution

requires a unanimous verdict in felony cases, Tex. Const. art. V, § 13; see also Tex. Code Crim.

Proc. Ann. art. 36.29(a) (West Supp. 2008), but a defendant’s right to unanimity is not violated when

the jury is disjunctively instructed on alternate means or theories of committing the same offense.

Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006); Martinez v. State, 129 S.W.3d 101,

103 (Tex. Crim. App. 2004). If, as here, the disjunctive paragraphs merely inform of different means

of committing a single offense, then the jury does not have to unanimously agree on which

alternative means the defendant used to commit the offense. Kitchens v. State, 823 S.W.2d 256, 258

(Tex. Crim. App. 1991). In addition, the Court of Criminal Appeals has found no error where, as




                                                 4
here, the indictment alleges the differing methods of committing the offense in the conjunctive,

while the jury is charged in the disjunctive. See id. We overrule Hinojosa’s first point of error.

                In his second point of error, Hinojosa argues that the district court erred by adopting

and following defense counsel’s misstatement of the law regarding a condition of probation

eligibility. On the record at trial, but outside the presence of the jury, defense counsel told Hinojosa

that “if you testify, then you are subject to cross-examination” but “if you don’t testify, then you will

not be eligible for community supervision.” Hinojosa responded that he understood, that he did

not want to testify, and that he wanted just to “finish with this.” According to Hinojosa, the fact that

he was sentenced to the maximum sentence available for voluntary manslaughter:


        was caused by two errors that are the following: 1) a misstatement of the law by
        Mr. Hinojosa’s trial counsel, and adopted by the court and state, prevented
        Mr. Hinojosa from seeking probation from the jury; and 2) by not being allowed to
        introduce mitigating evidence making him eligible for probation, Mr. Hinojosa’s
        right to allocution was violated.


                It appears that Hinojosa is arguing that, although he was eligible for probation,

because of a misstatement of the law by defense counsel—and adoption of this misstatement by

the prosecutor and the district court—the jury was unable to consider probation as an option. While

Hinojosa attempts to implicate the district court and the prosecutor, his argument is one based on

ineffective assistance of counsel.1


        1
          Before expressly asserting his ineffective assistance argument and without citing to any
authority or specifying any particular point at which reversible error was committed, Hinojosa argues
that “constitutional error” occurred. He argues, for instance:



                                                   5
               We evaluate claims of ineffective assistance of counsel against the standard set forth

in Strickland v. Washington.2 See 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770,

774 (Tex. Crim. App. 1999). In deciding a claim of ineffective assistance of counsel at a noncapital

sentencing proceeding, we must determine whether an attorney’s performance was deficient and, if

so, whether that deficiency prejudiced the defense. Strickland, 466 U.S. at 687; Thompson v. State,

9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An attorney’s performance is deficient if it falls below

an objective standard of reasonableness. Strickland, 466 U.S. at 688; Thompson, 9 S.W.3d at 812.

Deficient performance is prejudicial when, but for the attorney’s unprofessional conduct, there is a

reasonable probability that the outcome of the proceeding would have been different. Strickland,



       If the state should attempt to argue that Mr. Hinojosa’s trial counsel was at fault
       alone, Mr. Hinojosa wishes to remind them that they adopted such misstatement
       of the law when they failed to object or correct the error, and the same reasoning
       holds the court responsible, as well. However, should the reviewing court find that
       Mr. Hinojosa’s trial attorney failed to get the requisite evidence into the record that
       would warrant a jury eligibility charge, then Mr. Hinojosa requests that the reviewing
       court find sua sponte that his trial counsel was ineffective under the Duffy standard
       under Ware.
       2
          Hinojosa urges us to apply the Duffy standard, which includes no requirement that
the defendant show prejudice. See Ex parte Duffy, 607 S.W.2d 507, 516 (1980). However, the
Court of Criminal Appeals has expressly overruled Duffy on that point, as conflicting with
federal constitutional law:

       Strickland clearly requires a showing of prejudice for all claims alleging deficient
       attorney performance primarily because the government is not responsible for
       and cannot prevent deficient attorney performance. . . . Assuming Strickland left
       open the question of whether a defendant is required to show prejudice from deficient
       attorney performance at noncapital sentencing proceedings, we perceive no valid
       reason why Strickland cannot apply, or why a different rule should apply, to
       noncapital sentencing proceedings.

Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

                                                 6
466 U.S. at 694; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient

to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

In determining whether an attorney’s performance was deficient, we apply a strong presumption

that the attorney’s conduct was within the range of reasonable professional assistance. Thompson,

9 S.W.3d at 814. We review the effectiveness of counsel in light of the totality of the representation

and the circumstances of each case. Id. at 813.

                In most cases, an undeveloped record on direct appeal is insufficient to satisfy the

dual prongs of Strickland because the reasonableness of counsel’s decisions often involves facts not

appearing in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Without evidence of the strategy and methods involved concerning counsel’s actions at trial, an

appellate court should presume a sound trial strategy. See Thompson, 9 S.W.3d at 814. Where an

allegation of ineffective assistance of counsel is not raised in a motion for new trial, trial counsel

has no opportunity to explain his conduct, and absent such opportunity, an appellate court should

not find deficient performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S.

1195 (2003)).

                To be eligible for probation, a defendant’s sworn application for probation and

the evidence must show that he has never been convicted of a felony. Green v. State, 658 S.W.2d

303, 308 (Tex. Crim. App. 1983). The mere filing of a sworn application is not sufficient to show

eligibility for probation. Id. at 309. In an attempt to introduce evidence of probation eligibility,



                                                  7
defense counsel instructed Hinojosa outside the presence of the jury that “if you don’t testify, then

you will not be eligible for community supervision.” Although Hinojosa declined to testify during

the punishment phase, defense counsel introduced no other evidence that would support Hinojosa’s

eligibility for probation. Hinojosa now contends that defense counsel could have presented evidence

of Hinojosa’s probation eligibility in “numerous ways.” According to Hinojosa:


       The state could have stipulated to the fact that he did not have prior felonies.
       Because his mother was ill, his trial attorney or the court could have requested a
       continuance for the sentencing, or order to obtain a witness who could testify
       to Mr. Hinojosa’s lack of prior felonies. Mr. Hinojosa’s trial attorney could have
       requested a judicial finding or notice regarding the lack of prior felonies, and such
       request could have been supported by a TCIC/NCIC criminal history report for
       Mr. Hinojosa. The court would have needed to order the state to provide such report,
       or the state could have offered the history report on their own. The state should have
       offered this report in compliance with their professional responsibility to seek justice.
       If they were confident that they would have gotten a jail sentence, the state
       should have had no problem “doing the right thing,” in this regard. Mr. Hinojosa’s
       trial counsel did not have access to official law enforcement data bases that are
       available to the court and the state. Had Mr. Hinojosa’s trial counsel known that his
       family would be unavailable, he would have questioned the probation officer
       testifying on the state’s behalf, or called Mr. Hinojosa’s brother, who was available
       the day before the final sentencing proceeding. Mr. Hinojosa’s trial counsel should
       have considered submitting an affidavit of his own, stating that Mr. Hinojosa did not
       have prior felonies, or submitted information on the basis that any other witness was
       unavailable, requesting that the court find other evidence admissible for this issue as
       an exception the hearsay evidentiary rule.


               Although Hinojosa filed a motion for new trial, he did not raise ineffective assistance

of counsel as a ground for relief, and therefore, no record was ever developed in support of this

claim. Hinojosa relies solely upon the reporter’s record, which contains no evidence of defense

counsel’s reasoning or thought process. While Hinojosa suggests “numerous ways” by which the

evidence could have been presented, without a developed record on appeal, we may only speculate

                                                  8
as to whether any of these methods was feasible in light of the circumstances. Based on the available

record on appeal, we could also speculate as to any number of reasons why defense counsel did not

pursue any of Hinojosa’s suggestions for presenting evidence of probation eligibility. However, as

Hinojosa’s motion for new trial failed to raise ineffective assistance of counsel, we have no record

from which to determine why defense counsel acted in the way that he did. In the absence of such

record, we presume a sound trial strategy.3 See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App.

2002); Thompson, 9 S.W.3d at 814.

               Further, Hinojosa has not proven by a preponderance of the evidence that the outcome

would have been different but for the lack of evidence of probation eligibility. See Strickland,

466 U.S. at 687. The jury imposed a sentence of twenty years, the maximum sentence available

for voluntary manslaughter. In light of the twenty-year sentence, Hinojosa would not have been

statutorily eligible for probation, and the record indicates no reasonable probability the twenty-year

sentence imposed would have been different if probation had been considered. See Tex. Code Crim.

Proc. Ann. art. 42.12, § 3(e)(1) (West Supp. 2008) (defendant not eligible for community supervision

if sentenced to a term of imprisonment exceeding ten years). Accordingly, we overrule Hinojosa’s

second point of error.

               In his third point of error, Hinojosa argues that the evidence was legally and factually

insufficient to support the judgment of conviction. In reviewing a legal sufficiency challenge, we

view the evidence in the light most favorable to the verdict and determine whether a rational trier of


       3
         We also note that several of Hinojosa’s suggested methods of introducing evidence of
probation eligibility would have required action by the prosecutor or the district court, not defense
counsel.

                                                  9
fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State,

163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the trier of fact, “is the sole judge of

the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d

267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of

the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury may also

draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133

(Tex. Crim. App. 1996). When faced with conflicting evidence, we presume the trier of fact

resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.

App. 1993).

               In evaluating the factual sufficiency of the evidence, we view all the evidence in

a neutral light and will set aside the verdict only if we are able to say, with some objective basis in

the record, that the conviction is clearly wrong or manifestly unjust because the great weight

and preponderance of the evidence contradicts the jury’s verdict. Watson v. State, 204 S.W.3d 404,

414-17 (Tex. Crim. App. 2006). We cannot conclude that a conflict in the evidence justifies a new

trial simply because we disagree with the jury’s resolution of that conflict, and we do not intrude

upon the fact-finder’s role as the sole judge of the weight and credibility of witness testimony. See

id. at 417; Fuentes, 991 S.W.2d at 271. The fact-finder may choose to believe all, some, or none of

the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Bargas

v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.). In our review, we

discuss the evidence that, according to appellant, undermines the jury’s verdict. Sims v. State,

99 S.W.3d 600, 603 (Tex. Crim. App. 2003).



                                                  10
               For sufficiency reviews, the starting point of the analysis is the charge that was

submitted to the jury, absent complaint on appeal. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). The jury found Hinojosa guilty of “intentionally or knowingly caus[ing] the death of

. . . Edward Chavez, Jr., while acting under the influence of sudden passion arising from and [sic]

adequate cause.” The evidence shows that, on the night of Chavez’s death, Hinojosa and Chavez

were highly intoxicated and fought violently, both in the parking lot of the hotel and in the

hotel room. While Hinojosa claims that he bound Chavez with the phone cord in a “desperate”

attempt to restrain him and that Chavez was still conscious when Hinojosa left the premises in

Chavez’s car, the medical examiner testified that Chavez died of asphyxia resulting from injuries

to the face and neck and from the manner in which he had been tied. According to the medical

examiner, Chavez’s injuries, including a broken thyroid cartridge, bruising of the neck muscles,

and hemorrhaging in the eyes, were consistent with death by asphyxiation. In further support of his

conclusion that Chavez was already unconscious when bound by Hinojosa, the medical examiner

noted that Chavez’s hands had not been bound and that Chavez would presumably have removed

the cord from his mouth had he been conscious.

               Hinojosa refers to “suspicious circumstances regarding the elements of decedent’s

death” such that “[a] jury could not have reasonably inferred that Mr. Hinojosa did not [sic] in fact

kill decedent, or legally possessed [sic] the requisite mens rea.” The jury is the exclusive judge of

the credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d

642, 647 (Tex. Crim. App. 1996). As such, the jury was free to believe or disbelieve Hinojosa’s

version of events. Hinojosa, himself, admits that, while the record contains conflicting evidence,



                                                 11
“it is possible that Mr. Hinojosa’s actions in restraining decedent contributed to his death.” Viewed

in its totality, the evidence is legally and factually sufficient to support the judgment of conviction.

Accordingly, we overrule Hinojosa’s third point of error.

               Having overruled Hinojosa’s points of error, we affirm the judgment of conviction.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 27, 2009

Do Not Publish




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