                          NUMBER 13-17-00473-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DAVID CANTU JR.,                                                            Appellant,

                                         v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                         MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
           Memorandum Opinion by Chief Justice Valdez
      The trial court revoked appellant David Cantu’s community supervision and

sentenced him to eighteen years’ imprisonment in the Texas Department of Criminal

Justice. Cantu filed a motion for new trial and motion to reconsider punishment, claiming
ineffective assistance of counsel. 1 The trial court denied Cantu’s motions. By one issue,

Cantu contends his trial counsel failed to investigate mitigating evidence and witnesses

in preparation of the motion to revoke hearing. We affirm.

                                         I.       BACKGROUND

        Cantu was charged with the offense of possession of a controlled substance for

an incident alleged to have occurred on March 21, 2013 in Kleberg County, Texas. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West, Westlaw through 2017 1st C.S.).

On December 12, 2013, through an order of deferred adjudication in the district court,

Cantu was placed on community supervision for a term of four years for the offense of

possession of a controlled substance.

        On October 7, 2014, the State’s first motion to revoke alleged that Cantu violated

the conditions of community supervision. 2 On February 23, 2015, the trial court modified

and continued Cantu’s community supervision.

        The State’s second motion to revoke was filed on April 5, 2017, which alleged that

Cantu violated his modified community supervision on seven counts.                             The State

abandoned two of the seven counts against Cantu during a hearing held on July 14, 2017.

The trial court found count three to be untrue and counts four through seven to be true.3




       1 During the motion for new trial hearing, Cantu limited his motion for new trial to punishment only.

Cantu now appeals the trial court’s denial of his motion for new trial to punishment only.

        2   The alleged violations of community supervision included failing to report with his supervision
officer, using a controlled substance, and consuming alcohol.
        3 Count three was for reckless driving. Counts four through seven included tampering with

evidence, failure to not possess firearms, failure to observe daily curfew, and failure to avoid injurious or
vicious habits and/or avoid the unlawful use of drugs, narcotics, or any other controlled substance.


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The trial court granted the State’s second motion to revoke and sentenced Cantu to

eighteen years’ imprisonment.

        On August 14, 2017, Cantu filed a motion for new trial and a motion to reconsider

punishment claiming ineffective assistance of counsel. The trial court held a hearing on

the motions on September 15, 2017.

        At the beginning of the hearing, counsel for Cantu indicated that the motion for

new trial was limited to punishment only. Cantu argued that his trial counsel had not

conducted the proper investigation to offer mitigating evidence at the punishment stage

of the motion to revoke hearing. In support of his argument, Cantu called on several

witnesses to demonstrate deficiency of his trial counsel.

        Cantu first called Luke Thompson, an investigator with Jim Wells County Sheriff’s

Department, to testify. Thompson knew Cantu on a professional and personal level.

Cantu assisted Thompson with his investigation on a theft case. Thompson believed

Cantu to be a trustworthy person. Thompson stated that Cantu had provided lawn care

service for both him and for his great aunt and uncle. On cross-examination, Thompson

revealed that he would not have hired Cantu to service his lawn or referred Cantu to his

great aunt and uncle if he had known that Cantu was still affiliated with the criminal street

gang, Latin Kings, or if it were true that Cantu had supplied guns for a murder. 4

        Cantu called Eddie Smith, Cantu’s pastor, to testify. Smith knew Cantu, because

Cantu and his wife came to Smith for spiritual counseling. Smith stated that Cantu wanted

to make a change in his life. Cantu told Smith that he and his wife had quit the Latin


        4 Lieutenant Jaramillo of the Alice Police Department testified that Cantu was involved in a murder

investigation that included two rival gangs, Latin Kings and Raza Unida. Cantu was suspected of supplying
guns for a murder but was never charged. According to Lieutenant Jaramillo, Cantu cooperated with the
murder investigation.

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Kings. Smith said that Cantu was a hard worker who provided lawn care service for his

church. Smith believed that Cantu had made a legitimate commitment to change his life.

Smith stated he was a good judge of character. On cross-examination, Smith admitted

that he was not a perfect judge of character and that he had been fooled by people in the

past. Smith indicated that his opinion of whether he believed Cantu to be dangerous

would change if it were true that Cantu had supplied guns for a murder.

       Next, Cantu called Ramsey Hernandez, a community supervision officer assigned

to Cantu, to testify. The State called on Hernandez to testify during the second motion to

revoke hearing. Hernandez maintained that he knew that Cantu’s son suffered from a

form of cancer, but he never received any documentation. Hernandez testified that Cantu

had failed to attend appointments on numerous occasions and also failed to attend

rescheduled appointments.           Hernandez stated that Cantu’s reasons for missing

appointments were due to work and his son’s medical appointments in San Antonio,

Texas.

       Cantu then called Michael Jaramillo, Lieutenant of the Criminal Investigation

Division for the Alice Police Department, to testify. The State called on Jaramillo to testify

during the second motion to revoke hearing. Jaramillo supplied testimony regarding an

incident where Cantu’s house was shot at. 5 On cross-examination, Jaramillo testified that

Cantu had been involved in a murder investigation that included two rival gangs, Latin

Kings and Raza Unida. On redirect-examination, Jaramillo stated that Cantu cooperated

in the murder investigation and was never charged for allegedly providing guns in a

murder. Jaramillo said it was never confirmed that Cantu had provided the guns for a


       5 According to Lieutenant Jaramillo’s testimony, there was a dispute between Cantu and a Latin
Kings gang member, Jason Cantu, over the parentage of Cantu’s son.

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murder.    On re-cross-examination, Jaramillo indicated that Cantu’s cooperation in the

murder investigation involving Latin Kings and Raza Unida was self-serving because

Cantu had “basically” been indicted for supplying guns for a murder and did not want to

be prosecuted.

       Cantu called Detention Sergeant Luis Melendez to testify about his knowledge of

the sign-in logs that attorneys must sign before meeting with inmates. The sign-in logs

contained different dates than specified by Cantu’s trial counsel. However, Cantu’s trial

counsel testified later in the hearing that he did not keep a good account of his visitation

with clients.

       Finally, Cantu called his trial counsel to testify. Cantu’s trial counsel said he met

with Cantu about three to four times and for a total of three to four hours. Cantu’s trial

counsel did not recall Cantu recommending any witnesses other than his wife to testify at

the second motion to revoke hearing. When asked if Cantu recommended any witnesses

that could provide any mitigating evidence, Cantu’s trial counsel stated that the main

mitigating evidence was the evidence regarding Cantu’s son’s cancer. Hernandez was

the only witness Cantu’s trial counsel interviewed regarding Cantu’s son’s cancer.

Cantu’s trial counsel knew Cantu travelled to San Antonio, Texas for his son’s medical

treatment. Cantu’s trial counsel made no attempt to retrieve any medical records.

       Cantu’s trial counsel further testified he knew the State was seeking a twenty-year

sentence. Cantu’s trial counsel also knew that Cantu’s gang affiliation was going to be

an issue and that the State was going to call on a gang expert to testify. Cantu’s trial

counsel talked to Cantu about his gang affiliation status. Specifically, Cantu told his trial

counsel that gang members were shooting at his house because he was leaving the gang.



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Cantu did not offer his trial counsel any information on his cooperation with law

enforcement. Cantu’s trial counsel did not believe there were any credible witnesses that

could testify on Cantu’s behalf that could rebut Cantu’s gang affiliation. Cantu’s trial

counsel also did not believe it was good strategy to let Cantu testify about his renunciation

of gang affiliation.

       According to Cantu’s trial counsel, Cantu did not talk with him about any of his

employers. Cantu’s trial counsel could not remember any specifics about whether Cantu

was working and did not interview any of his employers. Cantu’s trial counsel testified

that Cantu talked to him about his involvement with his church, but Cantu’s trial counsel

did not find out the identity of the pastor of the church. Cantu’s trial counsel testified that

he did not like the idea of asking a pastor to testify on Cantu’s behalf because he did not

believe it would be “sufficient.” Cantu also spoke to his trial counsel about how he had

turned his life around. However, Cantu’s trial counsel did not ask Cantu if any witnesses

could testify about Cantu turning his life around.

       When asked why he did not make any arguments during the punishment stage

regarding mitigating circumstances, Cantu’s trial counsel stated he had already made

these arguments during the previous three or four hours of the hearing. Cantu’s trial

counsel also mentioned that he knew the judge conducting the hearing very well and

knew the judge did not want him to go over the facts again. Cantu’s trial counsel said

that he often modifies his approach to a case depending on the presiding judge.

       Cantu’s trial counsel did not call Cantu to testify on his own behalf because he

believed that Cantu would not be able to withstand cross examination from the State. He

also did not want Cantu to provide any evidence regarding charges pending against



                                              6
Cantu in Alice, Texas. Cantu’s trial counsel considered calling Cantu’s wife to testify, but

he believed she would do more harm than good. Hernandez was the only witness that

Cantu’s trial counsel believed could help Cantu, and he had already testified earlier in the

hearing.    Hernandez knew that Cantu’s son had cancer and could also make a

recommendation that Cantu not serve any prison time.

       When asked by the State if he went over case strategy with Cantu, Cantu’s trial

counsel stated that he did. Cantu’s trial counsel testified that he did everything Cantu

wanted him to do including pleading not true to all of the allegations. Pleading not true to

all of the allegations was consistent with the agreed strategy between Cantu and his trial

counsel. With regards to pre-trial preparation, Cantu’s trial counsel contacted Cantu’s

former attorney and contacted the attorneys for the State. Cantu’s trial counsel also filed

motions for additional discovery with regards to allegations in Alice, Texas and watched

all of the videos provided by the Alice Police Department.

       The motion for new trial and motion to reconsider punishment were denied by the

trial court. On November 22, 2017, Cantu filed his appeal requesting a reversal of the

punishment and a remand for a new punishment hearing.

                                    II.    DISCUSSION

A.     Claim of Ineffective Assistance of Counsel

       Cantu claims that his trial counsel was ineffective under the Strickland standard

for failure to investigate mitigating evidence and witnesses on his behalf. See Strickland

v. Washington, 466 U.S. 668, 687 (1984).

       1.     Standard of Review




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       The right to effective assistance of counsel is guaranteed by the Sixth Amendment

of the U.S. Constitution. U.S. CONST. amend. VI. The Sixth Amendment guarantees the

right to effective assistance of counsel in state criminal prosecutions. Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001).           When claiming ineffective assistance of

counsel, the convicted defendant must show that his or her counsel’s performance was

deficient and that this deficiency prejudiced the defendant’s ability to receive a fair trial.

Strickland, 466 U.S. at 687.

       The convicted defendant must show that counsel’s performance was deficient in

falling below an objective standard of reasonableness. Id. at 688. Counsel’s performance

should be given deferential treatment when being reviewed. Id. at 689. We must begin

our review with the strong presumption that the counsel’s performance, “[fell] within the

wide range of reasonable professional assistance.” Rylander v. State, 101 S.W.3d 107,

110 (Tex. Crim. App. 2003) (quoting Strickland, 466 U.S. at 689). The power of hindsight

can distort the reviewing of the counsel’s performance, so we must evaluate counsel’s

performance from counsel’s perspective at the time of the challenged conduct.

Strickland, 466 U.S. at 689. We must also consider all of the circumstances while

reviewing counsel’s performance. Id. at 688; see also Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999).

       The convicted defendant must also show that counsel’s deficient performance

prejudiced the defendant’s ability to receive a fair trial. Strickland, 466 U.S. at 687. “This

means that the appellant must show a reasonable probability that, but for his counsel's

unprofessional errors, the result of the proceeding would have been different.              A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”



                                              8
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (citing Strickland, 466 U.S.

at 687).    The prejudice component of Strickland applies to all claims of deficient

performance of counsel including noncapital sentencing proceedings. Hernandez v.

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

       The convicted defendant must prove by a preponderance of the evidence that

counsel’s assistance was ineffective. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.

Crim. App. 1995). The convicted defendant must establish both prongs of Strickland.

Strickland, 466 U.S. at 687.     The order in which the prongs are assessed is not static.

Id. at 697. If the prejudice element can be disposed of easily, there is no need to address

the deficiency of counsel. Id.

       2.     Analysis

       a.     Whether Counsel’s Performance was Deficient

       Cantu contends that his trial counsel’s performance was deficient under the first

prong of Strickland for failure to investigate mitigating evidence and witnesses on behalf

of Cantu. Cantu presented several witnesses to prove that his trial counsel had not

conducted a proper investigation that would have been beneficial during the sentencing

stage of Cantu’s motion to revoke hearing. Cantu called on Thompson and Smith to

provide the court with information regarding Cantu that could have allegedly been

investigated by Cantu’s trial counsel and presented as mitigating evidence. Cantu also

called on his trial counsel to testify about his performance.

       The State argues that Cantu’s trial counsel provided effective assistance of

counsel under the first prong of Strickland. The State contends that Cantu’s trial counsel




                                             9
conducted pre-trial investigation and took the proper steps during the second motion to

revoke hearing.

         Counsel’s decision to not investigate deserves a “heavy measure of deference,”

Strickland, 466 U.S. at 691, and we must look at the totality of the trial counsel’s

representation and not just isolated acts or omissions. Diaz v. State, 905 S.W.2d 302,

307 (Tex. App.—Corpus Christi 1995, no pet.). Given the totality of the circumstances, it

cannot be said that Cantu’s trial counsel’s performance fell below an objective standard

of reasonableness. 466 U.S. at 688. Cantu’s trial counsel investigated what he believed

to be Cantu’s best mitigating evidence, Cantu’s son’s cancer, and made sure this issue

was developed. Cantu’s trial counsel testified that he interviewed and cross-examined

Hernandez, who had knowledge of Cantu’s son. Cantu’s trial counsel interviewed Cantu’s

wife but thought it would generate more harm than good for Cantu’s case. Cantu’s trial

counsel stated that he did everything Cantu asked of him and that they both agreed to

the case strategy. Cantu’s trial counsel objected several times throughout the second

motion to revoke hearing and attempted to impeach a witness. Cantu’s trial counsel also

watched multiple police camera videos related to Cantu’s arrest, spoke with Cantu’s

former attorney, and spoke with several State attorneys about his client’s case. Cantu’s

trial counsel did not present any witnesses during the punishment stage of the hearing

because Cantu’s main witness for mitigating evidence had previously been called by the

State.

         With regards to Cantu’s gang affiliation, Cantu’s trial counsel did not believe there

were any credible witnesses that could confirm Cantu’s renunciation of gang affiliation.

Cantu’s trial counsel did not believe it would be prudent to call on Cantu to testify on his



                                              10
own behalf about his renunciation of gang affiliation. Cantu and his trial counsel talked

about his pastor, but Cantu’s trial counsel did not believe what he could provide to be

sufficient in his judgment. There was not any specific information revealed about this

conversation that rebuts the presumption that Cantu’s trial counsel implemented sound

trial strategy. Id. at 689. The court should presume that Cantu’s trial counsel made his

decisions based on “reasonable professional judgment.” Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994) (quoting Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim.

App. 1992)). If Cantu had talked to his trial counsel about his employers, Cantu’s trial

counsel would likely have investigated Cantu’s employers if he thought it would have

helped his cause. Cantu’s trial counsel was not asked why he did not inquire about

Cantu’s work history. Even if this act by trial counsel to not investigate Cantu’s work

history were to be considered a misjudgment, it would still not make Cantu’s trial counsel’s

performance ineffective. See Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App.

1986) (stating that isolated errors or omissions by counsel do not make counsel’s

performance ineffective). Under Strickland, effective assistance of counsel does not

mean perfect counsel. Id. “Counsel is not to be judged as ineffective merely because

hindsight shows that a different strategy would have produced a more desirable result for

the accused.” Ex Parte Perkins, 706 S.W.2d 320, 323 (Tex. Crim. App. 1986). The court

should be hesitant to declare counsel ineffective based on singular instances of

miscalculation. See Thompson, 9 S.W.3d at 814. Accordingly, we conclude that Cantu

has not shown that his trial counsel fell under an objective standard of reasonableness

required by the first prong of Strickland. Strickland, 466 U.S. at 688.

       b.     Whether Counsel’s Performance Prejudiced the Defendant



                                            11
       Cantu also contends that his trial counsel’s alleged deficient performance

prejudiced him because the witnesses that counsel presented during the motion for new

trial hearing demonstrated the availability of mitigating evidence. Cantu contends that his

trial counsel offered no counter-weight to the State’s “wholly negative” portrayal of Cantu.

       The State responds that there was no new evidence presented during the motion

for new trial hearing that would create a reasonable probability that the outcome during

the sentencing stage of the second motion to revoke hearing would have been different

under the reasoning of the second prong of Strickland. Id. at 694.

       Under the second prong of Strickland, Cantu must show that he was prejudiced by

his trial counsel’s deficient performance. See Id. There must be a reasonable probability,

but for Cantu’s trial counsel’s deficient performance, the outcome of the hearing would

have been different. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The

evidence presented during the motion for new trial hearing must undermine the

confidence of the judgment of the second motion to revoke hearing. Id.

       Cantu does not highlight particular evidence that was discovered during the motion

for new trial hearing which shows Cantu was prejudiced by his trial counsel during the

second motion to revoke hearing. Cantu makes a broad conclusory statement as to

Cantu’s trial counsel prejudicing him during the punishment stage of the second motion

to revoke hearing.

       The evidence discovered during the motion for new trial does not prove, but for

trial counsel’s deficient performance, the outcome of the hearing would have been

different. See Id. Even had Cantu shown that his trial counsel’s performance was

deficient, his claim for ineffective assistance of counsel would fail because Cantu has not



                                            12
shown that his trial counsel prejudiced his ability to receive a fair trial. See Strickland,

466 U.S. at 687.

       Cantu asks the court to look at Milburn v. State for comparison to the instant case.

See Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d). In Milburn, counsel for the defendant did not provide any mitigating evidence during

the sentencing stage, nor did counsel investigate any witnesses on behalf of the

defendant. Id. The result of the lack of mitigating evidence was a sentence that exceeded

what the State asked for at trial. Id. The defendant presented evidence consisting of

affidavits from twenty witnesses willing to testify on defendant’s behalf. Id. The Milburn

Court concluded this was enough evidence to prove the defendant was prejudiced during

the punishment stage. Id. at 271.

       In the instant case, Cantu presented only two witnesses that his trial counsel could

have called during the second motion to revoke hearing. The two witnesses, Thompson

and Smith, were minimally supportive at best.        On cross-examination, both of their

positive opinions of Cantu became diluted when presented with new information about

Cantu. The trial judge would have had to weigh this minimally supportive testimony

against the overwhelming evidence already found to be true of Cantu. See Ex Parte

Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006). When discovered evidence may

barely affect the judgment of the sentencing judge, the absence of the evidence cannot

be said to have prejudiced the defendant. See Strickland, 466 U.S. at 699–700. Plus,

Cantu’s trial counsel had already considered calling on Smith to testify but decided

against it. Instead, Cantu’s trial counsel thought it would be a better strategy to focus on

Cantu’s son’s cancer as Cantu’s main piece of mitigating evidence. So, unlike in Milburn,



                                            13
Cantu’s trial counsel did investigate and present mitigating evidence during trial.

Accordingly, we conclude that Cantu has not presented evidence that demonstrates his

trial counsel’s performance prejudiced his ability to receive a fair trial under the second

prong of Strickland. Id. at 687.

       3.     Summary

       We conclude that Cantu’s trial counsel’s performance was not deficient under the

first prong of Strickland. Id. Even if Cantu’s trial counsel was found to be deficient under

the first prong, Cantu did not present any evidence showing he was prejudiced by his trial

counsel’s performance under the second prong of Strickland. See id. The trial court did

not err in denying Cantu’s motion for new trial and motion to reconsider punishment.

Cantu’s sole issue claiming ineffective assistance of counsel is overruled.

                                   III.    CONCLUSION

       We affirm the judgment of the trial court.



                                                        /s/ Rogelio Valdez
                                                        ROGELIO VALDEZ
                                                        Chief Justice




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

Delivered and filed this
12th day of July, 2018.




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