      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00382-CR
                                      NO. 03-09-00383-CR



                                 Camilo Henriquez, Appellant

                                                 v.

                                  The State of Texas, Appellee


             FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
                      NOS. C-1-CR-08-202871 & C-1-CR-08-202897
                   HONORABLE JAN BRELAND, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Camilo Henriquez of the offenses of resisting arrest

and interfering with public duties. See Tex. Penal Code Ann. § 38.03 (West 2003), § 38.15

(West Supp. 2009). Punishment was assessed at 180 days’ confinement and a $2,000 fine, but the

trial court suspended imposition of the sentence and placed Henriquez on community supervision

for 24 months. In a single point of error, Henriquez asserts that he received ineffective assistance

of counsel. We will affirm the judgments.


                                        BACKGROUND

               The jury heard evidence that, at approximately 3:00 a.m. on February 15, 2008,

Austin Police Department officers Patrick Martinez, Christina Oldham, and Kelly LaHood responded

to a domestic-disturbance call at a residence in southeast Austin. Upon arrival at the residence,
they encountered a man sitting in the garage who was identified as Jose Hernandez. During trial,

the officers described Hernandez as “a large subject,” shirtless, and intoxicated. Upon further

investigation, the officers ascertained, as Officer Oldham testified:


       Mr. Hernandez was having a fight with his child’s mother. They had gone out that
       night, and something had occurred—whether it was somebody getting jealous
       about somebody else looking at another woman. There [were] two sides of a story.
       They had come back and argued and Mr. Hernandez started damaging the home,
       punching walls or putting holes in the wall and scratched up the . . . car outside in
       the driveway.


After talking to Hernandez’s girlfriend, who, according to Oldham, “didn’t have any pain, nor did

she have any visible injuries,” the officers decided that “there was no criminal offense.” However,

the officers ran a check on Hernandez and discovered that he had “two Class C local warrants.” The

officers then called their supervisor and received permission to arrest Hernandez on the warrants.

               Before he was arrested, Hernandez started complaining of chest pains. The officers

called for EMS, which arrived shortly thereafter. According to Oldham, “[EMS] hooked him up to

an EKG, made sure he was okay.” However, Oldham recalled, Hernandez “started not to cooperate

with EMS. He didn’t want to talk to them, didn’t want to deal with them, and he signed away his

waiver to not be treated by them.”

               Before EMS left the scene, a red pickup truck arrived at the residence. The driver of

the truck was identified as Hernandez’s stepfather, Henriquez. Oldham testified that she approached

the truck and asked Henriquez to remain inside the vehicle. At first, Henriquez complied. However,

according to Oldham, as the officers were placing Hernandez in the patrol car, Henriquez got out of

the truck and walked toward the officers, asking them if he could speak with his son.

                                                 2
               Officer LaHood testified that she denied the request and instructed Henriquez to

return to his vehicle until they secured Hernandez. However, Henriquez “didn’t move.” LaHood

explained,


       At that point, since he didn’t move, he started kind of looking at me and started
       moving a little bit more forward, took a step towards his son and the other officers.
       So at that point, I shuffled to the side and basically stepped in his way and said ‘No.
       I told you go back to your truck. Wait there.’


Henriquez did not comply. According to LaHood, “That is when he stepped off to the side

and brushed against my shoulder and started ignoring me, saying ‘I know the law. I want to ask my

son a question.’ He started going towards his son. That is when we decided to make the arrest.”

               LaHood testified that as she and Oldham attempted to arrest Henriquez, he “pulled

away” from them. The officers grabbed Henriquez again, and he again resisted. During the ensuing

struggle, the officers and Henriquez fell to the ground. The officers then called for backup. LaHood

recalled, “We had a very difficult time handcuffing him and getting his arms behind his back.”

               As LaHood and Oldham were struggling to secure Henriquez on the ground,

Officer Martinez was having difficulty securing Hernandez in the patrol car. Martinez testified that,

once Hernandez saw his father on the ground, “he wouldn’t budge,” and began yelling and

attempting to pull away from Martinez. At that point, Martinez “decided to push him up against the

vehicle and remain there until additional units arrived.”

               Eventually, the officers secured both Hernandez and Henriquez. The officers each

testified about how Henriquez’s behavior significantly complicated the arrest of Hernandez, who

had been complying with the officers before his father arrived. LaHood summarized the situation:

                                                 3
“Officer Martinez was struggling with his suspect and the dad was on the ground fighting us. We

had family members pouring out of the house. That created an extremely hostile environment.” She

concluded, “If the father, Camilo, wasn’t a part of that, then everything would have gone really

smoothly.”

               After the police officers testified, the State rested and Henriquez moved for a directed

verdict. The trial court denied the motion. The defense called no witnesses.

               The jury found Henriquez guilty of committing the offenses of resisting arrest

and interfering with public duties, and he was placed on community supervision. Subsequently,

Henriquez filed a motion for new trial, asserting that he was denied effective assistance of counsel.

Following a hearing, the trial court denied the motion. This appeal followed.


                                    STANDARD OF REVIEW

               To prevail on a claim of ineffective assistance of counsel, a defendant must prove by

a preponderance of the evidence that: (1) counsel’s performance was deficient, i.e., that it fell below

an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced the

defendant. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Ex parte Ellis, 233 S.W.3d

324, 330 (Tex. Crim. App. 2007); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.

1986). Unless the defendant makes both showings, it cannot be said that his conviction is rendered

unreliable by a breakdown in the adversarial process. Strickland, 466 U.S. at 687.

               To establish deficient performance, a defendant must show that “counsel was not

acting as ‘a reasonably competent attorney,’ and his advice was not ‘within the range of competence

demanded of attorneys in criminal cases.’” Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim.

                                                  4
App. 2005) (quoting Strickland, 466 U.S. at 687). He must overcome the “strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance.” Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). He must also “overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial strategy.” Ellis,

233 S.W.3d at 330 (citing Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992)). In other

words, the defendant must show that “no reasonable trial strategy could justify the trial counsel’s

conduct.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). “We determine the

reasonableness of counsel’s challenged conduct in context, and view it as of the time of counsel’s

conduct.” Id. at 101.

               To satisfy the second prong of the Strickland test, the 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

               We review a trial court’s denial of a motion for new trial for abuse of discretion.

Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). This includes motions for new trial

based on claims of ineffective assistance of counsel.         State v. Gill, 967 S.W.2d 540, 541

(Tex. App.—Austin 1998, pet. ref’d). Accordingly, in this case, we do not apply the aforementioned

Strickland test de novo. Id. at 542. Rather, we review the trial court’s application of the Strickland

test under the abuse-of-discretion standard. Id. “We do not substitute our judgment for that of the

trial court, but rather we decide whether the trial court’s decision was arbitrary or unreasonable.”

Charles, 146 S.W.3d at 208. “We must view the evidence in the light most favorable to the



                                                  5
trial court’s ruling and presume that all reasonable factual findings that could have been made

against the losing party were made against that losing party.” Id. “Thus, 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.” Id.


                                             ANALYSIS

                In his sole point of error, Henriquez claims that trial counsel was ineffective by

(1) failing “to conduct an independent investigation” to “seek out known witnesses with potentially

exculpatory testimony” and calling those witnesses to testify; (2) failing to call Henriquez and

Hernandez to testify; and (3) defending Henriquez by “relying solely on inconsistencies in the

three police officers’ testimony.”

                Four witnesses testified at the hearing on the motion for new trial: Henriquez;

Henry Curtis Woodcock, lead counsel for the defense; Nathaniel Williams, second chair; and

Chris Parks, another attorney who worked for the law firm that represented Henriquez. Before

discussing Hernriquez’s claims, we will summarize the testimony of each of the witnesses during

the new trial hearing.

                During Henriquez’s testimony, he was asked why he and his stepson did not

testify during trial. According to Henriquez, after the officers testified and the State rested its case,

Woodcock told him “that he had the case won; that I didn’t have to testify or say anything because

he had it wrapped up” and “in the bag.” Henriquez also testified that Woodcock advised him not

to testify, because if he did testify, “anything can go wrong.” Henriquez also claimed that Woodcock

told him that his son did not need to testify because “we are okay. We got it.” Henriquez claimed

                                                   6
that he did not agree with Woodcock’s decision not to call him and his son to testify and that he

never told counsel that he agreed with the decision. He wanted the jury to hear “[his] story” about

“what really was going on.” Henriquez believed that his testimony would be materially different

from the testimony of the officers (although he did not explain in what ways). However, Henriquez

testified that after Woodcock conveyed that “he was pretty sure he had the case won,” he told

Woodcock, “Well, you know, you are the lawyer. You are the one that knows.” Henriquez was also

asked if he had “any other witnesses [other than he and his son] that could have testified and were

ready to go at this trial.” Henriquez testified, “No, it was just the two of us.”

               During Woodcock’s testimony, he was first asked about a conversation he had with

Hernandez prior to trial concerning Hernandez’s recollection from the night of the arrest. According

to Woodcock, Hernandez claimed that he saw and heard everything that occurred between the police

and his father. However, Woodcock also testified that Hernandez told him that “he had a great deal

to drink that night” and was “pretty intoxicated.”

               Woodcock was next asked if there were other witness present the night of the arrest

who would have seen and heard what had occurred between the officers and Henriquez. Woodcock

testified that there were not. He explained:


       There were the three officers and the two of them: Mr. Henriquez and
       Mr. Hernandez. Those are the only people at the time the officers took him down.
       At the time all the facts in dispute occurred, those [were] the only people there
       according to everyone I talked to.




                                                  7
Woodcock added that, based on his review of the police report, “there were other people there [at

the residence]” that night who had observed Hernandez become intoxicated, but, according to

Woodcock, “There was no one else there when the events in question occurred.”

               The following testimony was then elicited concerning counsel’s trial strategy and the

decision to not call Hernandez and Henriquez to testify:


       Q:      Did you find Mr. Hernandez—did you consider him to be believable in what
               he was telling you?

       A:      Not at all. I considered him to be someone who was going to be very easy to
               cross-examine. Someone who admittedly was extremely intoxicated and
               probably didn’t have much memory of what was going on. I found his story
               to be consistent with Mr. Henriquez, but I didn’t think anyone was—well—

       Q:      You didn’t think the jury would find either of the two believable on the
               witness stand under oath?

       A:      No.

       Q:      So you proceeded to conduct the trial’s first chair counsel for your client,
               knowing as you went into it that you weren’t going to put either one of those
               witnesses on the stand. Right?

       A:      No. That is not correct, sir. The choice of whether or not a defendant should
               testify is exclusively the defendant’s.

       Q:      Did you decide not to have him testify because you—either witness—because
               you already concluded before the trial started that neither one would be
               believable?

       A:      That was one of the factors in my recommendation to him not to testify. Yes.
               There were others.

       Q:      Okay. As the trial developed and the three officers testified, significant
               inconsistencies in the three officers’ testimony developed on the State’s side
               of the case. Yes?



                                                 8
A:     Yes. I think, through my cross-examination, I was able to bring out
       significant inconsistencies.

Q:     Did you conclude that the defendant and the other witness shouldn’t testify
       to clear those up?

A:     No, sir. I concluded that if they took the stand that I thought there would be
       a better chance for him if we would point out inconsistencies between the
       officers than if he took the stand and no one believed him and didn’t like him
       and what he had to say or what his son had to say. I thought the chance was
       better just pointing out inconsistencies between the officers. If he took the
       stand, he only had something to lose, as far as I was concerned. But it was
       his choice.

Q:     Your client did tell you he was ready, willing and able to testify in his own
       defense. Did he not?

A:     He told me he was going to do what he thought I believed was the right thing
       to do—

Q:     Okay.

A:     —after I encouraged him and let him know it was his choice; he wasn’t going
       to get another chance to testify; this was going to be it.

....

Q:     Whose decision was it not to put Jose Hernandez on the stand, who told you
       he could remember everything he saw and heard?

A:     That was my decision.

Q:     Did your client, Mr. Henriquez, tell you he wanted his stepson to testify
       because he was waiting outside the courtroom?

A:     No. He did not. In fact, we discussed that when we were talking about
       whether he should testify or not. I told him I didn’t think—if he wasn’t going
       to testify, I didn’t think his son should testify. If he was going to testify, I
       thought his son probably should testify. But if he wasn’t going to, I thought
       it was better for his son not to testify either. So he agreed with that.




                                          9
       Q:      Just because a defendant doesn’t testify and you advise a defendant not to
               testify, is there any reason why another material witness should not
               necessarily testify?

       A:      I guess in an abstract world, no. But as far as the facts of this case are
               concerned, I felt that what he had to say would not be viewed as credible. It
               certainly wasn’t necessary if his father wasn’t going to testify.


               Woodcock also testified that he was concerned about Henriquez getting on the

stand and being impeached with his criminal record. Woodcock testified that Henriquez had a

prior DWI conviction and an unspecified misdemeanor conviction, both from the 1980s. Although

Woodcock acknowledged that Henriquez’s prior convictions were “old” and thus generally

inadmissible,1 he believed that “there was a good likelihood” that Henriquez might “open the door”

to these convictions through his answers to the prosecutor’s questions during cross-examination.

               Woodcock denied ever telling Henriquez that the case was “won,” “in the bag,” or

“wrapped up.” He added, “I would never tell any of my clients that in the context of a jury trial.

There is no way you can know what a jury is going to do.”

               The testimony of Williams and Parks was largely consistent with Woodcock’s

testimony. Both Williams and Parks testified that they did not recall Woodcock ever telling

Henriquez that the case was won. Both testified that Henriquez ultimately agreed with Woodcock’s

advice not to testify and not to have Hernandez testify. Both also testified that there were

inconsistencies in the testimony of the police officers and that their trial strategy was to point out

these inconsistencies during their cross-examination of the officers.


       1
          See Tex. R. Evid. 609(b) (providing that evidence of prior conviction is generally
inadmissible if “a period of more than ten years has elapsed since the date of the conviction”).

                                                 10
               We conclude that the record supports a finding by the trial court that Henriquez

failed to satisfy either prong of the Strickland test. First, the trial court would not have abused its

discretion in finding that Henriquez failed to prove that counsel’s performance fell below an

objective standard of reasonableness. Henriquez claims that counsel failed to “independently

investigate” and “seek out” additional witnesses to the confrontation between the police and

Henriquez on the night of the arrest. However, none of the witnesses at the hearing on the motion

for new trial, including Henriquez, provided any testimony suggesting that counsel’s investigation

was somehow incomplete or that he failed to seek out potential witnesses to interview.

               Moreover, the trial court would not have abused its discretion in finding that there

were no other material witnesses for counsel to interview. Henriquez points to the trial testimony

of Officer LaHood, who claimed that there were “a lot of people in the house, [and] outside the

house” and that there were “family members pouring out of the house” during the arrest. However,

Officer Martinez testified that these family members did not come out of the house until after

Henriquez had already been taken to the ground by Oldham and LaHood and after Hernandez had

already been pinned against the patrol vehicle by Martinez. The trial court could have reasonably

inferred from this testimony that the family members—none of whom Henriquez identified at the

hearing—did not observe the events prior to the arrest, including Henriquez committing the alleged

offenses. Thus, the trial court could have found that any additional witnesses were not material to

the case and, therefore, that counsel was not deficient in declining to interview them. Such a finding

is supported by the testimony of both Henriquez and Woodcock at the hearing. When asked if he

had “any other witnesses that we haven’t discussed that could have testified and were ready to go



                                                  11
to trial,” Henriquez testified, “No. It was just the two of us,” referring to himself and his stepson.

Then, when Woodcock was asked if there were other witnesses present the night of the arrest

who would have seen and heard what had occurred between the officers and Henriquez, Woodcock

testified,


        There were the three officers and the two of them: Mr. Henriquez and
        Mr. Hernandez. Those are the only people at the time the officers took him down.
        At the time all the facts in dispute occurred, those [were] the only people there
        according to everyone I talked to.


He acknowledged that there were other people at the house that night but, according to Woodcock,

“There was no one else there when the events in question occurred.” The trial court, as fact-finder

at the hearing, would not have abused its discretion in crediting this testimony.

               Henriquez next asserts that counsel was ineffective in advising him not to testify. A

criminal defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S.

44, 51-52 (1987); Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009). It is the

responsibility of defense counsel to inform a defendant of his right to testify, including the fact

that the ultimate decision of whether to testify belongs to him. See Johnson v. State, 169 S.W.3d

223, 235 (Tex. Crim. App. 2005). Therefore, a claim that counsel, through his advice or lack

thereof, denied a defendant the right to testify is subject to a Strickland analysis.2 See id.; Agosto

v. State, 288 S.W.3d 113, 116 (Tex. App.—Houston [1st Dist.] 2009, no pet.).


        2
          It is unclear from Henriquez’s brief whether he is arguing on appeal that he was denied his
constitutional right to testify. However, that argument was raised at the hearing on the motion for
new trial, and thus we will address it. See Tex. R. App. P. 38.1(f) (“The statement of an issue or
point will be treated as covering every subsidiary question that is fairly included.”).

                                                  12
               In this case, the record supports a finding by the trial court that counsel did not

deny Henriquez the right to testify. Although Henriquez claimed that he never told Woodcock

that he agreed with the decision not to testify, the trial court would not have abused its discretion

in concluding otherwise. According to Woodcock, Henriquez “told me he was going to do what

he thought I believed was the right thing to do—after I encouraged him and let him know that it

was his choice; he wasn’t going to get another chance to testify; this was going to be it.” According

to Williams, Henriquez “may have expressed a certain interest in testifying,” but he did not recall

Henriquez “being adamant and insisting that he testify.” Williams did recall “in the end [Henriquez]

putting his trust in our judgment.” Parks similarly testified that “at the end of the day, it was

Mr. Henriquez’s decision” not to testify. Parks also testified as follows:


       Q:      Do you recall Mr. Henriquez being upset that he wasn’t going to be allowed
               to testify?

       A:      Mr. Henriquez said, ‘You are the attorney. I am going to go with what you
               suggest.’ But he decided that if Mr. Woodcock felt that [was] where the trial
               was at, that it wouldn’t be beneficial to his case, he would go with what Mr.
               Woodcock had to say.

       Q:      Is it fair to say that originally Mr. Henriquez had expressed some interest in
               testifying, but ultimately left the decision up to his lawyers?

       A:      Right. I think Mr. Henriquez, based on my understanding of the situation, did
               want his story to be told. He had discussed with Mr. Woodcock potentially
               either he testifying or his son testifying. But after Mr. Woodcock and
               Nathaniel highlighted how that testimony had gone and how it might not be
               beneficial to Mr. Henriquez’s case, he agreed and decided he was choosing
               not to testify.




                                                 13
The trial court could have reasonably found from this and other evidence that Henriquez had

knowingly and voluntarily chosen not to testify and, therefore, that counsel had not denied him the

right to testify. To the extent that Henriquez may be arguing that he was misled by counsel into not

testifying because counsel convinced him that he had the case “won,” “wrapped up,” or “in the bag,”

we observe that all three attorneys denied that Woodcock ever made such statements. The trial court

was free to disbelieve Henriquez’s testimony to the contrary.

               As for the merits of counsel’s advice to Henriquez not to testify, it is well settled

that the decision whether to put a defendant on the stand is a “judgment call” that should not

easily be condemned with the benefit of hindsight. See United States v. Mullins, 315 F.3d 449, 453

(5th Cir. 2002); Robison v. Johnson, 151 F.3d 256, 262 (5th Cir. 1998); United States v. Garcia,

762 F.2d 1222, 1226 (5th Cir. 1985); Hollenbeck v. Estelle, 672 F.2d 451, 454 (5th Cir. 1982). Here,

Woodcock testified that he advised Henriquez against testifying because he believed Henriquez

would not be a credible witness and because he believed it would be safer for counsel to point out

the inconsistencies in the officers’ testimony during cross-examination rather than to have Henriquez

testify to his version of events. As Woodcock put it, “If he took the stand, he only had something

to lose, as far as I was concerned.” The trial court would not have abused its discretion in deferring

to counsel’s assessment of the situation. If Henriquez had testified, it would have been his word

against the testimony of three police officers. Counsel could have reasonably concluded that

whatever minimal benefit Henriquez may have gained from testifying was outweighed by the risk

of a damaging cross-examination by the State. Additionally, it is undisputed that Henriquez had

prior convictions. As Woodcock correctly observed, although these convictions were generally



                                                 14
inadmissible under rule 609(b), it would have been possible for Henriquez to open the door to their

admission through his testimony. See Grant v. State, 247 S.W.3d 360, 366-67 (Tex. App.—Austin

2008, pet. ref’d) (“Where the witness creates a false impression of law-abiding behavior, he ‘opens

the door’ on his otherwise irrelevant past criminal history and opposing counsel may expose the

falsehood.”). Also, even if Henriquez had not opened the door, the convictions conceivably might

have been admitted if the trial court had concluded that the probative value of the convictions

substantially outweighed their prejudicial effect. See Tex. R. Evid. 609(b). Given these risks, the

trial court could have found that it was reasonable for counsel to conclude that testifying would do

his client more harm than good. See Lucious v. State, 828 S.W.2d 118, 123 (Tex. App.—Houston

[14th Dist.] 1992, no pet.) (“In light of appellant’s prior criminal record, advice that appellant not

testify was certainly plausible trial strategy.”)

                Henriquez further complains about counsel’s decision not to have Hernandez testify.

However, the decision to call a witness is generally a matter of trial strategy. Rodd v. State,

886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Matters of trial strategy

will be considered deficient only if an attorney’s actions are without any plausible basis. See Simms

v. State, 848 S.W.2d 754, 757 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Here, the record

supports a finding by the trial court that there was a plausible basis for counsel’s decision not to

have Hernandez testify. Woodcock testified that Hernandez told him that “he had a great deal to

drink that night” and was “pretty intoxicated” at the time of the incident. As Woodcock explained,

“I considered him to be someone who was going to be very easy to cross-examine. Someone who

admittedly was extremely intoxicated and probably didn’t have much memory of what was



                                                    15
going on.” Although Woodcock acknowledged that Hernandez had told him that he had heard and

seen everything that night, Woodcock could have reasonably concluded that, given Hernandez’s

admitted intoxication, the jury would not have found Hernandez’s account of the incident credible.

Additionally, it was Hernandez’s alleged violent behavior toward his child’s mother on the night in

question that led to the officers being on the scene in the first place. Also, it must be remembered

that Hernandez was Henriquez’s stepson, which could have made Hernandez appear biased. Thus,

counsel could have reasonably concluded that Hernandez would not have been a credible witness.

See Damian v. State, 881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)

(“[W]hen in counsel’s reasonable judgment, a possible witness is as potentially dangerous as he

or she might be helpful, it is not ineffective assistance to not call the witness to the stand.”).

               Finally, Henriquez complains about counsel’s trial strategy in seeking to undermine

the credibility of the police officers through cross-examination. The trial court would not have

abused its discretion in finding that this strategy did not fall below an objective standard of

reasonableness. The record reflects that there were inconsistencies in the testimony of the officers

that counsel brought out through extensive and thorough cross-examination of the officers. For

example, LaHood testified that Henriquez had “brushed past” her shoulder in an attempt to reach

his son, implying that Henriquez was disobeying her and had made physical contact with her prior

to the arrest. Oldham, however, who claimed to have observed the events leading up to the arrest,

testified on cross that she “did not see [Henriquez] move past [LaHood].” Also, Oldham testified

that she spoke with Henriquez when he first arrived at the scene. However, LaHood testified on

cross that she did not “recall that at all.” Moreover, counsel got Martinez to admit that his back was



                                                 16
turned when the altercation between Henriquez and the other officers began and that, because

his attention was focused on securing Hernandez, he did not observe most of the incident. The

trial court could have concluded that pointing out these and other problems with the officers’

testimony was a reasonable trial strategy designed to cast doubt on the officers’ recollection of the

events preceding the arrest. That this strategy did not succeed in acquitting Henriquez of the charges

against him does not mean that the strategy was deficient. See Ex parte Ewing, 570 S.W.2d 941, 944

(Tex. Crim. App. 1978) (“The fact that another attorney may have pursued a different tactical course

of trial is insufficient to support a finding of ineffective assistance of counsel.”). For these and other

reasons, the trial court would not have abused its discretion in finding that Henriquez failed to prove

that counsel’s performance was deficient.

                Nor would the district court have abused its discretion in finding that Henriquez

failed to prove that counsel’s performance, even if deficient, prejudiced him. Although Henriquez

testified that his version of the incident would have been different from the arresting officers, he

did not explain how it would have been different, or how such differences would have strengthened

his case. Hernandez did not testify during the hearing, nor did any of the “additional witnesses” who

Henriquez claimed had observed the incident. Thus, there was no way for the trial court to

determine whether there was a reasonable probability that the result of the proceeding would have

been different had counsel called these witnesses to testify. See Wilkerson v. State, 726 S.W.2d 542,

551 (Tex. Crim. App. 1986) (“Absent a showing that potential defense witnesses were available, and

that their testimony would benefit the defense, counsel’s failure to call witnesses is of no moment.”);

Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.—Austin 2000, pet. ref’d) (“Counsel’s failure to



                                                   17
call witnesses at the guilt/innocence stage of a trial is irrelevant to a claim of ineffective assistance

of counsel absent a showing that the witnesses were available and the defendant would have

benefitted from the presentation of their testimony.”). Also, the trial court could have found that

Henriquez failed to show how there is a reasonable probability that the result of the proceeding

would have been different if counsel had employed a trial strategy other than that of undermining

the credibility of the police officers.

                On the above record, we cannot conclude that the trial court abused its discretion in

finding that Henriquez did not prove by a preponderance of the evidence that he was denied effective

assistance of counsel. Accordingly, we cannot conclude that the trial court abused its discretion in

denying Henriquez’s motion for new trial.

                We overrule Henriquez’s sole point of error.


                                           CONCLUSION

                We affirm the judgments of the trial court.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: March 10, 2010

Do Not Publish

                                                   18
