                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-13-00317-CR
                                ________________________

                         TIPHINIE BETH AGUILAR, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 64th District Court
                                     Castro County, Texas
                        Trial Court No. A3452-1206; Honorable Ed Self


                                          April 10, 2015

                               MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Tiphinie Beth Aguilar, pled guilty in open court to taking a prohibited

substance, namely marihuana, into a correctional facility1 and was sentenced by a jury

to ten years confinement and fined $2,500. In a single issue, she asserts on appeal that

the trial court erred by failing to grant her Motion for a New Trial because evidence


       1  See TEX. PENAL CODE ANN. § 38.11(b) (West 2011). An offense under this section is a third
degree felony. Id. at 38.11(g).
presented showed her trial counsel failed to obtain a court-ordered investigator to

procure certain character witnesses and similarly failed to secure the testimony of a

mitigation expert. We affirm.


                                       BACKGROUND


       In 2012, an indictment issued alleging Appellant intentionally or knowingly took a

controlled substance, marihuana, into the Castro County Jail, a correctional facility. In

April 2013, she elected to have her punishment assessed by a jury.            In July, she

stipulated to evidence establishing she committed the offense alleged in the indictment,

executed a waiver of certain rights, judicially confessed to the offense, and pled guilty in

open court.    After finding her guilty, the jury assessed her sentence at ten years

confinement and a fine of $2,500.


       In her Motion for a New Trial and at a hearing on that motion in August of 2013,

Appellant asserted her counsel was ineffective for failing to obtain from the court access

to an investigator to secure certain character witnesses and/or a mitigation expert to

testify on her behalf. In September, the trial court denied the motion and this appeal

followed.


                           INEFFECTIVE ASSISTANCE OF COUNSEL


       Because ineffective assistance of counsel claims involve mixed questions of law

and fact that often contain subsidiary questions of historical fact, some of which may

turn upon the credibility and demeanor of witnesses, Riley v. State, 378 S.W.3d 453,

458 (Tex. Crim. App. 2012) (quoting Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim.


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App. 1999)), an appellate court should review the trial court’s rulings on the matter for

an abuse of discretion, reversing only if the trial court’s ruling was clearly erroneous and

arbitrary, such as when no reasonable view of the record could support the trial court’s

ruling. Odelugo v. State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014) (citing Riley, 378

S.W.3d at 457).


       We examine ineffective assistance of counsel claims by the standard enunciated

in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674

(1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim.

App. 1986). Appellant has the burden to show by a preponderance of evidence both

that (1) trial counsel’s performance was deficient in that it fell below the prevailing

professional norms and (2) the deficiency prejudiced the defendant, that is, but for the

deficiency, there is a reasonable probability that the result of the proceedings would

have been different. See Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010)

(citing Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)).            Counsel’s

conduct is viewed with great deference. Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005). Any allegation of ineffectiveness must be firmly founded in the

record and the record must affirmatively demonstrate the alleged ineffectiveness.

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


       Here, we ask whether there is a reasonable probability that the jury would have

had a reasonable doubt as to Appellant’s sentence if an investigator had secured the

presence of the character witnesses and they had testified in Appellant’s favor, and a

mitigation expert had appeared and also testified favorably for Appellant. In King v.

State, 649 S.W.2d 42 (Tex. Crim. App. 1983), the appellant asserted ineffective

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assistance of counsel, in part, because counsel failed to call witnesses to testify on his

behalf. There, the Court of Criminal Appeals stated that the “failure to call witnesses at

the guilt-innocence and punishment stages is irrelevant absent a showing that such

witnesses were available and appellant would have benefit[ed] from their testimony.” Id.

at 44.


         At the hearing on Appellant’s motion, there was no showing there were available

character witnesses to be located by an investigator or that Appellant would have

benefitted from either their testimony or the testimony of a mitigation expert. In addition,

we have reviewed the record and are not convinced Appellant would have benefitted

from an investigator’s services in locating character witnesses or the testimony of a

mitigation expert and do not see a reasonable probability that their testimony would

have changed the result of the proceeding. Accordingly, Appellant’s issue is overruled.


                                         CONCLUSION


         The trial court’s judgment is affirmed.




                                                   Patrick A. Pirtle
                                                       Justice


Do not publish.




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