~\

                                      SS'V-15
                            COURT OF CRIMINAL APPEALS
                                     AUSTIN TEXAS                 ORIGINAL
     MARK ANTHONY GARCIA PRO SE
                                                    CASE NO: 04-13-0081 8-CR

                                                    MOTION OF APPEAL... FOR
                                                    DISCRETIONARY REVIEW
                                                    PETITION TO CRIMINAL
                                                    COURT OF APPEALS; PURSUANT
              V.                                    TO RULE OF APPELLATE
                                                    PROCEDURE 66.3
                                                             ' fc3)C/?V

     STATE OF TEXAS
      APPELLEE
                                                            COURT OF CRffifflNAL APPEALS
                                                                 JUL 15 2015               j

                                                             Abe! Acosta, Clerk

                                                                 FILED \H
                                                         COURT OF CRIMINAL APPEALS
                                                               JUL 15 2015 '

                                                             Abel Acosta, Clerk



                          COURT;   OF CRIMINAL APPEALS
                        COURT OF CRIMINAL APPEALS OF TEXAS
                          P.O. BOX 1 23Q8,AUSTIN.-TEXAS 78711
      LITIGATION PRO SE INDIGENT MOTION IN FORMA PAUPERIS
                      PURSUANT TO 28 U.S.C.1914(a)




Comes now pro se litigant Mark Anthony Garcia and request ife&t
this Honrable Court of Appeals recognize appellants indigent

request that he has no money to pay for filing or copying      of
his present litigation and brief material to his present case.

So prays petitioner.(See attached copy of present account).




                                              Respectfully



                                             Mnnlr JaJfaH t«*«* ^9/22"/

                CERTIFICATE OF SERVICE



On this day of (Juni /~?-1   2015 I sent a copy of this motion and
indigent request to the Court of Appeals clerk of the court.


                                                Respectfully



                                                     fji sl^M l^«* iWH
                             AFFIDAVIT    IN SUPPORT
                                   OF MOTION
                       TITLE 28   INSIDE THE UNITED STATES
                                  CODE    SECTION
                                         1746




                  Akx/k. An^/tcM
               by/Uark
This affidavit hy                   woo* H'
                         Afl$\Qft>A h*8&fi v P^o
                                             e se petitioner in the present
case being first duly sworn and deposed say and declare under pena

lty of perjury that the facts herein are true and correct to the be

st of my knowledge and belief. I understand that making false state

ments may lead to my being prosecuted for perjury and affirm that all

of   the statements contained herein are    true and correct to the best

of my knowledge:asd^feelief^are^as^follo^s.



                                STATEMENT   OF   FACTS
                       FOURTH COURT OF APPEALS
                             SAN ANTONIO,TEXAS




MARK ANTHONY GARCIA PRO SE                       CASE NO:04-13-00818-CR

                                                 APEALLANTS PRO SE MOTION
                tmm                              MOTION   TO RECALL^ THE
                                                      -MANDATE
                                                 'ON APPEAL FROM THE 437th
                                                 JUDICAL DISTRICT COURT„
        v.                                       BEXTAR COUNTY,TEXAS,TRIAL
                                                 COURT NO:2009CR2731A
STATE OF TEXAS


         APELLEE




                                MOTION



Comes now pro se petitioner Mark Anthony Garcia and request that this
court hold this pro se brief to a less stringent.standard than one pr

epared and filed by a seasoned lawyer.See Thomas v. Edy;481 F.3d 434
440(6th Cir.2006);Haines v.Kerner,404 U.S.19,501-21(1972). In support
of petitioners motion he asserts the following grounds for relief.
Appellant acting pro se moves this court to review and entertain all
of his present claims for relief and allegations at law in the .intere;
est of justice to prevent further miscarriage of justice to appellant,
Appellant also moves this Honorable Court to recall the mandate in a
timely fashion to allow"Petition for Panel Rehearing"to be considered
by the Court.
                               I.BACKGROUND

Apellant was found guilty of one count of murder and was sentenced to
twenty years imprisonment in the Institutional Division of Texas De
partment of Criminal Justice. On Appeal Garcia contends that he was
denied effective assistance of counsel at trial and that the trial co^
urt erred in assessing attorney fees to an indigent defendant.

                                   1 of 7
Appellant is recalling the mandate and envoking any and all rules of

procedure to be reviewed by this court of appeals.Moreover that both

his trial and appellate counsel were ineffective..Appellants   trial

counsel for exposing him to cruel and unusual punishment and an 8th
amendment violation. By and through trial counsels cross examination

of appellant that lead the jury to believe he was a drug crazed.rem
orseless killer .Because appellant is raa^zn^-thesei^^SeasJtiwse assis-
                                                               f

tance of appellate counsel issues at this time he is requesting that
this court of appeals toll the time in accordance with^the rule of cr
iminal procedure that the record be fully developed to adequately re
flect appellants claims> Thompson v. State,9 S.W.3d 808,813(Tex.Crim.
App.1999); Strickland 466 U.S.at 688,690.

Furthermore in the interest of justice appellant request that this co
urt review these prejudical circumstances of extraordinary exception.

                              ARGUMENT.X

Appellant has been severlyprejudiced.by counsels performance that .
clearly represents an conflict of interest by and through    their

non professional actions at trial and during his jpresenfei appeal.
See Evitts v. Lucey,469 U.S.387(1985);The Sixth Amendment right to

counsel "attaches" with filing of formal criminal charges,and ext

ends to all'Vcritical stages"of the proceedings.Moran v. Burbine,475

U.S.412(1986:Michigan v. Jackson,475 U.S.525,629 n.3(1986);Scott

v. Illinois,440 U.S.367(1979),-Coleman v. Alabama,399 U.S.1(1970)

Dew v. United States,558 A.2d1112,1113^18(D.C.1989)"[TJhe right to

counsel is right to effective assistance of counsel."Strickland       v.
Washington,466 U, S.668,685{1984)(quoting McMann v. Richardson,397

U.S.759,771 n.14(1970). ...

When a jurisdiction provides an appeal of right,due process also gu-

                                    2of7
arantees the assistance of counsels on appeal. Evittsv. Lucey,469
U.S.387 (1985).Moreover it is the Courts obligation to ensure that
defendants rights are;protected (1)that defendant understands the ch
arges (2)assist attorney in making defense Dusky v. U.S.,362 U.S.402
(1960).Counsels cumulative errors throughout his trial proceedings
perjudiced defendants opportunity at a fair result attttiallandtldulning
his court proceedings. See Taylor   v. Kentucky436, U.S.478,n.15,98 S

Ct.1930,L.Ed.2d 468(1978);Strickland ,466 U.S.at 688.

Counsel is expected to have not only the formal training and is res
ponsible, by and through membership in the bar but also enough addit
ional knowledge,as well as experience,to permit the exercise [of]th
at degree of reasonable care and skill expected of lawyers acting un
der similar circumstnces").Thus for defendants_counsel at rial to ex-
pose him to such a total disregard E>?m<£tprotecting his client from
such exposure with his own defense strategey, prejudiced the defendant
and exposed him to an 8th Amendment violation of cruel and unusual
punishment.by portrayingdefendant as a crazed drug murderer.

Judicial scrutiny of counsels performance must be highly deferential
[A]Court must indulge a strong presumption that counsels conduct fa
lls xvithin the wide range of reasonable professional assistance "the
proper standard for attorney performance is that of reasonable effe
ctive assistance"defined as reasonableness under prevailng professi
onal norms."- In appellants case counsel so undermined the adversar
ial process that the trial cannot be relied upon as having produced a
just result. Strickland,466 U.S.at 686.Moreover appellate counsel re
fused to implicate or recognize the ineffective consequences that wea?e
evidenced by trial counsels deficient performance that prejudiced
appellant at trial.                       3 0f7
Appellant need not show that counsels deficient performance more lik

ely than not altered the outcome of the case,"id.at 693,but rather

must show that there is a reasonable probabiitiy that,but for cou

nsels unprofessional errors,the result in the proceedings would ha

ve been different. A reasonable probability is a probability suffic-

cient to undermine confidence in the outcome.As in appellants case

the numerous cumulative errors that counsel should have exposed and

revealed-(1) father of co-defendant prosecuting D.A. and assistant

Prosecuting the case forced to resign for tampering with evidence and

illicit tactics in court proceedings these and other undermining ev

idence should have been utilized by defense counsel and appellate co-

ounsel that could have uimdrerMiJO^d the confidence in the outcome of the

prosecutions case and changed the entire evidentiary picture in^app-

ellants case and trial.Brady v. Maryland,373 U.S.83(1963)this is exc

ulpatory information and should have been utilized by defense attor-

to mitigate appellants sentence and guilt.


These prejudicial errors should have been brought before the appeals

cxazxttthat are part of the record and exhibits by prosecution and def

ense needed to know or should have Jfernawin through due diligence the ex-

tent of thxs exculpatoi'y information. v              'J      J    '


                            QUESTIONS FOR THE COURT

1. Whether counsel was ineffective for failing to make Brady type

obj ections at Appellants Sentencing and krdJngLLng to the courts atten
tion that there should be a mistrial for the participation of a pros

ecutors assistant that was presently under investigation for tampering

with evidence in other cases and possiblv appellants case.Thus cont

rary to the Judicial Court Appellants sentence was determined in vio

lation of the constituional principles enunciated in Strickland and
                                   4 of 7                              ^
and Brady specifically that had the jury been made aware of the D.A*

and his assistant being under investigation for illicit acts in the

performance of their jobs by and through prosecution of appellant and

others ^

2. Whether appellantCounsel representedran .active conflict of interest

by not assisting appellant in filing his requested ineffective assis

tance of counsel claims to the Court of Appeals. See Strickland ,466

U,S.at 688; Evitts v. Lucey 463 U.S.387,396-99(1985);Hollines v.Es-

telle,-569 F.Supp., 146(W.D.Tex.1 983) ;U.S. v. Johnson. 995 F.Supp.1259(D

Kan.1998);Demarest v. Price,905 F.Supp.1432(D.Col,1995);Berryman v.

Morton,100 F.3d 1089(3rd.Cir.1996).


3„Whether the Court should    recognize the conflict of interest,claim

which constituted "cause " for procedural default Bliss v. Lockhart

980 F.2d 470(8th Cir.1992)See also Murray v. Carrier,477 U,S,478,496

106 S.Ct.2639,2649-50,91 L.Ed.2d 397(1985);The Supreme Court although

cautioningj£hatt it would not always be true,instructed that "where a

constitutional violation has probably resulted in the conviction of

one who is actually innocent,a federal habeas corpus may grant the

writ even in the absence of a showing of cause for pocedural default"

The Supreme Court in Smith v. Murray,477 U.S.527,537,106 S.Ct.2661,26

67-68,91 L.Ed.2d 434(1986 did imply that actual innocence exception

may apply to non capital sentencing cases;We reject the suggestion th

at the principles    of Wainwright v Sykes, [cause and eraejjiuHiGe requ

irements in cases of procedural default]apply differently depending
on the nature of the genaiE^y a State imposes for the violation of its

criminal laws.We similarly reject the suggestion that the there is an

ything "fundamentally unfair "about enforcing procedural default rules

in cases devoid of any substantial claim that the alleged error under

mined the accuracy of guilt or sentencing determination.(Emphasis add-
                                   5 of 7
 ed).                                  4.



 Whether the court erred in not considering appellants actual and fac
 tual innocence by and through his numerous realistic claims for rel

 ief .Schlu£_v^_pelo,513U,S,298,130 L.Ed.2d.808,115 3,Ct.851(1995) A
 credible claim of actual innocence involves the petitionee.,'; support
 ing his constitutional claim with "new reliable evidence whether it

 be exculpatory, scientific evidence,trustworthy,eyewitness accounts
 or critical physical evidence that was not presented     at trial.,!Id.
 The Court "is not bound by the rules o£!admissibility that would gov
 ern at trial"    And should "consider the probative force of relevant
evidence that was either excluded or unavailable at trial."id.[a]
petitioner does not meet the threshold requirement unless he persu--c>.
ades    the ceuqtr.fct that,in light of the new evidence, no jurror fet
ing reasonably,would have voted to find him guilty beyond a reason
able doubt."Id. Also see McCoy v. Norris,958 F.Supp.420(E.D.Ark.1996)

See also Bouseley v. United States.523 U.S.614,140 L.Ed.2d 828,118 S.
Ct. 1604(1998);


Petitioner in the present case moves this court to issue a writ to re

open the cases or all writs necessary or appropriate in aid of its ju

risdictions and agreeable to the usages and principles of law to reo

pen the criminal case and to grant relief from the execution of the

judgement. Because of the matters arising subsequent to the rendition

of the judgement based upon legal defenses arising after the judgement

showing that constitutional violations resulted in conviction of one

who is actually innocent of comitting any crime.




                                  6   of    7
-Or that the conduct that he was accused of no longer be deemed a crime
 The 11th Circuit found that a"colorable showing of factual innocence"
 is the test,or the test is whether the alleged error precluded the de
 velopment of true facts or resulted i^the admission of false ones on
 a material question of justice will demand consideration of the merits
 of aclaim,where there is a colorable showing of factual innocence.
 This a^Lfearit present set of extra ordinary circumstances that he prays
 this court KIM review and in the interest of justice relieve him from
judgement. So Prays Petitioner.




                                                Respectfully



                                                 ML Aa-Wfv   0CV*   m^M

                  CERTIFICATE OF SERVICE

On this day of ,LL Z*l        2015 I sent a copy of this motion-tot:
the clerk of the court.



                                             Respectfully


                                               I Ilij (L, |V*7/22/




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     ViUUi (a Oujlj^ 0.p_YVV4A .!pfULL,
                               jfourtJ) Court of Appeals
                                      i§>an Antonio, tEexas

                                 MEMORANDUM OPINION

                                         No. 04-13-00818-CR


                                       Mark Anthony GARCIA,
                                             Appellant

                                                    v.



                                         The STATE of Texas,
                                                 Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2009CR2731A
                            Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 6, 2015

AFFIRMED AS MODIFIED


           Appellant Mark Anthony Garcia was charged by indictment with one count of murder. The

jury returned a guilty verdict and assessed punishment at twenty-years' confinement in the

Institutional Division of the Texas Department of Criminal Justice. On appeal, Garcia contends

(1) he was denied effective assistance of counsel and (2) the trial court erred in assessing attorney's

fees. We modify the judgment to delete the assessment of attorney's fees and affirm the trial

court's judgment as modified.
                                                                                      04-13-00818-CR




                            Factual and Procedural Background


        Because Garcia does not challenge the sufficiency of the evidence, our recitation of the

facts is limited to those facts associated with his appellate issues.

        On December 13, 2008, several patrons at a local bar became engaged in a heated

argument. The security guard removed the group of individuals from inside the premises and the

confrontation ensued outside of the bar. Two of the men walked to a nearby silver vehicle;

witnesses described both men as Hispanic—the first man wearing a black shirt and the second

wearing a yellowish-colored shirt. Witnesses described the male with the yellowish-colored shirt

reaching into the vehicle and grabbing a semi-automatic firearm. The vehicle was driven down

the road and the man with the yellowish-colored shirt ran back to the bar and fired several shots at

the victim, Michael Morales, who was standing outside the bar.

        Officers quickly located a silver Cadillac with a Hispanic male wearing a yellowish-

colored shirt. The individual was identified as Appellant Mark Anthony Garcia. Garcia's brother,

Michael Garcia, and a Hispanic female, Priscilla Beltran, were also in the vehicle. Other officers

located another Hispanic male, identified as Hector Lozano, wearing a black shirt and hiding in a

dumpster nearby. A 9 mm firearm was found hidden in a parking lot in the same vicinity.

        Garcia was detained and immediately told officers that his brother Michael was not

involved in the incident. During the trial, several of the State's witnesses identified Garcia as the

individual that returned to the bar and fired at Morales. Defense witnesses called into question

whether Lozano or Garcia fired the weapon. As evidence of such, the witnesses pointed to the fact

that Lozano, not Garcia, was the only individual with gunshot residue on his hands.

        Garcia took the stand in his own defense. Garcia testified that he was actually running

toward Lozano, who was holding the firearm, and trying to keep Lozano "from doing something

stupid." At the close of Garcia's direct examination,defense counsel asked Garcia whether he had
                                                                                      04-13-00818-CR



done anything to justify his arrest on the night of the shooting. Garcia answered emphatically with

"I had nothing to hide" and "I didn't do nothing." The State immediately argued trial counsel's

question opened the door to otherwise inadmissible evidence—Garcia's possession of cocaine at

the time of his arrest.


        Garcia contends the jury's knowledge that he was in possession of cocaine prejudiced his

credibility. Instead of attributing his behavior to too much alcohol, the jury viewed Garcia as "a

drug-crazed, remorseless killer, instead of a good guy who was trying to stop a tragedy." The jury

returned a verdict of guilty and assessed punishment at twenty-years' confinement in the

Institutional Division of the Texas Department of Criminal Justice.

        We turn first to Garcia's claim of ineffective assistance of counsel.


                             Ineffective Assistance of Counsel


A.      Standard of Review


        In order to establish that trial counsel rendered ineffective assistance, Garcia must

"establish two components by a preponderance of the evidence: deficient performance of trial

counsel and harm resulting from that deficiency that is sufficient to undermine the confidence in

the outcome of the trial." Exparte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)); accordMenefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012). To establish the first prong, deficient performance, Garcia must

prove that his attorney's performance '"fell below an objective standard of reasonableness' under

prevailing professional norms and according to the necessity of the case." Ex parte Moore, 395

S.W.3d at 157 (quoting Strickland, 466 U.S. at 687-88).

        To establish harm, Garcia "must demonstrate that he was prejudiced by his attorney's

performance or that 'there is a reasonable probability that, but for counsel's unprofessional errors,
                                                                                     04-13-00818-CR




the result of the proceeding would have been different.'" Id. at 158 (footnote omitted) (quoting

Strickland, 466 U. S. at 694).

        "An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel." Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). "There is a strong presumption that counsel's conduct

fell within the wide range of reasonable professional assistance." Id. (citing Strickland, 466 U.S.

at 689). Therefore, Garcia '"must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.'" Exparte Moore, 395 S.W.3d at 157

(quoting Strickland, 466 U.S. at 689).

B.      Arguments of the Parties

        Garcia contends that by asking the question, trial counsel unintentionally opened the door

to otherwise inadmissible extraneous offense evidence. Such testimony could only lead the jury

to see Garcia as a "drug-crazed, remorseless killer, instead of a good guy who was just trying to

stop a tragedy.'.'

        The State counters that a single, inarticulate question—asked during an otherwise vigorous

representation and well above the objective professional standard of reasonableness—cannot

amount to ineffective assistance of counsel.


C.      Ineffective Assistance of Counsel


        "A substantial risk of failure accompanies an appellant's claim of ineffective assistance of

counsel on direct appeal." Thompson, 9 S.W.3d at 813. "In the majority of instances, the record

on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel."

Id. at 813-14. "[Tjrial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003); accord Menefield, 363 S.W.3d at 593. An "appellate court should not find deficient

                                                -4-
                                                                                       04-13-00818-CR




performance unless the challenged conduct was 'so outrageous that no competent attorney would

have engaged in it.'" Menefield, 363 S.W.3d at 593 (quoting Goodspeedv. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005)). Often on direct appeal, because the record is silent on counsel's

reason, the defendant asks the appellate court to "speculate as to the reasons why trial counsel

acted as he did," but the court is required to "presume that [counsel's] actions were taken as part

of a strategic plan for representing the client." Rodriguez v. State, 336 S.W.3d 294, 302 (Tex.

App.—San Antonio 2010, pet. ref d). Here, however, the record specifically provides defense

counsel's reasons for asking the question.

D.     Analysis

       1.       Testimony in Question

       On the tenth day oftestimony, after the State rested its case in chief, Garcia took the witness

stand. Garcia articulated his version of the events that evening. Garcia denied firing the weapon
                                                                                l

that killed Morales. He further explained that he was actually attempting to stop Lozano "from

doing something stupid."

       Defense:      At the time that you were in the office talking with the detective, all
                     right, did you believe that you'd some day end up on the stand being
                     tried for murder?


       State:        Objection, Your Honor, relevance.

       Defense:      State of mind, Your Honor, at the time. Demeanor they placed him.

       Trial Court: Ask your question again.

       Defense:      At the time that you were placed in custody in — with Detective
                     Angell, all right, did you ever believe that you would be on trial for
                     murder?


       Trial Court: It's sustained.


       Defense:      Did you have anything to hide that night when you were talking to the
                     detective?



                                                -5-
                                                                                     04-13-00818-CR



       Garcia:         I had nothing to hide.

       Defense:        Had you done anything?

       Garcia:         I didn't do nothing.

       2.         Arguments Before the Trial Court

       After the defense rested, the State immediately asked to approach the bench. The State

asserted that defense counsel "opened the door to his motion in limine" and the State was entitled

to ask questions pertaining to the fact that Garcia "had drugs in his possession." The jury was

excused and trial counsel explained,

       I don't believe that the motion in limine has been violated, Your Honor, on the
       record. I asked him if he ever thought he would be arrested for murder, that night,
       and did he have any reason. And that's what we're talking about murder. We're
       not talking about drugs. We're not talking about anything else.

       The testimony was read back for the parties and the trial court. The trial court determined

that, in light of the question asked, defense counsel "opened the door to any criminal act he may

have committed that night that could have resulted in an arrest." Over defense counsel's ardent

objection, the trial court ruled "that the door [was] opened. And [the State is] going to get to ask

the questions."

       3.         Conclusion


       We are "especially hesitant to declare counsel ineffective based upon a single alleged

miscalculation during what amounts to otherwise satisfactory representation, especially when the

record provides no discernible explanation of the motivation behind counsel's actions—whether

those actions were of strategic design or the result of negligent conduct." Thompson, 9 S.W.3d at

813; see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ("While a single error

will not typically result in a finding of ineffective assistance of counsel, an egregious error may

satisfy the Strickland prongs on its own.").
                                                                                          04-13-00818-CR




          Here, trial counsel clearly articulated that he did not anticipate or believe that his questions

might open the door to the State's propounding questions pertaining to Garcia's possession of

cocaine. But see Garcia v. State, 308 S.W.3d 62, 67-68 (Tex. App.—San Antonio 2009, no pet.)

(concluding trial counsel's multiple blanket questions opened the door to extraneous bad acts and

his repeated failure to object to admission of extraneous offenses deprived defendant of a fair

trial).   Even acknowledging that "a single egregious error of omission or commission" can

constitute ineffective assistance, the allegations of ineffectiveness must be "firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9

S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We,

therefore, look to trial counsel's representation throughout the trial.

          Trial counsel conducted two days of pre-trial motions, two days of voir dire, fourteen days

of testimony during the guilt/innocence portion of the trial, and two days of punishment testimony.

During the guilt/innocence phase of the trial, trial counsel cross-examined twenty-two State's

witnesses and presented ten defense witnesses. There were a plethora of objections lodged by

defense counsel preventing damaging testimony from being heard by the jury. Additionally, sixty-

one defense exhibits were admitted by the trial court. Defense counsel presented impassioned

closing arguments in both the guilt/innocence and the punishment phases of the trial.

          Garcia contends this trial turned on his credibility; yet, the record demonstrates several

witnesses identified Garcia (the individual in the yellowish-colored shirt) as obtaining the weapon

from the vehicle, placing the weapon in his waistband, and firing the weapon at Morales.

Moreover, although Garcia's "jovial" disposition is mentioned during closing arguments, the State

was comparing his appearance shortly after the shooting to his somber appearance in court.

Neither party mentioned possession of cocaine or any other narcotics during closing arguments.

Importantly, although the trial court ruled that defense counsel's question opened the door to
                                                    -7-
                                                                                      04-13-00818-CR




evidence of extraneous bad acts, there is no indication in the record defense counsel's actions were

intentional; to the contrary, he clearly disagreed with the trial court's determination that the door

was opened.

        We remain mindful that simply showing other counsel's hindsight or a different trial

strategy does not show ineffective assistance. See Bone v. State, 11 S.W.3d 828, 833 (Tex. Crim.

App. 2002).    Upon a review of the entire record, we conclude Garcia failed to demonstrate

Strickland's first requirement—the deficient performance of trial counsel. See Ex parte Moore,

395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 687-88). Because Garcia failed to show that

trial counsel's performance was deficient, he failed to meet Strickland's first prong so we need not

address prejudice. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We therefore

overrule Garcia's first issue on appeal.

                                           Attorney's Fees


        Garcia challenges the assessment of $3,110.00 in court costs plus an undetermined amount

for attorney's fees imposed in the judgment. Garcia asserts the trial court twice found him indigent

for purposes of trial—during the trial phase and again on appeal. He was, therefore, presumed to

remain indigent, and there is no evidence to show he was able to pay the court-appointed trial

attorney's fees.

A.      Argument of the Parties

        Garcia contends there is no evidence of a material change in his financial circumstances

after the trial court determined his indigency. Because there is no such evidence, the record is

insufficient to support the assessment of attorney's fees as costs against Garcia.

        The State counters that Garcia was able to post a $200,000.00 bond and gained employment

while on bond awaiting trial. Such evidence, the State argues, is some evidence that Garcia had

the financial resources to cover at least a portion of his legal expenses.
                                                                                      04-13-00818-CR




B.     Court Costs Assessed Against Indigent Defendants

       '"A defendant who is determined by the court to be indigent is presumed to remain indigent

for the remainder of the proceedings in the case unless a material change in the defendant's

financial circumstances occurs.'" Dieken v. State, 432 S.W.3d 444, 446-47 (Tex. App.—San

Antonio 2014, no pet.) (quoting Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2014));

accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d

552, 557 (Tex. Crim. App. 20.10). On the other hand,

       "[i]f the court determines that a defendant has financial resources that enable him to
       offset in part or in whole the costs of the legal services provided, . . . the court shall
       order the defendant to pay ... as court costs the amount that it finds the defendant is
       able to pay."

Dieken, 432 S.W.3d at AA6-A1 (alterations in original) (quoting TEX. CODE CRIM. PROC Ann.

art. 26.05(g)); accord Mayer, 309 S.W.3d at 556.

       '"[T]he defendant's financial resources and ability to pay are explicit critical elements in

the trial court's determination of the propriety of ordering reimbursement of costs and fees.'"

Dieken, 432 S.W.3d at 447 (quoting Mayer, 309 S.W.3d at 556). Our review determines whether

the record supports a finding that Garcia's "financial circumstances experienced a material

change" and that he "was able to pay the court-appointed attorney's fees." Id. (citing TEX. CODE

CRIM. PROC. ANN. art. 26.04(p)); accordMcFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App.

2010). In doing so, "we view the evidence in the light most favorable to the judgment." Dieken,

432 S.W.3d at 447 (citing Mayer, 309 S.W.3d at 557).

D.     Analysis

       We first turn to the trial court's determination that Garcia was indigent.
                                                                                      04-13-00818-CR



         1.     Trial Court's Finding ofIndigence

         The Texas Code of Criminal Procedure provides that a criminal defendant "without means

to employ counsel of my own choosing," may petition the court to appoint counsel to represent

him at the county's expense. Tex. Code Crim. Proc. Ann. art. 26.04(o) (providing oath of

indigence language); id. art. 26.05(f) (requiring counties to pay indigents' costs and attorney's

fees).

         In Dieken, 432 S.W.3d at 447, this court analyzed the inherent conflict in article 26.04's

mandate with that of article 26.05(g). We concluded that "[a]rticle 26.05(g) authorizes a court to

determine that a defendant is able to pay a portion of the costs of his legal services but is unable

to pay the balance." Id. (citing Tex. Code Crim. Proc. Ann. art. 26.05(g) ("Ifthe court determines

that a defendant has financial resources that enable him to offset in part or in whole the costs of

the legal servicesprovided, including any expenses and costs, the courtshall order the defendant

to pay during the pendency of the charges or, if convicted, as court costs the amount that itfinds

the defendantis able topay.")). We must, therefore, determine whether the trial court's conclusion

that Garcia was able to pay for part, but not all, of the legal services he received was reasonable.

         2.     Relevant Evidence


         Although the record does not contain any documents determining Garcia's indigency,

Garcia was clearly represented by appointed counsel during his trial.        The trial court further

approved payment of an investigator for the defense. From these documents, we presume Garcia

"'remainfed] indigent . . . unless a material change in [Garcia's] financial circumstances

occurred]."' Id. at 448 (second, fourth alterations in original) (quoting Tex. Code Crim. Proc.

Ann. art. 26.04(p)); see also Wiley, 410 S.W.3d &t3ll; Mayer, 309 S.W.3d at 557.

         As the State points out, on January 13, 2009, the trial court signed a Special Condition of

Release on Bond, setting Garcia's bond at $100,000.00 and ordering full-house arrest and

                                                -10-
                                                                                     04-13-00818-CR




electronic-monitoring as conditions of bond. On October 28, 2011, the bond was apparently

increased to $200,000.00. Although it appears Garcia was able to post bond, the clerk's record

does not contain any actual documentation of Garcia's bond.

       On May 31, 2012, defense counsel filed a Motion to Modify Conditions of Bond requesting

Garcia's electronic monitoring be modified to accommodate his work schedule at a local

restaurant. On November 20, 2013, defense counsel's motion to withdraw indicating that Garcia

"remains indigent and cannot afford to hire an attorney to represent him [on] appeal" was granted

and, the trial court appointed an assistant public defender to represent Garcia on appeal.

       3.      Sufficient Evidence

       To impose the attorney's fees on Garcia, the trial court had to find, either expressly or

implicitly, that a material change occurred and Garcia had the ability to pay $3,110.00 in court

costs and attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Wiley, 410 S.W.3d at

317; Mayer, 309 S.W.3d at 556. The record does not contain either an express written or oral

finding supporting the same. Additionally, the record does not contain a bill of costs outlining a

portion for which the trial court reasonably determined Garcia could pay.

       Because the record shows Garcia had court-appointed counsel at trial and on appeal, and

does not include either an express or implicit finding of a material change in Garcia's ability to

pay the attorney's fees, we modify the judgment to delete the assessment of attorney's fees. See

Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 556.

                                           Conclusion


       Having overruled Garcia's ineffective assistance claim, we affirm the trial court's

judgment as modified.

                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH
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