Affirmed and Memorandum Opinion filed December 4, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00838-CR

                       ANTONIO ONORATO, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 15
                           Harris County, Texas
                      Trial Court Cause No. 1884855

                  MEMORANDUM OPINION
      In this appeal we consider whether appellant received ineffective assistance
of counsel because his trial counsel allegedly failed to fully investigate witnesses
who could potentially provide mitigating evidence at the punishment phase of trial.
We affirm.

                   I. FACTUAL AND PROCEDURAL BACKGROUND
      Appellant was charged by information with the misdemeanor offense of
assault arising out of an incident in which appellant struck the complainant,
breaking her nose. Appellant pleaded “not guilty” to the charged offense. Before
trial by jury, appellant elected to have the trial court assess punishment.

         At trial, the State presented witnesses who testified that appellant attacked
the complainant outside of a nightclub because appellant was angry that the
complainant punched him a few months earlier. The complainant testified she
punched appellant a few months earlier because, without provocation, he had
attacked one of the complainant’s female friends. According to the complainant,
on the night of the incident, the complainant was at a nightclub with a friend and
the friend’s brother. As the complainant was exiting the nightclub, appellant saw
her and approached her to discuss the prior incident. After the conversation, as she
turned to leave, appellant tapped her on the shoulder and punched her when she
turned around, shattering her nose.            Appellant then began attacking the
complainant while his associates attacked the complainant’s friend’s brother. The
complainant’s friend testified that appellant had threatened the complainant and the
friend had moved homes because of the threat. The jury found appellant guilty as
charged.

         At the punishment hearing, the State relied upon the evidence it submitted at
trial, and appellant presented the testimony of appellant’s aunt, Maria Ortega.
Ortega testified that she had been involved in appellant’s upbringing. She stated
that she had not known him to be violent and that he was a good student who had
graduated from high school and was planning on attending college.              Ortega
requested that the court give appellant probation to allow him to prove that he’s
“not a bad child.” The trial court assessed punishment at one year’s confinement.

         Appellant filed a motion for new trial on the grounds that his trial counsel
rendered ineffective assistance. The trial court denied appellant’s motion for new
trial.

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      On appeal, appellant presents two issues, in which he asserts that he received
ineffective assistance of counsel during the punishment phase of the trial. In
support of his claim, appellant alleges that his trial counsel was deficient in failing
to investigate potential witnesses to testify at the punishment hearing.

                                      II. ANALYSIS
      Both the United States and Texas Constitutions guarantee an accused the
right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I § 10; Tex.
Code Crim. Proc. art. 1.051 (West, Westlaw through 2013 3d C.S.). This right to
assistance of counsel necessarily includes the right to reasonably effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); Ex Parte Gonzales, 945 S.W.2d 830, 835 (Tex.
Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show
that (1) trial counsel’s representation fell below an objective standard of
reasonableness, based on prevailing professional norms; and (2) there is a
reasonable probability that the result of the proceeding would have been different
but for trial counsel’s deficient performance. Strickland, 466 U.S. at 688–92. This
test applies to claims arising under the state as well as the federal constitution.
Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).            Appellant
bears the burden of proving his claims by a preponderance of the evidence.
Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).               When the
prejudice prong of the Strickland test is dispositive, we need address only that
prong on appeal. See My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref’d).

      When a defendant asserts ineffective assistance of counsel in a motion for
new trial, we review the trial court’s denial of the motion for an abuse of
discretion. Washington v. State, 417 S.W.3d 713, 724–25 (Tex. App.—Houston

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[14th Dist.] 2013, pet. ref’d). We review de novo the trial court’s decision on the
prejudice prong while giving deference to the trial court’s implied resolution of the
underlying factual determinations in support of the denial of the motion for new
trial. Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). This same
deferential review must be given to a trial court’s determination of historical facts
when it is based solely on affidavits, regardless of whether the affidavits are
controverted. Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012). When no
express findings are made by the trial court, appellate courts are to impute implied
factual findings that support the trial judge’s ultimate ruling on the motion when
such implicit findings are both reasonable and supported in the record. Johnson,
169 S.W.3d at 239.

      Trial counsel has a duty to make an independent investigation into the facts
of the case. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (per
curiam); overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex. Crim.
App. 1998). Appellant argues that his trial counsel’s performance was deficient
because trial counsel did not conduct a meaningful independent investigation into
potential witnesses to testify on appellant’s behalf during the punishment phase of
trial. In support of this claim, appellant asserts that trial counsel failed to inquire
about potential witnesses who could offer mitigating evidence. Appellant also
asserts that trial counsel did not adequately prepare Ortega to testify at the
punishment hearing.

      In an affidavit, appellant stated that trial counsel asked if he had any
punishment witnesses available and appellant informed him that Ortega was
present. Appellant also averred that trial counsel never asked appellant for the
names of any witnesses who would testify if he were found guilty. The State
presented the affidavit of appellant’s trial counsel. In his affidavit, trial counsel

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stated: “Of the relatives present in court, Maria Ortega, [appellant’s] aunt, was the
most positive in her opinion of [appellant]. She was also the most fluent in
English.”   We presume for the sake of argument that trial counsel failed to
investigate potential witnesses who could offer evidence on appellant’s behalf
during the punishment phase of trial and that this failure to investigate fell below
the objective standard of reasonableness, based on prevailing professional norms.
See Strickland, 466 U.S. at 688–92. Even under this presumption, appellant cannot
prevail.

      The second prong of the Strickland test requires a defendant complaining of
ineffective assistance of counsel to prove that there is a reasonable probability that
the result of the proceeding would have been different but for trial counsel’s
deficient performance. Id. at 694, 104 S.Ct. 2052. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. It will not
suffice for appellant to show “that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052. The failure to call
witnesses at the guilt-innocence and punishment stages is irrelevant absent a
showing that the witnesses were available and their testimony would have changed
the result of the proceeding. See Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim.
App. 2010). In evaluating the impact of potential punishment-phase witnesses, we
must compare the evidence presented by the State with the evidence that the jury
did not hear due to counsel’s failure to investigate. Id. at 896.

      At the hearing on the motion for new trial, in addition to presenting his
affidavit, appellant presented affidavits from Ortega and two of appellant’s
business associates who stated that they would have testified at trial had they been
asked. In her affidavit, Ortega stated that she did not expect to be called as a
punishment-phase witness and was unprepared to testify. Ortega stated that if she

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had been interviewed properly, she would have provided the court with more
details, including that appellant was interested in learning and attending college,
appellant graduated from high school a year early, appellant has 24 hours of
college credit, that appellant has been a reliable worker, and that appellant wants to
help with the family business after graduating from college.

         Appellant also presented affidavits from a co-worker Luis Avila, and a
business associate, Jorge Castillo. In Avila’s affidavit, Avila stated that he worked
with appellant in appellant’s father’s shop. Avila averred that appellant is a “good,
hard worker” who is “friendly, respectful, and reliable.” Castillo stated in his
affidavit that Castillo does business with appellant’s father and has observed
appellant working for appellant’s father. Castillo averred that appellant is a good
worker who helps his father, has good communication skills, and a good work
ethic.

         The State did not present any additional evidence in the punishment phase,
and relied upon the evidence presented at the guilt-innocence phase of trial. The
State argued that appellant should not receive probation because he was arrested
for murder while out on bond pending trial in this case. The murder charge, of
which the trial court previously was made aware, was pending in Bexar County at
the time of the punishment hearing. In addition, the state pointed out the appellant
arrived late to court. The evidence presented at trial included evidence regarding
the severity of appellant’s assault on the complainant, evidence that appellant had
assaulted the complainant’s friend without provocation a few months earlier, and
evidence that appellant threatened the complainant and his threat caused at least
one of the eye-witnesses to the assault to move to a new home.

         Appellant did not prove a reasonable probability that the testimony he could
have presented if counsel had investigated potential punishment witnesses would

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have changed the outcome of the proceeding. The testimony Ortega stated she
would have provided at the punishment hearing had she been prepared was similar
to the testimony she did provide except for the additional observations that
appellant was employed and a good worker. The latter testimony was essentially
the same testimony that Avila and Castillo would have provided.

      Appellant asserts his sentence would have been less severe if trial counsel
had presented the evidence that he was a good worker because this testimony
would have been meaningful mitigation evidence. In light of the strength of the
State’s evidence supporting strict punishment, including the evidence that
appellant had a history of violence, appellant issued a threat that caused one
witness to move to a new home, and that appellant was charged with murder while
out on bond for the assault case, appellant has not established a reasonable
probability that evidence that he was a good worker would have mitigated his
sentence. See Jaenicke v. State, 109 S.W.3d 793, 799 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (holding that defendant did not establish prejudice resulting
from trial counsel’s failure to call character witnesses because those witnesses
might seem incredible in light of fact that defendant was charged with burglary
while awaiting trial).

      The trial court did not abuse its discretion in denying appellant’s motion for
new trial in which appellant asserted that he received ineffective assistance of
counsel. See id. Appellant’s sole issue is therefore overruled.




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                                 III.    CONCLUSION
      Appellant did not prove a reasonable probability that the result of his
sentencing proceeding would have been different if appellant’s trial counsel had
investigated punishment-phase witnesses and presented their testimony as
mitigating evidence.

      The judgment of the trial court is affirmed.


                                        /s/       Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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