      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00419-CR



                                   Mario Castruita, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 65079, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Mario Castruita was charged with possession of methamphetamine in

the amount of more than one, but less than four grams. See Tex. Penal Code Ann. § 481.115(c)

(West 2010). This was enhanced by a prior conviction for possession of a controlled substance of

more than four grams but under 200 grams with intent to deliver. Appellant waived his right to a jury

trial and pleaded guilty to the charge without a plea bargain. He also affirmed that the previous

conviction was true. The trial court found the evidence sufficient to find him guilty and found the

previous conviction true. In a separate sentencing hearing, no witnesses were called by either

appellant or the State, and the trial court sentenced appellant to twelve years’ imprisonment with

348 days credit. Appellant filed a motion for new trial, asserting that trial counsel was ineffective

because he did not call witnesses in the punishment phase of his trial. The trial court held a hearing

on the motion and denied the motion. On appeal, appellant contends that trial counsel was ineffective
and that the trial court abused its discretion in overruling his motion for new trial. We will affirm

the trial court’s judgment.


                                          BACKGROUND

                On June 15, 2009, Harker Heights Police officers entered into the back room of the

Ultimate Sports Bar and observed appellant seated at a table with a waitress. One officer observed

appellant rolling a five dollar bill into the shape of a straw and also saw a line of a crystal substance

on the table and in a clear plastic baggie. The substance was later identified as methamphetamine.

Appellant told another officer that the methamphetamine was his and that he was planning to

share it with the waitress. Appellant was arrested and again admitted the methamphetamine was his.

On appeal, appellant asserts that he received ineffective assistance of counsel at trial because his

attorney did not call witnesses to testify to his good character, the burden on his family if he were

incarcerated, the loss of companionship to his son, and his desire for treatment for his drug and

alcohol addiction.


                                    STANDARD OF REVIEW

                To show ineffective assistance of counsel, a defendant must show both that his

counsel’s performance fell below an objective standard of reasonableness and that the deficient

performance prejudiced the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Blevins v. State, 18 S.W.3d 266,

271 (Tex. App.—Austin 2000, no pet.). The defendant bears the burden of (1) overcoming a strong

presumption that his counsel’s performance fell within the range of reasonable professional assistance



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and (2) bringing forth a record showing that his counsel’s performance was not based on sound trial

strategy. Thompson, 9 S.W.3d at 813; Blevins, 18 S.W.3d at 271. We evaluate trial counsel’s

effectiveness from his perspective at trial, not in hindsight, and we consider the representation in its

totality, rather than focusing solely on isolated acts or omissions. Mayhue v. State, 969 S.W.2d 503,

510 (Tex. App.—Austin 1998, no pet.). We “must not second-guess legitimate strategic or tactical

decisions made by trial counsel” and instead must yield to a strong presumption that counsel’s

conduct was within the wide range of reasonable professional assistance. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008). Therefore, unless the record is sufficient to show that

counsel’s conduct was not the product of a strategic or tactical decision, we will presume that

counsel’s performance was constitutionally adequate unless his conduct was so outrageous that

no competent attorney would have acted similarly. Id. at 696-97 (quoting Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).


                                           DISCUSSION

                Appellant’s motion for new trial was heard and denied by the trial court. During the

hearing on his motion for new trial, appellant noted that trial counsel did not call any character

witnesses at the punishment phase of the trial and alleged that this failure to call witnesses was not

based on any reasonable trial strategy. Appellant called three witnesses during the hearing on his

motion for new trial to testify regarding information they could have offered during the punishment

phase of the trial. Appellant first called Allen Mueller, who testified that he had an advanced degree

in theology from Grace Theological Seminary and had been working for J.A.I.L. Ministries as a

volunteer for ten years. He stated that he had conferred with appellant once a week for the past eight

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months at a theology course that he holds at the jail two nights a week. He also testified that

appellant seemed sincere when asking questions and was pleasant while attending class. Mueller

stated that he was present at the punishment hearing and willing to testify.

               Appellant next called Irene Martinez, his common-law wife, who was married to him

for thirteen years. She said that she was present and willing to testify at the sentencing hearing and

would have told the trial court that her son needed his father at home for companionship and that

the family needed appellant for financial assistance. She added that appellant’s incarceration would

burden the family and that appellant would be better served on an outpatient basis.

               The last witness called was Azailia Lucero, appellant’s niece, who testified that

appellant was good to her and that she felt safe around him. She hoped appellant would be able to

receive outpatient treatment rather than incarceration so that he could set a better example for her.

She was also present at the sentencing hearing and willing to testify.

               At the hearing on appellant’s motion for new trial, appellant’s trial counsel,

Jon McDurmitt, testified that he had ensured that the family and friends of appellant were present

during the trial to show their support to the court. During the sentencing hearing, McDurmitt

pointed out to the court that appellant’s family, friends, former wife, and a member of J.A.I.L.

Ministries were all present in support of appellant. McDurmitt stated it was possible that appellant

had asked him to call these witnesses. However, he did not want to call the witnesses because

they could then be cross-examined by the State, potentially causing further harm to appellant.

McDurmitt said he chose not to call these witnesses as a trial strategy because his experience as a

criminal defense attorney, particularly with the trial court judge presiding and the prosecutor



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handling the case, has shown him that if a client has a criminal history, the State will highlight the

history while cross-examining the defendant’s witnesses. Appellant had a record of “at least one

felony and some misdemeanors,” according to McDurmitt, which could have been emphasized

during cross-examination. He also did not want to risk having the State bring out any aggravating

factors of the offense that would have supported an allegation of possession with intent to deliver

and could have influenced the trial court in its assessment of punishment. Instead of discussing

appellant’s good character with the potential witnesses, McDurmitt chose an alternate trial strategy

of focusing on appellant’s need for treatment and showing that he had support. McDurmitt further

testified that he did not think Mueller’s testimony would help appellant’s case because appellant’s

religious commitment was already stated in the presentence investigation report (PSR) provided to

the trial court.1

                    To obtain relief on an ineffective assistance of counsel claim based on an uncalled

witness, the defendant must show the witness was available to testify and that the testimony would

have been of some benefit to his defense. Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App.

2004). In this case, appellant has shown that he did have at least three witnesses who were available

and willing to testify to his character. However, while it is possible that their testimony may have

had some benefit to appellant’s defense, it is also possible that the testimony would have harmed

appellant’s defense during cross-examination. Further, McDurmitt made a tactical decision not to

call Mueller to testify because anything Mueller could add was already in the PSR. McDurmitt’s




        1
          The appellate record refers to the PSR; however, the actual PSR was not included in the
appellate record.

                                                     5
strategy not to call these witnesses prevented the State from having the opportunity to highlight

appellant’s criminal history. It also prevented the State from introducing evidence of intent to deliver,

through evidence that appellant intended to provide the waitress at the bar with methamphetamine,

which could have led the trial court to assess a greater sentence. When in counsel’s reasonable

judgment, a potential witness may be as dangerous as he or she might be helpful, it is not ineffective

assistance of counsel not to call the witness to the stand. Damian v. State, 881 S.W.2d 102, 110

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (citing Johnston v. State, 750 F.Supp. 236, 238

(S.D. Tex. 1990)).

                The fact that McDurmitt could have chosen a different trial strategy is not enough

to show that his assistance was ineffective. See id. A claim of ineffective assistance requires a

defendant to show that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant’s case. Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 812; Blevins,

18 S.W.3d at 271. In this case, appellant has failed to show that McDurmitt’s conduct was not

the product of a strategic or tactical decision and has only demonstrated that an alternate trial

strategy could have been chosen. Instead of calling the potential witnesses to the stand, McDurmitt

chose the strategy of using the presence of the potential witnesses to demonstrate to the court that

appellant had support from family and friends in the community, avoiding the risk of introducing

any potentially harmful evidence. McDurmitt’s decision not to call any witnesses in this case was a

sound trial strategy, and appellant did not meet the heavy burden of overcoming the strong

presumption that McDurmitt’s performance fell within the range of reasonable professional

assistance. See Thompson, 9 S.W.3d at 813; Blevins, 18 S.W.3d at 271.



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               Appellant further alleges that McDurmitt was ineffective as counsel because he did

not attempt to correct a discrepancy in the PSR that may have left the trial court with the impression

that appellant was shifting the blame to someone other than himself. The PSR incorrectly stated that

the controlled substance was provided to appellant by a girl at the bar, when in fact, appellant

brought the substance to the bar. McDurmitt testified that he knew the PSR may have been incorrect

because he reviewed the police reports and recordings in which appellant admitted that the substance

was his. However, McDurmitt failed to correct this error in court because he believed the information

would harm appellant’s case. Appellant asserted that this was not a sound trial strategy and that

McDurmitt should have corrected this error. If McDurmitt knew that the information in the PSR was

incorrect and neglected to correct it, such conduct would not be reasonable professional assistance.

However, even if that fact were established, appellant is required to show that counsel’s performance

prejudiced appellant’s case. See Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 812; Blevins,

18 S.W.3d at 271. Appellant simply asserts that this act gave the trial court the impression that

appellant was shifting blame to another. Appellant has failed to show that the case was prejudiced

by this act.


                                          CONCLUSION

               In summary, appellant did not meet his burden of showing that trial counsel’s

performance fell below an objective standard of reasonableness and that the deficient performance

prejudiced appellant’s case. See Strickland, 466 U.S. at 687. Appellant demonstrated only that an

alternate trial strategy could have been chosen by counsel, but this is not enough to find ineffective

assistance of counsel. Nor did he show that the testimony of the witnesses available to testify would

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have been of some benefit to his defense. See White, 160 S.W.3d at 52. The testimony had the

potential to cause harm to appellant’s case, and McDurmitt’s decision not to call the witnesses to

testify was a product of sound trial strategy. Finally, even assuming counsel should have corrected

the inaccuracy in the PSR, that one error, viewed in the context of counsel’s overall representation,

does not render counsel’s performance as a whole ineffective. See Thompson, 9 S.W.3d at 813;

Blevins, 18 S.W.3d at 271; Mayhue, 969 S.W.2d at 510. We overrule appellant’s complaint on

appeal and affirm the trial court’s judgment.



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: July 12, 2012

Do Not Publish




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