Opinion issued October 25, 2012.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-10-01049-CR
                           ———————————
                        JOSE LUIS BAZAN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1250348



                                 OPINION

      A jury found Jose Luis Bazan guilty of the first-degree felony offense of

aggravated robbery with a deadly weapon. After finding true the allegation in the

enhancement paragraph—that Bazan previously had been convicted of felony

robbery—the jury assessed his punishment at life imprisonment. See TEX. PENAL
CODE ANN. § 29.03 (West 2011). Following his conviction, Bazan discharged his

trial counsel and retained new counsel, who moved for a new trial, contending that

trial counsel was ineffective because he failed to investigate and subpoena

witnesses to testify on Bazan’s behalf during the punishment phase of the trial.

After a hearing, the trial court found that Bazan did not show that he was

prejudiced by any failing of trial counsel; thus, it denied Bazan’s request for a new

trial.

         Bazan appeals, contending that the trial court abused its discretion in

denying his motion for a new trial. We hold that it did not, and we therefore

affirm.

                                   Background

         In February 2010, Irma Solis was walking with her daughter outside their

home when she noticed that someone had broken into her husband’s truck. She

walked inside the house to tell her husband about the incident. Irma returned

outside with her daughter. A man, later identified as Jose Bazan, confronted them

with a pointed shotgun and directed them back into their house. At Bazan’s order,

the Solis family searched each room in their house for valuables and turned them

over to Bazan. Bazan then ordered Antonio Solis back outside. He demanded that

Solis help him load the stolen items into Solis’s truck. Bazan also loaded the truck.

As Bazan loaded the truck, his attention strayed from his efforts to hold the family

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at gunpoint, which presented an opening for Solis. Solis grabbed the shotgun and

turned it on Bazan, then hit him, tied him up, and called the police.

Punishment phase

      During the punishment phase of the trial, the State introduced testimony that,

while the police transported him to the central jail, Bazan had threatened that he

would take the lives of Solis and his family. The State introduced evidence that

Bazan previously had been convicted of aggravated robbery. Bazan also had been

convicted of burglary of a building with intent to commit theft (twice), and of

attempted deadly conduct.

      Bazan committed a second aggravated robbery the night before he robbed

the Solis family. The State elicited testimony about this extraneous offense. Lexie

Turner and Justin Brewer testified that Bazan and an unidentified accomplice

broke into Brewer’s business, shot each of them multiple times, and stole money

from Brewer’s safe.       Turner and Brewer each sustained shotgun wounds to the

torso, back, and groin.

      Finally, the State introduced testimony from Bazan’s ex-girlfriend, Bethany

Spell. She testified that, in March 2007 when she was eight weeks pregnant,

Bazan had held her at knifepoint during an altercation. He grabbed her ponytail

and slammed her head against the kitchen floor. Bazan fought with her about the

pregnancy, because he did not want to have anything to do with the baby.

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      Bazan chose to testify in his defense against counsel’s advice.       Bazan

informed the trial court that it was his desire to testify. Bazan confirmed on the

record that his trial counsel had discussed the risks associated with Bazan’s

testifying. Bazan also confirmed on the record that he did not want his mother to

testify on his behalf during the punishment phase.

      In his testimony, Bazan told the jury that he had approached the Solises’

house after the Brewer robbery. The night of the Brewer robbery, he had been

shooting heroin, and had agreed to participate in a murder for hire in exchange for

$20,000 and drugs. Bazan testified that the murder-for-hire scheme required him

to go to Brewer’s business, brandish a shotgun, and create “chaos” while an

accomplice killed the intended target.       In furtherance of this plan, Bazan

accompanied a friend to the business carrying guns, including “two AKs.” Bazan

told the jury that all did not go according to the plan, because neither he nor his

accomplice had killed anyone that evening.

      Bazan testified that he had considered killing Antonio Solis during the

robbery, but he decided he would not. Trial counsel asked Bazan if he understood

that he could be sentenced anywhere from fifteen years’ confinement to life in

prison for the Solis robbery. Bazan replied, “Yes. I mean, I’ve been locked up,

you know—my whole life. You can give me life. You can give me a life

sentence.”

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      On cross-examination, Bazan testified that he had shot Lexie Turner with a

shotgun during the Brewer robbery, and was paid to “make sure [the] shotgun was

fired and make sure that it was secured in case they had guns, and we had other

guns in case they did.” The State asked Bazan whether he knew that if Turner had

died he would have faced a capital murder charge. Bazan replied, “I’m going to do

what I have to do.” Bazan also conceded that he previously had been convicted of

felony aggravated robbery after he broke into an apartment and held two women at

knifepoint in order to steal a kilogram of cocaine from them.

      Trial counsel offered Bazan’s medical records into evidence. Those records

included a diagnosis that Bazan was alcohol and opiate dependent, and that doctors

had ordered medical treatment for withdrawal symptoms.

      Trial counsel called no further witnesses to testify on Bazan’s behalf during

the punishment phase. In closing arguments, Bazan’s counsel asked for leniency,

requesting that the jury consider Bazan’s drug dependency and difficult life

circumstances as mitigating factors. Counsel asked the jury to assess no more than

thirty years’ confinement.

Hearing on the motion for new trial

      At the motion for new trial hearing, trial counsel testified that he had

considered offering the testimony of Bazan’s mother—who was present throughout

the trial—during the punishment phase, but abandoned that plan after Bazan

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specifically instructed that she not testify. Trial counsel also testified that he had

retained a private investigator on Bazan’s behalf; that investigator had located

Bazan’s medical records, had interviewed witnesses, and had obtained information

about two possible witnesses to testify during the punishment phase—Bazan’s

mother and a girlfriend. Trial counsel spoke with Bazan’s mother a few days

before the trial.

       Bazan produced affidavits from twelve witnesses, including his mother, who

generally averred that they would have testified that Bazan is a good person, a

responsible and good father to his son, and one witness noted that Bazan suffered

from a broken home and “sense[d] that [he] has some kind of learning disability.”

       At the motion for new trial hearing, Bazan also introduced live testimony

from four witnesses: his mother, a pastor, and his son’s mother and step-father.

Bazan’s mother stated that her calls to trial counsel went unreturned. But she

acknowledged that when trial counsel spoke with her a few days before trial, she

told him that she was unsure of her testimony. She confirmed that she was present

throughout the trial. At the new trial hearing, she testified that she would have told

the jury that her son was a good-hearted, helpful person when he was not on drugs.

       Pastor       Willie   Montgomery   testified   that   Bazan’s   uncle   attends

Montgomery’s church. About three years ago, Bazan’s uncle asked that Pastor

Montgomery to visit Bazan while he was incarcerated. Pastor Montgomery did.

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After Bazan was no longer in jail, Bazan visited Pastor Montgomery’s church on

Sundays for about three months. Pastor Montgomery found Bazan to be someone

who did not make excuses for what he had done, had a pleasant attitude, and after

observing him often carrying his son while at church, believed him to be a good

father. He acknowledged that he had not seen Bazan in about three years.

      Troy Clifton, Bazan’s son’s step-father, testified. He stated that he had met

Bazan five years ago when Bazan was in prison. When out of prison, Bazan would

visit with his son at Bazan’s mother’s house every couple of weekends. Clifton

had a good relationship with Bazan, and had considered going into the moving

business with him. He believed that Bazan was a good father, and that his stepson

needed him. However, Clifton admitted that he did not know about the details of

the Brewer and Solis robberies, and he supposed that knowing about them changed

his opinion of Bazan. He also conceded that a person who held a woman at

knifepoint might be a dangerous individual.

      Finally, Margaret Ibarra, who is the mother of Bazan’s son, testified. She

stated that Bazan was incarcerated at the time her son was born, and off and on

throughout her son’s childhood. But Bazan is a good father when not in prison and

visits his son. She noted that Bazan often tells his son not to make the same

mistakes that Bazan has made. In this way, Bazan has had a positive effect on his

son’s life, because her son is a good boy, now aged 14. She did not know about

                                        7
the recent crimes, and she did not believe that Bazan would ever use a gun or hit a

woman.

      The trial court denied Bazan’s motion for new trial. The court concluded

that Bazan’s trial counsel was deficient for failing to adequately investigate

possible additional witnesses to testify on Bazan’s behalf during the punishment

phase. But it further found that Bazan had not shown that he was prejudiced by his

trial counsel’s performance, because the potential testimony of these witnesses

would not have resulted in a different sentence. Concluding that Bazan had not

demonstrated prejudice as a result of deficient performance, the presiding judge

emphasized the demeanor of all of the witnesses, including Bazan, and stated,

“Probability that a jury’s verdict would be different? No.”

                                    Discussion

Standard of review and applicable law

      We review Bazan’s challenge to the denial of his motion for new trial based

on ineffective assistance under an abuse of discretion standard, reversing “only if

the trial judge’s opinion was clearly erroneous and arbitrary.” Riley v. State, No.

PD-1531-11, 2012 WL 4092874 at *2 (Tex. Crim. App. Sept. 19, 2012). We view

the evidence in the light most favorable to the trial court’s ruling, must not

substitute our judgment for that of the trial court, and must uphold the ruling if it

was within the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d


                                         8
126, 129 (Tex. Crim. App. 2004) (under abuse of discretion standard, appellate

court must uphold trial court’s ruling if within zone of reasonable disagreement).

If there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous. Riley, 2012 WL 409 2874, at *2. Thus, a trial

court abuses its discretion in denying a motion for new trial only when no

reasonable view of the record could support its ruling. Id.; Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007).

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel’s performance was deficient and (2) a reasonable

probability exists that the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant

has the burden to establish both prongs by a preponderance of the evidence; failure

to make either showing defeats his ineffectiveness claim. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011); see Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002).

      This case turns on the application of Strickland’s second prong to the

assessment of punishment for the crime.        With respect to the second prong,

“appellate courts must show almost total deference to a trial court’s findings of

historical fact as well as mixed questions of law and fact that turn on an evaluation

                                         9
of credibility and demeanor.” Riley, 2012 WL 4092874, at *3. A defendant must

show that a reasonable probability exists that the jury’s assessment of punishment

would have been less severe in the absence of defense counsel’s deficient

performance. Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d). “The likelihood of a different result must be substantial, not just

conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011).

Analysis

      The jury imposed a life sentence— the maximum applicable sentence in the

punishment range of fifteen years’ confinement to life. See TEX. PENAL CODE

ANN. § 12.42. We agree with Bazan that the record supports the trial court’s

conclusion that trial counsel was ineffective in failing to investigate the possibility

of additional mitigation witnesses. See Lair v. State, 265 S.W.3d 580, 594–95

(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (counsel ineffective in drug

possession case when he failed to investigate and call witnesses who were

available and willing to testify on defendant’s behalf); Shanklin v. State, 190

S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d improvidently

granted) (“[F]ailure to uncover and present mitigating evidence cannot be justified

as a tactical decision when defense counsel has not conducted a thorough

investigation of the defendant’s background.”) (citing Wiggins v. Smith, 539 U.S.

510, 521, 123 S. Ct. 2527, 2535 (2003)).       We thus turn to examine whether the

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record supports the trial court’s second-prong finding that the mitigation evidence

that Bazan adduced at the new trial stage fails to show a probable likelihood that

the jury would have assessed a different punishment had it heard that evidence.

We conclude that the record supports this finding as well; thus, this trial court did

not abuse its discretion in reaching it.

      First, considerable evidence supports the jury’s maximum sentence. Bazan

himself invited the jury to sentence him to life in prison, stating that he had already

spent time in prison and directing: “You can give me life. You can give me a life

sentence.” Bazan also admitted that he had participated in an attempted murder-

for-hire plot just before he robbed the Solis family, and that that he had shot Turner

and Brewer. He demonstrated no remorse for any of his prior bad acts, testifying

“I’m going to do what I have to do.” The State presented evidence that Bazan had

a previous conviction for aggravated robbery, the same type of offense for which

the jury found him guilty, in which he had held the complainant at knifepoint. The

State also proved that Bazan had threatened the lives of the Solis family after his

arrest. Finally, the State presented testimony from Bazan’s ex-girlfriend that he

assaulted her while she was pregnant.           The evidence supporting the sentence

weighs heavily against any mitigating evidence that could have been proffered.

      Second, the proffered mitigation evidence is not strong. Citing our opinions

in Shanklin and Lair, Bazan contends that the witnesses he presented in support of

                                           11
his motion for new trial demonstrate the probability that he would have received a

lighter sentence. See Lair, 265 S.W.3d at 595–96; see also Shanklin, 190 S.W.3d

at 165–66.       In Shanklin, we concluded that the defendant had demonstrated

prejudice as a result of trial counsel’s failure to call any witnesses to testify on the

defendant’s behalf during the punishment phase of trial. Shanklin, 190 S.W.3d at

164–66. Similarly, in Lair, we held that the defendant had been prejudiced when

he was sentenced to seventy years’ confinement for possession of a controlled

substance, and counsel presented general testimony from a single witness, but

failed to call over twenty witnesses who were willing to testify to the defendant’s

honesty through specific acts.      Lair, 265 S.W.3d at 593–95.         The proffered

testimony in Lair was that the defendant worked countless hours to support his

family’s daily needs, spent time working with his children to improve their grades

and involve them in extracurricular activities, demonstrated honesty through

specific acts, and that the defendant was an honest, capable member of the

community. Id. at 593–94. The defendant in Lair did not testify. Id. at 588.

Considering the proffered mitigation testimony and counsel’s statements that

neither he nor the jury really knew the defendant, we concluded in Lair that trial

counsel’s failure to produce the mitigating testimony likely resulted in prejudice.

Id. at 594–96.




                                          12
      Bazan’s proffered new trial testimony does not match the proffers in Lair. It

consists of twelve brief affidavits and four witnesses. Their testimony provides

generally that Bazan is a good father, and has faced adversity in his life. The

specific examples of mitigating conduct that these witnesses proffer are that Bazan

had: (1) helped around two affiants’ houses; (2) sometimes driven his grandmother

to the grocery store; (3) helped a fellow inmate; (4) bought gasoline for his

girlfriend; and (5) occasionally bought things for his son. The proffered testimony

in Lair provided numerous, specific instances of good conduct toward the

defendant’s family and community, while Bazan’s mitigation testimony consists of

non-particular statements that he is a good person and five instances of good

conduct. See id.

      Bazan chose to testify on his own behalf during the punishment phase about

his background and prior bad acts, after his counsel advised him of the risk of

doing so. He presented some evidence in mitigation: he told the jury that he had a

seventh-grade education, and that he had never matured because of the long time

he had spent in prison.        Trial counsel also introduced medical records

demonstrating that Bazan had been diagnosed with a drug addiction necessitating

treatment for withdrawal, and pleaded for leniency based on these problems. But

during his testimony, Bazan did not exhibit any remorse and asked the jury for a

life sentence. The defendant in Lair did not testify. Bazan’s case also is different

                                        13
from Shanklin, in which Shanklin testified on his own behalf during punishment as

to his remorse for the crime, and apologized to the family of the decedent.

Shanklin, 190 S.W.2d at 165. Given the different sort of punishment evidence

presented, here the trial court was within its discretion to conclude that there was

no substantial probability that the additional mitigating evidence provided at the

new trial hearing could overcome Bazan’s self-incriminating testimony and

unrepentant demeanor.

      Finally, the record provides no indication that Bazan would have permitted

additional witnesses in his defense. See Schriro v. Landrigan, 550 U.S. 465, 480–

81, 127 S. Ct. 1933, 1943–44 (2007) (mitigation testimony that mother used drugs

during pregnancy would not have influenced court to impose different sentence

where defendant requested death penalty and asked counsel not to present

testimony from mitigation witnesses). This case is like Schriro, in which the

Supreme Court observed, “[the defendant’s] mitigation evidence was weak, and

the post-conviction [fact finder] was well acquainted with [the defendant’s]

exceedingly violent past and had seen first-hand his belligerent behavior.” Schriro,

550 U.S. at 481, 127 S. Ct. at 1944.

      In Schriro, the defendant prevented trial counsel from presenting mitigation

testimony during the punishment phase, specifically instructing his trial counsel

not to present testimony from his birth mother and ex-wife. Id. at 469–70, 127 S.

                                        14
Ct. at 1937–38. The defendant also invited the fact finder to impose the death

penalty, just as Bazan invited life in prison. Id. at 470, 127 S. Ct. at 1938. The

Supreme Court concluded that the Arizona state courts reasonably could have

determined that the defendant had not demonstrated prejudice due to ineffective

counsel, because he likely would have interfered with any mitigation evidence

offered during the punishment phase, based on his instructions not to present two

witnesses and his continued interference with trial counsel’s attempts to proffer

mitigation evidence. Id. at 476–77, 127 S. Ct. at 1941–42. Like the defendant in

Schriro, Bazan instructed trial counsel not to present mitigation testimony from his

mother, even though she was present and available throughout the trial. He also

instructed trial counsel, in an “obvious” way in front of the jury, to refrain from

cross-examining Spell, and he invited the jury to assess the maximum sentence.

Bazan offered no evidence in the new trial record to show that, despite his earlier

desire that trial counsel refrain from presenting additional mitigation evidence, he

nonetheless would have not have interfered with the mitigation testimony revealed

at the new trial hearing. A different punishment assessment must not be just

conceivable; its likelihood must be substantial. See Harrington, 131 S. Ct. at 792;

see also Riley, 2012 WL 4092874 at *4.




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                                     Conclusion

      After evaluating the evidence in support of Bazan’s sentence and the

additional mitigation evidence proffered at the new trial stage, we conclude that the

record supports the trial court’s finding that Bazan has failed to demonstrate that

the outcome of the punishment phase of his trial likely would have been different

but for trial counsel’s ineffectiveness. Accordingly, we hold that the trial court did

not abuse its discretion in denying Bazan’s request for a new trial. We therefore

affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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