
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00509-CR


Benito Garcia Hinojosa, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-08-904010, HONORABLE JON N. WISSER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury convicted Benito Garcia Hinojosa of voluntary manslaughter, see Act of
May 23, 1973, 63rd Leg., R.S., ch. 399, § 19.04, 1973 Tex. Gen. Laws 883, 913, and sentenced him
to twenty years in prison.  Hinojosa argues that there was error in the jury charge, that he was denied
due process when his attorney made a misstatement of the law, and that the evidence was insufficient
to support the conviction.  We affirm the judgment of conviction.
		Appellant Benito Garcia Hinojosa became acquainted with Edward Chavez, Jr.,
through their employment in construction work.  One of the companies for which they worked
provided housing for them at an Exel Inn in Austin.  Hinojosa and Chavez were roommates.  On the
night of August 6, 1993, the two men went to a dance.  Both men became highly intoxicated and,
on the way home, began arguing.  They fought violently in the parking lot of the hotel and again in
the hotel room.  Eventually, Hinojosa became "desperate" and attempted to restrain Chavez with a
telephone cord.  Hinojosa then left the premises in Chavez's car.  According to Hinojosa, when he
left, Chavez was moving and talking.  When Hinojosa returned to the Inn, he saw police, assumed
he was in trouble, and left for Mexico, where he learned of Chavez's death.
		According to the medical examiner, Chavez died of asphyxia resulting from injuries
to the face and neck and from the manner in which he had been tied--his body was found face down
with the phone cord looped from his mouth to his feet, with his feet suspended in the air behind him. 
The medical examiner further opined that Chavez had been unconscious when tied up because his
hands were not tied, and Chavez could have--and presumably would have--removed the cord from
his mouth if he had been conscious.
		Two years later, on February 10, 1995, Hinojosa was indicted on one count of murder. 
Twelve years later, on February 7, 2007, Hinojosa contacted the Austin police department and gave
a voluntary statement, which was substantially the same as his testimony at trial.  On March 20,
2007, Hinojosa was re-indicted on two counts of murder, one count of voluntary manslaughter, and
one count of aggravated robbery.  The State eventually abandoned the aggravated robbery charge and
dismissed the 1995 indictment.  Following trial, a jury found Hinojosa not guilty of the two murder
counts but guilty of the lesser-included offense of voluntary manslaughter.  The jury also found that
Hinojosa had used a deadly weapon--his hands and a "ligature."  Punishment was assessed by the
jury at twenty years in prison and a $10,000 fine.
		In his first point of error, Hinojosa argues that inconsistencies between the indictment
and the jury charge violated his right to due process.  More specifically, the due process violation
resulted from the use of the disjunctive in the jury charge describing the offense rather than the
conjunctive, as used in the indictment--"[t]he alleged means of commission of murder had been
changed from hand and ligature, to hands or strangling with a ligature."  Hinojosa contends that he
"did not receive notice that the state alleged that the means of the commission of the alleged offense
included striking with hands only, in addition to hands and ligatures."
		When reviewing allegations of charge error, an appellate court must undertake
a two-step review:  first, the court must determine whether error actually exists in the charge, and
second, the court must determine whether sufficient harm resulted from the error to require reversal. 
Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994).  When a timely objection is
made, error in the jury charge requires reversal if the error was "calculated to injure the rights
of defendant"--that the error was not harmless.  See Tex. Code Crim. Proc. Ann. art. 36.19
(West 2006); see also Abdnor, 871 S.W.2d at 731-32.
		Where, as here, no timely objection was made at trial, any error found will not
warrant reversal unless the error is so egregious that the defendant was not given a fair and impartial
trial.  See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). An error in the jury
charge is egregious if "it affects the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory."  Id.  We determine the actual degree of harm in light of
the entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel, and any other relevant information revealed by the
record of the trial as a whole.  Almanza, 686 S.W.2d at 171.
		Based on the indictment, the jury was required to find beyond a reasonable doubt that
Hinojosa caused Chavez's death by using both a hand and a ligature as deadly weapons.  We first
note that the offense for which Hinojosa was convicted was voluntary manslaughter, not murder,
and the language about which he complains appears nowhere in the voluntary manslaughter portion
of the jury charge.  Rather, after the jury had found Hinojosa not guilty of murder, the jury was
instructed to determine, "as alleged in the indictment," whether Hinojosa "intentionally or knowingly
cause[d] the death of" Chavez by "striking [him] about the face or neck or by hog-tying [him], while
acting under the influence of sudden passion arising from and [sic] adequate cause."  Hinojosa was
not convicted of the greater offense in which the complained-of language appears, but of a lesser
offense in which the complained-of language does not appear.  Thus, even if there is charge error,
it is part of a greater offense for which Hinojosa was not convicted and, therefore, caused no harm. 
See Tex. Code Crim. Proc. Ann. art. 36.19; see also Abdnor, 871 S.W.2d at 731-32.
		Even if the language about which Hinojosa complains had appeared in the voluntary
manslaughter portion of the charge, there would have been no charge error.  The Texas Constitution
requires a unanimous verdict in felony cases, Tex. Const. art. V, § 13; see also Tex. Code Crim.
Proc. Ann. art. 36.29(a) (West Supp. 2008), but a defendant's right to unanimity is not violated when
the jury is disjunctively instructed on alternate means or theories of committing the same offense. 
Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006); Martinez v. State, 129 S.W.3d 101,
103 (Tex. Crim. App. 2004).  If, as here, the disjunctive paragraphs merely inform of different means
of committing a single offense, then the jury does not have to unanimously agree on which
alternative means the defendant used to commit the offense.  Kitchens v. State, 823 S.W.2d 256, 258
(Tex. Crim. App. 1991).  In addition, the Court of Criminal Appeals has found no error where, as
here, the indictment alleges the differing methods of committing the offense in the conjunctive,
while the jury is charged in the disjunctive.  See id.  We overrule Hinojosa's first point of error.
		In his second point of error, Hinojosa argues that the district court erred by adopting
and following defense counsel's misstatement of the law regarding a condition of probation
eligibility.  On the record at trial, but outside the presence of the jury, defense counsel told Hinojosa
that "if you testify, then you are subject to cross-examination" but "if you don't testify, then you will
not be eligible for community supervision."  Hinojosa responded that he understood, that he did
not want to testify, and that he wanted just to "finish with this."  According to Hinojosa, the fact that
he was sentenced to the maximum sentence available for voluntary manslaughter:

	was caused by two errors that are the following:  1) a misstatement of the law by
Mr. Hinojosa's trial counsel, and adopted by the court and state, prevented
Mr. Hinojosa from seeking probation from the jury; and 2) by not being allowed to
introduce mitigating evidence making him eligible for probation, Mr. Hinojosa's
right to allocution was violated.


		It appears that Hinojosa is arguing that, although he was eligible for probation,
because of a misstatement of the law by defense counsel--and adoption of this misstatement by
the prosecutor and the district court--the jury was unable to consider probation as an option.  While
Hinojosa attempts to implicate the district court and the prosecutor, his argument is one based on
ineffective assistance of counsel. (1)
		We evaluate claims of ineffective assistance of counsel against the standard set forth
in Strickland v. Washington. (2) See 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770,
774 (Tex. Crim. App. 1999).  In deciding a claim of ineffective assistance of counsel at a noncapital
sentencing proceeding, we must determine whether an attorney's performance was deficient and, if
so, whether that deficiency prejudiced the defense.  Strickland, 466 U.S. at 687; Thompson v. State,
9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  An attorney's performance is deficient if it falls below
an objective standard of reasonableness.  Strickland, 466 U.S. at 688; Thompson, 9 S.W.3d at 812. 
Deficient performance is prejudicial when, but for the attorney's unprofessional conduct, there is a
reasonable probability that the outcome of the proceeding would have been different.  Strickland,
466 U.S. at 694; Thompson, 9 S.W.3d at 812.  A reasonable probability is a probability sufficient
to undermine confidence in the outcome.  Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. 
In determining whether an attorney's performance was deficient, we apply a strong presumption
that the attorney's conduct was within the range of reasonable professional assistance.  Thompson,
9 S.W.3d at 814.  We review the effectiveness of counsel in light of the totality of the representation
and the circumstances of each case.  Id. at 813.
		In most cases, an undeveloped record on direct appeal is insufficient to satisfy the
dual prongs of Strickland because the reasonableness of counsel's decisions often involves facts not
appearing in the appellate record.  Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Without evidence of the strategy and methods involved concerning counsel's actions at trial, an
appellate court should presume a sound trial strategy.  See Thompson, 9 S.W.3d at 814.  Where an
allegation of ineffective assistance of counsel is not raised in a motion for new trial, trial counsel
has no opportunity to explain his conduct, and absent such opportunity, an appellate court should
not find deficient performance unless the challenged conduct was "so outrageous that no competent
attorney would have engaged in it."  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S.
1195 (2003)).
		To be eligible for probation, a defendant's sworn application for probation and
the evidence must show that he has never been convicted of a felony.  Green v. State, 658 S.W.2d
303, 308 (Tex. Crim. App. 1983).  The mere filing of a sworn application is not sufficient to show
eligibility for probation.  Id. at 309.  In an attempt to introduce evidence of probation eligibility,
defense counsel instructed Hinojosa outside the presence of the jury that "if you don't testify, then
you will not be eligible for community supervision."  Although Hinojosa declined to testify during
the punishment phase, defense counsel introduced no other evidence that would support Hinojosa's
eligibility for probation.  Hinojosa now contends that defense counsel could have presented evidence
of Hinojosa's probation eligibility in "numerous ways."  According to Hinojosa:

	The state could have stipulated to the fact that he did not have prior felonies. 
Because his mother was ill, his trial attorney or the court could have requested a
continuance for the sentencing, or order to obtain a witness who could testify
to Mr. Hinojosa's lack of prior felonies.  Mr. Hinojosa's trial attorney could have
requested a judicial finding or notice regarding the lack of prior felonies, and such
request could have been supported by a TCIC/NCIC criminal history report for
Mr. Hinojosa.  The court would have needed to order the state to provide such report,
or the state could have offered the history report on their own.  The state should have
offered this report in compliance with their professional responsibility to seek justice. 
If they were confident that they would have gotten a jail sentence, the state
should have had no problem "doing the right thing," in this regard.  Mr. Hinojosa's
trial counsel did not have access to official law enforcement data bases that are
available to the court and the state.  Had Mr. Hinojosa's trial counsel known that his
family would be unavailable, he would have questioned the probation officer
testifying on the state's behalf, or called Mr. Hinojosa's brother, who was available
the day before the final sentencing proceeding.  Mr. Hinojosa's trial counsel should
have considered submitting an affidavit of his own, stating that Mr. Hinojosa did not
have prior felonies, or submitted information on the basis that any other witness was
unavailable, requesting that the court find other evidence admissible for this issue as
an exception the hearsay evidentiary rule.

		Although Hinojosa filed a motion for new trial, he did not raise ineffective assistance
of counsel as a ground for relief, and therefore, no record was ever developed in support of this
claim.  Hinojosa relies solely upon the reporter's record, which contains no evidence of defense
counsel's reasoning or thought process.  While Hinojosa suggests "numerous ways" by which the
evidence could have been presented, without a developed record on appeal, we may only speculate
as to whether any of these methods was feasible in light of the circumstances.  Based on the available
record on appeal, we could also speculate as to any number of reasons why defense counsel did not
pursue any of Hinojosa's suggestions for presenting evidence of probation eligibility.  However, as
Hinojosa's motion for new trial failed to raise ineffective assistance of counsel, we have no record
from which to determine why defense counsel acted in the way that he did.  In the absence of such
record, we presume a sound trial strategy. (3) See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App.
2002); Thompson, 9 S.W.3d at 814.
		Further, Hinojosa has not proven by a preponderance of the evidence that the outcome
would have been different but for the lack of evidence of probation eligibility.  See Strickland,
466 U.S. at 687.  The jury imposed a sentence of twenty years, the maximum sentence available
for voluntary manslaughter.  In light of the twenty-year sentence, Hinojosa would not have been
statutorily eligible for probation, and the record indicates no reasonable probability the twenty-year
sentence imposed would have been different if probation had been considered.  See Tex. Code Crim.
Proc. Ann. art. 42.12, § 3(e)(1) (West Supp. 2008) (defendant not eligible for community supervision
if sentenced to a term of imprisonment exceeding ten years).  Accordingly, we overrule Hinojosa's
second point of error.
		In his third point of error, Hinojosa argues that the evidence was legally and factually
insufficient to support the judgment of conviction.  In reviewing a legal sufficiency challenge, we
view the evidence in the light most favorable to the verdict and determine whether a rational trier of
fact could have found the essential elements of a crime beyond a reasonable doubt.  Salinas v. State,
163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the trier of fact, "is the sole judge of
the credibility of the witnesses and of the strength of the evidence."  Fuentes v. State, 991 S.W.2d
267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of
the testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  The jury may also
draw reasonable inferences from basic facts to ultimate facts.  Clewis v. State, 922 S.W.2d 126, 133
(Tex. Crim. App. 1996).  When faced with conflicting evidence, we presume the trier of fact
resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.
App. 1993).
		In evaluating the factual sufficiency of the evidence, we view all the evidence in
a neutral light and will set aside the verdict only if we are able to say, with some objective basis in
the record, that the conviction is clearly wrong or manifestly unjust because the great weight
and preponderance of the evidence contradicts the jury's verdict.  Watson v. State, 204 S.W.3d 404,
414-17 (Tex. Crim. App. 2006).  We cannot conclude that a conflict in the evidence justifies a new
trial simply because we disagree with the jury's resolution of that conflict, and we do not intrude
upon the fact-finder's role as the sole judge of the weight and credibility of witness testimony.  See
id. at 417; Fuentes, 991 S.W.2d at 271.  The fact-finder may choose to believe all, some, or none of
the testimony presented.  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Bargas
v. State, 252 S.W.3d 876, 888 (Tex. App.--Houston [14th Dist.] 2008, no pet.).  In our review, we
discuss the evidence that, according to appellant, undermines the jury's verdict.  Sims v. State,
99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
		For sufficiency reviews, the starting point of the analysis is the charge that was
submitted to the jury, absent complaint on appeal.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997).  The jury found Hinojosa guilty of "intentionally or knowingly caus[ing] the death of
. . . Edward Chavez, Jr., while acting under the influence of sudden passion arising from and [sic]
adequate cause."  The evidence shows that, on the night of Chavez's death, Hinojosa and Chavez
were highly intoxicated and fought violently, both in the parking lot of the hotel and in the
hotel room.  While Hinojosa claims that he bound Chavez with the phone cord in a "desperate"
attempt to restrain him and that Chavez was still conscious when Hinojosa left the premises in
Chavez's car, the medical examiner testified that Chavez died of asphyxia resulting from injuries
to the face and neck and from the manner in which he had been tied.  According to the medical
examiner, Chavez's injuries, including a broken thyroid cartridge, bruising of the neck muscles,
and hemorrhaging in the eyes, were consistent with death by asphyxiation.  In further support of his
conclusion that Chavez was already unconscious when bound by Hinojosa, the medical examiner
noted that Chavez's hands had not been bound and that Chavez would presumably have removed
the cord from his mouth had he been conscious.
		Hinojosa refers to "suspicious circumstances regarding the elements of decedent's
death" such that "[a] jury could not have reasonably inferred that Mr. Hinojosa did not [sic] in fact
kill decedent, or legally possessed [sic] the requisite mens rea."  The jury is the exclusive judge of
the credibility of witnesses and of the weight to be given their testimony.  Jones v. State, 944 S.W.2d
642, 647 (Tex. Crim. App. 1996).  As such, the jury was free to believe or disbelieve Hinojosa's
version of events.  Hinojosa, himself, admits that, while the record contains conflicting evidence,
"it is possible that Mr. Hinojosa's actions in restraining decedent contributed to his death."  Viewed
in its totality, the evidence is legally and factually sufficient to support the judgment of conviction. 
Accordingly, we overrule Hinojosa's third point of error.
		Having overruled Hinojosa's points of error, we affirm the judgment of conviction.


						__________________________________________
						G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed:   August 27, 2009
Do Not Publish
1.   Before expressly asserting his ineffective assistance argument and without citing to any
authority or specifying any particular point at which reversible error was committed, Hinojosa argues
that "constitutional error" occurred.  He argues, for instance:


	If the state should attempt to argue that Mr. Hinojosa's trial counsel was at fault
alone, Mr. Hinojosa wishes to remind them that they adopted such misstatement
of the law when they failed to object or correct the error, and the same reasoning
holds the court responsible, as well.  However, should the reviewing court find that
Mr. Hinojosa's trial attorney failed to get the requisite evidence into the record that
would warrant a jury eligibility charge, then Mr. Hinojosa requests that the reviewing
court find sua sponte that his trial counsel was ineffective under the Duffy standard
under Ware.
2.   Hinojosa urges us to apply the Duffy standard, which includes no requirement that
the defendant show prejudice.  See Ex parte Duffy, 607 S.W.2d 507, 516 (1980).  However, the
Court of Criminal Appeals has expressly overruled Duffy on that point, as conflicting with
federal constitutional law:

 Strickland clearly requires a showing of prejudice for all claims alleging deficient
attorney performance primarily because the government is not responsible for
and cannot prevent deficient attorney performance. . . .  Assuming Strickland left
open the question of whether a defendant is required to show prejudice from deficient
attorney performance at noncapital sentencing proceedings, we perceive no valid
reason why Strickland cannot apply, or why a different rule should apply, to
noncapital sentencing proceedings.

Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
3.   We also note that several of Hinojosa's suggested methods of introducing evidence of
probation eligibility would have required action by the prosecutor or the district court, not defense
counsel.
