                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00373-CR


JOE MANUEL DIAZ                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                   ----------

                                 OPINION

                                   ----------

                               I. INTRODUCTION

     A jury found Appellant Joe Manuel Diaz guilty of Class A misdemeanor

driving while intoxicated1 (DWI) and assessed his punishment at 365 days’

confinement and a $4,000 fine. The trial court sentenced him accordingly. In a




     1
      See Tex. Penal Code Ann. § 49.09(a) (West Supp. 2012) (providing that a
second DWI offense constitutes a Class A misdemeanor).
single point, Diaz argues that he received ineffective assistance of counsel. We

will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

       Diaz was arrested for DWI after Northlake Police Officer Chris Loftis

observed him speeding and driving erratically. When Officer Loftis approached

Diaz’s vehicle, he detected a strong odor of alcohol coming from Diaz. Officer

Loftis radioed for a backup officer because Diaz was acting aggressively and in a

threatening manner. Diaz refused to perform field sobriety tests and also refused

to voluntarily provide a breath or blood sample. Based on Diaz’s driving and

behavior, Officer Loftis obtained a search warrant for Diaz’s blood and took him

to the hospital for the blood draw.

       Diaz’s defense counsel filed a motion to suppress arguing that there was

no probable cause to support the arrest or the search warrant for Diaz’s blood.

The same trial judge who signed the search warrant for Diaz’s blood also

presided over the hearing on the motion to suppress and at trial. After a pretrial

hearing, the trial court denied the motion to suppress. At trial, defense counsel

continued to object to the probable cause for the arrest and search warrant.

                      III. EFFECTIVE ASSISTANCE OF COUNSEL

       In Diaz’s sole point, he argues that he received ineffective assistance of

counsel because defense counsel did not pursue a motion to recuse the trial

judge or otherwise complain or object that the same judge who had signed the

blood warrant also presided over the suppression hearing and the trial.


                                        2
      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is

highly deferential, and the reviewing court indulges a strong presumption that

counsel’s conduct fell within a wide range of reasonable representation. Salinas

v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. “In the

majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel’s actions.”       Salinas, 163

S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption

of reasonable professional assistance, “[a]ny allegation of ineffectiveness must


                                         3
be firmly founded in the record, and the record must affirmatively demonstrate

the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.

Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

an appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      The mere fact that the same judge signed a defendant’s search or arrest

warrant and then presided in subsequent criminal proceedings does not establish

bias. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992), cert. denied,

508 U.S. 918 (1993). Judges are often called on to reconsider matters they have

previously ruled on. See id. Generally, a judge is not required to be recused

based solely on his prior rulings, remarks, or actions. Gaal v. State, 332 S.W.3d

448, 454 (Tex. Crim. App. 2011). A judge’s bias or partiality may be grounds for

a recusal motion only if the conduct shows a “‘deep-seated favoritism or


                                          4
antagonism that would make fair judgment impossible.’” Id. (quoting Liteky v.

United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1150 (1994)).

      Counsel is not required to file futile motions. Mooney v. State, 817 S.W.2d

693, 698 (Tex. Crim. App. 1991); Hollis v. State, 219 S.W.3d 446, 456 (Tex.

App.—Austin 2007, no pet.). Nor is counsel’s failure to file a pretrial motion

categorically deemed ineffective assistance of counsel. Madden v. State, 911

S.W.2d 236, 241 (Tex. App.—Waco 1995, pet. ref’d) (holding that counsel was

not ineffective for not filing a motion to recuse the judge who presided at trial

when the judge had also prosecuted a prior case that was used to enhance the

current case). A record that is silent as to defense counsel’s trial strategy and

provides no explanation of counsel’s actions generally will not overcome the

strong presumption of reasonable assistance.        See Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003); Edwards v. State, 280 S.W.3d 441, 445

(Tex. App.—Fort Worth 2009, pet. ref’d). Defense counsel’s performance should

not be found deficient unless the conduct was “so outrageous that no competent

attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003).

      Here, Diaz concedes that “the mere fact that a judge authorized arrest and

search warrants involved in a case is not a barrier to that judge presiding over

the trial of that case on its merits.” But Diaz argues that because his entire case

rested on the validity of the search warrant, “[a] reasonable person would

necessarily question the judge’s impartiality” because a judge would not


                                        5
invalidate a warrant he had authorized.        Diaz further argues that defense

counsel’s failure to pursue a motion to recuse the trial judge cannot be a strategic

decision because there was “no hope of success” and “no conceivable scenario

in which having the trial judge conduct the hearing would benefit Diaz.”

      The fact that the validity of the search warrant was Diaz’s sole defense has

no bearing on whether the trial judge was subject to recusal for bias.           As

conceded by Diaz, Texas case law makes clear that the fact that the same judge

who signed a search warrant also presided over the subsequent proceedings,

including a motion to suppress, is not enough to show that the judge acted with

the “deep-seated favoritism or antagonism” that would give Diaz’s defense

counsel cause to pursue a recusal motion. Gaal, 332 S.W.3d at 454; see Kemp,

846 S.W.2d at 306. The trial judge in this case made no comments, remarks, or

other indications during the hearing on the motion to suppress or at trial that

would cause Diaz’s defense counsel to think the judge was biased or prejudiced

against Diaz’s case and subject to recusal.

       Based on the record before us and the strong presumption of reasonable

assistance, as well as the absence of any explanation regarding defense

counsel’s strategy, we cannot say that Diaz has met his burden of showing by a

preponderance of the evidence that his counsel’s failure to file a motion to recuse

the trial court judge or failure to object that the same judge who had signed the

blood warrant presided over the suppression hearing and the trial fell below the




                                         6
standard of prevailing professional norms.2 See Strickland, 466 U.S. at 688–89,

104 S. Ct. at 2065. Because Diaz has not satisfied the first prong of Strickland,

we overrule his sole point. See id.

                                  IV. CONCLUSION

      Having overruled Diaz’s sole point, we affirm the trial court’s judgment.




                                                    SUE WALKER
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: August 30, 2012




      2
        Contrary to the concurring opinion’s position, the issue before us is not
“the trial judge’s position as a witness and the necessary ramifications of the trial
judge’s position” but whether Diaz met his burden to obtain appellate relief on his
claim of ineffective assistance of counsel based on counsel’s failure to file a
motion for recuse or to object to the trial judge hearing his motion to suppress or
presiding at his trial.


                                         7
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00373-CR


JOE MANUEL DIAZ                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

       FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                      ----------

                           CONCURRING OPINION

                                      ----------

      The trial judge who signed the warrant heard the motion to suppress the

fruits of the warrant. In effect, the trial judge heard the appeal from his own

action in determining the sufficiency and validity of the affidavit in support of the

warrant. Although not called to testify, the trial judge was also a witness to the
accuracy of the date and time the warrant was signed and to the identity and

authority of the magistrate who signed the warrant.1

      Rule 605 of the Texas Rules of Evidence provides that a presiding judge at

a trial may not testify as a witness.2       In his concurrence to Harris v. State,

Presiding Judge Onion discussed what was then new rule 605 in the context of

the trial judge’s unsworn and uncross-examined statements regarding whether

the jury had separated during deliberations, and he considered the treatment of

rule 605 by our sister court in Texarkana in Duvall v. Sadler.3 The Duvall court

had explained,

            The rule is clear, and there remains only the narrower
      question of the impact of the rule on the contention that the presiding
      judge in the case may and did give probative testimony. The federal
      counterpart of Tex. R. Evid. 605 is Fed. R. Evid. 605, effective
      January 2, 1975, thus antedating the Texas rule by several years.
      The Federal rule is identical in wording with the Texas rule. The
      Notes of the Federal Advisory Committee on Proposed Rules
      describes Fed. R. Evid. 605 as a broad rule of incompetency. The
      notes in part say:



      1
       See Haynes v. State, 468 S.W.2d 375, 378 (Tex. Crim. App. 1971)
(discussing former magistrate’s practice of signing blank pads of arrest warrants),
cert. denied, 405 U.S. 956 (1972); City of Dallas v. Moreau, 697 S.W.2d 472,
473–74 (Tex. App.—Dallas 1985, no writ) (discussing the firing of a Dallas
municipal court bailiff for refusing to stamp blank warrants with the municipal
judge’s signature).
      2
       Tex. R. Evid. 605.
      3
        738 S.W.2d 207, 227–30 (Tex. Crim. App. 1986) (Onion, P.J., concurring)
(op. on reh’g), cert. denied, 484 U.S. 872 (1987). (also discussing Duvall v.
Sadler, 711 S.W.2d 369, 375 (Tex. App.—Texarkana 1986, no writ) (op. on
reh’g).

                                         2
              The solution here presented is a broad rule of
      incompetency, rather than such alternatives as
      incompetency only as to material matters, leaving the
      matter to the discretion of the judge, or recognizing no
      incompetency. The choice is the result of inability to
      evolve satisfactory answers to questions which arise
      when the judge abandons the bench for the witness
      stand. Who rules on objections? Who compels him to
      answer? Can he rule impartially on the weight and
      admissibility of his own testimony?         Can he be
      impeached or cross-examined effectively? Can he, in a
      jury trial, avoid conferring his seal of approval on one
      side in the eyes of the jury? Can he, in a bench trial,
      avoid an involvement destructive of impartiality?

      Adopting Fed. R. Evid. 605 word for word implies the Supreme
Court of Texas intended that Tex. R. Evid. 605 be, like the federal, a
broad rule of incompetency.

       The Supreme Court of Texas, as rule maker, has determined
that, on balance, testimony of the presiding judge in a case will not
contribute to a just determination of issues in the case. If a presiding
judge does, despite the rule, testify to admissible facts, is the
presiding judge’s testimony to be considered as probative evidence
by a reviewing court? The conclusion is reached that such
testimony may not be considered. The basis for this conclusion
goes beyond reluctance to legitimize the product of an illegitimate
act, or under the circumstances shown, to treat the testimony as “the
fruit of the poisoned tree.” Disregard of the testimony is justified
upon the grounds that it nullifies an involvement in the case by the
judge that is destructive of impartiality and enforces the policy
underlying the rule.

       As a trier of the facts, the presiding judge who testifies must
consider and pass upon his volunteered testimony and credibility in
determining the facts proved. The rule relieves the judge of such
onerous duty. If testifying so impinges upon impartial justice as to
be prohibited, logically, the judge’s testimony will have the same
effect and should be prohibited. The intent of the prohibition is to
keep the testimony from the prohibited source out of the record. The
conclusion is inescapable that maintenance of impartiality requires a




                                   3
      reviewing court to disregard the presiding judge’s statement in
      question.4

      In the case now before this court, the issue is not that of traditional bias on

the part of the trial judge but, rather, as in Duvall, the trial judge’s position as a

witness and the necessary ramifications of the trial judge’s position. Because the

majority does not adequately address this significant issue, I must respectfully

concur.


                                                    LEE ANN DAUPHINOT
                                                    JUSTICE


PUBLISH

DELIVERED: August 30, 2012




      4
       Duvall, 711 S.W.2d at 375–76 (footnote omitted).


                                          4
