                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   Nos. 07-18-00143-CR
                                        07-18-00144-CR


                            FERNANDO AVILA, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 108th District Court
                                    Potter County, Texas
            Trial Court Nos. 73,789-E, 75,482-E, Honorable Abe Lopez, Presiding

                                      July 24, 2019

                             MEMORANDUM OPINION
                      Before QUINN, C.J., and PIRTLE and PARKER, JJ.

      Appellant, Fernando Avila, appeals the trial court’s judgments by which he was

convicted of felony driving while intoxicated and evading arrest or detention using a

vehicle. His issues on appeal implicated the denial of an oral motion for continuance, the

constitutionality of the statute pertaining to motions for continuance, the purported

ineffectiveness of counsel, and the assessment of costs. We modify the judgments and

affirm as modified.
       Issues One and Two – Denial of Oral Motion to Continue

       Through his first two issues, appellant initially contends that the trial court erred in

denying him a continuance and that statutory requirements pertaining to such motions

are unconstitutional as applied to him.       He moved, through defense counsel, for a

continuance immediately before voir dire began to gather records from the “TDC” and a

local school district. The motion was not in writing but, rather, oral. Furthermore, defense

counsel identified neither the specific records purportedly being sought nor their content.

Similarly omitted from his oral request was a particularized discussion concerning their

relevance. The trial court denied the motion due to the age of the cases being prosecuted.

Appellant argues before us that the trial court erred in denying his oral motion for

continuance, invites us to overrule judicial precedent and statutory mandates requiring

that motions for continuance be in writing as sworn to, and asks that we hold as

unconstitutional the statutes in question. We overrule the issues.

       The applicable standard of review is abused discretion. That is, the appellant must

establish that the trial court abused its discretion in denying his motion. Rodriguez v.

State, 553 S.W.3d 733, 741 (Tex. App.—Amarillo 2018, no pet.). Such discretion is not

abused so long as the decision falls within the zone of reasonable disagreement and is

correct under any applicable theory of law irrespective of whether the theory was raised

below. Id. Appellant failed to satisfy his burden here in several ways.

       First, motions to continue 1) must be in writing, 2) aver sufficient cause warranting

the postponement, TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006), and 3) be made

under oath by one having personal knowledge of the facts relied upon. Id. art. 29.08

(West 2006). Appellant’s motion was oral, and no oath accompanied it. Thus, it did not



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comply with statute. See Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009)

(holding that, “if a party makes an unsworn oral motion for a continuance and the trial

judge denies it, the party forfeits the right to complain about the judge’s ruling on appeal”);

see also Washington v. State, No. 07-17-00427-CR, 2018 Tex. App. LEXIS 8319, at *4–

5 (Tex. App.—Amarillo Oct. 10, 2018, pet. ref’d) (mem. op., not designated for publication)

(relying on Anderson in arriving at same conclusion).

       Second, the trial court denied the motion because the age of the prosecutions, as

exemplified when saying “it’s been almost a year – or it has been a year . . . that these

cases have been indicted, so I’ll deny your request.” Given the standard of review,

appellant was obligated to explain why denying further delay due to the age of the

prosecutions fell outside the zone of reasonable disagreement. He did not. Nothing was

said on appeal about the school district or TDC records underlying the motion, what they

contained, their relevance, when they were initially sought, why they could not be secured

by time of trial, and why their purported need outweighed further delay in assuring

appellant’s constitutional right to a speedy trial.

       As for appellant’s argument that articles 29.03 and 29.08 of the Code of Criminal

Procedure are unconstitutional as applied to him, the record fails to reveal that it was

raised below. Consequently, appellant failed to preserve it for review on appeal. See

Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (holding that “‘[a]s

applied’ constitutional claims are subject to the preservation requirement and therefore

must be objected to at the trial court in order to preserve error”).




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       Issues three through twelve - Ineffective Assistance of Counsel

       In his remaining issues, appellant contends the actions, or lack thereof, of trial

counsel denied him the effective assistance of counsel. We disagree and overrule the

issues.

       To prevail on a claim of ineffective assistance of counsel, the claimant must prove,

by a preponderance of the evidence, that 1) counsel’s representation fell below an

objective standard of reasonableness, and 2) the deficient performance prejudiced the

appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland

v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); see Burch

v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Failure to make the requisite

showing of either prong is fatal to the claim. See Lopez, 343 S.W.3d at 142. Additionally,

prejudice consists of a reasonable probability, or a probability sufficient to undermine

confidence in the outcome, that the result of the proceeding would have been different.

See id.; see also Howard v. State, No. 07-17-00178-CR, 2018 Tex. App. LEXIS 1987, at

*9 (Tex. App.—Amarillo Mar. 20, 2018, no pet.) (mem. op., not designated for publication)

(observing that the prejudice prong of the Strickland test “requires evidence establishing

a link between trial counsel’s supposed default and a different outcome had the default

not happened”).

       As the Texas Court of Criminal Appeals has explained, rarely will the trial record

contain sufficient information to permit a reviewing court to fairly evaluate the merits of

such a serious allegation: “in the vast majority of cases, the undeveloped record on direct

appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland.”

Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999).               Ineffective-



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assistance-of-counsel claims are not built on retrospective speculation; they must “be

firmly founded in the record.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002)

(quoting Thompson, 9 S.W.3d at 813).

       Appellant points to a number of acts or omissions of trial counsel to support his

contention that trial counsel’s representation was deficient.          We address those

contentions, having grouped them generally by topic when efficient to do so.

       Failure to file a written motion for continuance

       Again, defense counsel did not file a written, sworn motion for continuance, and

that allegedly was ineffective assistance of counsel. To establish ineffective assistance

upon trial counsel’s failure to file a written and sworn motion for continuance, an appellant

must show that the trial court would have erred in denying a sworn and written motion.

See Granados v. State, No. 07-06-0482-CR, 2007 Tex. App. LEXIS 9130, at *12 (Tex.

App.—Amarillo Nov. 20, 2007, no pet.) (mem. op., not designated for publication) (citing

Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.—Houston [1st Dist.] 1994), aff’d, 931

S.W.2d 564, 566–67 (Tex. Crim. App. 1996) (en banc) (per curiam) (holding that in order

for counsel’s failure to object to the State’s question and argument to have been

ineffective assistance, an appellant must show that the trial court would have erred in

refusing to sustain the objection)); accord Pryce v. State, No. 03-12-00797-CR, 2014 Tex.

App. LEXIS 13725, at *10–11 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op., not

designated for publication); Hayward v. State, No. 14-01-01185-CR, 2006 Tex. App.

LEXIS 536, at *11 (Tex. App.—Houston [14th Dist.] Jan. 24, 2006, no pet.) (mem. op.,

not designated for publication). As stated above, appellant made no effort to illustrate




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that the trial court’s decision fell outside the zone of reasonable disagreement or was

wrong under every applicable legal theory.

       Incomplete investigation

       Appellant also accuses trial counsel of being ineffective by allegedly failing to

perfect an insanity defense, undertake a complete investigation concerning the

acquisition of records and experts to bolster that defense, and obtain additional mitigating

evidence for use in punishment.1 In response, we note the absence from the record of

specific evidence, information, or argument about what further investigation by trial

counsel would have revealed or whether it would have been beneficial to appellant.

Instead, appellant’s protestations dwell in the speculative area of maybe something or

someone could have been uncovered which may have helped. Thus, appellant failed to

carry his burden to prove ineffectiveness and prejudice. See Straight v. State, 515

S.W.3d 553, 568 (Tex. Crim. App. 2017) (stating that, without showing what an

investigation would have revealed that reasonably could have changed the result of the

case or what interviews with purported witnesses would have revealed that reasonably

could have changed the outcome, a claim fails for ineffective assistance based on trial

counsel’s general failure to investigate the facts of the case); see also Bone, 77 S.W.3d

at 835 (cautioning against speculating about the existence of mitigating evidence and

noting that ineffective assistance claims are not built on retrospective speculation).

           Additionally, the jury assessed punishment at the statutory minimum for each

offense. With that, we cannot say that the outcome of the proceeding in terms of

punishment could have been any more favorable for appellant had there been more


       1An investigation into appellant’s competence to stand trial was performed, and he was found
competent.

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mitigating evidence presented. See State v. Choice, 319 S.W.3d 22, 27 (Tex. App.—

Dallas 2008, no pet.) (where appellant was sentenced to the statutory minimum

punishment and concluding that “[a]dditional mitigating evidence could not have resulted

in a lesser sentence” and that, therefore, “there is no possibility that, had trial counsel

offered additional mitigating evidence, the result of the proceeding would have been

different”).

       Cumulation of Errors

       Appellant also contends that the various omissions of trial counsel when

considered in the aggregate have the cumulative effect of rendering his trial unfair in

violation of his Due Process rights.     As to the individual contentions of ineffective

assistance, we noted that the record before us is insufficiently developed to satisfy the

requirements of Strickland. Those assertions, when considered in the aggregate, do not

somehow become more viable or more easily discernible on a record that simply is not

developed to address ineffective-assistance claims.

       Prejudice

       Furthermore, we are still left to address the prejudice element of ineffective

assistance of counsel. The record remains silent as to it, as does appellant’s argument,

generally. So even if we were to presume that trial counsel’s omissions constituted

deficient performance, appellant still has not sufficiently shown prejudice from any of the

alleged errors “either individually or cumulatively.” See Hillery v. State, No. 02-13-00253-

CR, 2014 Tex. App. LEXIS 9017, at *11 (Tex. App.—Fort Worth Aug. 14, 2014, pet. ref’d)

(mem. op., not designated for publication).




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       Our disposition of these contentions, along with the previous complaints raised as

ineffective assistance of counsel, demonstrates how, ordinarily, the appellate record on

direct appeal is insufficient to flesh out a claim of ineffective assistance of counsel. See

Martinez v. State, No. 10-15-00360-CR, 2016 Tex. App. LEXIS 10316, at *19–20 (Tex.

App.—Waco Sep. 21, 2016, pet. ref’d) (mem. op., not designated for publication). Of

course, appellant is free to pursue the claim via available post-judgment avenues such

as a petition for habeas corpus.

       Issue Thirteen - Court Costs/Modification of Judgments

       Finally, appellant contends and the State concedes that the trial court’s judgments

should be modified to reflect the trial court’s decision that fines and court costs against

appellant were waived. This Court has the authority to modify or reform a judgment to

make the record speak the truth when the matter has been called to its attention. TEX. R.

APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc).

Appellant’s contention and the State’s concession are well-taken, and we reform the trial

court’s judgments of conviction in trial court cause numbers 73,789-E and 75,482-E to

reflect that court costs are waived.

       We affirm the trial court’s judgments of conviction as reformed or modified.




                                                               Per Curiam

       Do not publish.




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