Opinion issued May 14, 2013.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                              NO. 01-12-00280-CR
                           ———————————
               LAURO MARIO GOMEZ-ARROYO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1330622



                         MEMORANDUM OPINION

      Lauro Mario Gomez-Arroyo appeals his conviction for the felony offense of

possession of a controlled substance.     Gomez-Arroyo pleaded guilty and, in

accordance with his agreement with the State, the trial court sentenced him to six
months’ confinement in the Harris County jail. Gomez-Arroyo moved for a new

trial asserting that he received ineffective assistance of counsel insofar as his

attorney advised him to accept a plea bargain without investigating the case and, in

particular, discovering the testimony of a potentially exculpatory witness. The trial

court denied the motion. In his sole issue on appeal, Gomez-Arroyo contends that

his trial counsel rendered ineffective assistance. We affirm.

                                   Background

      One Saturday in December 2011, Gomez-Arroyo was a passenger in an

automobile pulled over by police. After cocaine was found under Gomez-Arroyo’s

seat, he was arrested and charged with the state-jail-felony offense of possession of

a controlled substance, namely, cocaine, in an amount less than one gram. Gomez-

Arroyo’s mother called Israel Santana, who agreed to represent Gomez-Arroyo.

      Monday morning, Santana sent another attorney, Hector Villegas, to meet

with Gomez-Arroyo. Villegas and a translator met briefly with Gomez-Arroyo,

then met with the State.     Villegas informed Gomez-Arroyo that the State, in

exchange for a guilty plea, would agree to punish Gomez-Arroyo for a Class A

misdemeanor instead of a state jail felony. See TEX PENAL CODE ANN. § 12.44(a)

(West 2011). Gomez-Arroyo entered a guilty plea, and the trial court sentenced

him to six months’ confinement in the Harris County jail.




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      Gomez-Arroyo moved for a new trial asserting ineffective assistance of

counsel. At the hearing on the motion for new trial, Gomez-Arroyo testified that

Villegas and a translator met with him for approximately ten minutes before the

guilty plea.   Gomez-Arroyo conceded that Villegas explained that he faced a

longer sentence if he tried the case and lost and also explained the immigration

consequences of a conviction. However, Gomez-Arroyo said that Villegas did not

ask him about anything that occurred on the night of his arrest and that, when

Gomez-Arroyo attempted to tell Villegas his side of the story, Villegas interrupted,

telling Gomez-Arroyo the plea offer was the best he could do and he would be

found guilty at trial. Gomez-Arroyo also said that Villegas told him that if he did

not accept the plea, he could be transferred to “another jail called T.D.C. and that

[Villegas] would not be able to guarantee [Gomez-Arroyo’s] safety there because

they are more criminal people there.” Gomez-Arroyo said that he did not want to

plead guilty, but was offered no other options.

      Villegas also testified at the motion for new trial hearing. He testified that

when he arrived at court, he read Gomez-Arroyo’s file, including the offense report

and the charging instrument.    He said that he met with Gomez-Arroyo and went

through the file with him. Villegas asked Gomez-Arroyo questions about what

happened on the night of the arrest to ascertain whether his version of events was

substantially different from the offense report. Gomez-Arroyo did not make any

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comments or say anything to indicate the offense report was incorrect. After

Villegas explained the possible difficulties of trial, he asked whether Gomez-

Arroyo wanted him to reset the case or get an offer.          Gomez-Arroyo never

indicated that he wanted to try the case. Instead, he said “Go ahead. Go see what

they want to do.” Villegas took this as an instruction to seek a plea offer. He was

able to get a plea offer of misdemeanor punishment, under Penal Code section

12.44(a), which Gomez-Arroyo decided to accept. Villegas said that he met with

Gomez-Arroyo for about fifteen to twenty minutes before the plea.

      Villegas denied telling Gomez-Arroyo that a jury would believe the officer

over him, and instead explained that he told Gomez-Arroyo that if the police

officer came to trial and testified to the information found in the offense report,

Gomez-Arroyo would have “a tough time” winning at trial. Villegas also denied

telling Gomez-Arroyo that he would be transferred to T.D.C. or even mentioning

T.D.C. at all.

      The trial court denied the motion for new trial. Gomez-Arroyo appeals.

                        Ineffective Assistance of Counsel

      In his sole issue, Gomez-Arroyo contends Villegas rendered ineffective

assistance “because he failed to investigate the existence of an exculpatory witness:

the owner of the car where the drugs were alleged to be found.”




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A.    Standard of Review

      When, as here, the ineffective assistance claim is asserted by a defendant in

a motion for new trial, and that motion is denied after an evidentiary hearing, we

review the denial of the motion under an abuse of discretion standard. Charles v.

State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other

grounds by rule, TEX. R. APP. P. 21.8(b); Anderson v. State, 193 S.W.3d 34, 39

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). “We view the evidence in the

light most favorable to the trial court’s ruling and uphold the trial court’s ruling if

it was within the zone of reasonable disagreement.” Webb v. State, 232 S.W.3d

109, 112 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.

Crim. App. 2004)); Anderson, 193 S.W.3d at 39. In addition, we do not substitute

our judgment for that of the trial court; rather we decide whether the trial court’s

decision was arbitrary or unreasonable. Charles, 146 S.W.3d at 208 (citing Lewis

v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). Accordingly, a trial court only

abuses its discretion in denying a motion for new trial when no reasonable view of

the record could support the trial court’s ruling. Id.

      When the trial court makes no express findings of fact regarding the denial

of a motion for new trial, appellate courts should “impute implicit factual findings

that support the trial judge’s ultimate ruling on that motion when such implicit

findings are both reasonable and supported in the record.” Id. at 213; Escobar v.

                                           5
State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(quoting Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005)).

Additionally, in our review of a motion for new trial, we “afford almost total

deference” to a trial court’s determination of facts, especially when those findings

turn on an evaluation of the credibility and demeanor of witnesses. Quinn v. State,

958 S.W.2d 395, 401 (Tex. Crim. App. 1997) (quoting Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997)); see Charles, 146 S.W.3d at 208 (stating

court of appeals defers to trial court’s resolution of historical facts in motion for

new trial hearing); see also Acosta v. State, 160 S.W.3d 204, 210 (Tex. App.—Fort

Worth 2005, no pet.) (“At a hearing on a motion for new trial, the trial judge is the

trier of fact and the sole judge of the credibility of the witnesses.”).

B.    Applicable law

      We review claims for ineffective assistance of counsel under the two-

pronged analysis set forth in Strickland v. Washington. See 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984); Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.

2009). Under Strickland, to prevail on a claim of ineffective assistance of counsel,

an appellant must prove by a preponderance of the evidence that (1) his counsel’s

representation fell below an objective standard of reasonableness and (2) the

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.

Ct. at 2064. Accordingly, “[i]n order for an appellate court to find that counsel

                                            6
was ineffective, counsel’s deficiency must be affirmatively demonstrated in the

trial record; the court must not engage in retrospective speculation.” Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999)); Bone v. State, 77 S.W.3d 828, 835

(Tex. Crim. App. 2002).

      Under the second prong of Strickland, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Perez v. State, 310 S.W.3d 890, 893

(Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2052).

A reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). An

appellant must show more than “that the errors had some conceivable effect on the

outcome of the proceeding.” Id. (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at

2067). “Rather, he must show that ‘there is a reasonable probability that, absent

the errors, the factfinder would have had a reasonable doubt respecting guilt.’” Id.

(quoting Strickland, 466 U.S. at 695, 104 S. Ct. at 2068–69).             Failure to

sufficiently prove either prong of Strickland defeats a claim for ineffective

assistance of counsel.    See Strickland, 466 U.S. at 700, 104 S. Ct. at 2074.

Accordingly, when the prejudice prong of the Strickland test is dispositive, we

need address only that prong on appeal. See My Thi Tieu v. State, 299 S.W.3d 216,

                                         7
225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069).

C.    Analysis

      Gomez-Arroyo contends that counsel’s performance was deficient because

counsel failed to interview an allegedly exculpatory witness. Where the alleged

error of counsel is a failure to investigate or discover potentially exculpatory

evidence, the determination whether the error prejudiced the defendant by causing

him to plead guilty rather than go to trial will depend on the likelihood that

discovery of the evidence would have led the attorney to change his

recommendation as to the plea. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366,

370 (1985). This assessment, in turn, will depend in large part on a prediction that

the evidence likely would have changed the outcome of trial. Id. To succeed on

this claim, Gomez-Arroyo must show that “such witnesses were available and [he]

would benefit from their testimony.” Perez, 310 S.W.3d at 894 (quoting King v.

State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)).

      For example, in Butler v. State, the Court of Criminal Appeals held

counsel’s deficient representation prejudiced the defendant where counsel failed to

seek out and interview an alibi witness as well as two eyewitnesses who could

testify to misidentification of the defendant. 716 S.W.2d 48, 56 (Tex. Crim. App.

1986). The exculpatory witnesses testified at the motion for new trial hearing; one

                                         8
testified that the defendant was with her at her apartment at the time of the robbery

and the other two said they saw the man who committed the robbery and it was not

defendant. Id. at 55. Likewise, in In re I.R., the El Paso Court of Appeals found

that the juvenile defendant was prejudiced by counsel’s deficient performance.

124 S.W.3d 294, 300 (Tex. App.—El Paso 2003, no pet.). Trial counsel had failed

to interview a witness, Hayden, despite being told of his existence by I.R.’s

mother. Id. at 299. Hayden testified at the motion for new trial hearing, stating

that I.R. was in New Mexico with Hayden on the day of the alleged assault. Id. at

297. The court, noting that Hayden was a disinterested witness, held that the

failure to investigate Hayden and discover the exculpatory testimony was sufficient

to undermine the court’s confidence in the outcome of the case and, therefore, I.R.

had been prejudiced. Id. at 300.

      Gomez-Arroyo contends that the driver of the car in which the cocaine was

found could have provided exculpatory testimony. Specifically, Gomez-Arroyo

contends the driver would have testified that the cocaine in the car did not belong

to Gomez-Arroyo, if Gomez-Arroyo’s counsel had only conducted a more

thorough investigation. But no evidence adduced at the motion for new trial

hearing addresses the availability of the driver of the car. Nor does the record

demonstrate that the driver’s testimony would benefit Gomez-Arroyo. Absent

such a showing, Gomez-Arroyo has not established his ineffective assistance

                                         9
claim. See Melancon v. State, 66 S.W.3d 375, 381 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d) (holding appellant failed to show prejudice in ineffective

assistance claim where record contained no evidence of what testimony the alleged

exculpatory witnesses could provide); see also Stokes v. State, 298 S.W.3d 428,

432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“[A] claim for ineffective

assistance based on trial counsel’s failure to interview a witness cannot succeed

absent a showing of what the interview would have revealed that reasonably could

have changed the result of the case.”); cf. Butler, 716 S.W.2d at 56 (holding

defendant carried burden of proving prejudice where witnesses testified at motion

for new trial hearing, setting forth exculpatory evidence they could have offered

had counsel properly investigated defendant’s case); In re I.R., 124 S.W.3d at 300

(same).

      We overrule Gomez-Arroyo’s sole issue.1




1
      The State initially contended that we lack jurisdiction because there is no
      certification in the record showing Gomez-Arroyo has the right of appeal. See
      TEX. R. APP. P. 25.2(d) (“The appeal must be dismissed if a certification that
      shows the defendant has the right of appeal has not been made part of the
      record.”). But the record has since been supplemented with the trial court’s
      findings, which make clear that it granted Gomez-Arroyo permission to appeal the
      denial of his motion for new trial. See TEX. R. APP. P. 25.2(a)(2)(B) (defendant in
      plea bargain case has right to appeal those matters the trial court grants permission
      to appeal).
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                                    Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, dissenting. Dissent to follow.

Do not publish. TEX. R. APP. P. 47.2(b).




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