




02-11-373-CR





















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 intoxicated[1]
(DWI) and assessed his punishment at 365 days’ confinement and a $4,000 fine.  The
trial court sentenced him accordingly.  In a 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.  
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 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 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
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 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








 
 














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.[3]
Rule
605 of the Texas Rules of Evidence provides that a presiding judge at a trial
may not testify as a witness.[4]  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.[5] 
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:
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 reviewing court to disregard the presiding judge’s statement in
question.[6]
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
 




[1]See Tex. Penal Code
Ann. § 49.09(a) (West Supp. 2012) (providing that a second DWI offense
constitutes a Class A misdemeanor). 


[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.


[3]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).


[4]Tex. R. Evid. 605.


[5]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).


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


