                            PD-0654-15




                       Bexar County Public Defender's Office
                   Paul Elizondo Tower ♦ 101 W. Nueva St., Suite 310 ♦ San Antonio, TX 78205^ _   _
                                 Phone: (210) 335-0701 ♦ Fax: (210) 335-0707              iRfcCESVED SN
                                                                                       COURT OF CRIMINAL APPEALS
                                              May 6, 2015
                                                                                              "'" 29 2015
Mr. Mark Anthony Garcia
TDCJ# 01891224
                                                                                        Abe! Acosta, CSerk
Garza West Transfer Facility
4250 HWY 202                                                                                 FILED IN
Beeville, TX 78102                                                              „«,mTAr«n,.m,., .nn-.. «
                                                                                COURT OF CRIMINAL APPEALS

Re:    Mark Anthony Garcia v. State of Texas                                                maw o q ?G15
       Appeal No. 04-13-00818-CR                                                            ™T        a
       Trial Court No. 2009-CR-2731A
                                                                                        Abel Acosta, Clerk
Dear Mr. Garcia:


The Fourth Court of Appeals issued its opinion in your case on May 6, 2015. The Court
of Appeals affirmed the judgment of the trial court. This means that your conviction and
sentence will stand. I believe that the opinion of the Court of Appeals is legally valid. I
was appointed to represent you at the court of appeals level only. If you want to pursue
your appeal further, you will have to do so on your own, or with another attorney. The
rest of this letter explains your options.

Motion for Rehearing: You may file a motion for rehearing with the Fourth Court of
Appeals if you believe that there are legal grounds for a rehearing. If you decide to file a
motion for rehearing, one original and one copy of the motion must be filed with the
Clerk of the Fourth Court of Appeals within 15 days after the date of the opinion, that is,
no later than May 21, 2015. If the Court of Appeals denies your motion for rehearing,
you will then have 30 days to file a petition for discretionary review with the Court of
Criminal Appeals of Texas.

Petition for Discretionarv Review: You can skip filing the motion for rehearing and file a
petition for discretionary review directly with the Court of Criminal Appeals. The
petition is called "discretionary" because the Court of Criminal Appeals is free to refuse
the petition, or grant it and hear the case, for any reason they choose. Texas Rule of
Appellate Procedure 66.3 sets forth a list of reasons why the Court might grant review. In
my opinion, none of those reasons apply to your case. Because I believe that a petition for
discretionary review would be frivolous, I will not file one for you.
If you decide to file your own petition for discretionary review, you will have to file the
original plus 11 copies of the petition with: Abel Acosta, the Clerk of the Court of
Criminal Appeals of Texas, P.O. Box 12308, Austin, Texas 78711. The petition must be
filed within 30 days afterthe Court of Appeals rendered itsjudgment. Since the judgment
was rendered on May 6, 2015, the 30-day deadline will be June 5,2015. A copy of the
petition must also be served on the BexarCounty District Attorney's Office, Appellate
Division, Paul Elizondo Tower, 101 W. Nueva St. Suite 710, San Antonio, Texas 78205.
Yet another copy of the petition must be sent to the State Prosecuting Attorney, Lisa C.
McMinn, P.O. Box 13046, Austin, Texas 78211.

I have enclosed a copy of the judgment and opinion of the Fourth Court of Appeals. I
have also enclosed a copy of Rules 66-69 of the Texas Rules of Appellate Procedure.
Those rules set out the requirements for filing a petition for discretionary review. You
should review them before deciding to file your own petition.

Do nothing at all: You don't have to do anything at all. This is your third option. If you
don't do anything, a document called the "mandate" will be issued by the Court of
Appeals in about 90 days. Your conviction and sentence will then become final.

Separate and apart from your appellate rights, you may also apply for a writ of habeas
corpus. Again, you will have to hire another attorneyor file the writ applicationon your
own. If you decide to file a writ application, you will have to wait until the Court of
Appeals issues the mandate and the judgment becomes final. I will send you a copy of the
mandate when I receive it.


With this letter, I am closing out your file, other than to send you a copy of the mandate. I
wish you well.

Sincerely,



RICFIARD B. DULANY, JR.
Attorney at Law

Certified Mail - Return Receipt Requested
Article No. 7012 1640 0002 4217 9963

Enclosures:      Opinion (copy)
                 TRAP 66-69
 Page 68                                                                                TEXAS RULES OF APPELLATE PROCEDURE


 64.1. Time for Filing
                                                                            65.1. Statement of Costs
         A motion for rehearing may be filed with the Supreme
 Court clerk within 15 days from the date when the Court renders                 The Supreme Court clerk will prepare, and send to the
 judgment or makes anorderdisposing of a petitionforreview. In             clerk to whom the mandate is directed, a statement of costs
 exceptional cases, if justice requires, the Court may shorten the         showing:
 time within which themotion maybe filed orevendenytheright
 to file it altogether.                                                           (a)    the costs that were incurred in the Supreme Court,
                                                                                         with a notation of those items that have been paid
 64.2. Contents                                                                          and those that are owing; and

         The motion must specify the points relied on for the                     (b)    the party or parties against whom costs have been
 rehearing.                                                                              adjudged,

64.3. Response and Decision                                                65.2. Enforcement of Judgment

         No response to a motion for rehearing need be filed unless              Ifthe Supreme Court renders judgment, the trial court need
the Court so requests. A motion will not be granted unless a               not make any further order. Upon receiving the Supreme Court's
response has been filed or requested by the Court. But in                  mandate, the trial court clerk must proceed to enforce the
exceptional cases, ifjustice sorequires, the Court maydeny the             judgment of the Supreme Court'sas in anyothercase. Appellate
right to file a response and act on a motion any time after it is          court costs must be included with the trial court costs in any
filed.                                                                     process to enforce the judgment. If all or part of the costs are
                                                                           collected, the trial court clerk must immediately remit to the
64.4. Second Morion                                                        appellate court clerk any amount due to that clerk.

      TheCourtwillnotconsidera secondmotionfor rehearing                                         Notes and Comments
unlesstheCourtmodifies itsjudgment,vacatesitsjudgmentand
renders a new judgment,or issues a differentopinion.                              Comment to 1997 change: Subdivision 65.1 is new.
                                                                           Subdivision 65.2 is from former Rule 183.
64.5. Extensions of Time

      The Court may extend the time to file a motion for                                          SECTION FIVE:
rehearing in theSupremeCourt, if a motioncomplyingwith Rule                                 PROCEEDINGS IN THE
10.5(b)is filed with the Court no later than 15 days after the last                     COURT OF CRIMINAL APPEALS
date for filing a motion for rehearing.
                                                                                          Rule 66. Discretionary Review
64.6. Length of Motion and Response
                                                                                                      in General

         A motionor response must be no longer than 15 pages.
                                                                           66.1. With or Without Petition

                          Notes and Comments
                                                                                 The Court of Criminal Appeals may review a court of
                                                                           appeals' decision in a criminal case on its own initiative under
         Commentto 1997 change: This is former Rule 190. the
                                                                           Rule 67 or on the petition of a party under Rule 68.
service andnotice provisions of former subdivisions (b) and (c)
are deleted. See Rule 9.5. Other changes are made.
                                                                           66.2. Not a Matter of Right
         Comment to 2008 change: Subdivision 64.4 is amended
toreflecttheCourt's practiceof considering a secondmotionfor                      Discretionaryreviewby the Court of Criminal Appeals is
                                                                           not a matter of right, but of the Court's discretion.
rehearing aftermodifying itsjudgmentor opinion in response to
a prior motion for rehearing. When the Court modifies its
opinion withoutmodityingitsjudgment, theCourtwillordinarily                66.3. Reasons for Granting Review
deny a second motion for rehearing unless the new opinion is
substantially different from the original opinion.                               While neithercontrollingnor fully measuringthe Court of
                                                                           Criminal Appeals' discretion, thefollowing willbeconsidered by
                                                                           the Court in decidingwhether to grant discretionary review:
            Rule 65. Enforcement of Judgment
                           after Mandate


                                                                      68
  Page 70
                                                                                          TEXAS RULES OF APPELLATE PROCEDURE

          (a) FirstPetition. The petition must be filed within 30          applying for review. The petition must contain the following
               days after either the day the court of appeals'             items:
               judgment was rendered or the day the last timely
               motion for rehearing or timely motion for en banc                    (a)    Table ofContents. The petition mustincludea table
               reconsideration was overruled by the court of                               of contents with references to the pages of the
               appeals,                                                                    petition. The table of contents must indicate the
                                                                                           subject matter ofeach ground orquestion presented
          (b) Subsequent Petition. Even ifthe time specified in (a)                        for review.
               has expired, a party who otherwise may file a
               petition may do so within 10days after the timely                    (b) Index ofAuthorities. The petition must include an
               filing of another party's petition.                                      index of authorities arranged alphabetically and
                                                                                        indicating the pages of the petition where the
          (c) Extension of Time. The Court of Criminal Appeals                             authorities are cited.
               may extend the time to file a petition for
               discretionary review if a party files a motion                       (c) Statement Regarding Oral Argument. The petition
               complying with Rule 10.5(b) no later than 15 days                        must include a short statement ofwhy oral argument
               after thelastdayfor filing thepetition. TheCourtof                          would be helpful, or a statement thatoral argument
               Criminal Appeals may extend the time to file a                              is waived. If a reply or cross-petition is filed, it
               response orreply ifa party files a motion complying                         likewise must include a statement of why oral
               with Rule 10.5(b) either before orafter the response                        argument should or should not be heard.
               or reply is due.
                                                                                (d) Statement ofthe Case. The petition must state briefly
                          Notes and Comments                                              the nature of the case. This statement should seldom
                                                                                          exceedhalfa page. The detailsof the caseshouldbe
          Commentto2011 change: The amendment to Rule68.2(a)                              reserved and stated with the pertinent grounds or
 resolves timely filing questions concerning motions foren banc                           questions.
 reconsideration byincluding those motions incalculating timeto
 file.
                                                                                (e) Statement ofProcedural History. The petition must
                                                                                          state:
 68.3. Where to File Petition
                                                                                          (1) the date any opinion of the court of appeals
     (a) Thepetition andallcopies ofthepetition must befiled                                       was handeddown, or the dateof anyorderof
withthe clerk oftheCourt of Criminal Appeals.                                                      the court of appeals disposing of the case
                                                                                                   without an opinion;
         (b) Petition Filed in Court of Appeals. If a petition is
mistakenly filed in thecourtofappeals, thepetition isdeemed to <                          (2) the date any motion for rehearing was filed (or
have been filed the same day with the cIefJs*of the Court of-,                                     a statement that none was filed); and
Criminal Appeals, and the court of appeals clerk must
immediately send the petition to the cleric" of'the Court of                              (3) thedate themotion forrehearing was overruled
Criminal Appeals.                                           i,                                     or otherwise disposed of.

                       Notes and Comments                                       (f)       Groundsfor Review. Thepetition must statebriefly,
                                                                                          without argument, the grounds on which thepetition
         Comment to2011 change: Rule 68.3 ischanged torequire                             isbased. Thegrounds mustbeseparately numbered.
petitions for discretionary review to be filed in the Court of                            If the petitioner has access to the record, the
Criminal Appeals rather than in the court of appeals. With the                            petitioner must (aftereachground) refer to the page
deletion of Rule 50, there is no reason to file petitions in the                          of the record where the matter complained of is
court of appeals. Rule 68.3(b) is added to address and prevent                            found. Instead of listing grounds for review, the
theuntimely filing ofpetitions fordiscretionary review that are                           petition may contain the questions presented for
incorrectly filed in the court of appeals rather than in the Court                        review, expressed in the terms and circumstances of
of Criminal Appeals.                                                                      the case but without unnecessary detail. The
                                                                                          statement of questionsshouldbe shortand concise,
68.4. Contents of Petition                                                                not argumentative or repetitious.

         A petition for discretionary review must be as brief as                (g) Argument. The petition must contain a direct and
possible. Itmust be addressed tothe "Court ofCriminal Appeals                       concise argument, with supporting authorities,
of Texas" and must state the name of the party or parties                           amplifying thereasonsforgranting review. SeeRule

                                                                      70
  "7     '   f- Ct-o   I "

        A »                           jfourtf) Court ot Appeal*

                                         MEMORANDUM OPINION
       •Ay 6. t? ^ _^
                                                No. 04-13-00818-CR
       \^*
                                              Mark Anthony GARCIA,
                                                    Appellant

                                                         v.



                                                The STATE of Texas,
                                                     Appellee

                             From the 437th Judicial District Court, Bexar County, Texas
                                           Trial Court No. 2009CR2731A
                                   Honorable Lori I. Valenzuela, Judge Presiding

       Opinion by:       Patricia O. Alvarez, Justice

       Sitting:          RebecaC. Martinez, Justice
                         Patricia O. Alvarez, Justice
                         Luz Elena D. Chapa, Justice

       Delivered and Filed: May 6, 2015

       AFFIRMED AS MODIFIED


                  Appellant Mark Anthony Garcia was charged by indictment with one count ofmurder. The

       jury returned a guilty verdict and assessed punishment at twenty-years' confinement in the

       Institutional Division of the Texas Department of Criminal Justice. On appeal, Garcia contends

       (1) he was denied effective assistance of counsel and (2) the trial court erred in assessing attorney's
JZZ:
       fees. We modify the judgment to delete the assessment of attorney's fees and affirm the trial

       court's judgment as modified.                                              ; "^ U>wi 7~fal a>/)tj Qr°v„c/S
                                                                                      04-13-00818-CR



the result of the proceeding would have been different.'" Id. at 158 (footnote omitted) (quoting

Strickland, 466 U.S. at 694).

        "An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel." Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). "There is a strong presumption that counsel's conduct

fell within the wide range of reasonable professional assistance." Id. (citing Strickland, 466 U.S.

at 689). Therefore, Garcia "'must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.'" Exparte Moore, 395 S.W.3d at 157

(quoting Strickland, 466 U.S. at 689).

B.      Arguments ofthe Parties          ^ ^          ^ ^
        Garcia contends that by asking the question, trial counsel-unintentionally opened the door

to otherwise inadmissible extraneous offense evidence. Such testimony could only lead the jury

to see Garcia as a "drug-crazed, remorseless killer, instead of a good guy who was just trying to

stop a tragedy."

        The State counters that a single, inarticulate question—asked during an otherwise vigorous

representation and well above the objective professional standard of reasonableness—cannot

amount to ineffective assistance of counsel.

C. ,.   Ineffective Assistanceof Counsel

        "A substantial risk of failure accompanies an appellant's claim of ineffective assistance of

counsel on direct appeal." Thompson, 9 S.W.3d at 813. "In the majority of instances, the record

on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel."

Id. at 813-14. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107,111 (Tex. Crim. App.

2003); accord Menefield, 363 S.W.3d at 593. An "appellate court should not find deficient
                                                                                       04-13-00818-CR



performance unless the challenged conduct was 'so outrageous that no competent attorney would

have engaged in it.'" Menefield, 363 S.W.3d at 593 (quoting Goodspeedv. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005)). Often on direct appeal, because the record is silent on counsel's

reason, the defendant asks the appellate court to "speculate as to the reasons why trial counsel

acted as he did," but the court is required to "presume that [counsel's] actions were taken as part

of a strategic plan for representing the client." Rodriguez v. State, 336 S.W.3d 294, 302 (Tex.

App.—San Antonio 2010, pet. refd). Here, however, the record specifically provides defense

counsel's reasons for asking the question.

D.     Analysis

       1.       Testimony in Question

       On the tenth day oftestimony, after the State rested its case in chief, Garcia took the witness

stand. Garcia articulated his version of the events that evening. Garcia denied firing the weapon

that killed Morales. He further explained that he was actually attempting to stop Lozano "from

doing something stupid."

       Defense:      At the time that you were in the office talking with the detective, all
                     right, did you believe that you'd some day end up on the stand being
                     tried for murder?


       State:        Objection, Your Honor, relevance.

       Defense:      State of mind, Your Honor, at the time. Demeanor they placed him.

       Trial Court: Ask your question again.

       Defense:      At the time that you were placed in custody in — with Detective
                     Angell, all right, did you ever believe that you would be on trial for
                     murder?


       Trial Court: It's sustained.

       Defense:      Did you have anything to hide that night when you were talking to the
                     detective?



                                                -5-
                                                                                          04-13-00818-CR



          Here, trial counsel clearly articulated that he did not anticipate or believe that his questions

might open the door to the State's propounding questions pertaining to Garcia's possession of

cocaine. But see Garcia v. State, 308 S.W.3d 62, 67-68 (Tex. App.—San Antonio 2009, no pet.)

(concluding trial counsel's multiple blanket questions opened the door to extraneous bad acts and

his repeated failure to object to admission of extraneous offenses deprived defendant of a fair

trial).   Even acknowledging that "a single egregious error of omission or commission" can

constitute ineffective assistance, the allegations of ineffectiveness must be "firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9

S.W.3d at 813 (citing McFarlandv. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We,

therefore, look to trial counsel's representation throughout the trial.

          Trial counsel conducted two days of pre-trial motions, two days of voir dire, fourteen days

oftestimony during the guilt/innocence portion ofthe trial, and two days of punishment testimony.

During the guilt/innocence phase of the trial, trial counsel cross-examined twenty-two State's

witnesses and presented ten defense witnesses. There were a plethora of objections lodged by

defense counsel preventing damaging testimony from being heard by the jury. Additionally, sixty-

one defense exhibits were admitted by the trial court. Defense counsel presented impassioned

closing arguments in both the guilt/innocence and the punishment phases of the trial.

          Garcia contends this trial turned on his credibility; yet, the record demonstrates several

witnesses identified Garcia (the individual in the yellowish-colored shirt) as obtaining the weapon

from the vehicle, placing the weapon in his waistband, and firing the weapon at Morales.

Moreover, although Garcia's "jovial" disposition is mentioned during closing arguments, the State

was comparing his appearance shortly after the shooting to his somber appearance in court.

Neither party mentioned possession of cocaine or any other narcotics during closing arguments.

Importantly, although the trial court ruled that defense counsel's question opened the door to

                                                   -7-
                                                                                      04-13-00818-CR



         1.      Trial Court's Finding ofIndigence

         The Texas Code of Criminal Procedure provides that a criminal defendant "without means

to employ counsel of my own choosing," may petition the court to appoint counsel to represent
him at the county's expense. Tex. Code Crim. Proc. Ann. art. 26.04(o) (providing oath of

indigence language); id. art. 26.05(f) (requiring counties to pay indigents' costs and attorney's
fees).

         In Dieken, 432 S.W.3d at 447, this court analyzed the inherent conflict in article 26.04's

mandate with that of article 26.05(g). We concluded that "[ajrticle 26.05(g) authorizes a court to

determine that a defendant is able to pay a portion of the costs of his legal services but is unable

to paythe balance." Id. (citing Tex. Code Crim. Proc. Ann. art. 26.05(g) ("Ifthecourt determines

that a defendant has financial resources that enable him to offset in part or in whole the costs of

the legal services provided, including any expenses and costs, the court shall order the defendant

to pay during the pendency of the charges or, if convicted, as court costs the amount that itfinds

the defendant is able topay.'")). We must, therefore, determine whether the trial court's conclusion

that Garcia was able to pay for part, but not all, of the legal services he received was reasonable.

         2.     Relevant Evidence


         Although the record does not contain any documents determining Garcia's indigency,

Garcia was clearly represented by appointed counsel during his trial. The trial court further

approved payment of an investigator for the defense. From these documents, we presume Garcia

"'remainfed] indigent . . . unless a material change in [Garcia's] financial circumstances

occurred].'" Id. at 448 (second, fourth alterations in original) (quoting Tex. Code Crim. Proc.

Ann. art. 26.04(p)); see also Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 557.

         As the State points out, on January 13,2009, the trial court signed a Special Condition of

Release on Bond, setting Garcia's bond at $100,000.00 and ordering full-house arrest and
                                                -10-
                                                                                     04-13-00818-CR



electronic-monitoring as conditions of bond. On October 28, 2011, the bond was apparently

increased to $200,000.00. Although it appears Garcia was able to post bond, the clerk's record

does not contain any actual documentation of Garcia's bond.

       On May 31,2012, defensecounsel filed a Motionto ModifyConditions of Bondrequesting

Garcia's electronic monitoring be modified to accommodate his work schedule at a local

restaurant. On November 20, 2013, defense counsel's motion to withdraw indicatingthat Garcia

"remains indigent and cannot afford to hire an attorney to represent him [on] appeal" was granted

and, the trial court appointed an assistant public defenderto represent Garcia on appeal.

       3.      SufficientEvidence

       To impose the attorney's fees on Garcia, the trial court had to find, either expressly or

implicitly, that a material change occurred and Garcia had the ability to pay $3,110.00 in court

costs and attorney's fees. See Tex. Code Crim. Proc. Ann. art. 26.05(g); Wiley, 410 S.W.3d at

317; Mayer, 309 S.W.3d at 556. The record does not contain either an express written or oral

finding supporting the same. Additionally, the record does not contain a bill of costs outlining a

portion for which the trial court reasonably determined Garcia could pay.

       Because the record shows Garcia had court-appointed counsel at trial and on appeal, and

does not include either an express or implicit finding of a material change in Garcia's ability to

pay the attorney's fees, we modify the judgment to delete the assessment of attorney's fees. See

Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 556.

                                          Conclusion


       Having overruled Garcia's ineffective assistance claim, we affirm the trial court's

judgment as modified.

                                                 Patricia O. Alvarez, Justice

DO NOT PUBLISH

                                               -11-
                                                                               RECEIVED IN
                                                                           COURT OF CRIMINAL APPEALS
                                                                                       MAY 29-2015

                                                                               AbeMoosfa.Ctefk
                            Jfourtf) Court of Appeal*

                                        JUDGMENT

                                     No. 04-13-00818-CR


                                   Mark Anthony GARCIA,                                         (X
                                         Appellant                                         aS
                                                                                       1
                                                                               sV
                                     The STATE of Texas,
                                                                         ^
                                          Appellee

                  From the 437th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2009CR2731A
                         Honorable Lori I. Valenzuela, Judge Presiding

       BEFORE JUSTICE MARTINEZ, JUSTICE ALVAREZ, AND JUSTICE CHAPA

        In accordance with this court's opinion ofthis date, we MODIFY the trial court's judgment
to delete the assessment of attorney's fees and AFFIRM the trial court's judgment as MODIFIED.

       SIGNED May 6,2015.


                                                            £SQU*3uSE/w>
                                                Patricia O. Alvarez, Justice




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