                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00085-CR

                                       Cody James LORENZ,
                                             Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 12-0259-CR
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 11, 2014

AFFIRMED

           Appellant Cody James Lorenz entered an open plea to the offense of felony murder and

elected to have the trial court assess punishment. The trial court sentenced Lorenz to confinement

for fifty years in the Texas Department of Criminal Justice—Institutional Division. Lorenz raises

one issue on appeal, contending he received ineffective assistance of counsel. We affirm the trial

court’s judgment.
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                                           BACKGROUND

       Lorenz ran a red light and struck a vehicle driven by Amber Rollins as she proceeded

through an intersection. Rollins died as a result of the collision. After the incident, Lorenz’s blood

was drawn and it was determined he was intoxicated, having a blood alcohol level of .17 — more

than twice the legal limit. The parties stipulated to the blood alcohol level, and stipulated that

Lorenz had two prior convictions for driving while intoxicated (“DWI”).

       Lorenz was indicted for the offense of felony murder — the underlying felony was DWI.

Although the State need not prove a particular mental state to obtain a conviction for murder

committed in the course of committing felony DWI, see Lomax v. State, 233 S.W.3d 302, 304, 311

(Tex. Crim. App. 2007), Lorenz’s indictment stated, in part, that Lorenz, “did then and there

intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life

. . . and the defendant was then and there in the course of intentionally or knowingly committing a

felony[.]”

       The case was called for jury trial. During pretrial hearing discussions, and before Lorenz

was present in the courtroom, the trial court asked “if there was any chance of a plea in this case.”

Lorenz’s trial counsel replied, “No, your Honor.” Almost immediately thereafter, the State moved

to strike the portion of the indictment quoted above, arguing it was surplusage. The trial court

stated the matter would be determined once Lorenz was in the courtroom. Lorenz’s trial counsel

stated he intended to object and would argue “that it’s a fundamental right . . . my whole case was

— was based on that.” At that time, Lorenz was brought to the courtroom.

       Once Lorenz was in the courtroom, the trial court took up the State’s motion to strike the

mental state portions of the indictment. The State argued that under the Lomax decision, the

language was surplusage because the State was not required to prove a mental state in a felony

murder case where the underlying felony is DWI. Lorenz’s trial counsel objected, stating “I object
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on the grounds it’s a fundamental right of the Defendant. In addition to that, it’s not surplusage.

This is a violation of his Constitutional rights.” The court overruled the objection and granted the

State’s motion. The trial court interlineated the mental state language from the indictment and

initialed the change.

       At that point, having mentioned his intent to seek a continuance earlier in the proceedings

in the event the State’s motion was granted, Lorenz’s counsel urged a motion for continuance, and

in support called Lorenz to the stand. Lorenz testified he and his trial attorney spent a significant

amount of time discussing the importance of the “intentionally or knowingly” language that was

included in the indictment. Lorenz testified that neither he nor his attorney knew the State was

going to file a motion to delete the mental state language from the indictment. Lorenz further

stated their entire case was premised on the existence of the mental state language in the

indictment. According to Lorenz, given the trial court’s decision to grant the State’s motion to

strike that language, he needed time to discuss the case with his attorney so he could “intelligently

and voluntarily” make decisions about how to proceed, specifically about whether to plead guilty.

       The trial court denied the motion for continuance, but granted Lorenz and his counsel one

hour and twenty minutes to confer about the case. After they conferred, they re-entered the

courtroom. The record establishes Lorenz was called to the stand, apparently having decided to

enter a plea of guilt. The trial court first asked Lorenz if he had “been over that indictment” with

his attorney. Lorenz stated he had. The trial court then asked Lorenz if he understood the charges

against him, to which Lorenz replied that he did. The trial court explained the range of punishment.

The trial court thereafter admonished Lorenz about his rights — right to a jury trial, cross-examine

witnesses, introduce evidence, etc. Lorenz stated he understood that if he pled guilty, he would

give up those rights. Lorenz admitted he and his attorney had reviewed the “Waiver, Stipulations

and Admonishments,” and that he understood it before he signed it. Lorenz stated he had enough
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time to discuss the case with his attorney and review all the necessary paperwork. Lorenz further

stated he was satisfied with his attorney’s representation of him and that no one had forced him to

plead guilty. Lorenz testified he was entering a plea of guilty because he committed the crime he

was pleading to. Lorenz then entered an open plea of guilty to the offense of felony murder.

        Having entered an open plea and elected to have the trial court assess punishment, a

punishment hearing was subsequently held. At the hearing, the State asked the trial court to

incarcerate Lorenz for life. Lorenz asked for a lesser sentence, though he did not request a specific

number of years. The trial court assessed punishment at fifty years’ confinement.

        Thereafter, Lorenz filed a motion for new trial in which he argued the trial court erred in

granting the State’s motion to remove the mental state language from the indictment and in denying

his motion for continuance. Lorenz claimed these errors resulted in an involuntary plea given the

short time he was given to confer with trial counsel. He also asserted his trial counsel was

ineffective, testifying he did not understand the effect of the trial court’s decision to strike portions

of the indictment or how it would affect any trial strategy. Lorenz also claimed he did not

understand his decision to plead guilty, and asserted he was taking a narcotic medication on the

day of his plea, which may have affected his ability to understand what was happening. Lorenz

testified: (1) his attorney did not effectively explain the case to him, (2) he did not understand the

difference between murder and felony murder, (3) and he did not fully understand his possible

defense, particularly after the trial court granted the State’s motion to remove the mental state

language from the indictment.

        However, on cross-examination, Lorenz admitted he had pled guilty on four other

occasions and that in those cases his attorneys explained the terms of the plea agreement and

accompanying paperwork.         He also admitted that he read the “Waiver, Stipulation and



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Admonishments,” discussed the terms with his attorney, and that he swore in court he understood

the document.

       The trial court did not render a formal order denying the motion for new trial. Lorenz

subsequently filed a timely notice of appeal.

                                            ANALYSIS

       On appeal, Lorenz contends he did not receive effective assistance of counsel as required

by the Sixth Amendment. Specifically, Lorenz argues his trial counsel was ineffective because:

(1) he believed he could defend Lorenz by arguing the State did not prove Lorenz acted

intentionally or knowingly; and (2) he believed he could obtain a ten-day continuance under article

28.10 of the Code of Criminal Procedure when the State’s request to abandon the mental state

language from the indictment was granted. Lorenz contends this deficient conduct resulted in his

open plea of guilt and subsequent fifty-year sentence.

                                       Standard of Review

       A criminal defendant has a Sixth Amendment right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668 (1984); U.S. CONST. amend. VI. To determine whether

counsel’s representation was inadequate so as to violate a defendant’s Sixth Amendment right to

counsel, we apply the United States Supreme Court’s two-pronged Strickland test. Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under Strickland, a party claiming ineffective

assistance of counsel has the burden to establish by a preponderance of the evidence: (1) deficient

performance of trial counsel; and (2) harm resulting from that deficiency sufficient to undermine

confidence in the outcome of the trial. Ex Parte LaHood, 401 S.W.3d 45, 49 (Tex. Crim. App.

2013) (citing Strickland, 466 U.S. at 687). The assessment of whether a defendant received

effective assistance of counsel is made on a case-by-case basis by looking to the totality of the

representation and the particular circumstances of the case. Thompson, 9 S.W.3d at 813.
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       Our review of defense counsel’s trial representation is highly deferential, and we must

presume trial counsel’s actions fell within the wide range of reasonable and professional

assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Generally, a direct appeal

is insufficient for an ineffective assistance of counsel claim because the record is typically

insufficient to show trial counsel’s representation was so deficient and so lacking in legal tactics

or strategy as to overcome the presumption that trial counsel’s conduct was reasonable and

professional. Id. Any claim 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.

Moreover, our inability to “discern any particular strategy or tactical purpose in counsel’s trial

presentation,” does not entitle us to assume there was none. Bone, 77 S.W.3d at 836. In fact, to

do so “inverts the analysis.” Id. It is up to the defendant to prove by a preponderance of the

evidence a lack of any plausible reason for trial counsel’s act or omission. Id.

                                           Application

       We hold the record does not affirmatively demonstrate trial counsel lacked a sound trial

strategy or acted outside the proper range of reasonable and professional assistance. See Ex parte

Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012); Badillo v. State, 255 S.W.3d 125, 129

(Tex. App.—San Antonio 2008, no pet.). Thus, Lorenz has not sustained his burden.

       Lorenz first argues trial counsel was ineffective because he erroneously believed he could

defend the felony-murder case by arguing the State could not prove that Lorenz acted intentionally

or knowingly. Lorenz correctly points out that the Texas Court of Criminal Appeals held no proof

of a mental state is necessary to obtain a conviction for felony murder when the underlying felony

is DWI. See Lomax, 233 S.W.3d at 304, 311. However, the record does not establish that lack of

evidence of a mental state was trial counsel’s proposed trial strategy. In fact, the record belies

such a claim, i.e., that counsel was unaware of the applicable law according to Lomax. When
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specifically asked by the trial court if his position was that a culpable mental state is required for

the offense of felony murder when the underlying felony is DWI, trial counsel responded “No,

Judge. I’m objecting to amending — . . . [w]ell abandoning.” Thus, trial counsel affirmatively

denied a lack of knowledge of the applicable law. Moreover, trial counsel never stated this was

his strategy. Rather, he merely stated “my whole case was — was based on that.” He then objected

to the State’s motion by stating “it’s a fundamental right of the Defendant . . . it’s not surplusage

. . . [t]his is a violation of his Constitutional rights.” Nowhere does trial counsel contend he

intended to defend Lorenz by arguing lack of evidence with regard to a mental state.

        Trial counsel’s conduct could plausibly be explained as an attack on a defective indictment,

pointing out a variance between the indictment and the offense charged. When an indictment

contains a defect, defense counsel may develop a trial strategy designed to exploit the defect. We

do not know the exact nature of trial counsel’s strategy with regard to his objection to the

indictment, but such knowledge is not necessary. Based on this record, it is possible counsel had

legitimate and professionally sound reasons for his objection — other than those attributed to him

in this appeal.

        Based on the record before this court, we cannot say trial counsel’s strategy was outside of

professional norms — such a finding is not firmly founded in the record.

        Second, Lorenz contends that trial counsel erred in believing that he could automatically

obtain a ten-day continuance when the State’s request to abandon the surplus language was

granted. Lorenz argues that this resulted in his decision to plead guilty, after which he received a

fifty-year sentence. There are, however, two problems with this argument. First, the record does

not support Lorenz’s claim that trial counsel believed he was automatically entitled to a ten-day

continuance under article 28.10, which states that when the State amends an indictment the court

shall allow the defendant not less than ten days to respond to the amended indictment. See TEX.
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CODE CRIM. PROC. ANN. art. 28.10(a) (West 2006). Rather, the record reflects trial counsel sought

a continuance so he would have additional time to discuss the surplusage issue with Lorenz and

the impact it might have on a decision to plead guilty. Extrapolating from the record, it could well

be that trial counsel — having lost the opportunity to possibly exploit a variance in the indictment

— wanted to recommend Lorenz plead guilty, particularly given that the record establishes Lorenz

intended to stipulate to his blood alcohol level and his two prior convictions. Counsel never

mentions article 28.10(a).

       In addition, the record is silent as to whether Lorenz would have made a different decision,

that is, pled not guilty, had the ten-day continuance been granted. It is unclear from the record

what went into Lorenz’s decision-making process. The record reflects that after the State’s motion

to remove the mental state language was granted, Lorenz and his trial counsel conferred for over

an hour — despite Lorenz’s claim at the motion for new trial hearing that it was mere minutes.

After they conferred, Lorenz stated on the record that he was pleading guilty of his own volition

because he did in fact commit the crime he was being charged with. He swore he understood the

charges and possible sentence, as well as the rights he was waiving.            Moreover, Lorenz

affirmatively stated on the record that he was satisfied with his trial counsel’s performance. Thus,

we hold the record does not demonstrate trial counsel acted outside the proper range of reasonable

and professional assistance. See Badillo, 255 S.W.3d at 129.

                                          CONCLUSION

       Because Lorenz has failed to establish by a preponderance of the evidence that trial counsel

was ineffective for either reason asserted, we overrule his claims of ineffective assistance of




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counsel. Lorenz’s claims are not firmly founded in the record. Accordingly, we affirm the trial

court’s judgment.

                                               Marialyn Barnard, Justice

Do Not Publish




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