                                                                                 PD-0119-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                            Transmitted 2/16/2015 3:19:50 PM
                                                              Accepted 2/18/2015 8:45:31 AM
                                                                                ABEL ACOSTA
                                                                                        CLERK
                            NO. PD-0119-15
                IN THE COURT OF CRIMINAL APPEALS
                     FOR THE STATE OF TEXAS


                           JESUS GONZALEZ
                               Appellant
                                   v.
                          THE STATE OF TEXAS
                                Appellee



 On Petition for Discretionary Review from the First Court of Appeals in
 No. 01-12-01115-CR, affirming the conviction in cause number 1307888
          From the 177th District Court of Harris County, Texas



        APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


ORAL ARGUMENT REQUESTED                       ALEXANDER BUNIN
                                              Public Defender
                                              Harris County, Texas
                                              MARK KRATOVIL
                                              Assistant Public Defender
                                              Texas Bar Number 24076098
                                              1201 Franklin Street, 13th Floor
                                              Houston, Texas 77002
                                              Telephone: (713) 274-6728
      February 18, 2015                       Facsimile: (713) 437-4339
                                              mark.kratovil@pdo.hctx.net
                                              Counsel for Appellant
                  IDENTITY OF PARTIES AND COUNSEL
APPELLANT                                Jesus Gonzalez
                                         TDCJ # 01827388
                                         Polunsky Unit
                                         3872 FM 350
                                         Livingston, Texas 77351
DEFENSE COUNSEL AT TRIAL                 Paul Decuir
                                         P.O. Box 9687
                                         Houston, Texas 77213
PROSECUTOR AT TRIAL                      Adam Muldrow
                                         Assistant District Attorney
                                         Hans Nielsen
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin Street
                                         Houston, Texas 77002

PROSECUTOR ON MOTION FOR                 Mia Magness
NEW TRIAL                                Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin Street
                                         Houston, Texas 77002

PRESIDING JUDGE                          The Honorable Ryan Patrick
                                         177th District Court
                                         1201 Franklin Street, 19th Floor
                                         Houston, Texas 77002

PROSECUTOR ON APPEAL                     Jessica Akins
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin Street
                                         Houston, Texas 77002
APPELLANT’S COUNSEL ON                   Mark Kratovil
MOTION FOR NEW TRIAL                     Assistant Public Defender
AND ON APPEAL                            Harris County, Texas
                                         1201 Franklin Street, 13th Floor
                                         Houston, Texas 77002


                                 ii
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................................. ii
TABLE OF CONTENTS ............................................................................................................ iii
INDEX OF AUTHORITIES ....................................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF THE PROCEDURAL HISTORY ...................................................................... 3
GROUND FOR REVIEW ........................................................................................................... 4
REASON FOR REVIEW ............................................................................................................. 4
STATEMENT OF FACTS............................................................................................................ 4
ARGUMENT .............................................................................................................................. 7
     A. Case Law and the Texas Disciplinary Rules of Professional Conduct Definitive-
        ly Establish That Trial Counsel's File Belongs to the Appellant ........................... 7

     B. Trial Counsel Cannot Refuse to Produce the File By claiming Attorney-Client
        Privilege ........................................................................................................................ 9

     C. This Court Has the Authority to Order a Supplemental Hearing Without Va-
        cating the Appellant's Conviction ........................................................................... 10

PRAYER FOR RELIEF ............................................................................................................. 11
CERTIFICATE OF SERVICE .................................................................................................... 12
CERTIFICATE OF COMPLIANCE ........................................................................................... 13
APPENDIX A .......................................................................................................................... 14
APPENDIX B .......................................................................................................................... 16




                                                                    iii
                                          INDEX OF AUTHORITIES

Cases

Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982) .................................................... 9

Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013) ..................................................... 10

Gonzalez v. State, 2014 WL 7205145, No. 01-12-01115-CR (Tex. App.—Houston [1st

   Dist.] 2014) (not designated for publication) .............................................................. 3, 7

Joseph v. State, 3 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 1999, no pet.) .............. 9

Laughner v. United States, 373 F.2d 326 (5th Cir. 1967) ....................................................... 9

In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) .......................................... 1, 4, 8, 9

Reyes v. State, 82 S.W.3d 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.).............. 10

Statutes

Tex. R. App. Proc. 43.2 (West 2014) ................................................................................. 10

Tex. R. App. Proc. 43.6 (West 2014) ................................................................................. 10

Tex. R. App. Proc. 66.3 (West 2014) ................................................................................... 4

Secondary Sources

Tex. Discliplinary R. Prof’l Conduct 1.15 (2011) ........................................................... 7, 8




                                                           iv
                       STATEMENT REGARDING ORAL ARGUMENT

        Because the issue presented in this Petition for Discretionary Review involves

the application of relatively new precedent from this Court,1 the Appellant believes

that the opportunity to present oral argument would aid the Court in rendering a deci-

sion.

                                  STATEMENT OF THE CASE

        The Harris County District Attorney’s Office charged Jesus Gonzalez (“Appel-

lant”) by indictment with one count of murder. Specifically, the Appellant was alleged

to have caused the death of Alicia Gonzalez by stabbing her with a knife. No en-

hancement paragraphs were alleged in the indictment. (C.R. at 12)

        Voir dire began on November 20, 2012, and a jury was seated that same day. (2

R.R. at 119-120). The Appellant was subsequently convicted of murder on December

4, 2012. (4 R.R. at 55-56; C.R. at 94) Punishment proceedings began the same day,

with the Appellant electing to have a jury assess punishment. (C.R. at 102) The jury

assessed a punishment verdict sentencing the Appellant to fifty (50) years confine-

ment in the Texas Department of Criminal Justice. (5 R.R. at 25; C.R. at 102). The

Appellant’s notice of appeal was certified by the trial court on December 5, 2012.

(C.R. at 108-109).



1
 Specifically, the issue presented revolves around this Court’s decision in In re McCann, 422 S.W.3d
701 (Tex. Crim. App. 2013).


                                                  1
        A Motion for New Trial was filed by appellate counsel on January 4, 2013, re-

questing only a new punishment hearing and asserting three grounds for the requested

relief: 1) ineffective assistance of counsel at the punishment phase; 2) that the trial

court committed error in refusing to submit a sudden passion jury instruction at the

punishment phase; 3) and that a new trial should be granted in the interests of justice.

(Special C.R. at 2-13).2 Twelve supporting affidavits from friends and family members

of the Appellant were attached to the Motion for New Trial. (Special C.R. at 18-62).

        On January 9, 2013, Judge Ryan Patrick denied the Motion for New Trial with-

out conducting an evidentiary hearing. (Supplemental C.R. at 2, 15). The Appellant

filed a Motion to Abate with the First Court of Appeals asserting that the trial court

abused its discretion in denying the Motion for New Trial without first conducting an

evidentiary hearing. This Motion to Abate was granted by the First Court of Appeals

and the trial court was ordered to conduct an evidentiary hearing. (Supplemental C.R.

at 3-14). After the conclusion of a live hearing on the Appellant’s Motion for New

Trial, the trial court again denied the motion on July 24, 2013. (Supplemental C.R. at

15).




2
  There are two additional Clerk’s Records in the present case. First, there is a “Special Clerk’s Rec-
ord” which was filed with the Court of Appeals on April 2, 2013 and contains the Appellant’s Mo-
tion for New Trial and supporting affidavits. Second, there is a “Supplemental Clerk’s Record”
which contains the abatement order from the Court of Appeals and the trial court’s ultimate ruling
denying the Motion for New Trial. For purposes of clarity, references to these Clerks’ Records will
specifically refer to each as either the “Special” or “Supplemental” Clerk’s Record.


                                                   2
                    STATEMENT OF THE PROCEDURAL HISTORY

       The First Court of Appeals issued a unanimous, unpublished memorandum

opinion affirming the Appellant’s conviction on December 18, 2014. Justice Jennings

authored the opinion. In its opinion, the First Court of Appeals held that the Appel-

lant’s ineffective assistance of counsel claim failed to satisfy the prejudice prong of

Strickland. Gonzalez v. State, 2014 WL 7205145 at *11, No. 01-12-01115-CR (Tex.

App.—Houston [1st Dist.] 2014) (not designated for publication). In a footnote, the

First Court of Appeals declined to abate the case for a supplemental hearing regarding

trial counsel’s refusal and failure to surrender trial counsel’s file to appellate counsel.

Id. at fn. 4. No motion for rehearing was filed.




                                            3
                                GROUND FOR REVIEW

      The First Court of Appeals erred in failing to order a supplemental hearing in

the trial court where trial counsel for the defense would have been ordered to produce

and surrender his trial file for inspection by appellate counsel, as trial counsel previ-

ously ignored a subpoena to produce the file and refused to abide by his former cli-

ent’s wishes to have the file surrendered to appellate counsel.

                                REASON FOR REVIEW

      The First Court of Appeals has decided an issue which conflicts with an

applicable decision of this Court. See Tex. R. App. Proc. 66.3(c). Specifically, this

Court reaffirmed the longstanding rule in In re McCann, 422 S.W.3d 701 (Tex. Crim.

App. 2013) (“a client owns his or her trial file and a former attorney is obligated to

follow his or her former client's last known wishes under these circumstances”), that a

client’s file belongs to a client. Trial counsel in the present case refused to surrender

the Appellant’s file to appellate counsel, despite the Appellant’s unambiguous order to

do so. In footnote four of its opinion, the First Court of Appeals briefly addressed

this issue and declined to order trial counsel to surrender the file in a supplemental

hearing. This aspect of the opinion of the First Court of Appeals is in conflict with

this Court’s precedent as stated in In re McCann.

                                STATEMENT OF FACTS

      There is no question that the Appellant committed the crime he was charged

with. The Appellant confessed to murdering his wife—the complainant—and no

                                            4
cognizable defense was presented at trial. (3 R.R. at 79-81, 92; 7 R.R. at 9; State’s Ex-

hibit 2; State’s Exhibit 5). The facts of the case, as presented by the First Court of

Appeals, are largely accurate and the Appellant takes no issue with the lower court’s

recitation of them. However, for purposes of this Petition for Discretionary Review,

the underlying facts of the case have no bearing on the legal issue at play.

      The issue at the center of this appeal was the conduct of trial counsel in prepar-

ing for trial and at the punishment phase of the Appellant’s trial, where the defense

presented neither witnesses nor any mitigation case.      At the hearing on the Appel-

lant’s Motion for New Trial, trial counsel for the Appellant testified. Trial counsel

acknowledged that he had received and signed a subpoena requesting that he produce

the file he had created cataloging his actions in preparing for the Appellant’s trial.

However, trial counsel ignored the commands of this subpoena and failed to bring

any documentation with him to the first day of the Motion for New Trial hearing. (2

R.R. (M.N.T.) at 34-35).

      At the second day of the Motion for New Trial hearing, trial counsel brought

with him an item which he represented was the Appellant’s trial file, although he

acknowledged that he did not bring other items concerning the Appellant’s case

which would have substantiated many of the claims trial counsel made during his tes-

timony. Trial counsel explained his actions thusly: “I did bring the trial file. I didn’t

bring the investigation file because Lisa Jones has it and she is in Indiana at this time

and she was last week with her daughter who is having some difficulty in pregnancy,

                                            5
but I brought the trial file with me.” (3 R.R. (M.N.T.) at 4). In explaining his reticence

to surrender the Appellant’s file to appellate counsel, trial counsel explained that he

feared his former client would file a grievance against him should he turn over the file.

According to trial counsel, “You know, I’m reluctant to turn the file over to them un-

less the Court orders me to turn it over because Mr. Gonzalez can come back and file

a grievance on me and then I would have all kind of problems with the State Bar.” (3

R.R. (M.N.T.) at 5).

       After appellate counsel repeatedly asserted that the case file was a critical com-

ponent of the Appellant’s ineffectiveness claim and requesting that the trial court or-

der trial counsel to allow appellate counsel to inspect it, the trial court ordered trial

counsel to allow the trial court to conduct an ex parte investigation of relevant por-

tions of the file’s contents: “Mr. Decuir, what I’m going to ask you to do is to go

through your file. If there are any documents you have that relate specifically to any

witnesses, to punishment witnesses, anything that you – that’s memorialized in writing

as regarding punishment, if you would put those to the side, if any exist; and then

when I get back I will review those and then I’ll rule at that point.” (3 R.R. (M.N.T.)

at 39-40).

       Following a break in proceedings, the trial court stated the following: “Mr.

Decuir just provided me with a document from his file pertaining to some names of

some potential punishment witnesses; and based on so far Mr. Decuir’s testimony and

what he’s presented to me, the Court, from his file, I don’t see anything at this point

                                            6
that would require turning his file to counsel at this time.” (3 R.R. (M.N.T.) at 40).

Once again, appellate counsel objected and stated to the trial court that the file is the

“property of the client and that it should be turned over in its entirety to present

counsel.” (3 R.R. (M.N.T.) at 40-41). In addition, appellate counsel noted that he had

the Appellant sign a written instruction consenting to have trial counsel turn over the

file to appellate counsel. This instruction was subsequently filed with the court’s

clerk. (3 R.R. (M.N.T.) at 40-42).3 Nevertheless, the trial court stated that the request

for trial counsel to turn over the case file would be denied. (3 R.R. (M.N.T.) at 41).

        In its opinion, the First Court of Appeals acknowledged in a footnote that the

Appellant had incorporated trial counsel’s failure to surrender the Appellant’s file into

his ineffective assistance of counsel claim and requested a supplemental hearing be-

fore the trial court as an alternative ground for relief. See Gonzalez, 2014 WL 7205145

at *11 fn. 4. Without analyzing the merits of this claim, the First Court of Appeals

held that it would not order such a hearing. Id.

                                            ARGUMENT

    A. Case Law and the Texas Disciplinary Rules of Professional Conduct De-
       finitively Establish That Trial Counsel’s File Belongs to the Appellant
        It is a well-established principle that the file belongs to the client. This rule has

been enshrined in the Texas Disciplinary Rules of Professional Conduct in Rule



3
 A copy of this Instruction to Provide Entire File is attached to this Petition for Discretionary Re-
view as Appendix A.


                                                   7
1.15(d), which establishes that “Upon termination of representation, a lawyer shall

take steps to the extent reasonably practicable to protect a client’s interests, such as . .

. surrendering papers and property to which the client is entitled[.] The lawyer may

retain papers relating to the client to the extent permitted by other law only if such

retention will not prejudice the client in the subject matter of the representation.”

Standing on its own, this rule would demonstrated that the Appellant was entitled to

have trial counsel surrender any and all files relating to his case to appellate counsel.

However, this rule does not need to stand on its own, as this Court has recently reaf-

firmed the sanctity of this principle.

       Recently in the case of In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013),

this Court addressed the question of who owns a case file in the possession of prior

counsel when that prior counsel refuses to turn over the contents of that file. The

facts of that case are similar to the present case, in that the trial attorney declined to

turn over the client’s file to appellate counsel. Appellate counsel sought to compel

the trial attorney to turn over the file. However, in that case, the trial attorney’s re-

fusal to turn the file over was based on the trial attorney’s “understanding that his

former client wants him to hold the file until otherwise directed.” Id. at 709. In re-

solving this question, this Court held that the file belongs to the client and that the at-

torney in possession of the file must abide by the client’s wishes. “Assuming Turner

[the defendant] is legally competent (as the trial court found in this case), he is entitled

to choose not to turn over his trial file; and McCann [the trial attorney], as Turner’s

                                             8
former counsel and agent, must honor that decision for the reasons that we have ex-

plained.” Id.

       Although In re McCann had not yet been decided at the time of the Appellant’s

Motion for New Trial hearing, the principle that the client owns the contents of the

file was already well established in Texas. In Burnett v. State, 642 S.W.2d 765 (Tex.

Crim. App. 1982), the case upon which this Court heavily relied upon in deciding In re

McCann, the Court stated that the contents of the file, such as recordings “deeds,

notes, vouchers, documents and papers of a client, is the property of appellant.” Bur-

nett, 642 S.W.2d at 769. Further, this Court affirmed that the power to waive the at-

torney-client privilege belongs solely to the client. Id. at 770.

   B. Trial Counsel Cannot Refuse to Produce the File By Claiming Attorney-
      Client Privilege
       Even without the instruction to turn over the file, the Appellant effectively

waived any attorney-client privilege that trial counsel was apparently asserting by rais-

ing the ineffective assistance claim. See, e.g., Laughner v. United States, 373 F.2d 326 (5th

Cir. 1967) (“The privilege is not an inviolable seal upon the attorney’s lops. It may be

waived by the client; and where, as here, the client alleges a breach of duty to him by

the attorney, we have not the slightest scruple about deciding that he thereby waives

the privilege as to all communication relevant to that issue.”); Joseph v. State, 3 S.W.3d

627, 637 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“It is well settled that a cli-

ent waives the attorney-client privilege when litigating a claim against his attorney for



                                             9
a breach of legal duty.”). If trial counsel’s stated fear of having a complainant filed

against him with the State Bar by the Appellant, (3 R.R. (M.N.T.) at 5), is generously

read as an assertion of the attorney-client privilege, then his claim holds no merit.

   C. This Court Has the Authority to Order a Supplemental Hearing Without
      Vacating the Appellant’s Conviction
       This Court has the authority under Texas Rules of Appellate Procedure 43.2(d)

to vacate the trial court’s judgment and remand this case for further proceedings.

However, under Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013), an appellate

court may not vacate a jury’s sentence for an error which occurs after a proper verdict

has been rendered. Id. at 372-373. Because the error committed by the trial court in

not commanding trial counsel to turn over his client’s file occurred following a verdict

and at a hearing on the Appellant’s Motion for New Trial, Cook appears to be applica-

ble and would bar reversal and remand on this ground alone. Therefore, this Court

has the power to abate the appeal and order a supplemental hearing on the Appel-

lant’s Motion for New Trial under Texas Rules of Appellate Procedure 43.6, permit-

ting the issuance of “any other appropriate order that the law and the nature of the

case require.” See Reyes v. State, 82 S.W.3d 351 (Tex. App.—Houston [1st Dist.] 2001,

no pet.).




                                            10
                                  PRAYER FOR RELIEF

        For the reasons stated above, the Appellant prays that this Court grant his peti-

tion, and determine whether the First Court of Appeals erred in holding that the Ap-

pellant is not entitled to a supplemental hearing to inspect the contents of trial coun-

sel’s file.


                                                       Respectfully submitted,
                                                       ALEXANDER BUNIN
                                                       Chief Public Defender
                                                       Harris County, Texas


                                                         /s Mark Kratovil____
                                                       MARK KRATOVIL
                                                       Assistant Public Defender
                                                       Texas Bar Number 24076098
                                                       1201 Franklin Street, 13th Floor
                                                       Houston, Texas 77002
                                                       Telephone: (713) 274-6728
                                                       Facsimile: (713) 437-4339
                                                       mark.kratovil@pdo.hctx.net




                                           11
                            CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney’s Appellate Division by electronic service on February 16, 2015. A

copy has been sent by electronic delivery to the State Prosecuting Attorney, also on

February 16, 2015.

                                                    /s Mark Kratovil____
                                                   MARK KRATOVIL




                                        12
                           CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 2,540 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced typeface using Garamond 14

point font in text and Garamond 12 point font in footnotes.

3.    Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in complet-

ing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc.

9.4(j), may result in the Court's striking this brief and imposing sanctions against the

person who signed it.

                                                 /s Mark Kratovil____
                                                MARK KRATOVIL




                                           13
          APPENDIX A

Instruction to Provide Entire File




                14
15
               APPENDIX B

  Jesus Gonzalez v. State of Texas, 2014 WL
7205145, No. 01-12-01115-CR (Tex. App.—
Houston [1st App.] 2014) (not designated for
                publication).




                     16
Gonzalez v. State, Not Reported in S.W.3d (2014)


                                                                  appellant “came out from the side driveway ... with his
                                                                  hands up” and appeared to have blood on his shirt. Tovar's
                  2014 WL 7205145
                                                                  partner took appellant into custody. Family members told
    Only the Westlaw citation is currently available.
                                                                  Tovar that appellant and Alicia Gonzalez, his wife and the
          SEE TX R RAP RULE 47.2 FOR                              complainant, “were having a dispute and ... the grandmother
    DESIGNATION AND SIGNING OF OPINIONS.                          tried to intervene but couldn't .... [T]hey were just arguing and
                                                                  [appellant] pulled a knife and ... stabbed [the complainant] a
           MEMORANDUM OPINION                                     few times.”
      DO NOT PUBLISH. TEX.R.APP. P. 47.2(B).
            Court of Appeals of Texas,                            HPD Officer R. de la Cruz testified that on May 26, 2011,
               Houston (1st Dist.                                 he was also dispatched to the “cutting in progress” and
                                                                  arrived shortly after Officer Tovar. He proceeded into the
                Jesus Gonzalez, Appellant
                                                                  house, where he saw “an older lady, the mother of the
                            v.                                    [complainant],” and three children with “blood on them.” He
               The State of Texas, Appellee                       also saw “an open door leading to a bedroom and ... [the
                                                                  complainant] laying next to a bed with her throat cut.”
                 NO. 01–12–01115–CR |
             Opinion issued December 18, 2014                     HPD Homicide Officer E. Castaneda testified that upon
                                                                  arriving at the Gonzalez residence, he observed “blood on
On Appeal from the 177th District Court, Harris County,
                                                                  the tile” and the complainant in the back bedroom, deceased.
Texas, Trial Court Case No. 1307888
                                                                  Castaneda explained,
Attorneys and Law Firms
                                                                               [y]ou could tell that there was a
Mark Kratovil, for Jesus Gonzalez.                                             struggle there in the bedroom. The
                                                                               victim was ... sitting on the floor with
Patricia Rae R. Lykos, Alan Curry, Jessica Akins, for State                    her back up against the bed. There was
of Texas.                                                                      just a large amount of blood on the
                                                                               floor, a large amount of blood on the
Panel consists of Chief Justice Radack and Justices Jennings
                                                                               bed. You could tell there was a lot of
and Keyes.
                                                                               blood splatter against the wall, against
                                                                               the back wall. It was a very violent
                                                                               scene.
               MEMORANDUM OPINION
                                                                  Two knives were located in a dresser drawer; one of which
Terry Jennings, Justice                                           had blood on it.

*1 A jury found appellant, Jesus Gonzalez, guilty of
                                                                  HPD Homicide Officer J. Sosa testified that he interviewed
the offense of murder 1 and assessed his punishment at            the complainant's mother following the incident. According
confinement for fifty years. In his sole issue, appellant         to Sosa,
contends that he received ineffective assistance of counsel
during the punishment phase of trial.                                          [s]he was very upset. She practically
                                                                               witnessed the incident .... [S]he
We affirm.                                                                     heard her daughter crying or yelling
                                                                               for help ... [and] she immediately
                                                                               [got] out of her bedroom and r[an]
                                                                               towards ... [the complainant and
                          Background
                                                                               appellant's] bedroom, and she [saw
Houston Police Department (“HPD”) Officer N. Tovar                             appellant] attacking [the complainant].
testified that on May 26, 2011, he was dispatched to a “cutting                She jump[ed] on his back to pull him
in progress” at a residence. When Tovar arrived at the scene,                  off of [the complainant] and that's



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Gonzalez v. State, Not Reported in S.W.3d (2014)


             when [appellant] sliced or trie[d] to                  appellant about his wishes as to whether or not she would
             slice one of her arms.                                 testify. Barron explained that appellant had treated her family
                                                                    well; would give advice to her children; was happy, generous,
The complainant's mother saw appellant stab the complainant         and had good credit; and would help people by working on
multiple times. When he dropped the knives, the                     their cars.
complainant's mother put them in the dresser drawer. Sosa
also interviewed appellant, who admitted to having stabbed          Fernando testified that he helped hire Decuir and met with
the complainant with kitchen knives.                                him “to find out about the case” a total of “[a]bout ten” times,
                                                                    including “[t]wo or three” meetings “[i]n-person.” Decuir did
Harris County Assistant Medical Examiner Darshan R.                 not interview Fernando “to find out what information [he]
Phatak testified that he performed an autopsy on the                might have about [appellant] or the case,” and he did not
complainant's body and “[t]he cause of death was multiple           discuss testifying with Fernando. Fernando explained that he
sharp force injuries, and the manner of death is a homicide.”       was present at trial and willing to testify. Although Decuir
                                                                    spoke to the family after the jury had returned its verdict of
During the punishment phase of trial, two of the complainant        guilty, Fernando could only understand little of what was said
and appellant's children, who were present during the               due to a language barrier. Fernando stated that appellant was
stabbing, and the complainant's brother, Lauro Saldana,             a mechanic; would help people using his skills and lend them
testified for the State. Appellant's counsel did not cross-         cars; was generous, charitable, and non-violent growing up;
examine the children and only asked Saldana whether he              and continued to pay his bills while incarcerated. He also
had a Texas driver's license, which the State objected to as        explained that a conflict existed between the complainant and
irrelevant. No witnesses testified for the defense.                 appellant, the complainant would always contradict appellant
                                                                    and act contrary to his wishes, and appellant was frustrated
 *2 After the trial court entered its judgment, appellant filed     and displeased with the complainant's behavior.
a motion for new trial, requesting a new punishment hearing.
He argued that he received ineffective assistance of counsel        Finally, Decuir testified that appellant's family contacted him
during the punishment phase of trial because his trial counsel      to represent appellant, he spoke and met with the family
had failed to interview and call available mitigation witnesses     members “[s]everal times,” and he had had the most contact
in his defense. The trial court held an evidentiary hearing and     with Fernando and Barron. Decuir explained that he did
received testimony from appellant's father, Enrique Gonzalez        his own investigative work in the case and “conduct[ed] an
Cortez, appellant's sister-in-law, Nancy Barron, appellant's        independent investigation based on [the] information [he had]
brother, Fernando Gonzalez (“Fernando”), and appellant's            available.”
trial counsel, Paul Decuir. The trial court also admitted into
evidence the affidavits of Barron and Fernando as well as nine      In preparation for the trial, Decuir “went out to the scene”
other individuals.                                                  and “visited with [appellant] on several occasions ... to
                                                                    get the names of witnesses.” Although he “wanted to
At the hearing, Cortez testified that although he was present       subpoena someone who would support [appellant's] position
at trial and was willing to testify, no one spoke to him about      that he was a good worker ... [and] provider,” appellant
testifying. He did not speak to Decuir prior to or during trial,    “wouldn't give” him such information because “[h]e didn't
and he was not aware of “whether or not [appellant had] told        want ... to call witnesses.” Even though appellant would not
[his] attorney to call [him] as a witness.” Cortez also testified   provide him with “the names of any witnesses for either
as to appellant's childhood, education, and character.              the guilt/innocence or punishment stage,” Decuir did not
                                                                    “cease investigat[ing].” As a preliminary matter, he looked
Barron testified that she was present at trial, prepared to         into appellant's background and education and interviewed
testify, and surprised that she did not testify. According to       “several people,” including “four or five family members,”
Barron, she was supposed to testify during the guilt phase of       about appellant, but Decuir could not recall their names.
trial. She had hired Decuir for appellant and met with him          “They gave [him] some information about [the marriage],
three times to prepare to testify. And he had discussed the         where [the complainant and appellant] had lived, [and] the
case with her. Although Barron had discussed with Decuir the        children....” Through his investigation, Decuir became aware
complainant and appellant's relationship, “who [appellant]          of appellant's educational background, and the information
was as a person,” and his background, she did not speak to


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Gonzalez v. State, Not Reported in S.W.3d (2014)


he received from family members indicated that appellant           “the importance of the punishment phase” and discussed
did not have any problems while growing up. Although               “the benefit [Barron] or [Fernando] could provide if they
he did not ask appellant specifically about his childhood          testified [during] punishment,” to which appellant responded
during his investigation, Decuir did not find any evidence of      “no witnesses.” After the guilt phase of trial, appellant's
physical or sexual abuse, a learning disability, below-average     main concern was to see whether the State's previous offer
intelligence, addiction, or substance-abuse. Appellant had a       of confinement for fifty years was still available. After the
“stable home environment” and “the support of both of his          prosecutor said that it was not, Decuir “conferenced with
parents as he was growing up.” Appellant did not live in           [appellant] and said, ‘Listen, we need to get some witnesses
poverty or lack basic necessities, such as food, shelter, or       to come up here,’ ” to which appellant responded, “No
clothing. Decuir did not find any mitigation witnesses that        witnesses.” And appellant also did not want to testify during
would have been beneficial in the punishment phase of the          the punishment phase of trial.
trial.
                                                                   Following the evidentiary hearing, the trial court denied
 *3 Decuir noted that he specifically spoke with Barron            appellant's motion for new trial.
and Fernando about testifying as mitigation witnesses during
the punishment phase, especially about appellant's good
qualities. Barron agreed to testify, and Decuir believed that
                                                                                       Standard of Review
her testimony would not have been harmful, except that she
would have to tell the truth about the “stormy relationship”       To prove a claim of ineffective assistance of counsel,
between appellant and the complainant. Decuir noted that           appellant must show that (1) his trial counsel's performance
Barron and Fernando were “the only witness [es] that ... came      fell below an objective standard of reasonableness and (2)
forward,” and appellant “would not give [Decuir] the names         there is a reasonable probability that, but for counsel's
of any witnesses, period.” Decuir did ask Barron whether she       unprofessional errors, the result of the proceeding would have
knew appellant's boss or other potential witnesses. He also        been different. Strickland v. Washington, 466 U.S. 668, 687–
spoke to Saldana, the complainant's brother, but believed that     88, 694, 104 S.Ct. 2052, 2064, 2068 (1984); Lopez v. State,
his testimony would have actually been harmful to appellant.       343 S.W.3d 137, 142 (Tex.Crim.App.2011). “A reasonable
And, although Decuir spoke with Cortez, appellant's father,        probability is a probability sufficient to undermine confidence
he did not interview him to determine if he should testify         in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at
during the punishment phase. Decuir knew Cortez was at the         2068. In reviewing counsel's performance, we look to the
trial, but he did not speak with him about testifying after the    totality of the representation to determine the effectiveness
guilt verdict because appellant “told [Decuir] he didn't want      of counsel, indulging a strong presumption that counsel's
to call any witnesses.” Decuir noted, thus, that he did not        performance falls within the wide range of reasonable
“anticipate having to call punishment witnesses ... other than     professional assistance or trial strategy. See Robertson
Ms. Barron.”                                                       v. State, 187 S.W.3d 475, 482–83 (Tex.Crim.App.2006).
                                                                   Appellant has the burden of establishing both Strickland
In his testimony, Decuir repeatedly emphasized that appellant      prongs by a preponderance of the evidence. Jackson v. State,
did not want him to call any witnesses “to support his             973 S.W.2d 954, 956 (Tex.Crim.App.1998). “An appellant's
position.” And appellant refused to give him “information and      failure to satisfy one prong of the Strickland test negates a
the names of witnesses to help [him] mount a defense” or “put      court's need to consider the other prong.” Williams v. State,
witnesses on” to mitigate punishment. Decuir explained that        301 S.W.3d 675, 687 (Tex.Crim.App.2009).
he “had several conversations with [appellant] with regard to
calling witnesses, just to talk to his good character, his work    Appellant presented his ineffective-assistance claim to the
ethics, the support that he provided his family.” However,         trial court in a motion for new trial and received a hearing
appellant told him “[n]o witnesses” and that he “didn't want       on his motion. We, therefore, analyze his issue under an
to have any witnesses.” Appellant specifically “instructed”        abuse of discretion standard as a challenge to the denial of his
Decuir not to call witnesses and that he did not want his family   motion. Biagas v. State, 177 S.W.3d 161, 170 (Tex.App.—
members to testify. And appellant “would not let” Decuir call      Houston [1st Dist.] 2005, pet. ref'd). We view the evidence
Barron to testify during the punishment phase of trial and         in the light most favorable to the trial court's ruling and
told him, “No.” Decuir spoke to appellant “extensively” about      uphold the trial court's ruling if it is within the zone of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Gonzalez v. State, Not Reported in S.W.3d (2014)


reasonable disagreement. Wead v. State, 129 S.W.3d 126,            we focus on whether the investigation supporting counsel's
129 (Tex.Crim.App.2004). We do not substitute our judgment         decision not to introduce mitigating evidence was reasonable.
for that of the trial court, but rather decide whether the         Wiggins v. Smith, 539 U.S. 510, 522–23, 123 S.Ct. 2527,
trial court's decision was arbitrary or unreasonable. Webb v.      2536 (2003); Goody v. State, 433 S.W.3d 74, 80 (Tex.App.
State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007); Biagas,            —Houston [1st Dist.] 2014, pet. ref'd). “While ‘Strickland
177 S.W.3d at 170. If there are two permissible views of the       does not require counsel to investigate every conceivable line
evidence, the trial court's choice between them cannot be held     of mitigating evidence,’ ‘counsel can ... make a reasonable
to be clearly erroneous. Riley v. State, 378 S.W.3d 453, 457       decision to forego presentation of mitigating evidence [only]
(Tex.Crim.App.2012). A trial court abuses its discretion in        after evaluating available testimony and determining that
denying a motion for new trial only when no reasonable view        it would not be helpful.’ ” Goody, 433 S.W.3d at 80–81
of the record could support the trial court's ruling. Webb, 232    (alterations in original) (quoting Wiggins, 539 U.S. at 533,
S.W.3d at 112.                                                     123 S.Ct. at 2541; Milburn v. State, 15 S.W.3d 267, 270–
                                                                   71 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd)). An
 *4 We note that trial courts are in the best position to          attorney's decision not to investigate or to limit the scope of
“evaluate the credibility” of witnesses and resolve conflicts      the investigation is given a “heavy measure of deference” and
in evidence. See Kober v. State, 988 S.W.2d 230, 233               assessed in light of all circumstances to determine whether
(Tex.Crim.App.1999). And a trial court may choose to               reasonable professional judgment would support the decision.
believe or disbelieve all or any part of the witnesses'            Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. However,
testimony. See id. at 234.                                         a failure to uncover and present mitigating evidence cannot
                                                                   be justified when counsel has not conducted a thorough
When, as here, the trial court makes no findings of fact           investigation of the defendant's background. Shanklin v.
regarding the denial of a motion for new trial, we should          State, 190 S.W.3d 154, 164 (Tex.App.—Houston [1st Dist.]
“impute implicit factual findings that support the trial judge's   2005, pet. dism'd).
ultimate ruling on that motion when such implicit factual
findings are both reasonable and supported in the record.”         In addition to establishing a deficiency in counsel's
Johnson v. State, 169 S.W.3d 223, 239 (Tex.Crim.App.2005);         performance, the defendant must show that a reasonable
Escobar v. State, 227 S.W.3d 123, 127 (Tex.App.—Houston            probability exists that the jury's assessment of punishment
[1st Dist.] 2006, pet. ref'd).                                     would have been less severe in the absence of counsel's
                                                                   deficient performance. Bazan v. State, 403 S.W.3d 8,
                                                                   13 (Tex.App.—Houston [1st Dist.] 2012, pet. ref'd). Our
                                                                   prejudice analysis turns on whether counsel's deficiency
             Ineffective Assistance of Counsel
                                                                   “made any difference to the outcome of the case.” Riley, 378
In his sole issue, appellant argues that the trial court erred     S.W.3d at 458. It is not enough to show that trial counsel's
in denying his motion for new trial because Decuir “failed         errors had some “conceivable” effect on the outcome of the
to conduct an adequate investigation and present mitigating        punishment assessed; the likelihood of a different result must
evidence from witnesses who were available and willing to          be “substantial.” Harrington v. Richter, 562 U.S. 86, ––––,
testify” during the punishment phase of his trial.                 131 S.Ct. 770, 787, 792 (2011). An appellate court will not
                                                                   reverse a conviction for ineffective assistance of counsel
A criminal defense lawyer must have a firm command                 during the punishment phase of trial unless the defendant
of the facts of a case to render reasonable effective              shows prejudice as a result of deficient attorney performance.
assistance of counsel. Ex parte Ybarra, 629 S.W.2d 943, 946        Rivera v. State, 123 S.W.3d 21, 32 (Tex.App.—Houston [1st
(Tex.Crim.App.1982); Ex parte Duffy, 607 S.W.2d 507, 516           Dist.] 2003, pet. ref'd). In reviewing whether a defendant
(Tex.Crim.App.1980). Thus, counsel has the responsibility to       has satisfied this showing, we accord “almost total deference
make an independent investigation of the facts of the case and     to a trial court's findings of historical fact as well as mixed
seek out and interview potential witnesses. Ex parte Duffy,        questions of law and fact that turn on an evaluation of
607 S.W.2d at 517.                                                 credibility and demeanor.” Riley, 378 S.W.3d at 458.

                                                                    *5 Appellant argues that his trial counsel's failure to conduct
  ™In considering whether trial counsel conducted an
                                                                   an investigation and present mitigation evidence during the
adequate investigation for potential mitigating evidence,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Gonzalez v. State, Not Reported in S.W.3d (2014)


punishment phase of trial prejudiced him because “[t]here         appellant's brother, Fernando, testified at the evidentiary
[w]as [a]mple [e]vidence of [his] [g]ood [c]haracter [f]rom       hearing on his behalf.
[a]vailable [w]itnesses.” He asserts that “[t]he members of
[his] family who testified at the Motion for New Trial hearing    Cortez testified that the family's economic situation, during
described many good characteristics of ... [a]ppellant and        appellant's childhood, was “[a] little critical.” Appellant
gave information regarding his background.” And “[t]he            attended school through highschool and received technical
affidavits that were submitted by other family and friends ...    training. He was not violent growing up or as an adult, was
likewise provided ample potentially mitigating evidence           a good father, and had a good relationship with his family
describing [his] positive qualities.” According to appellant,     and the complainant. Cortez did not speak to an attorney or
“[i]t is reasonable to presume that had some quantum of           investigator prior to or during trial, but he was present in the
mitigation evidence been produced by the defense, the jury        courtroom during appellant's trial and willing to testify.
would have returned a[ ] ... lower number.”
                                                                  Barron testified that appellant always treated her family well,
During the punishment phase of trial, the sixteen-year-old        gave “advice” to her children, and was a “good uncle.” He
son of the complainant and appellant recounted the events of      was “happy,” “generous,” had “good credit,” and was a good
the stabbing. He explained that when his grandmother came         person. Appellant planned to assist Barron and her husband,
into his room and told him what was happening, she was            Fernando, with purchasing a home, and he helped people
“scared” and “in shock,” which caused him to become “really       by working on their cars. She had no direct knowledge of
nervous” and “start[ ] to panic almost.” He felt “like, [his]     a conflict in the complainant and appellant's relationship.
mom, ... can't be dead.” When he went into the bedroom, he        Barron acknowledged that she was aware of the complainant's
saw the complainant on the floor in a puddle of blood. He         injuries, the children were present in the home at the time
told appellant to go outside and wait for the police because he   of the stabbing, and appellant “blamed the murder on his
did not want appellant around his brothers and grandmother,       children.” She could not explain appellant's behavior, but she
as he thought that appellant might “hurt” them. He noted          believed it was “out of character.” Barron noted that she was
that appellant did not try to resuscitate the complainant or      prepared to testify at trial and believed she was to testify
stop her bleeding. Instead, his youngest brother tried to stop    during the guilt phase. 2
the bleeding with napkins. He then asked the jury not to be
“merciful” on appellant, but instead “[t]o do justice.”            *6 Fernando testified that appellant was a mechanic, who
                                                                  would use his skills “to help people.” Appellant planned
Next, the fifteen-year old son of the complainant and             to assist Barron and Fernando with purchasing a home,
appellant testified about the stabbing. When he ran into the      was a “generous person,” and would make contributions to
complainant and appellant's room, he saw the complainant on       “Children International.” Appellant was non-violent growing
the floor and appellant standing over her. Although he tried      up, made a “good living,” and continued to pay his bills
to help his youngest brother stop the complainant's bleeding,     while imprisoned, including his son's car insurance premiums
appellant did not try to resuscitate her or stop her bleeding.    and the taxes due on the house where his children live.
Appellant then told him and his brothers that it was their        Fernando also stated that there was a “conflict” between the
“fault ... that he [had] killed [the complainant].” He also       complainant and appellant, and he noted that the complainant
requested that the jury not show “mercy” on appellant, but        would “always” contradict appellant and “act[ ] contrary to
instead “do justice.”                                             his wishes.” Appellant had “express[ed] frustration” with
                                                                  the complainant's behavior, and he was “displeased that
Saldana, the complainant's brother, testified that he is taking   she would not follow his wishes.” Although Fernando and
care of the three sons of the complainant and appellant. He       appellant discussed this conflict “[s]everal” or “many” times,
noted that when he saw his nephews and their grandmother          Fernando did not “personally observe” the conflict. He also
on the night of the stabbing “[t]hey were crying and they were    noted that he was not interviewed by an attorney, but he was
scared.” Although the children have “tried to be strong since
                                                                  prepared and willing to testify at trial. 3
then,” “[t]hey miss their mother.”

                                                                  The trial court also admitted into evidence at the hearing the
In support of appellant's motion for new trial, appellant's
                                                                  affidavits of nine other individuals. Jose Hernandez testified
father, Cortez, appellant's sister-in-law, Barron, and
                                                                  that appellant, his son's godfather, is a “hard worker, very


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Gonzalez v. State, Not Reported in S.W.3d (2014)


calm, and peaceful.” Hernandez “never saw him fight, or get           scream[ ]” at his siblings, and was “well groomed.”
mad at other people.” He noted that appellant “is a person            She explained that appellant “wanted the children to be
who fought to bring his family ahead and surpass. He always           responsible” and “would put them to do [chores] around the
wanted his children to surpass in their studies and that his          house,” but the complainant would not agree. She noted that
family and his wife would always be happy.... [H]e has always         appellant is a good brother, father, son, husband, and friend.
been respectful with everyone.” Hernandez noted that he was           She stated, however, that he was distant with many of his
not contacted by an attorney or investigator to testify on            friends because the complainant “didn't want anyone to come
appellant's behalf, but would have done so.                           over to the house.” Alejandra “never saw [appellant] try[ ] to
                                                                      pick a fight with anyone,” and he did not have problems with
Ismael A. Toledo Barron (“Ismael”) testified that his wife is         other people or law enforcement authorities. Alejandra noted
appellant's sister. He explained that appellant “is a peaceful        that she was not contacted by an attorney, but was ready to
person, well organized and [a] hard worker. He is a person            testify for appellant.
that doesn't like problems and always wants the best for his
children. He was always attentive to them and ... his wife.”           *7 Juan Pablo Hernandez testified that he has known
Ismael “never saw [appellant] fight or have a problem with            appellant for nineteen years and he is a “family man,” a
anyone” and has “never known him of doing drugs, or being             “hard worker,” and a “good prideful person.” “He was not
drunk.” However, on “several occasions” he saw appellant              a problematic person, [but] a very passive person and a
“scold his children,” and the complainant “did not like for him       good person.” Hernandez noted that he was not contacted
to scold them.” Ismael noted that he was not contacted by an          by an attorney or investigator, but would have testified on
attorney or investigator about testifying at trial, but “[i]f there   appellant's behalf.
is another trial, [he is] willing to testify if necessary.”
                                                                      Carolina Gonzalez (“Carolina”), appellant's cousin, testified
Jose Luis Sanchez Vazquez testified that he has known                 that appellant is “a very peaceful, calm person,” who “did
appellant since “adolescen[ce],” however, they “did not spend         not drink or have bad vices.” He was “a lovable father to his
a lot of time together because [appellant] was a very busy            children,” “attentive to them,” and “a good person.” Carolina
person. He had a full time job and during his days off, he            never saw appellant drink or fight with the complainant. And
would ... do[ ] mechanic work ... to give his family a good           she explained that appellant “loved” his wife “very much”
future.” Vazquez did not know appellant to be “a violent man          and did not have problems with law enforcement authorities.
or a drunk,” and he noted that appellant was dedicated to his         According to Gonzalez, the children “said lies.” She noted
family. One time, appellant told Vazquez “that he was going           that she was present at trial and would have testified for
to be a foster parent for Children's International, and that he       appellant, but she was not asked to do so.
had had problems with this wife because of that. And she
wanted him to end that, but he stood firm, and he had to do           Finally, Marie Diaz Sanchez and Ana Berta Gonzalez Diaz,
this behind her back, so there would be no more problems.”            appellant's mother and sister, testified that appellant “since
Vazquez noted that no one contacted him to inquire about              an early age[,] always demonstrated good conduct.” He
appellant.                                                            “obtain[ed] good grades” and did not have “any problems”
                                                                      with his friends or teachers. They noted that appellant was
Gabriel Diaz testified that he saw the complainant and                “dedicated to” the complainant and “attentive” to her and
appellant three days before the stabbing, and he “did not             their children, and he gave “good advice to his siblings and
see anything that seemed wrong.” On other occasions,                  parents.” Sanchez and Diaz noted that they would be “willing
Diaz “never saw anything bad happening.” He explained                 to answer any interrogations ... or testify on the case if
that appellant “would educate his children,” “was never               necessary.”
disrespectful,” did not “miss treat[ ][sic]” the complainant,
and would give Diaz “good advice.” Diaz noted that he was             As it relates to appellant, the majority of mitigation evidence
not contacted by an attorney, but would have testified on             introduced by appellant during the hearing on his motion
appellant's behalf.                                                   for new trial centered on the opinions of family and friends
                                                                      that he was a happy, generous, non-violent, and peaceful
Alejandra Gonzalez (“Alejandra”), appellant's sister, testified       person. They all considered him to be a good person, husband,
that appellant “is a very responsible person,” would “never           father, and friend. And the majority of the witnesses described



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Gonzalez v. State, Not Reported in S.W.3d (2014)


appellant's relationship with the complainant as conflict-free.    credibility of this new-trial evidence. We are cognizant that
We note, however, that much of this testimony contradicts          in analyzing the prejudice under Strickland, we must accord
appellant's own statement to law enforcement authorities,          “almost total deference to a trial court's findings of historical
which was presented to and considered by the jury during the       fact as well as mixed questions of law and fact that turn on an
punishment phase of trial.                                         evaluation of credibility and demeanor.” Riley, 378 S.W.3d
                                                                   at 458.
In his statement to Officer Sosa, appellant admitted that
he and the complainant “ha[d] been having problems” and,           Additionally, we note that some of appellant's mitigation
on the night of the stabbing, they had talked about their          evidence may not have benefitted him to the degree that
“problems.” They “began talking and ... became upset,”             he presumes, but instead actually highlights the conflict
and the complainant “blame[d] [him] for everything,” noted         that existed between him and the complainant that he
that “everything was [his] fault,” and told him that he            discussed in his statement to Officer Sosa. For instance,
“was wrong.” Appellant explained that she was always “on”          Fernando revealed in his testimony that he knew of a
him, constantly contradicted him, and accused him of being         “conflict” between the complainant and appellant, and he
“unfaithful” his “whole life.” He noted that the complainant       noted that appellant was frustrated with the complainant's
“was wrong,” he was considering a divorce, and he “was             behavior and “displeased that she would not follow
going to leave his wife and get a house.”                          his wishes.” Additionally, other witnesses discussed the
                                                                   complainant and appellant's disagreements and problems,
When asked about what had happened in the bedroom during           which occurred prior to the stabbing. Such evidence, could
the night of the stabbing, appellant responded that he “stabbed    have actually harmed appellant rather than mitigate his
her,” while she was “laying down,” with knives that he had         punishment. See Ex parte McFarland, 163 S.W.3d 743, 758
taken from the kitchen. According to appellant, “We argued,        (Tex.Crim.App.2005) (holding defendant did not establish
we got mad, and it happened. I stabbed her.” He believed he        prejudice where he failed to show witness testimony would
stabbed her in her throat. Although the complainant “tr[ied]       have benefitted him); Bone v. State, 77 S.W.3d 828, 834–
to defend herself,” he “hit her with the knife. The devil got in   35 (Tex.Crim.App.2002) (explaining potential benefit of
[him].” Appellant could not explain why he stabbed her, just       additional testimony outweighed by risk of unfavorable
that “[i]t happened in that moment of anger.” He also noted        counter-testimony); Dillon v. State, No. 12–06–00135–CR,
that he had previously “hit” the complainant when she would        2007 WL 4216253, at *7 (Tex.App.—Tyler Nov. 30, 2007,
“challenge” him.                                                   pet. ref'd) (mem. op., not designated for publication) (holding
                                                                   defendant failed to show reasonable probability of different
 *8 We note that when presented with contradictory                 result where “any benefits to be gained from the use of
evidence, trial courts are in the best position to “evaluate the   character witnesses ... would be offset if not supplanted by
credibility” of witnesses and resolve conflicts in the evidence.   cross examination of those witnesses”).
See Kober, 988 S.W.2d at 233. A trial court may choose
to believe or disbelieve all or any part of the testimony          Further, as to the witnesses who did not mention any conflict
of mitigation witnesses, especially testimony presented in         between the complainant and appellant, but instead testified
affidavits and unsupported by live testimony. Riley, 378           that the complainant and appellant had a good relationship
S.W.3d at 457; Kober, 988 S.W.2d at 234. Further, a trial          and appellant had a peaceful, non-violent nature, the jury
court is free to reject the credibility of new-trial evidence      could have easily discredited such testimony given appellant's
if it conflicts with evidence presented during trial. See          own admissions of his on-going marital problems and that he
Goody, 433 S.W.3d at 81 (holding defendant failed to show          had previously “hit” the complainant.
prejudice where trial court rejected credibility of evidence
that conflicted with other evidence presented at punishment        We also note that appellant did not demonstrate at the motion
hearing).                                                          for new trial hearing that all of his mitigation witnesses
                                                                   were available to testify at his trial. See King v. State,
Here, much of the evidence presented by appellant at the           649 S.W.2d 42, 44 (Tex.Crim.App.1983) (“Counsel's failure
hearing on his motion for new trial directly contradicts           to call witnesses at the guilt-innocence and punishment
appellant's own admissions. And the trial court, in denying        stages is irrelevant absent a showing that such witnesses
appellant's motion for new trial, evidently rejected the           were available and appellant would benefit from their



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Gonzalez v. State, Not Reported in S.W.3d (2014)


testimony.”). Specifically, four of appellant's witnesses did     any member of [Milburn's] defense team, they would have
not state that they were available to testify at his trial, and   testified had they been requested to, and they would have
appellant presented no other evidence of their availability.      asked the jury to consider the minimum punishment.” Id.
We, therefore, do not consider their testimony in determining     at 269. And Milburn's counsel testified that he had failed
prejudice. See Ex parte McFarland, 163 S.W.3d at 758              to interview and call any witnesses during the punishment
(holding defendant did not show prejudice where he failed         phase of trial. Id. at 270. Thus, because Milburn's trial counsel
to show witnesses available to testify); cf. Milburn, 15          readily admitted that he neither investigated nor evaluated
S.W.3d at 269–71 (holding counsel's failure to investigate and    available punishment evidence, the appellate court held his
present mitigating evidence during punishment prejudiced          performance deficient. Id.
defendant where parties stipulated twenty witnesses would
have testified as to their availability).                         In evaluating the second prong of the Strickland analysis,
                                                                  the appellate court noted that “[a]fter the State concluded
 *9 We further note that in regard to the testimony that          its presentation of testimony and evidence to the jury
appellant was organized, responsible, and a hard-worker, who      showing [Milburn's] bad character, [Milburn's] trial counsel
“fought to bring his family ahead” and give them “a good          responded, ‘We're not going to put anything on.’ ” Id. The
future,” it is also not likely that such evidence would have      jury then “returned a sentence in excess of that requested
affected the punishment assessed, given the strength of the       by the State.” Id. The court concluded that Milburn had
testimony of appellant's children and appellant's statement.      demonstrated prejudice in the case because his “trial counsel
Cf. Alfaro v. State, No. 01–13–0073–CR, 2014 WL 3606751,          performed no investigation into any possible mitigating facts
at *6–7 (Tex.App.—Houston [1st Dist.] July 22, 2014, no           and failed to contact even a single family member or friend,
pet.) (mem. op., not designated for publication) (concluding      despite the availability of such mitigation evidence .... [And]
testimony defendant responsible and worked unlikely to            [t]his evidence would have provided some counterweight to
affect punishment assessed in light of testimony of wife          evidence of bad character ... received by the jury.” Id. at 270–
and children about extensive abuse); Alvarado v. State, No.       71 (internal citations omitted).
04–03–00289–CR, 2006 WL 332536, at *9–10 (Tex.App.
—San Antonio Feb. 15, 2006, pet. ref'd) (mem. op., not            Appellant argues that “[a] similar result to Milburn is
designated for publication) (denying defendant's ineffective-     warranted in the present case” because “[t]here [is] ample
assistance claim where uncalled witnesses would have              evidence concerning ... [a]ppellant's good character that
testified defendant responsible and hard worker); Dotson v.       Decuir could have uncovered had he interviewed or contacted
State, Nos. 14–98–00590–CR, 14–98–00591–CR, 1999 WL               even a handful of the affiants.” Contrary to appellant's
1123037, at *4 (Tex.App.—Houston [14th Dist.] Dec. 9,             assertion, however, Milburn is markedly dissimilar to the
1999, pet. ref'd) (not designated for publication) (holding       present case.
second prong of Strickland not satisfied where uncalled
witnesses would have testified defendant hard worker with         First, Milburn's trial counsel openly admitted that he did
steady job).                                                      not investigate or interview any mitigation witnesses. Id.
                                                                  at 270. Here, however, appellant's trial counsel testified
Given the foregoing, we are not persuaded that a reasonable       at the hearing on appellant's motion for new trial that he
jury would have imposed a less severe punishment had it been      “conduct[ed] an independent investigation”; he looked into
presented with appellant's mitigation evidence. Bazan, 403        appellant's background and education; and he interviewed
S.W.3d at 13.                                                     several family members about appellant's marriage, where
                                                                  the complainant and appellant had lived, and their children.
Finally, we note that appellant's reliance on our sister          Decuir specifically spoke to Barron and Fernando about
court's decision in Milburn is misplaced. In Milburn, the         testifying as mitigation witnesses, especially about appellant's
jury sentenced Milburn to confinement for forty years for         good qualities. He also spoke with Saldana and tried to obtain
possession with intent to deliver a controlled substance. 15      the name of appellant's boss. Although Decuir's testimony
S.W.3d at 268. At the hearing on the motion for new trial,        was not completely uncontroverted, we are not presented
the parties stipulated to the testimony of twenty of Milburn's    with a situation, as in Milburn, where appellant's trial counsel
mitigation witnesses that “they had known [Milburn] for a         readily admitted on the record at the new trial hearing that he
long period of time, they were never contacted to testify by      did nothing to investigate the case.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
Gonzalez v. State, Not Reported in S.W.3d (2014)


                                                                    CR, 2013 WL 2368258, at *5 (Tex.App.—San Antonio May
                                                                    29, 2013, pet. ref'd) (mem. op., not designated for publication)
 *10 Second, the court in Milburn emphasized the fact that
                                                                    (concluding trial counsel not ineffective for not investigating
the jury, when not presented with any mitigation evidence,
                                                                    or presenting mitigation testimony where defendant “failed
imposed a sentence greater than the one requested by the
                                                                    to provide any contact information or have the witnesses
State. Id. at 270. In contrast, here, although the State,
                                                                    call [counsel]”); Malek v. State, Nos. 03–10–00534–CR,
in its closing argument, requested that the jury “sentence
                                                                    03–10–00535–CR, 2012 WL 370551, at *4–5 (Tex.App.—
[appellant] to life,” the jury, instead, assessed appellant's
                                                                    Austin Feb. 1, 2012, pet. ref'd) (mem. op., not designated
punishment at confinement for fifty years.
                                                                    for publication) (overruling defendant's ineffective-assistance
                                                                    claim for failing to call mitigating character witnesses where
Finally, here, unlike in Milburn, there is uncontroverted
                                                                    “record reflect[ed] that [he] did not want his friends or family
evidence that appellant specifically instructed his trial counsel
                                                                    members involved in the trial”); Taylor v. State, No. 01–06–
not to present any witnesses to testify on his behalf during
                                                                    00971–CR, 2008 WL 597271, at *4 (Tex.App.—Houston [1st
both the guilt and punishment phases of trial, including
                                                                    Dist.] Mar. 6, 2008, pet. ref'd) (mem. op., not designated for
Barron, who counsel had prepared to testify. During the
                                                                    publication) (holding trial court did not abuse its discretion
hearing on appellant's motion for new trial, Decuir testified
                                                                    in concluding defendant did not meet his burden to establish
that he wanted to call someone to testify that appellant was
                                                                    ineffective assistance where defendant told counsel not to
a good worker and provider, but appellant would not give
                                                                    contact family members); Hills v. State, No. 14–02–00379–
him information and did not want him to call any witnesses.
                                                                    CR, 2003 WL 21402606, at *2 (Tex.App.—Houston [14th
Further, appellant would not provide him with the “names
                                                                    Dist.] June 19, 2003, pet. ref'd) (mem. op., not designated
of any witnesses for either the guilt/innocence or punishment
                                                                    for publication) (overruling defendant's ineffective-assistance
stage.” Although Decuir had “several conversations with
                                                                    claim for failure to investigate and call mitigation witnesses
[appellant] with regard to calling witnesses, just to talk to his
                                                                    where defendant “had not wanted anyone to participate in
good character, his work ethics, the support he provided for
                                                                    his trial and ... refused to give his counsel the names of any
his family,” appellant responded, “[n]o witnesses,” and that
                                                                    witnesses who might assist him”).
he “didn't want to have any witnesses.”

                                                                     *11 In order to establish prejudice, appellant must show that
We have previously held that a defendant failed to establish
                                                                    a reasonable probability exists that the jury's assessment of
prejudice under Strickland when he instructed his counsel to
                                                                    punishment would have been less severe in the absence of
not present mitigation testimony, even when witnesses were
                                                                    counsel's deficient performance. Bazan, 403 S.W.3d at 13.
present and available, and the defendant did not present any
                                                                    Even if we presume that trial counsel's representation was
evidence at the new trial hearing “that, despite his earlier
                                                                    deficient in this case, appellant has not shown a substantial
desire that trial counsel refrain from presenting additional
                                                                    likelihood of a different result. Harrington, 562 U.S. at ––––,
mitigation evidence, he nonetheless would ... not have
                                                                    131 S.Ct. at 787, 792. Accordingly, we hold that the trial court
interfered with the mitigation testimony revealed at the new
                                                                    did not abuse its discretion in denying appellant's motion for
trial hearing.” Bazan, 403 S.W.3d at 13–15; see also Schriro
                                                                    new trial.
v. Landrigan, 550 U.S. 465, 475–77, 127 S.Ct. 1933, 1940–
42 (2007) (“If [defendant] issued such an instruction [not to
offer any mitigating evidence], counsel's failure to investigate    We overrule appellant's sole issue. 4
further could not have been prejudicial under Strickland.”);
Ex parte Olvera, No. 05–11–01349–CR, 2013 WL 4052467,
at *6 (Tex.App.—Dallas Aug. 12, 2013, pet. ref'd) (mem.                                      Conclusion
op., not designated for publication) (“[W]hen a defendant
instructs his attorney not to interview certain witnesses, the      We affirm the judgment of the trial court.
defendant may not later claim his attorney's investigation was
ineffective.”); Oseguera–Garcia v. State, No. 04–11–00896–


Footnotes
1       See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              9
Gonzalez v. State, Not Reported in S.W.3d (2014)


2     At the hearing, the trial court admitted into evidence Barron's affidavit in which she did not provide any additional information
      beyond her live testimony.
3     The trial court also admitted into evidence Fernando's affidavit in which he further explained the on-going conflict between the
      complainant and appellant.
4     We note that although not presented as an issue separate from his ineffective-assistance claim, appellant asserts that the trial court
      erred in denying his request for Decuir to turn over to him his client file. He invites the Court, if it “believes that ... [a]ppellant has
      not met his burden under Strickland ... as [the record] currently stands, but believes that the failure of the trial court to order Decuir
      to turn the file over constitutes error which must be rectified,” to abate the appeal for a supplemental hearing on his motion for new
      trial. We decline to do so.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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