                                 Fourth Court of Appeals
                                       San Antonio, Texas
                                   MEMORANDUM OPINION
                                           No. 04-11-00771-CR

                                      Rene Daniel VILLARREAL,
                                               Appellant

                                                    v.

                                          The STATE of Texas,
                                                Appellee

                        From the 49th Judicial District Court, Zapata County, Texas
                                           Trial Court No. 2111
                               Honorable Mark R. Luitjen, 1 Judge Presiding

Opinion by:         Rebeca C. Martinez, Justice

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

Delivered and Filed: March 25, 2015

AFFIRMED AS MODIFIED

           Rene Daniel Villarreal was charged with murder and proceeded to a jury trial at which he

raised the issue of self-defense. The jury rejected Villarreal’s theory of self-defense and found

Villarreal guilty of murder as charged in the indictment. See TEX. PENAL CODE ANN. § 19.02(b)(2)

(West 2011). Upon the jury’s recommendation, the trial court sentenced Villarreal to a term of 99

years of imprisonment. On direct appeal, Villarreal complained that he was harmed by the trial



1
    Sitting by assignment.
                                                                                                       04-11-00771-CR


court’s failure to instruct the jury that it was required to apply a presumption of reasonableness as

to his belief that the use of deadly force was immediately necessary to protect himself. See TEX.

PENAL CODE ANN. § 9.32(b) (West 2011). A panel of this court sustained Villarreal’s complaint

regarding charge error, and held that Villarreal was egregiously harmed by the omission of the

instruction; the panel thus remanded the case to the trial court for a new trial. See Villarreal v.

State, 393 S.W.3d 867 (Tex. App.—San Antonio 2012), rev’d, - - - S.W.3d - - -, No. PD-0332-13,

2015 WL 458146 (Tex. Crim. App. Feb. 4, 2015).

           On discretionary review, the Court of Criminal Appeals held that the omission of a

presumption-of-reasonableness instruction did not egregiously harm Villarreal. See Villarreal v.

State, - - - S.W.3d - - - , No. PD-0332-13, 2015 WL 458146, at *11-12 (Tex. Crim. App. Feb. 4,

2015). Thus, the Court of Criminal Appeals remanded this case to us for consideration of

Villarreal’s remaining points of error raised on appeal, all of which relate to whether Villarreal

received effective assistance of counsel at trial. Id. at *12. Upon remand, we modify the judgment

of the trial court to correct a clerical error, and affirm the judgment as modified. 2

                                            ASSISTANCE OF COUNSEL

           In his sixth and seventh issues 3 on appeal, Villarreal argues that he was constructively

denied the assistance of counsel, or alternatively, received ineffective assistance of counsel, at the



2
  Although the caption of the indictment and the judgment recite that Villarreal was charged and convicted under
section 19.02(b)(1) of the Penal Code, the language in the body of the indictment charging murder under section
19.02(b)(2) controls. See TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011); Jackson v. State, 880 S.W.2d 432,
433-34 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). Here, the body of the indictment reads that, “. . . [O]n or
about the 16th day of SEPTEMBER, 2010 A.D. . . . RENE DANIEL VILLARREAL, did then and there, with intent
to cause serious bodily injury to an individual, namely, CHRISTOPHER LOUIS MARTINEZ, commit an act clearly
dangerous to human life that caused the death of said CHRISTOPHER LOUIS MARTINEZ, by stabbing him in the
body with a knife[.]” See TEX. PENAL CODE ANN. § 19.02(b)(2). Likewise, the charge instructed the jury to determine
whether Villarreal was guilty under section 19.02(b)(2). Accordingly, we modify the trial court’s judgment to correct
the clerical error and to reflect that Villarreal was found guilty of murder pursuant to section 19.02(b)(2) of the Texas
Penal Code.
3
    As listed in Appellant’s Amended Brief filed on September 21, 2012.

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guilt-innocence stage when his lawyer failed to advocate the merits of his self-defense theory, and

asked the jury to find guidance in reaching a verdict by praying to God. In issues eight and nine,

Villarreal contends that he was constructively denied counsel, or alternatively, received ineffective

assistance of counsel, at the punishment phase when his lawyer failed to advocate the merits of his

sudden-passion theory, and asked the jury to arrive at an appropriate sentence by praying to God.

        During his closing argument of the guilt-innocence phase of trial, Villarreal’s lawyer told

the jury:

        I’m not gonna tell you what to do. I’m not gonna tell you find this or find that. My
        job is to bring in facts. My job is to question witnesses. My job is to look at the
        evidence. . . .

        [T]he only request I have of you, ladies and gentlemen, the only thing I do ask,
        when you go back into that room, first thing I ask you to do is pray and say Lord,
        help us to return a true verdict. And he’s gonna lead you. Whatever verdict this is,
        whatever verdict it is, I will never tell you what to do because your creator will.
        He’s gonna lead you. You see the law, you see the evidence, you pray. And you
        say Lord, help us return a true verdict.

        Based on what we heard of the witnesses, help us discern what was true and what
        wasn’t true. Help us discern what evidence we should look at and how we should
        look at the evidence and help us discern . . . a true vote and return a true verdict in
        this case because that judgment should reflect only one thing, the truth.

        After 45 minutes, the jury returned a verdict of guilty on the charge of murder. During

closing argument in the punishment phase, Villarreal’s lawyer argued to the jury as follows:

        [T]he purpose of the trial is to search for the truth. And you have answered one of
        those questions under the guilt or innocence. And we receive that and we respect
        it . . . . Now that verdict continues with the punishment and that oath also ended
        with ‘so help me God.’ And we live — our judicial system has its beginnings in
        the Christian Judeo System. The Judeo being the law and the Christian being the
        grace. And the Judeo said an eye for an eye, a tooth for a tooth, a hand for a hand,
        a foot for a foot, a lie for a lie. . . . And then the Christian part of it, . . . there’s
        grace.

Counsel then referred to testimony by the victim’s brother, Jaime Martinez, who stated that

everyone makes mistakes, but that people can change, and concluded that, “God will guide us all.”

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Counsel repeated the “God will guide us” refrain several times throughout his closing. Counsel

concluded as follows:

       Again, just like I told you at the guilt or innocence, I will not tell you what to do
       because I believe there is something greater, which is the oath that you’ve taken
       and I believe you’re gonna follow that. And I’m gonna believe and I believe and I
       ask you the only request that I have is that you go in there and before you decide
       what punishment to return that you do ask your creator. You say guide us, lead us
       in returning a true and proper verdict regarding the punishment.

After roughly one hour of deliberation, the jury recommended that Villarreal be sentenced to 99

years in the Texas Department of Criminal Justice.

       We measure a claim of ineffective assistance of counsel against the two-prong test

established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 686, 687

(1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying

Strickland test). First, an appellant must show that his attorney’s performance was deficient, i.e.,

that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State,

9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The appellant must provide a sufficient record that

affirmatively demonstrates ineffective assistance and overcomes the strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance, including the

possibility that counsel’s actions were strategic. Id. at 813. In evaluating counsel’s performance,

the court does not focus on isolated acts or omissions, but considers all the circumstances

surrounding the case and focuses primarily on whether counsel performed in a “reasonably

effective” manner. Strickland, 466 U.S. at 687. The right to reasonably effective counsel does not

mean the right to “errorless or perfect counsel.” Badillo v. State, 255 S.W.3d 125, 129 (Tex.

App.—San Antonio 2008, no pet.) (quoting Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim.

App. 1990)). It is only when “the conduct was so outrageous that no competent attorney would




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have engaged in it,” that the challenged conduct will constitute ineffective assistance. Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

       Second, once an appellant has demonstrated deficient assistance, it is necessary to

affirmatively prove prejudice. Thompson, 9 S.W.3d at 812. Proof that counsel’s deficient

performance prejudiced the appellant’s defense requires a showing that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 687-88, 694. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001). A mere showing that counsel’s error had some conceivable effect on the proceedings

is inadequate, as the burden is to show a “reasonable probability” that the result of the proceeding

would have been different. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Thompson, 9 S.W.3d at 813.

       Initially, Villarreal argues that he was constructively denied counsel at both phases of trial

when, during closing argument, his lawyer refused to advocate the merits of his self-defense and

sudden-passion theories, and instructed the jury to determine the verdict by praying to God. “In

some cases the performance of counsel may be so inadequate that, in effect, no assistance of

counsel is provided.” See United States v. Cronic, 466 U.S. 648, 654 n.11 (1984). When an

appellant can demonstrate that defense counsel “entirely fail[ed] to subject the prosecution’s case

to meaningful adversarial testing,” there is a constructive denial of the assistance of counsel and

prejudice is legally presumed. See id. at 658-59; Strickland, 466 U.S. at 692. Cronic’s presumed

prejudice standard, however, applies only in situations where counsel’s failure was “complete.”



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                                                                                                    04-11-00771-CR


See Bell v. Cone, 535 U.S. 685, 697 (2002). “Bad lawyering, regardless of how bad, does not

support the [per se] presumption of prejudice under Cronic.” Childress v. Johnson, 103 F.3d 1221,

1229 (5th Cir. 1997).

         Here, Villarreal’s counsel participated in all aspects of the trial, including making

objections, cross-examining the State’s witnesses, and making a closing statement. Additionally,

counsel requested and obtained jury instructions on Villarreal’s theories of self-defense and sudden

passion. Thus, the record does not reflect that counsel failed to subject the State’s case to

“meaningful adversarial testing.” Further, the aspects of counsel’s performance challenged by

Villarreal are of the same type as other specific attorney errors the Supreme Court has held subject

to Strickland’s performance and prejudice components. See, e.g., Bell, 535 U.S. at 697-98 (citing

Darden v. Wainwright, 477 U.S. 168, 184 (1986) (evaluating under Strickland claim that counsel

was ineffective for failing to put on mitigating evidence at sentencing). We therefore conclude

that counsel’s alleged failure to act as an advocate was not “complete,” and thus Strickland, not

Cronic, controls our analysis. See Bell, 535 U.S. at 696-98. 4

         Villarreal alternatively complains that counsel provided ineffective assistance during

closing arguments of both phases of trial.                    Specifically, Villarreal argues that counsel

impermissibly urged the jury to seek guidance from God rather than to follow the court’s

instructions on how to determine the merits of the State’s case and his defense, and to determine

an appropriate sentence.         The right to effective assistance encompasses closing arguments.

Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam); Bell, 535 U.S. at 701-02. The type of

closing argument to make is an inherently tactical decision “based on the way a trial is unfolding,


4
 Further, any requirements under Cronic are incorporated into our review in an ineffective assistance of counsel claim
under the two-prong Strickland test and by the examination of the totality of the representation. See Wilkerson v.
State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986); Del Torro v. State, No. 04-99-00599-CR, 2001 WL 487996, at
*4 (Tex. App.—San Antonio May 9, 2001, no pet.) (not designated for publication).

                                                        -6-
                                                                                       04-11-00771-CR


the trial strategy employed, the experience and judgment of the defense attorney, and other

factors.” Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d).

“[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel’s

tactical decisions in his closing presentation is particularly important because of the broad range

of legitimate defense strategy at that stage.” Yarborough, 540 U.S. at 5-6. Judicial review of an

attorney’s summation is therefore highly deferential, id. at 6, and we will second-guess that

strategy only if the attorney’s actions are without any plausible basis. Bone v. State, 77 S.W.3d

828, 836 (Tex. Crim. App. 2002) (“Under Strickland, the defendant must prove, by a

preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific

act or omission.”).

       Here, Villarreal did not file a motion for new trial complaining of counsel’s actions and

there was no corresponding hearing at which counsel’s reasons could be developed; thus, the

record is silent as to why counsel chose not to argue Villarreal’s defensive theory or for any

particular sentence or punishment, and instead urged the jury to pray to their creator for guidance

during both phases of their deliberations. Therefore, there is no evidence in the record about the

reasons, or lack of reasons, underlying counsel’s strategy. The courts have repeatedly recognized

the difficult task of establishing ineffective assistance on direct appeal based solely on the trial

record. See Bone, 77 S.W.3d at 833 (absent specific explanations for counsel’s decisions, record

on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance

claim); see also Garcia, 57 S.W.3d at 440 (in the absence of evidence of counsel’s reasons for the

challenged conduct, the court “commonly will assume a strategic motivation if any can possibly

be imagined,” and will not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it”). “When the record is silent as



                                                 -7-
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to the reasons for counsel’s conduct, a finding that counsel was ineffective would require

impermissible speculation by the appellate court.” Johnson v. State, 233 S.W.3d 109, 116 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). Due to the lack of evidence in the record regarding

counsel’s actions, we conclude Villarreal failed to rebut the presumption that these decisions were

strategic; therefore, Villarreal has failed to establish deficient performance under the first

Strickland prong. See Strickland, 466 U.S at 687; Thompson, 9 S.W.3d at 812. When, as here,

the first prong of Strickland is dispositive, we need address only that prong on appeal. See

Strickland, 466 U.S. at 697; Thompson, 9 S.W.3d at 813; see also Ex parte Martinez, 195 S.W.3d

713, 730 n.14 (Tex. Crim. App. 2006) (failure to satisfy either prong of the Strickland test is fatal).

We thus overrule Villarreal’s issues related to both constructive denial of counsel and ineffective

assistance of counsel at guilt-innocence and punishment.

        Based on the foregoing, we overrule Villarreal’s issues related to assistance of counsel.

We modify the trial court’s judgment to correctly reflect that Villarreal was found guilty of the

offense of murder as charged in the indictment under section 19.02(b)(2) of the Texas Penal Code

rather than section 19.02(b)(1) as erroneously stated in the judgment. As modified, the judgment

of the trial court is affirmed.


                                                   Rebeca C. Martinez, Justice

DO NOT PUBLISH




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