                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

  DAVID OROZCO,                                    §
                                                                    No. 08-19-00064-CR
                     Appellant,                    §
                                                                      Appeal from the
  v.                                               §
                                                                     34th District Court
  THE STATE OF TEXAS,                              §
                                                                  of El Paso County, Texas
                     Appellee.                     §
                                                                    (TC# 20180D00991)
                                                   §

                                           OPINION

       Appellant David Orozco was indicted for two counts of aggravated assault against a public

servant and one count of evading arrest or detention with a motor vehicle. After the State rested

its case-in-chief in the guilt phase of Orozco’s jury trial, the State moved to dismiss the two

aggravated-assault counts, and Orozco subsequently pleaded guilty to the remaining count of

evading arrest or detention with a motor vehicle. Consequently, the jury then found Orozco guilty

of the evading charge, and at the conclusion of a punishment phase in front of the same jury, the

jury sentenced him to seven years’ confinement. In two issues on appeal, Orozco argues that his

trial counsel rendered ineffective assistance in the punishment phase of his trial by: (1) failing to

move for a mistrial at one juncture in a witness’s testimony and failing to move for an instruction

to disregard at another juncture of the testimony; and (2) failing to present any mitigation evidence.
Without having benefit of a record containing trial counsel’s explanation for actions or inactions,

we hold that Orozco failed to prove any deficient performance and affirm the trial court’s

judgment.

                                         BACKGROUND

       On the day of Mardi Gras in 2018, the El Paso Police Department established a heightened

presence at the busy Cincinnati Street Entertainment District in an effort to manage the foot traffic

of the large crowds and to generally patrol the area. Around 2 a.m., Orozco drove up to an

intersection within the district in his Ford Mustang with its headlights off, and an officer attempted

to get Orozco’s attention by shining a flashlight at him. Orozco looked at the officer but

accelerated towards the next intersection at an erratic speed. At that next intersection, Orozco ran

the stop sign and forced some officers who were crossing the street to jump out of his way to avoid

being hit. Officers in patrol units pursued Orozco’s car, and a chase ensued.

       During the course of this pursuit, Orozco ran another stop sign, crashed into a car carrying

multiple occupants, spun out on the pavement, sped through a few intersections, jumped from his

vehicle, and ran from police on foot. When he left his vehicle, it rolled downhill before hitting a

brick wall. After continuing the chase on foot, the officers eventually arrested Orozco when they

found him as he tried hiding next to a sleeping transient. When conducting an inventory search of

Orozco’s car, officers found marihuana and alcohol inside the vehicle.

       During the punishment phase of trial, the State presented testimony from Abraham Guzman

who identified himself as the driver of the car with multiple passengers that had been struck by

Orozco. While questioning Guzman, the State attempted to elicit testimony regarding injuries

suffered by his passengers as a result of the collision. At one juncture, the State asked Guzman


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about injuries suffered by a female passenger, and Orozco’s trial counsel objected on the bases of

hearsay and speculation. The trial court sustained the objection and instructed the jury to disregard

Guzman’s testimony on that point. Trial counsel did not respond with a motion for mistrial. At

another juncture, the State asked Guzman about injuries suffered by a male passenger, and trial

counsel once again objected on the same bases. The trial court sustained this objection, as well.

Trial counsel did not request an instruction to disregard.

       Although Orozco’s trial counsel cross-examined the State’s punishment witnesses and

obtained some mitigating concessions from these witnesses, counsel did not present any witnesses

or evidence during the punishment phase of trial.

       Following the trial court’s sentence and entry of judgment, Orozco did not file a motion

for new trial or otherwise introduce an affidavit from trial counsel through some other procedural

vehicle. Orozco later filed this direct appeal.

                                          DISCUSSION

       Orozco presents two issues for review in which he complains that trial counsel rendered

ineffective assistance in the punishment phase of his trial. In his first issue, Orozco argues in a

two-part complaint that trial counsel rendered ineffective assistance by: (1) failing to move for a

mistrial after the trial court sustained counsel’s hearsay objection and gave an instruction for the

jury to disregard Guzman’s testimony as to the injuries sustained by his female passenger; and (2)

failing to move for an instruction to disregard after the trial court sustained counsel’s hearsay

objection on Guzman’s testimony as to the injuries his male passenger sustained in the car. In his

second issue, Orozco argues that trial counsel rendered ineffective assistance by failing to present

any mitigating evidence in the punishment phase of trial. Among multiple alternative arguments


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in the State’s brief, the State responds that the record was not developed to the extent necessary

for this Court to fully evaluate the merits of Orozco’s claims where trial counsel was not given an

opportunity to explain his choices at trial and where trial counsel may have had sound trial strategy

for the complained-of decisions.

         We address Orozco’s three complaints together in a single analysis because we resolve

them on the same basis.

                                         Standard of Review

         To prevail on an ineffective-assistance-of-counsel claim, a defendant must show that: (1)

counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable

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

have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). As with the guilt

phase of trial, the standard for assessing ineffective assistance of counsel in the punishment phase

is the two-pronged Strickland test. See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing

Strickland, 466 U.S. at 687). A defendant’s failure to make either of the required showings defeats

the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003).

         The record must be sufficiently developed to overcome the strong presumption of

reasonable assistance. See id. at 110-11. As recognized by the United States Supreme Court, the

lack of any explanation in the record on direct appeal for trial counsel’s actions or inactions often

precludes any valid consideration of whether counsel’s performance was deficient:

         If the alleged error is one of commission, the record may reflect the action taken by
         counsel but not the reasons for it. The appellate court may have no way of knowing
         whether a seemingly unusual or misguided action by counsel had a sound strategic
         motive or was taken because the counsel’s alternatives were even worse. . . . The

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       trial record may contain no evidence of alleged errors of omission, much less the
       reasons underlying them.

Massaro v. U.S., 538 U.S. 500, 505 (2003).

       As a general rule, a silent record that provides no explanation for counsel’s actions will not

overcome the strong presumption of reasonable assistance with which we afford counsel’s actions

or inactions in our review of an ineffective-assistance claim. See Rylander, 101 S.W.3d at 110-

11. Thus, we will assume a strategic motive if any can be imagined, and as a corollary, we will

find counsel’s performance deficient only if the conduct was so outrageous that no competent

attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

Furthermore, we also note that trial counsel should ordinarily be given an opportunity to explain

their actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111.

      Orozco has Failed to Overcome the Presumption of Reasonable Assistance where
             there is no Explanation for Trial Counsel’s Choices in the Record

       In this case, we are presented with a record that is silent on any explanation as to why trial

counsel made the particular decisions about which Orozco now complains on appeal.

       Regarding the two alleged errors of commission in Orozco’s first issue, this Court has “no

way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic

motive or was taken because the counsel’s alternatives were even worse.” See Massaro, 538 U.S.

at 505. Thus, the record is not sufficiently developed to overcome the strong presumption of

reasonable assistance with regard to these two alleged errors by trial counsel, and we hold that

Orozco failed to prove trial counsel rendered deficient performance by failing to move for a

mistrial or by failing to move for an instruction to disregard. See Gomez v. State, No. 08-10-

00276-CR, 2012 WL 390970, at *9 (Tex. App. – El Paso Feb. 8, 2012, no pet.) (not designated for


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publication); Martinez v. State, No. 08-98-00330-CR, 2000 WL 1476621, at *4 (Tex. App. – El

Paso Oct. 5, 2000, pet, ref’d) (not designated for publication) (cases where this Court held that the

defendant failed to prove deficient performance on his claim that counsel was ineffective for failing

to move for a mistrial where the record was silent as to counsel’s reason for not doing so and where

various strategic reasons existed for such a decision); see also Kirk v. State, No. 14-14-00168-CR,

2015 WL 3524295, at *2 (Tex. App. – Houston [14th Dist.] June 4, 2015, no pet.) (mem. op., not

designated for publication); Molina v. State, No. 05-05-01599-CR, 2006 WL 3218555, at *4 (Tex.

App. – Dallas Nov. 8, 2006, pet. ref’d) (not designated for publication) (cases holding that the

defendant failed to prove deficient performance on his claim that counsel was ineffective for failing

to request an instruction to disregard at trial where there was no affidavit from counsel in the record

to explain his actions and where the defendant therefore failed to overcome the strong presumption

that counsel was effective).

       And regarding the alleged error of omission in Orozco’s second issue, this Court likewise

faces the same obstacle of not being able to ascertain whether trial counsel’s actions had a sound

strategic motive or was taken because counsel’s alternatives were worse. See Massaro, 538 U.S.

at 505. Thus, the record is not sufficiently developed to overcome the strong presumption of

reasonable assistance with regard to this alleged error either, and we hold that Orozco failed to

prove that trial counsel rendered deficient performance by failing to present any mitigating

evidence in the punishment phase of trial. See Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim.

App. 2007); Jones v. State, 572 S.W.3d 841, 851 (Tex. App. – Houston [14th Dist.] 2019, no pet.)

(cases holding that the defendant failed to prove deficient performance on his claim that counsel

was ineffective for failing to offer any mitigating evidence during the punishment phase of trial


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where the record was silent on counsel’s reasons for not doing so and where counsel’s conduct

could have been part of a reasonable trial strategy).

       We recognize that some errors by trial counsel can constitute deficient performance even

without an explanation in the record from counsel if such errors are so outrageous that no

competent attorney would have engaged in them. See Andrews, 159 S.W.3d at 101. But trial

counsel’s decisions in this case not to move for a mistrial and not to move for an instruction to

disregard do not belong to this exceptional category of errors because strategic reasons can be

imagined for these decisions. See Gomez, 2012 WL 390970, at *9; Martinez, 2000 WL 1476621,

at *4 (cases where this Court reasoned that various strategic reasons exist for not moving for a

mistrial and that such a decision does not fall within the category of conduct so outrageous that no

competent attorney would have engaged in it); see also Kirk, 2015 WL 3524295, at *2 (reasoning

that counsel’s decision to not request an instruction to disregard was not one in which no competent

attorney would have engaged because “counsel may have strategically determined that the

likelihood of success, and its potential benefits, was outweighed by the potential of drawing further

attention to the testimony”); Molina, 2006 WL 3218555, at *4 (observing that it is possible counsel

might not request an instruction to disregard because it would merely call jurors’ attention to an

incident at trial without truly curing the harm from it). Neither does a decision not to present any

witnesses or evidence during the punishment phase of trial fall into this exceptional category. See

Garza, 213 S.W.3d at 347-48 (reasoning that counsel’s decision not to offer any mitigating

evidence during the punishment phase of trial could have been part of a reasonable trial strategy);

Grundy v. State, No. 05-90-00832-CR, 1991 WL 134592, at *8 (Tex. App. – Dallas July 23, 1991,

pet. ref’d) (not designated for publication) (recognizing multiple reasons why counsel’s decision


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not to call a defendant’s mother, or other punishment-phase witnesses, could fall into the category

of trial strategy and thus not constitute deficient performance).

       Therefore, we overrule Orozco’s first and second issues presented for review based on our

holdings that he failed to show deficient performance on the silent record in this case, and we need

not consider the prejudice component of his ineffective-assistance claims. See Strickland, 466

U.S. at 687; Rylander, 101 S.W.3d at 110.

                                         CONCLUSION

       The trial court’s judgment is affirmed.



                                              GINA M. PALAFOX, Justice
April 3, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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