      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00464-CR



                                 Jonathon Gene Benavides, Appellant

                                                  v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
        NO. CR2004-167, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Jonathon Gene Benavides of the offense of solicitation of

capital murder. See Tex. Penal Code Ann. § 15.03(a) (West 2003). Punishment was assessed at

sixty years’ confinement and a $5,000 fine. In four issues on appeal, Benavides asserts that the

district court abused its discretion in denying his motion to sever and in permitting the State to ask

him certain questions about his defensive theory during the severance hearing, challenges the

factual sufficiency of the evidence, and claims ineffective assistance of counsel. We will affirm

the district court’s judgment.


                                          BACKGROUND

               Benavides and Samantha Childs were both indicted for soliciting the murder of

Benavides’s ex-girlfriend, Stacy Satterfield.     Prior to trial, the State moved to consolidate

Benavides’s and Childs’s indictments. Benavides filed a motion to sever, asserting that the defenses
that he and Childs intended to assert at trial were antagonistic and mutually exclusive. The

district court held a severance hearing. Benavides’s counsel of record, Glen Peterson, was unable to

attend this hearing. Instead, Benavides was represented at the hearing by Steve Moninger.

Following the hearing, the district court denied the motion to sever and the case proceeded to trial.

               At trial, the jury heard evidence that sometime in December 2003, Childs contacted

her friend Christina Lawson and told her that “she had a friend that had a situation with child

support.” Lawson testified that this friend was Benavides. Lawson further testified that Childs told

her that Benavides wanted to “[m]ake the mother go away” and that he intended to “[g]et a hit man.”

Lawson also explained how Childs told her that Benavides wanted to talk to Lawson about his

situation. Benavides believed that Lawson could help him “because she had a father who was

murdered by a hit man and an uncle who was speaking of seeking revenge.” Lawson then recounted

how Benavides approached her one night at a party, talked about his problems with paying

Satterfield child support, and told Lawson, “I want her gone. I want her to disappear.”

               Following further conversations with Childs, Lawson contacted the authorities and

an undercover operation was arranged. Detective Scott LaCour was assigned to pose as a hit man.

LaCour placed a phone call to Benavides and set up a meeting. At this meeting, Benavides told

LaCour that he “wanted someone killed.” Benavides gave LaCour maps to Satterfield’s house and

provided a physical description of Satterfield and her vehicle. LaCour testified that he asked

Benavides how much he wanted to pay for the job. Benavides indicated that he was willing to pay

2,000 dollars. LaCour told him that the price was 10,000 dollars and Benavides agreed. LaCour also




                                                 2
asked Benavides if he wanted the woman stabbed or shot. According to LaCour, Benavides

told him that “he didn’t care how it was done.” An audio recording and a transcript of this

conversation were admitted into evidence.

               Benavides testified in his defense. Benavides claimed that he renounced his

solicitation in a conversation with LaCour on March 6, 2004. An audio recording and a transcript of

this conversation were admitted into evidence. In the district court’s charge, the jury was instructed

on the affirmative defense of renunciation. See Tex. Penal Code Ann. § 15.04 (West 2003).

               The jury found Benavides guilty of solicitation of capital murder as charged in

the indictment.    Punishment was assessed at sixty years’ confinement and a $5,000 fine.

This appeal followed.


                                          DISCUSSION

Denial of motion to sever

               In his first issue, Benavides asserts that the district court abused its discretion in

denying his motion to sever and in granting the State’s motion to consolidate.

               Motions to sever or consolidate trials of co-defendants are governed by article 36.09

of the code of criminal procedure, which provides:


       Two or more defendants who are jointly or separately indicted or complained against
       for the same offense or any offense growing out of the same transaction may be, in
       the discretion of the court, tried jointly or separately as to one or more defendants;
       provided that in any event either defendant may testify for the other or on behalf of
       the state; and provided further, that in cases in which, upon timely motion to sever,
       and evidence introduced thereon, it is made known to the court that there is a
       previous admissible conviction against one defendant or that a joint trial would be
       prejudicial to any defendant, the court shall order a severance as to the defendant
       whose joint trial would prejudice the other defendant or defendants.

                                                  3
Tex. Code Crim. Proc. Ann. art. 36.09 (West 2007).

                 Severance is mandatory upon a timely motion and upon introduction of evidence

which establishes either (1) that there is a previous admissible conviction against one defendant or

(2) that a joint trial would be prejudicial to any defendant. Aguilar v. State, 26 S.W.3d 901, 903

(Tex. Crim. App. 2000). However, absent such evidence, severance is not a matter of right,

but rests within the sound discretion of the trial court. See Peterson v. State, 961 S.W.2d 308,

310 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). To show an abuse of discretion, an

appellant bears the “heavy burden” of showing clear prejudice. Id.

                 Benavides argued during the severance hearing that his defensive theory of denial1

and Childs’s defensive theories of renunciation and entrapment were mutually exclusive, i.e., the

jury, in order to believe one defense, would necessarily have to disbelieve the other. See Goode v.

State, 740 S.W.2d 453, 455 n.2 (Tex. Crim. App. 1987). However, “mutually exclusive defenses

are not necessarily prejudicial.” Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006). “To

establish prejudice, the defendant must show a serious risk that a specific trial right would be

compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable

judgment about guilt or innocence, and that the problem could not be adequately addressed by lesser

curative measures, such as a limiting instruction.” Id.

                 Benavides failed to make such a showing. Benavides did not present any evidence

that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the




        1
            During trial, Benavides’s changed his defensive theory to renunciation.

                                                    4
jury from making a reliable judgment about guilt or innocence.2 “The failure to present evidence in

support of the motion is reason enough to sustain the trial court’s action.” Sanne v. State, 609

S.W.2d 762, 776 (Tex. Crim. App. 1980). We overrule Benavides’s first issue.

Factual sufficiency

                In his second issue, Benavides concedes that the evidence is sufficient to support the

elements of the offense of solicitation but asserts that the evidence is factually insufficient to support

the jury’s rejection of his affirmative defense of renunciation.

                In a factual sufficiency review, we view the evidence in a neutral light and ask

whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then determine whether the evidence

supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or

whether the verdict is against the great weight and preponderance of the conflicting evidence.

Id. at 415. We will not reverse a case on a factual sufficiency challenge unless we can say, with

some objective basis in the record, that the great weight and preponderance of the

evidence contradicts the jury’s verdict. Id. at 417.

                Section 15.04 of the penal code sets forth the requirements for proving renunciation:


        (b) It is an affirmative defense to prosecution under Section 15.02 or 15.03 that under
        circumstances manifesting a voluntary and complete renunciation of his criminal
        objective the actor countermanded his solicitation or withdrew from the conspiracy
        before commission of the object offense and took further affirmative action that
        prevented the commission of the object offense.



        2
         Nor did Benavides present any evidence that his and Childs’s defensive theories were
mutually exclusive. See Goode v. State, 740 S.W.2d 453, 455 n.2 (Tex. Crim. App. 1987).

                                                    5
       (c) Renunciation is not voluntary if it is motivated in whole or in part:

              (1) by circumstances not present or apparent at the inception of the actor’s
              course of conduct that increase the probability of detection or apprehension
              or that make more difficult the accomplishment of the objective; or

              (2) by a decision to postpone the criminal conduct until another time or to
              transfer the criminal act to another but similar objective or victim.


Tex. Penal Code Ann. § 15.04.

              Benavides argues that the conversation on March 6 between himself and

LaCour proves that he “countermanded his solicitation.”            The relevant portions of the

recorded conversation are as follows:


       Benavides: It’s too hot. I’m in Houston. I cannot go. That family member I was
       talking about—it’s too hot. A close, personal family member has got an idea that I’m
       up to something. I don’t know how they found out.

       LaCour: Uh-huh.

       ....

       Benavides: Okay. This personal, close friend of mine—the family member is my
       father.

       LaCour: All right.

       ....

       Benavides: All right? He will know. All right? He’s on to something. He knew for
       some—I don’t—I’m not saying that anybody else said anything. All right?

       LaCour: Then it’s got to be on your end.

       Benavides: This is—this is my end. Okay? This is my end. What I’m telling you
       right now, it is too hot.

       ....

                                                 6
       LaCour: Uh-huh.

       Benavides: Okay? For the month of March, it is too hot. I’m not going to do
       anything to jeopardize you or me.

       ....

       LaCour: Are we just going —

       Benavides: — do not —

       LaCour: — to lay low for a while?

       Benavides: Do not—yes. Do not do anything. Do not say anything. Okay? If you
       would like for me to contact you after the month of March, I will. If not—

       LaCour: That’s up to you, man.

       Benavides: Okay.

       LaCour: As long as it’s cool. I mean, I don’t have a problem with it. I better not
       catch any [expletive] heat over it. You know what I mean?

       Benavides: No. That’s why I’m saying for the month of March. He will be at both
       of these parties and he knows already who needs to be there, who’s going down that
       street, and for what for.

       ....

       LaCour: That’s cool.

       Benavides: Okay? And maybe we can make an arrangement for another job, but
       that’s a later date.

       LaCour: All right.

       Benavides: All right? For right now, it is too hot.


              A reasonable juror could infer from this conversation that Benavides was primarily

concerned about getting caught and that he believed the month of March was “too hot” for LaCour


                                                7
to commit the offense. Benavides states during the conversation that “maybe we can make an

arrangement for another job, but that’s a later date.” There is nothing in the conversation to suggest

that Benavides was making “a voluntary and complete renunciation of his criminal objective” as the

statute requires. See id. § 15.04(b). The statute is clear: “Renunciation is not voluntary if it is

motivated in whole or in part by circumstances not present or apparent at the inception of the

actor’s course of conduct that increase the probability of detection or apprehension or that

make more difficult the accomplishment of the objective; or by a decision to postpone the

criminal conduct until another time.” Id. § 15.04(c).

               Benavides also claims that the following evidence proves that he took affirmative

steps to prevent LaCour from taking action against Satterfield: (1) he did not give LaCour any

money at the time of the solicitation and (2) he did not give LaCour a photograph of Satterfield or

her house, the license plate number for her car, or her actual address. Benavides asserts that

LaCour would not have committed the offense without the money and without the

above information.      At most, these are omissions, not “affirmative action to prevent the

commission of the offense” as the statute requires. Failure to bring the money required by a hit

man does not constitute withdrawal from the crime. See McGann v. State, 30 S.W.3d 540, 548

(Tex. App.—Fort Worth 2000, pet. ref’d).

               Furthermore, there is evidence in the record that Benavides provided detailed maps

to Satterfield’s house and a detailed description of Satterfield and the type of car she drove. The jury

could have concluded that, if LaCour had been an actual hit man, this would have been enough

information for him to find Satterfield.



                                                   8
               Other than Benavides’s testimony that he believed he had renounced the crime,

there is no other evidence in the record from which the jury could have concluded that

Benavides took the necessary steps to renounce his criminal objective. Considering all of

the evidence in a neutral light, there is factually sufficient evidence to support the jury’s

finding against renunciation. We overrule Benavides’s second issue.

Cross-examination

               In his third issue, Benavides contends that the district court abused its discretion

in permitting him to be cross-examined about “the merits of his defense” during the hearing

on the motion to sever. The scope of cross-examination is within the control of the trial

judge and within the exercise of his sound discretion. Love v. State, 861 S.W.2d 899, 902

(Tex. Crim. App. 1993). We will not reverse the trial court absent a clear abuse of discretion.

Chambers v. State, 866 S.W.2d 9, 26 (Tex. Crim. App. 1993).

               The State argues that, once Benavides took the stand at the hearing, the State

was permitted to cross-examine him on “any subject matter that is relevant.” We disagree. If

the accused testifies during trial, “he or she is subject to the same rules as any other witness and

may be impeached, contradicted, made to give evidence against himself or herself,

cross-examined on new matters, and treated in every respect as any other witness, except where

there are overriding constitutional or statutory provisions.” Lopez v. State, 990 S.W.2d 770,

777 (Tex. App.—Austin 1999, no pet.).

               The above rule does not apply, however, if an accused testifies for a limited purpose

during a pretrial hearing. “The accused in a criminal case does not, by testifying upon a preliminary

matter out of the hearing of the jury, become subject to cross-examination as to other issues in the

                                                 9
case.” Tex. R. Evid. 104(d). All of the cases the State cites to in its brief concern a defendant’s

decision to testify during trial and are inapplicable here.

               We have found no case that has addressed the applicability of rule 104(d) in a hearing

on a motion to sever. However, the rule has been applied in other settings. For example, in

Mendoza v. State, 959 S.W.2d 321 (Tex. App.—Waco 1997, pet. ref’d), the defendant testified at

a bond-reduction hearing about her family relationships and her ability to make bail. Id. at 326.

On cross-examination, the prosecutor asked Mendoza whether she had committed the offense

and inquired about the details of the offense. Id. The Waco Court of Appeals held that

this questioning violated rule 104(d). Id.

               Similarly, in Crosson v. State, 36 S.W.3d 642 (Tex. App.—Houston [1st. Dist.] 2000,

pet. ref’d), rule 104(d) was applied to an evidentiary hearing on a motion to suppress. The First

Court of Appeals held that it was constitutional error for the district court to order the defendant to

testify to matters outside the scope of his suppression hearing. See id. at 645; see also Simmons v.

U.S., 390 U.S. 377, 394 (1968) (holding that “when a defendant testifies in support of a motion to

suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted

against him at trial on the issue of guilt unless he makes no objection.”); Lopez v. State, 384 S.W.2d

345, 348 (Tex. Crim. App. 1964) (holding that, should defendant testify at hearing on motion to

suppress confession, “the cross-examination of the defendant shall be limited solely to the facts

surrounding the voluntariness of the confession, and the defendant shall not be subject to

cross-examination except for the limited purpose of facts involving the voluntary nature of his

confession, nor shall the defendant be compelled to take the stand upon the trial of the cause upon

its merits because of his testimony at this hearing.”).

                                                  10
               However,      rule   104(d)   “is    not   intended    to   immunize     the   accused

from cross-examination . . . when the accused himself injects other issues into the hearing.”

Ex parte Homan, 963 S.W.2d 543, 545 (Tex. App.—Corpus Christi 1996, pet. dism’d). “For

example, if an accused testifies to circumstances of the offense, the State may cross-examine

him on such issues.” Id.

               Although Homan, like Mendoza, dealt specifically with a bail-reduction hearing, we

see no reason why a similar rule should not apply in a severance hearing. We hold that, in a hearing

on a motion to sever, the district court should limit the scope of the accused’s cross-examination to

issues related to the determination of whether severance is proper.                 However, if the

defendant through his testimony injects other issues into the hearing, the State is permitted to cross-

examine him on those issues. See id.

               Prior to Benavides’s testimony, his attorney stated, “This testimony is for the sole

purpose of this Motion for Severance and we will invoke the Fifth Amendment for all other

purposes.” During his direct examination, Benavides testified as follows:


       Q. Would you state for the record your defensive theories in this case?

       A. Explain further.

       Q. How do you expect to defend yourself against this case. What sort of position are
       you taking as far as how it happened and why—why are you accused?

       A. Due to the fact that I didn’t want any of this ever to occur.

       Q. Can you explain briefly how this all got started and why you’re innocent of the
       charges?

       A. Because of a conversation around Christmas of 2003. I was discussing my
       engagement plans with the other Defendant. She asked how I was going to pay for

                                                   11
       it because she was aware of my child support situation. I said, “I don’t know. It’s
       tough.” And she said, “Well, you know, wouldn’t it be kind of nice if it just all went
       away.” And I laughed, whatever, and that’s when it all got started.

       Q. And at no point — or at any point did you agree to have your ex-girlfriend killed?

       A. No, sir.

       Q. Did you solicit anyone for that purpose?

       A. Personally, no.


               Benavides’s attorney then asked him why Childs may have implicated him in

the crime. Benavides answered, “It could be a personal vendetta. Her husband, Jeff Childs and

I were childhood friends, 17 years I believe. And I believe that she might have had a bad taste

in her mouth for me.”

               Following this question, Benavides’s direct examination concluded. The State then

proceeded to extensively cross-examine Benavides. The only specific question Benavides complains

of on appeal is the following:


       Q: Do you agree or disagree that on the 22nd of February, Sunday, that you met
       Damon, Scott LaCour, I’m pointing at right here. Sitting right here. And you
       provided him maps and a description of height and weight of your former girlfriend,
       the mother of your child?


               At this point Benavides asked to invoke his Fifth Amendment right not to incriminate

himself. The following exchange occurred:


       Mr. Moninger [Benavides’s attorney]: I’m going to object on the ground[] it’s
       beyond the scope of the purpose of this testimony.



                                                12
        Mr. Waldrip [State’s attorney]: Number 1, they called him, and he waived his Fifth
        Amendment privilege for the purpose of this hearing.

        The Court: For the purpose of this hearing, he sure did. He can answer the
        question[.]

        The Witness [Benavides]: I agree.

        Mr. Moninger: Your Honor, excuse me. Our waiver was only as to the defensive
        theory.

        The Court: Well, if his defensive theory was that Samantha did it all, I think that the
        District Attorney’s question seems relevant.

        Mr. Waldrip: And I believe, if I wrote this down[] correctly you said that you never
        personally solicited anyone.

        The Court: That’s what he said.


Benavides proceeded to answer the State’s question.

                The State then asked Benavides several more questions about the specific details

of his defensive theory. Defense counsel objected to several of these questions, disputing

their relevance to the severance hearing. In response to one of Benavides’s objections, the

district court stated,


        I think he’s probably trying to flush out his theory of varying degrees of culpability,
        it would appear, and once you’re into this mode in this type of a hearing, I think both
        sides are entitled to flush out the evidence. This is all under 36.09 to determine
        whether or not we’ve got mutually exclusive theories. . . . So I’ve got to let him kind
        of flush this out it seems to me.


After this explanation, Benavides lodged no more objections to the State’s questions.

                We conclude that the district court did not abuse its discretion in finding that the

State’s line of questioning was relevant to determining if severance was appropriate. Benavides

                                                  13
concedes in his brief that the purpose of the hearing was to “establish[] a defensive theory.”

We agree. In fact, determining the exact nature of Benavides’s defensive theory was essential

for the district court to decide whether the alleged defenses of Benavides and Childs were

antagonistic and mutually exclusive.

               Benavides’s defensive theory, as he explained during direct examination, was that he

did not solicit the murder of his ex-girlfriend. Thus, Benavides opened the door to questions by the

State concerning the specific details of his denial defense. In permitting the State to inquire into

the specific details of Benavides’s defensive theory during cross-examination, we conclude

that the district court’s decision was not “so clearly wrong as to lie outside that zone within

which reasonable persons might disagree.”             McDonald v. State, 179 S.W.3d 571, 576

(Tex. Crim. App. 2005). We overrule Benavides’s third issue.

Ineffective assistance of counsel

               In his fourth issue, Benevides contends that he was denied effective assistance of

counsel during the hearing on the motion to sever. Specifically, Benavides complains that his

counsel of record, Glen Peterson, did not appear at the hearing and, instead of seeking a continuance,

sent an attorney to represent Benavides who had no felony experience.

               The standard announced in Strickland v. Washington, 466 U.S. 668, 694 (1984),

governs whether Benavides satisfied his burden to prove that his counsel’s assistance was

ineffective. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). Pursuant

to Strickland, Benavides must demonstrate that his counsel’s performance was deficient, i.e., it

fell below an objective standard of reasonableness, and (2) Benavides was prejudiced because

a reasonable probability exists that, but for the deficient performance, the outcome of his trial

                                                 14
would have been different. 466 U.S. at 687-88, 694; Ex parte Cash, 178 S.W.3d 816, 818

(Tex. Crim. App. 2005).

               We review counsel’s representation in its totality, rather than as isolated acts or

omissions, and we evaluate the performance from counsel’s perspective at trial, rather than in

hindsight. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); Wilkerson v. State, 726

S.W.2d 542, 548 (Tex. Crim. App. 1986). Further, we indulge a strong presumption that counsel’s

acts and omissions were reasonable and part of a sound trial strategy, and it is the appellant’s burden

to overcome that presumption with a preponderance of the evidence. Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

Our review is highly deferential to counsel, and we will not speculate about counsel’s trial strategy.

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Mayhue v. State, 969 S.W.2d 503, 511

(Tex. App.—Austin 1998, no pet.). The appellant, however, may prevail by providing a record that

affirmatively demonstrates counsel’s performance was not based on sound strategy. Mallett v. State,

65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Mayhue, 969 S.W.2d at 511. If the appellate record is

silent regarding the reasons for counsel’s conduct—as it is in most cases—then it is insufficient to

overcome the presumption that counsel followed a legitimate strategy. Tong v. State, 25 S.W.3d

707, 714 (Tex. Crim. App. 2000); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

               Benavides asserts that counsel’s performance at the hearing was so deficient that

it was “tantamount to having no attorney at all” and asks this Court to “presume” prejudice.

See United States v. Cronic, 466 U.S. 648, 659 (1984).

               In Cronic, the Supreme Court concluded that there were some circumstances under

which prejudice is presumed, such as when “counsel entirely fails to subject the prosecution’s case

                                                  15
to meaningful adversarial testing.” Id. at 659. This situation may arise when a lawyer, “although

physically and mentally present in the courtroom, fails to provide (or is prevented from providing)

any meaningful assistance.” Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005).

Prejudice is presumed “only when the defendant demonstrates that counsel was not merely

incompetent but inert, distinguishing shoddy representation from no representation at all.”

Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000). “When the defendant complains of

errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of

how bad, does not support the per se presumption of prejudice.” Id. at 284-85.

               On this record, we cannot say that Moninger failed to provide Benavides with any

meaningful assistance during the hearing. Moninger’s repeated objections to the State’s questioning

of his client during cross-examination, thus preserving error on Benavides’s third issue on

appeal, demonstrate that he provided at least some meaningful representation to Benavides.

Thus, we cannot presume prejudice.3

               Nonetheless, we must still evaluate whether Moninger’s or Peterson’s performance

was deficient under the test articulated in Strickland. Benavides has failed to make a showing that

Moninger’s performance fell below an objective standard of reasonableness. Moninger objected to

the State’s questions during cross-examination, thus preserving error. He cited relevant case law to

the district court. He articulated and explained his client’s position. His questions on direct and



       3
          We note that Benavides’s argument that Moninger had no prior felony experience does not
give rise to a presumption of prejudice. “Every experienced criminal defense attorney once tried his
first criminal case. . . . The character of a particular lawyer’s experience may shed light in an
evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the
absence of such an evaluation.” United States v. Cronic, 466 U.S. 648, 665 (1984).

                                                 16
redirect examination were consistent with his client’s position. When it became apparent that the

district court was going to rule against his client, he tried to persuade the district court to grant a

continuance. On this record, we cannot say that Moninger’s representation was deficient.

               Nor can we say that Peterson’s performance was deficient. Benavides asserts that

Peterson’s performance was deficient because he (1) did not attend the hearing on the motion to

sever, (2) sent Moninger to represent Benavides instead of requesting a continuance, and (3) did not

consult with Benavides prior to the hearing.

               “A fair assessment of counsel’s performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the

conduct from counsel’s perspective at the time.” Stafford, 813 S.W.2d at 506. Also, “[i]neffective

assistance of counsel claims are not built on retrospective speculation; they must ‘be firmly

founded in the record.’        That record must itself affirmatively demonstrate the alleged

ineffectiveness.” Bone, 77 S.W.3d at 835.

               On this record, all we know is that Peterson had to be in trial elsewhere on the day

of the hearing. We do not know why he did not request a continuance, why he sent Moninger to fill

in for him, or why he did not meet with Benavides immediately prior to the hearing. Perhaps

Peterson did not request a continuance because he had reason to believe that Moninger would be able

to handle the hearing without him and he did not want the hearing delayed. Perhaps Peterson

did not meet with Benavides prior to the hearing because he had already discussed the motion

to sever with his client at an earlier date. Because we can only speculate as to the reasons

for Peterson’s decisions, there is not a firm foundation in the record to support an

ineffective assistance of counsel claim.

                                                  17
               Furthermore, we are to consider the totality of representation provided, not isolated

incidents. See Stafford, 813 S.W.2d at 506. Benavides has not made a showing that the totality of

Peterson’s representation throughout the entire proceedings fell below an objective standard of

reasonableness. On the contrary, it appears from our review of the record that Peterson was a

zealous and effective advocate for his client during both the guilt/innocence and sentencing phases

of Benavides’s trial. Peterson’s absence at the hearing on the motion to sever was an isolated

incident that he did not repeat.

               Additionally, Benavides has not made a showing that a reasonable probability exists

that, but for the deficient performance of his counsel, the outcome of his trial would have been

different. Benavides points to the fact that the State conducted a “devastating cross-examination”

of Benavides during the hearing that was subsequently used against him during trial, and implies that

if Peterson had been present during the hearing, Peterson would have somehow been able to prevent

the “withering” cross-examination, or at least mitigate some of it. There is simply no basis in the

record to support this contention. Moninger’s multiple objections to the State’s questions during the

hearing were repeatedly overruled by the district court. It is quite possible that, even if Peterson

had objected more frequently or differently than Moninger, the district court would have still

allowed the State to ask its questions.

               Furthermore, we cannot say that the jury’s verdict turned on the State’s cross-

examination of Benavides.          In addition to Benavides’s testimony, the jury considered:

(1) the testimony of multiple witnesses who testified to Benavides’s culpability, including Scott

LaCour, the undercover police officer whom Benavides asked to murder Satterfield, and Christina

Lawson, the person whom Benavides approached with his desire to kill Satterfield; (2) multiple

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recorded and transcribed conversations between Benavides and LaCour; and (3) documents

Benavides provided to LaCour identifying the location of the proposed victim.

                Benavides has not satisfied either prong of Strickland. We overrule his fourth issue.


                                          CONCLUSION

                Having overruled Benavides’s issues on appeal, we affirm the judgment of

the district court.




                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: April 5, 2007

Do Not Publish




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