                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00419-CR

                                          Robert G. POSOS,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 2, Bexar County, Texas
                                      Trial Court No. 298496
                            The Honorable Jason Wolff, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 7, 2013

AFFIRMED

           Following a jury trial, appellant Robert G. Posos was convicted of interference with the

duties of a public servant. On appeal, Posos contends his trial counsel was ineffective. We affirm

the trial court’s judgment.

                                              BACKGROUND

           A detailed rendition of the facts is unnecessary for the disposition of the issues in this

appeal. Accordingly, we provide only a brief background for context.
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       After police responded to a disturbance at Posos’s home, he was arrested for interfering

with police officers while they were performing their duties. A jury found Posos guilty, and the

trial court sentenced him to six months in jail and a $300.00 fine. The trial court suspended jail

time and placed Posos on probation for nine months. After his motion for new trial was denied,

Posos perfected this appeal.

                                           ANALYSIS

       On appeal, Posos raises a single issue, complaining his trial counsel was ineffective in the

following respects: (1) misinformed Posos regarding eligibility for deferred adjudication

community supervision; (2) improperly attempted to present evidence of an officer’s reprimand to

the jury; (3) re-played a prejudicial 911 recording during closing argument; (4) failed to call

witnesses during punishment; (5) was unaware of Posos’s previous convictions; and (6)

inadequately prepared and presented the motion for new trial.

                                      Standard of Review

       To prevail on an ineffective assistance of counsel claim, an appellant must show: (1)

deficient performance by trial counsel, and (2) prejudice arising from the deficient performance.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.

Crim. App. 2012); Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007). To establish

deficient performance, an appellant must prove by a preponderance of the evidence counsel’s

representation fell below the “objective standard of reasonableness.” Jimenez, 364 S.W.3d at 883

(citing Strickland, 466 U.S. at 688). Appellate courts have never interpreted this standard of

review to mean “the accused is entitled 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)). The range of reasonable assistance by counsel is wide and the

representation as a whole is measured, with deference given to the likelihood that actions taken

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were based on sound trial strategy. Jimenez, 364 S.W.3d at 883. Based on this, there is a strong

presumption that counsel rendered adequate assistance and exercised reasonable professional

competence. Strickland, 466 U.S. at 690; Ex parte Niswanger, 335 S.W.3d 611, 619 (Tex. Crim.

App. 2011).

       To overcome this presumption, an appellant must establish counsel’s ineffectiveness is

“firmly founded in the record,” and “the record affirmatively demonstrate[s]” the alleged

ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).               Otherwise, the strong

presumption that trial counsel acted within the proper range of reasonable and professional

assistance and had a sound trial strategy in mind is not overcome. Badillo, 255 S.W.3d at 129.

       Generally, direct appeals are inadequate vehicles for Strickland claims because the record

is usually undeveloped. Goodspeed, 187 S.W.3d at 392. This is true with regard to claims of

deficient performance where counsel’s reasons for claimed errors do not appear in the record. Id.

A reviewing court should not find deficient performance unless trial counsel has had an

opportunity to explain his actions or the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Id; see Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003). Accordingly, “a silent record on the reasoning behind counsel’s actions is sufficient

to deny relief.” Badillo, 255 S.W.3d at 129.

       Even if an appellant is able to demonstrate deficient performance, he must still

affirmatively prove prejudice by showing a reasonable probability that “but for counsel’s

unprofessional errors” the outcome at trial would have been different. Strickland, 466 U.S. at 694;

Jimenez, 364 S.W.3d at 883. A reasonable probability is one that is sufficient to “undermine

confidence” in the outcome of the trial. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

Failure to make the required showing of either deficient performance or sufficient prejudice defeats

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the ineffectiveness claim. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d

482, 500 (Tex. Crim. App. 1996)).

                     Eligibility for Deferred Adjudication Community Supervision

         Posos first claims his trial counsel was ineffective because she misunderstood the law

relating to eligibility for deferred adjudication community supervision. Posos pled not guilty to

the charge of interfering with the duties of a police officer. A jury found him guilty, and the trial

court placed him on probation for nine months. On appeal, Posos contends his trial counsel

rendered ineffective assistance because she did not inform him that pleading “not guilty” would

render him ineligible for deferred adjudication community supervision. Furthermore, Posos states

that during the punishment phase, trial counsel mistakenly requested deferred adjudication

community supervision, which the trial court denied, noting Posos was ineligible because Posos

had pled not guilty. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012).

         To prove ineffective assistance of counsel based on trial counsel’s alleged

misunderstanding of the law regarding deferred adjudication community supervision, Posos must

show it is apparent from the record that trial counsel’s actions were more than “mere mistake.”

See State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991) (en banc). Among other things,

the record must contain evidence that defendant’s decision would have been different if trial

counsel had correctly informed him of the law. 1 Id. at 731‒32. Trial counsel’s representation shall

be viewed in its totality to determine whether it was reasonably effective during the punishment

phase of the trial. Id. at 731; Ex Parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989); Ex


1
  Appellant must prove there is evidence to support the following four elements to establish an ineffective assistance
of counsel regarding trial counsel’s misunderstanding of the law on deferred adjudication: (1) defendant was initially
eligible to receive deferred adjudication; (2) counsel’s advice to go to the trial judge for sentencing was not given as
part of a valid trial strategy; (3) defendant’s decision to have the judge assess punishment was based on his attorney’s
erroneous advice; and (4) defendant’s decision would have been different if counsel had correctly informed him of
the law. See Recer, 815 S.W.2d at 731–32. Since Posos needs to prove all four elements, and we hold he has failed
to establish the last element, we need not address the other three elements.

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Parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). Each case must be reviewed based upon

its individual facts and circumstances. Recer, 815 S.W.2d at 731 (citing Ex Parte Gallegos, 511

S.W.2d 510, 511 (Tex. Crim. App. 1974)).

       We hold Posos does not satisfy the stated Recer requirement—the record is silent as to

whether Posos would have made a different decision, that is, pled guilty, had trial counsel correctly

informed him of the law regarding deferred adjudication community supervision. See Badillo, 255

S.W.3d at 129. In order to meet Strickland’s second prong, and to prove prejudice, Posos must

show that but for his trial counsel’s errors there was reasonable probability that the result of the

proceedings would have been different. See Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim.

App. 2012). The prejudice prong turns on whether the deficiency made any difference to the

outcome of the case. Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012). As noted, there

is no evidence in the record Posos would have pled guilty, and thus, no evidence of a different

outcome.

       Posos argues his trial counsel’s request for deferred adjudication during the punishment

phase is some evidence he would have pled guilty in order to have a chance to receive deferred

adjudication community supervision. We disagree. The record does not clearly establish Posos

would have pled guilty had he known a “not guilty” plea would make him ineligible for deferred

adjudication. See Recer, 815 S.W.2d at 730 (holding defendant must show he would have made a

different decision if properly informed). We hold the record does not show Posos would have

entered a guilty plea because neither Posos’s intentions, nor his trial counsel’s advice, are clearly

stated in the record. Cf., Garcia v. State, 308 S.W.3d 62, 73‒75 (Tex. App.—San Antonio 2009)

(holding record clearly shows trial counsel’s assistance was prejudicial). Thus, because Posos’s

ineffective assistance claim is not firmly founded in the record, we hold Posos has failed to

establish trial counsel’s assistance was ineffective. We overrule his first issue.

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                        Other Alleged Instances of Ineffective Assistance

       Posos also contends his trial counsel was ineffective because she: (1) attempted to present

inadmissible evidence to the jury; (2) replayed a prejudicial 911 recording during closing

argument; (3) failed to call witnesses during punishment; (4) was unaware of Posos’s previous

convictions; and (5) inadequately prepared and presented the motion for new trial.

       Regarding Posos’s first four contentions, the record does not affirmatively demonstrate

trial counsel lacked a sound trial strategy or acted outside the proper range of reasonable and

professional assistance. See Jimenez, 364 S.W.3d at 883; Badillo, 255 S.W.3d at 129; see also

Goodspeed, 187 S.W.3d at 392.

       First, Posos argues his trial counsel attempted to present inadmissible evidence to the jury.

Posos contends his trial counsel should not have attempted to introduce a San Antonio Police

Department disciplinary report, which showed one of the police officers that arrested Posos was

reprimanded for failing to note in his report that he drew his weapon. However, the record shows

trial counsel tried to admit such evidence in order to attack the credibility of a witness, a police

officer. We hold this was sound strategy.

       Next, Posos contends trial counsel erred in replaying a 911 recording from the night of his

arrest. Posos claims the recording, played for the second time during closing argument, shows

him screaming and angrily cursing at the officers, and could have prejudiced the jury. However,

the record shows trial counsel used the recording to show discrepancies between witnesses’

testimonies. See Jensen v. State, 66 S.W.3d 528, 544 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d) (noting introduction of evidence to attack credibility of witnesses may be sound trial

strategy). This too was a sound strategy.

       With respect to Posos’s contentions that trial counsel was ineffective by failing to present

witnesses during the punishment phase and being unaware of Posos’s prior DWI convictions, the

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record is silent. See Badillo, 255 S.W.3d at 129. The record does not show whether witnesses

were available to testify and the benefit Posos would have obtained from such testimony. See

Garza, 213 S.W.3d at 347‒48; see also Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim.

App. 2005) (holding appellant failed to establish trial counsel’s deficient performance for failure

to call witnesses at guilt-innocence and punishment stage when appellant could not identify

specific witnesses that should have been called, that such witnesses were available to testify, and

that their testimony would have benefitted him). Thus, Posos’s claim in this regard is not firmly

founded in the record.

           Finally, the record does support Posos’s contention that his trial counsel inadequately

prepared and presented the motion for new trial. Trial counsel did not file a sworn and notarized

affidavit; she improperly made hand-written edits to the affidavit; and she did not present copies

of the motion for new trial at the hearing. 2 The record shows the judge refused the admission of

the affidavit because it was not sworn and notarized and there was “additional writing” calling into

question its authenticity. See TEX R. EVID. 901 (requiring authentication “as a condition precedent

to admissibility that is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.”). Also, trial counsel cited inapplicable law in the motion

for new trial, and erroneously asked for a judgment notwithstanding the verdict in the alternative,

which applies only in civil cases. See TEX. R. CIV. P. 301. Therefore, considering the errors trial

counsel committed, we hold no competent attorney would have made the same decisions with

regards to the motion for new trial. See Andrews, 159 S.W.3d at 101; see also Perez, 310 S.W.3d

at 893.




2
    See TEX. R. CIV. P. 21.

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       Nonetheless, we hold trial counsel’s deficiencies in this respect did not cause Posos to

suffer such prejudice that the “outcome would have been different but for the alleged errors.” See

Howard v. State, 239 S.W.3d 359, 368 (Tex. App.—San Antonio 2007, pet. ref’d); Strickland, 466

U.S. at 694. In other words, Posos has failed to show a reasonable probability that had his trial

counsel properly prepared and presented his motion for new trial, it would have been granted. See

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding that although motion to

suppress would have been appropriate vehicle to challenge alleged illegal search, appellant failed

to prove such motion would have been granted, thereby failing to satisfy Strickland); see also Ryan

v. State, 937 S.W.2d 93, 104 (Tex. App.—Beaumont 1996) (holding failure of trial counsel to file

appropriate pretrial motions was not ineffective counsel because appellant failed to identify basis

in record for granting motions. Accordingly, we overrule Posos’s remaining issues.

                                          CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.

                                                     Marialyn Barnard, Justice



DO NOT PUBLISH




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