




Affirmed and Majority and Dissenting Opinion filed December 11, 2008







Affirmed
and Majority and Dissenting Opinion filed December 11, 2008.
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-07-00414-CR
____________
 
OSCAR PEREZ, JR., Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the 412th
District Court
Brazoria County, Texas
Trial Court Cause No. 51,650
 

 
 M A J O R I T Y   O P I N I O N
A jury found appellant, Oscar Perez, Jr., guilty of
aggravated robbery.  See Tex. Penal Code Ann. '' 29.02, 29.03
(Vernon 2003).  The trial court assessed appellant=s punishment at
thirty-five years= confinement in the Institutional Division
of the Texas Department of Criminal Justice.  In his sole point of error,
appellant contends he received ineffective assistance of counsel.  We affirm.




Factual and Procedural Background
On November 30, 2005, appellant and Marcus Antonio Tavira,
each armed with a knife, kicked in the door to Maria Rangel=s home and
committed robbery.  Both men wore handkerchiefs around their faces, but Mr.
Tavira=s handkerchief 
slipped down during the course of the robbery, thereby exposing his face. 
Maria identified Mr. Tavira, but she could not identify appellant because she
never saw his face and did not pay attention to his body.  Maria=s son Ernesto, who
was thirteen at the  time of the robbery, recognized both appellant and Mr.
Tavira as the offenders.  Maria and Ernesto disagreed whether the robbery
occurred about 8:00 p.m. or 10:00 p.m., but they both agreed that it lasted
about ten minutes total.
At trial, Maria, Ernesto, and the officer who investigated
the scene of the robbery testified for the State.  The defense did not present
any witnesses or other evidence.
The jury found appellant guilty of aggravated robbery, and
the trial court sentenced him to thirty-five years= confinement in
the Institutional Division of the Texas Department of Criminal Justice.  After
the trial, appellant=s trial counsel, Mark Racer, filed a
motion to withdraw, and the court appointed appellant new counsel.  Appellant
filed a motion for new trial alleging, among other things, that he received
ineffective assistance of counsel at trial.  Specifically, appellant alleged
Mr. Racer failed to (1) interview and present an alibi witness or (2) do any
meaningful preparation or investigation for trial.  At the request of appellant=s new counsel, the
court appointed an investigator to speak with appellant regarding Mr. Racer and
to investigate and interview potential witnesses.  The investigator interviewed
appellant=s mother, his sister, and two alibi witnesses. 
In response to appellant=s motion for new
trial, the trial court held a hearing during which appellant, Mr. Racer, the
State=s attorney, the
investigator, appellant=s mother, and an alibi witness testified.    




Mr. Racer testified that from the time the court
administrator appointed him to defend appellant, he understood appellant was
charged with aggravated robbery, and that it was an habitual offender
first-degree felony case.  Appellant testified that prior to trial, Mr. Racer
visited him only twice while he was in jail.  In fact, on his fee voucher, Mr.
Racer only recorded these two visits.  Mr. Racer testified his notes revealed
one additional meeting, and he alleged he met with appellant several other
times.  However, he has no record of  those meetings.  The only preparation for
trial Mr. Racer recorded on his fee voucher is an hour and a half the weekend
before trial began.
Appellant testified he wrote several letters to the court
administrator stating his attorney was not visiting him, and Mr. Racer
testified he received a letter from appellant in which appellant complained Mr.
Racer would not comply with his requests or even respond to him.  Appellant=s mother testified
she called Mr. Racer several times on his office phone and his cell phone with
questions about the case but he did not answer.  She further testified she
began calling from an un-recognized number, at which point he answered her
calls and stated he would call her back when he had information for her
concerning the case.  She testified, however, the only time Mr. Racer called
her back was during the trial to ask for the number of an alibi witness. 
Appellant=s mother further testified Mr. Racer did not tell her
the dates of any hearings or of the trial. 
Mr. Racer testified appellant told him about Christina
Pereda, an alibi witness, during their first meeting, which was a year and a
half before trial.  According to Mr. Racer, he called Ms. Pereda on several
occasions, but she never returned his calls.  Ms. Pereda, however, testified
she never received any phone calls, messages, or letters from Mr. Racer.  She
further testified she did not even know who Mr. Racer was.  The only attempt to
contact Ms. Pereda that Mr. Racer noted in his file was a phone call on the day
trial began.  Mr. Racer testified he never visited the witness=s home, never
moved for a continuance to interview the witness, and never subpoenaed the
witness.




Mr. Racer testified that as a court appointed attorney, he
understood he had a duty to investigate.  Despite this duty, he did not
interview Ms. Pereda, and he did not investigate whether there were any other
possible witnesses.  At no point did Mr. Racer ask the court to appoint an
investigator to contact Ms. Pereda or to determine whether there were any other
witnesses.  Mr. Racer testified he did not ask for an investigator because he
could not get in contact with Ms. Pereda and because appellant did not state a
specific event that he and the witness attended at the time of the robbery.  
At the hearing, Ms. Pereda testified she did not personally
know appellant=s whereabouts the night of the robbery, but she stated
that Roselie Padilla might know.  She further testified if Mr. Racer had
contacted her before trial, she would have provided him this information.
Ms. Padilla did not attend the hearing, but she provided an
affidavit in which she testified she lived with appellant in a small house
along with several other people, including Ms. Pereda.  She did not provide a
specific event that she and appellant attended the night of the robbery, rather
she only testified generally that appellant was always home about 10:00 p.m.,
and the week of the robbery was no different. 
At the hearing, appellant testified Mr. Tavira, the
co-defendant, would have provided favorable testimony.  The record reveals Mr.
Tavira accepted a plea bargain, which required him to waive all appeals before
appellant=s trial.  Mr. Racer testified he was unaware of the
plea bargain and assumed Mr. Tavira=s case was still
pending; therefore, he made no attempts to interview Mr. Tavira.
The trial court denied appellant=s motion for new
trial, and this appeal followed.
Discussion
In his single issue on appeal, appellant argues he received
ineffective assistance of counsel at trial because his trial counsel failed to
(1) interview and present an alibi witness or (2) do any meaningful preparation
or investigation for trial.  Therefore, appellant contends the trial court
erred in denying his motion for new trial.
 




I. 
Standard of Review              
A.  Motion for New Trial
We review the denial of a motion for new trial for an abuse
of discretion.  Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). 
The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial court=s action; rather
it is a question of whether the trial court acted without reference to any
guiding rules or principles, and the mere fact that a trial court may decide a
matter within its discretionary authority differently than an appellate court
does not demonstrate such an abuse.  State v. Herndon, 215 S.W.3d 901,
907B08 (Tex. Crim.
App. 2007).  We do not substitute our judgment for that of the trial court.  Lewis,
911 S.W.2d at 7.  We review the evidence in the light most favorable to the
trial court=s ruling and presume that all reasonable findings that
could have been made against the losing party were so made.  Quinn v. State,
958 S.W.2d 395, 402 (Tex. Crim. App. 1997).  Only when no reasonable view of
the record could support the trial court=s ruling do we
conclude the trial court abused its discretion by denying the motion for new
trial.  Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
B.  Ineffective Assistance of Counsel
In reviewing claims of ineffective assistance of counsel,
we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740
(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).  To establish ineffective assistance of
counsel, appellant must prove by a preponderance of the evidence that (1) his
trial counsel=s representation was deficient in that it fell below
the standard of prevailing professional norms and (2) there is a reasonable
probability that, but for counsel=s deficiency, the
result of the trial would have been different.  Id. (citing Strickland,
466 U.S. at 687B88, 104 S.Ct. at 2064B65).  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).




An accused is entitled to reasonably effective assistance
of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). 
When evaluating a claim of ineffective assistance, we look to the totality of
the representation and the particular circumstances of each case.  Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong
presumption that counsel=s actions and decisions were reasonably
professional and were motivated by sound trial strategy.  Salinas, 163
S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th
Dist.] 2000, pet. ref=d).  To overcome the presumption of
reasonable professional assistance, any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.  Thompson, 9 S.W.3d at 814.  When determining
the validity of an ineffective assistance of counsel claim, any judicial review
must be highly deferential to trial counsel and avoid the deleterious effects
of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App.
1984).  When the record is silent as to the reasons for counsel=s conduct, a
finding that counsel was ineffective would require impermissible speculation.  Stults,
23 S.W.3d at 208.  Absent specific explanations for counsel=s decisions, a
record on direct appeal will rarely contain sufficient information to evaluate
an ineffective assistance claim.  Bone v. State, 77 S.W.3d 828, 833
(Tex. Crim. App. 2002).
II. 
Appellant=s Trial Counsel Was Not Ineffective
A.  Appellant=s Trial Counsel
Was Deficient          




A criminal defense lawyer has a duty to make an independent
investigation of the facts of a case, which includes seeking out and
interviewing potential witnesses.  Ex parte Welborn, 785 S.W.2d 391, 393
(Tex. Crim. App. 1990).  A breech of the duty to investigate may result in a
finding of ineffective assistance Awhere the result
is that any viable defense available to the accused is not advanced.@  Ex parte
Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).  In defining the duty
to investigate, the United States Supreme Court has stated that Acounsel has a duty
to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.  In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference
to counsel=s judgments.@  Strickland,
466 U.S. at 691, 104 S. Ct. at 2066.
 Appellant argues he received ineffective assistance of
counsel at trial because his trial counsel, Mr. Racer, failed to (1) interview
and present an alibi witness or (2) do any meaningful preparation or
investigation for trial.  We address these two arguments simultaneously because
adequately preparing and investigating for trial includes, among other things,
interviewing and presenting witnesses.  See Ex parte Welborn, 785 S.W.2d
at 393.
At the hearing on appellant=s motion for new
trial, Mr. Racer testified that, from the time the court administrator
appointed him to defend appellant, he understood appellant  was charged with
aggravated robbery and this would be an habitual offender first-degree felony
case.  The record demonstrates Mr. Racer met with appellant only two or three
times before trial.  Appellant testified he wrote several letters to the court
administrator complaining Mr. Racer was not visiting him, and Mr. Racer
testified he received letters to this effect.  Appellant=s mother testified
she unsuccessfully tried to contact Mr. Racer on his office phone and his cell
phone and was only able to reach him when she called from an un-recognized
number.  She testified when she did reach Mr. Racer, he told her he had no
pertinent information but he would call her when he did.  She also testified he
did not tell her the dates of any hearings or of the trial, and the only time
he called her was to ask for the number of an alibi witness during trial.
Mr. Racer testified that, as a court appointed attorney, he
understood he had a duty to investigate.  Nevertheless, Mr. Racer interviewed
no witnesses before trial and he never asked the court to appoint an
investigator to interview witnesses or search for potential witnesses.




Mr. Racer testified appellant told him about Ms. Pereda
during their first meeting.  Mr. Racer had a year and a half to pursue this
witness before trial, but his file indicated his only attempt to contact this
witness was on the first day of trial.  According to Mr. Racer, he made other
attempts to contact Ms. Pereda, which were not recorded in his file; however,
he testified he never visited her home, he never moved for a continuance to
interview her, and he never subpoenaed her.  At the hearing, Ms. Pereda
testified she never received any phone calls, messages, or letters from Mr.
Racer.  Mr. Racer=s reasons for not asking the court for an
investigator were that he could not get in touch with Ms. Pereda and appellant=s alibi was
non-specific in nature. 
Furthermore, Mr. Racer made the assumption Mr. Tavira=s case was still
pending, rather than inquiring about it.  Therefore, Mr. Racer remained unaware
of Mr. Tavira=s plea bargain, and he made no attempts to interview
him. 
The record reveals Mr. Racer prepared only an hour and a
half the weekend before trial began.  The record also reveals Mr. Racer did not
present any witnesses at trial and he did not put forth any other evidence. 
Prior to the hearing, and at the request of appellant=s newly appointed
counsel, the court appointed an investigator to speak with appellant regarding
Mr. Racer and to investigate and interview potential witnesses.  At the
hearing, the investigator testified that he interviewed appellant=s mother,
appellant=s sister, and the two alibi witnesses, Ms. Pereda and
Ms. Padilla.  Ms. Pereda gave the investigator Ms. Padilla=s name, who
provided the investigator with a sworn affidavit.
The investigator testified that, in a three week time
period, he spent thirty to forty hours investigating appellant=s case.  The
investigator further testified from his experience in criminal investigations,
thirty to forty hours is the minimum acceptable amount of preparation for this
type of case, and a lawyer who did not conduct this type of investigation, or
hire an investigator to do so, would not be reasonable. 




Based on the totality of Mr. Racer=s actions, or lack
thereof, and the particular circumstances of this case, we find Mr. Racer=s decisions were
not reasonably professional or motivated by sound trial strategy.  See
Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687B88, 104 S. Ct. at
2064B65); Stults,
23 S.W.3d at 208.  We conclude Mr. Racer=s representation
was deficient in that it fell below the standard of prevailing professional
norms.  See Salinas, 163 S.W.3d at 740 (citing Strickland, 466
U.S. at 687B88, 104 S. Ct. at 2064B65); Thompson,
9 S.W.3d at 813; see also Butler v. State, 716 S.W.2d 48, 56
(Tex. Crim. App. 1986) (holding counsel=s representation
deficient where counsel failed to seek out and interview an alibi witness as
well as two eyewitnesses who could testify to misidentification); Shelton v.
State, 841 S.W.2d 526, 527 (Tex. App.CFort Worth 1992,
no pet.) (holding counsel=s assistance deficient where counsel
failed to present available testimony in support of defendant=s alibi).  Thus,
appellant has met his burden under the first prong of our analysis.  See
Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687, 104
S. Ct. at 2064).
B.  Appellant Was Not Prejudiced by Counsel=s Deficiency
Trial counsel=s failure to call
witnesses at the guilt-innocence stage is irrelevant absent a showing that such
witnesses were available and appellant would benefit from their testimony.  King,
649 S.W.2d at 44.  Thus, we must determine whether appellant would have benefitted
from the absent witnesses= testimonies had Mr. Racer adequately
prepared for trial by investigating, interviewing, and presenting these
witnesses.  See id.
At the hearing, Ms. Pereda testified she did not personally
know of appellant=s whereabouts the night of the robbery but
she would have provided Ms. Padilla=s name because she
believed Ms. Padilla might have known.  She further testified that had Mr.
Racer contacted her, she would have provided him with this information. 
Because her testimony does not reveal a specific alibi, but rather leads to a
second witness, we must consider Ms. Padilla=s testimony to
determine whether Mr. Racer=s failure to act prejudiced appellant.




In her affidavit, Ms. Padilla stated she lived with
appellant in a small house along with several other people, including Ms.
Pereda, at the time of the robbery.  However, Ms. Padilla=s affidavit did
not provide a specific event that she and appellant attended the night of the
robbery.  Rather, Ms. Padilla testified generally that appellant was always
home by about 10:00 p.m., and the week of the robbery was no different.  Ms.
Padilla failed to provide a specific date or event; thus, her testimony did not
directly conflict with the testimony provided by the State. 
For support, appellant cites Shelton v. State.  In Shelton,
the defendant was
indicted for sexual assault of a minor.  Shelton, 841 S.W.2d at 526.  At trial, the
defendant=s counsel failed to call a witness whose testimony Acompletely
contradicted@ the only evidence supporting the State=s case.  Id. 
The complainant
testified he and the defendant slept together in the defendant=s bedroom the entire night of the
offense; however, the defendant=s alibi witness, if given the opportunity, would have
testified that on the night of the offense, she spent the night at the
defendant=s home and the defendant was away from home the entire night.  Id.
at 526B27.  
This is not the situation we have here.  In the instant
case, neither Ms. Pereda nor Ms. Padilla specified, in detail, the defendant=s actions or the
time he was home on the date of the robbery.  Therefore, neither witnesses= testimony
completely contradicted evidence provided by the State.  See id. at 526.[1] 
Assuming both of these witnesses would have been available to testify at trial,
the record does not establish appellant would have benefitted from their
testimony.  See King, 649 S.W.2d at 44.  




Additionally, appellant testified at the hearing that Mr.
Tavira would provide favorable testimony.  Nevertheless, appellant did not
present this witness or a sworn affidavit authored by this witness.  We cannot
speculate what this witness might have said.   Accordingly, while we agree Mr.
Racer=s assistance was
deficient, based on our review of the record as a whole, we find appellant
failed to show a reasonable probability that, but for the alleged deficiencies
of his trial counsel, the result of the trial would have been different.  See
 Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at
687, 104 S. Ct. at 2064). Thus, appellant has not shown he was prejudiced by
Mr. Racer=s failure to adequately prepare or investigate for
trial, failure to move for a continuance to investigate witnesses, failure to
hire an investigator to investigate witnesses, or failure to subpoena
witnesses.  See id. (citing Strickland, 466 U.S. at 687,
104 S. Ct. at 2064).  Therefore, appellant has not met his burden under the
second prong of our analysis.  See id. (citing Strickland, 466
U.S. at 687, 104 S. Ct. at 2064).
Because we have determined appellant did not receive ineffective
assistance of counsel, we further hold that the trial court did not abuse its
discretion when it denied his motion for new trial.  Accordingly, we overrule
appellant=s single issue on appeal.
Conclusion
Having overruled Appellant=s single issue on
appeal, we affirm the judgment of the trial court.
 
 
 
/s/      John S. Anderson
Justice
 
 
Judgment rendered
and Majority and Dissenting Opinion filed December 11, 2008.
Panel consists of
Justices Anderson, Frost, and Senior Justice Hudson.* (Frost, J. dissent)
Publish C Tex. R. App. P. 47.2(b).




[1]  Additionally, appellant cites Butler v. State, 716 S.W.2d 48
(Tex. Crim. App. 1986), for support.  In Butler, the court found the
defendant=s trial counsel rendered
ineffective assistance where he failed to investigate and call an alibi witness
and two eyewitnesses who could testify that someone other than the defendant
was actually the robber.  Id. at 56.  The alibi witness could testify,
in detail, the defendant was doing something else at the time of the offense.  Id.
at 51.  This too is not the case we have here.  In the instant case, the alibi
witnesses could not specify, in detail, the defendant=s actions or the time that he was
home on the date of the robbery.


*  Senior Justice J. Harvey Hudson sitting by
assignment.


