                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00137-CR


                       TIMOTHY BRYAN GARZA, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 371st District Court
                                  Tarrant County, Texas
              Trial Court No. 1245376D, Honorable Mollee Westfall, Presiding

                                     January 14, 2014

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant was convicted of assault causing bodily injury against a family member

and placed on deferred adjudication for five years.        The State filed a motion to

adjudicate appellant guilty after he committed another assault against the same victim in

violation of the terms and conditions of his community supervision. After a hearing, he

was found guilty and sentenced to ten years confinement.           He now appeals that

conviction contending 1) the trial court abused its discretion in finding he violated his
probation, and 2) he received ineffective assistance of counsel.            We affirm the

judgment.

       Background

       Via its motion to adjudicate, the State alleged that appellant ―on or about the 29 th

day of June, 2012, in the County of Tarrant and State of Texas, did then and there

intentionally or knowingly cause bodily injury to Melanie Ruiz, a member of the

defendant’s family or household, or a person whose relationship is, or whose

association with defendant has been, a continuing dating relationship of a romantic or

intimate nature, by pushing or forcing her to the floor with his hand, or by squeezing her

neck with his hand." According to the evidence, Ruiz had lived with appellant off and on

for several years, and he had fathered their daughter.

       At the time of the incident, Ruiz and appellant were not living together. However,

she called appellant to come to her house, had second thoughts about the matter, and

withdrew the invitation. Apparently, the father of her child was also the subject of a

protective order barring him from being in Ruiz' presence. He came over anyway and

refused to leave when directed to do so. This resulted in appellant entering the abode

through its bathroom window. Thereafter, appellant and Ruiz began arguing. At some

point, he grabbed her arms, hit and punched her, pushed her to the ground with his

hands, and choked her until she momentarily blacked out. He relented and began to

apologize. Yet, the assault began anew and resulted in appellant gaining possession of

Ruiz' keys and cell phone. At that point, she went to her bedroom and fell asleep.

       Mention of the assault was not made until several days later when Ruiz was

arrested at a party after falsely identifying herself to officers there present. Apparently,



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she was the subject of an outstanding warrant. At that point, she decided to inform the

officers of appellant's attack, and photographs were taken of various bruises and

scratches that Ruiz claimed he inflicted upon her.

         Issue One - Insufficient Evidence

         Appellant initially contends that the evidence supporting the decision to

adjudicate guilt was insufficient. Furthermore, it was insufficient not because none was

proffered but rather because the person who provided it could not be believed. We

overrule the issue.

         At a hearing on a motion to adjudicate guilt, the trial court is the trier of fact and

the arbiter of the credibility of the witnesses. Johnson v. State, 386 S.W.3d 347, 350

(Tex. App.—Amarillo 2012, no pet.); Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.—

Fort Worth 2000, pet. ref’d). In other words, it is free to choose who to believe. That

authority is inherent in assessing whether the trial court abused its discretion, the latter

being the applicable standard of review.           Johnson v. State, 386 S.W.3d at 350.

Obviously, the trial court opted to believe Ruiz' testimony as outlined above, and we

cannot disturb its decision to do so.

         In sum, there is of record ample testimony satisfying the State's obligation to

prove, by a preponderance of the evidence, the allegation in its motion to adjudicate

guilt.    The trial court's decision to grant that motion and adjudicate guilt has sufficient

evidentiary support.

         Issue Two - Ineffective Assistance of Counsel

         Next, appellant claims he received ineffective assistance of counsel. We overrule

the issue.



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       To succeed, appellant was obligated to prove not only that his counsel’s

performance was deficient but that the deficiency prejudiced him. Perez v. State, 310

S.W.3d 890, 892-93 (Tex. Crim. App. 2010). And, prejudice is established by showing

that there is a reasonable probability of a different result had the ineffectiveness not

occurred. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Both prongs

are elements to the claim, and both must be addressed by the claimant.

       Here, appellant focused his attack on the purported deficiencies in the conduct of

his trial attorney. Yet, no effort was taken to analyze or describe how there existed a

reasonable probability of a different result but for that conduct. Again, it is not enough

to show deficient performance; the claimant must also illustrate prejudice.           This

deficiency alone warrants the denial of his contention. Mathis v. State, 67 S.W.3d 918,

927 (Tex. Crim. App. 2002) (overruling a claim of ineffective assistance simply because

the complainant made no effort to address the element of prejudice).

       We further note that despite the rather extensive criticism levied upon trial

counsel by appellant and his new attorney, trial counsel was never afforded the

opportunity to defend, explain, or otherwise justify his conduct. This circumstance too

bodes in favor of rejecting the claim via this direct appeal. See Menefield v. State, 363

S.W.3d 591, 593 (Tex. Crim. App. 2012) (refusing to find counsel's performance

ineffective simply because neither the State nor trial counsel were afforded opportunity

to explain why trial counsel failed to object to the only evidence of guilt, which evidence

was clearly inadmissible).

       That trial counsel pursued a defense found objectionable by his appellate

replacement is also insufficient basis to deem his conduct defective. See Cueva v.



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State, 339 S.W.3d 839, 877 (Tex. App. – Corpus Christi 2011, pet. ref’d) (holding that

counsel is not ineffective because he pursued what another lawyer considers to be poor

trial strategy). Thus, trial counsel's effort to show that appellant was not at Ruiz’ home

on the night in question (and thereby vitiate Ruiz' credibility) rather than try to prove she

sought to induce him into violating a protective order is of no consequence.

       The allegation that trial counsel's cross-examination of a witness should have

been conducted in a different way also does not rebut the presumption that counsel's

efforts fell within the wide range of reasonable professional assistance.          Ex parte

McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Trial counsel may have had

a reason to forego certain avenues of examination that may have served to discredit

Ruiz while pursuing others.

       Finally, appellant's characterization of trial counsel as someone ignorant of the

law fails to achieve the desired goal as well. It may well be that the trial court sustained

various evidentiary objections levied against the manner in which counsel was

examining Ruiz or that trial counsel mistakenly suggested that the State was obligated

to prove appellant and Ruiz were in a current dating relationship.                 Appellant

nevertheless failed to explain how the outcome would have differed had those purported

mistakes not occurred.

       Accordingly, the judgment is affirmed.



                                                         Brian Quinn
                                                         Chief Justice

Do not publish.




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