Opinion filed August 8, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                  Nos. 11-12-00115-CR & 11-12-00116-CR
                                __________

                    TERRY TAFOYA NAVA, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 35th District Court
                             Brown County, Texas
                  Trial Court Cause Nos. CR21413 & CR21420


                      MEMORANDUM OPINION
      Terry Tafoya Nava appeals her felony convictions for possession of a
controlled substance and for possession of a controlled substance in a drug-free
zone. After a bench trial, the trial court assessed punishment at confinement for
one year and twelve years, respectively, to run concurrently. Appellant complains
that she was denied effective assistance of counsel. We affirm.
                                 I. Trial Evidence
      Appellant was arrested for possession of methamphetamine during a traffic
stop. She was stopped for driving a vehicle that did not have a current registration
sticker or inspection sticker, and her driver’s license was expired. Appellant
appeared to be under the influence of a controlled substance, so the officer
conducted a field sobriety test. After she was arrested for driving under the
influence, Appellant admitted to using methamphetamine earlier that day.
Appellant also admitted that she had drugs in her purse. Appellant was indicted for
possession of less than one gram of a controlled substance.
      Three months later, the police served a search warrant at the apartment of
Appellant’s son while his girlfriend, two children, and Appellant were present.
When officers said they were looking for drugs, Appellant told police to look
under the bathroom sink. Officers found a “dope kit,” which was described as “a
blue container containing various pieces of drug paraphernalia consistent with
methamphetamine.” The dope kit included “a small Altoids candy tin,” plastic
baggies, “a snorting straw,” and a “bent” business card.          The officers also
discovered in Appellant’s purse, which was lying on a child’s high chair in the
kitchen, two glass pipes and two baggies that contained white residue as well as
another bent business card. Appellant claimed at the time that the contraband
belonged to her, but later she testified that the drugs and paraphernalia belonged to
her son. She said that she had claimed them to protect him. Appellant told the trial
court that her son “was already looking at some time” because police had “caught”
him “with some stuff and they were just watching him.” Appellant was charged
with possession of less than one gram of methamphetamine in a drug-free zone
because the apartment was located next to a middle school.
      When the State announced ready for trial, Appellant’s counsel told the trial
court that Appellant wanted the trial court to appoint new counsel for her.
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Appellant complained that her attorney failed to communicate with her prior to
trial and complained that counsel called her the night before the court appearance
to inform her of a five-year plea offer. Appellant also said that her counsel told her
to be prepared “to be taken into custody” on her court date if she accepted the deal.
      Appellant claimed that her counsel did not explain the written waiver of jury
trial to her before he told her to sign it. The trial court clarified the record so that it
would reflect that Appellant wished to plead not guilty. The trial court also ex-
plained to Appellant that counsel for a defendant must convey to his or her client
any plea offer from the State. After the trial court concluded that Appellant
knowingly and voluntarily executed her jury waiver, the trial court denied
Appellant’s request for another lawyer. The trial court explained that it did not
find that counsel had “done anything wrong in terms of his representation of
[Appellant] at this point.” The case proceeded to trial.
                                   II. Issue Presented
      Appellant complains on appeal that she received ineffective assistance of
counsel because trial counsel (1) conveyed the State’s offer to her the day before
trial, (2) failed to discuss trial strategy with her, (3) conducted limited cross-
examination, and (4) failed to call witnesses during the guilt phase of trial and
failed to call additional witnesses during the punishment phase of trial. The State
argues that Appellant’s complaints concern “strategic considerations” that had “no
effect” on the trial. The issue before the court is: Did Appellant satisfy both the
performance and the prejudice prongs under Strickland to sustain her claim of
ineffective assistance of counsel? Strickland v. Washington, 466 U.S. 668, 686
(1984).




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                              III. Standard of Review
      When reviewing a claim of ineffective assistance of counsel, the court must
determine whether counsel’s performance “so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686. To make this determination, we consider
“the totality of the representation and the circumstances of each case without the
benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.
2011).   We consider whether counsel’s performance was deficient and assess
whether any prejudice resulted from the representation. Hernandez v. State, 988
S.W.2d 770, 772 (Tex. Crim. App. 1999).
      Appellant must show under the performance prong of Strickland that trial
counsel’s representation fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 687.      We presume that trial counsel’s conduct was
reasonable, and to overcome this presumption, the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999); Isham v. State, 258 S.W.3d 244, 250 (Tex. App.—
Eastland 2008, pet. ref’d). When direct evidence is not available, we will assume
that defense counsel had a strategy, if any reasonable or sound strategic motivation
is possible. Lopez, 343 S.W.3d at 143; see also Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001) (In the absence of direct evidence of counsel’s
reasoning, we “will assume a strategic motivation if any can possibly be
imagined.”).
      For the prejudice prong, the court decides whether there is a reasonable
probability that the outcome would have been different “but for” counsel’s errors.
Strickland, 466 U.S. at 686; Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App.
2005). “[T]he analysis of 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,
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458 (Tex. Crim. App. 2012). “This is a heavy burden which requires a
‘substantial,’ and not just a ‘conceivable,’ likelihood of a different result.” United
States v. Wines, 691 F.3d 599, 604 (5th Cir. 2012). Courts may dispose of a claim
of ineffective assistance when an appellant fails to prove either prong of the
Strickland test. Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (citing
Strickland, 466 U.S. at 687).
                                     IV. Analysis
      A. Alleged Failure to Timely Convey Plea Offer
      Appellant’s first complaint is that trial counsel “only advised Appellant of
the plea offer the day before trial.” “[C]riminal defense attorneys have a duty to
inform their clients of plea agreements proffered by the prosecution.” Ex parte
Wilson, 724 S.W.2d 72, 74 (Tex. Crim. App. 1987) (quoting Johnson v.
Duckworth, 793 F.2d 898, 902 (7th Cir. 1986)). Failing to inform a client of a plea
agreement offered by the State “constitutes ineffective assistance of counsel under
the sixth and fourteenth amendments.” Id. Appellant has not cited any authority
that trial counsel must inform her of a plea offer at an earlier stage or explained
how trial counsel was deficient in failing to inform her of a plea offer until the day
before trial. Appellant rejected the State’s plea agreement and pleaded not guilty.
Even if it was error for trial counsel to wait until the day before trial to inform her
of the offer, Appellant has failed to show that the result would have been different
because she rejected the offer.
      B. Alleged Failure to Apprise Appellant of Trial Strategy
      Appellant also complains that her counsel was ineffective because he
“seemingly did not discuss trial strategy with appellant.” Appellant appears to
complain that she did not know before trial what strategy trial counsel intended to
use. Trial counsel has “a duty to make reasonable investigations or to make a
reasonable decision that . . . particular investigations [were] unnecessary.”
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Strickland, 466 U.S. at 691. The “brevity of time” that counsel spends consulting
with a defendant, without more, does not establish ineffective assistance. Jones v.
Estelle, 622 F.2d 124, 127 (5th Cir. 1980). Instead, to establish a claim based on a
failure to discuss trial strategy, Appellant must show that counsel was not
adequately prepared. Id.
      The Fifth Circuit has explained that, regardless of the time spent meeting
with the defendant, counsel must have “devoted sufficient time to insure an
adequate defense and to become thoroughly familiar with the facts of the case and
the law applicable to the case.” Easter v. Estelle, 609 F.2d 756, 759 (5th Cir.
1980). To establish prejudice, an appellant must show that further discussion
would have changed the trial’s outcome. See Perez v. State, 310 S.W.3d 890, 894
(Tex. Crim. App. 2010) (concluding that, while counsel failed to investigate an
alibi witness identified by the appellant, there was no showing the testimony would
have changed the result).
      Although Appellant filed a motion for new trial asserting that the judgment
was contrary to the law and should be vacated in the interest of justice, the court
cannot determine from the record what discovery was conducted or the nature and
extent of counsel’s trial preparation. Because we have no explanation of strategy
from trial counsel, any assessment of strategy would call for speculation.
Jackson v. State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994). As a result,
Appellant must rebut the presumption that counsel’s decisions were reasonably
professional and motivated by sound trial strategy. See id.
      Our review of the record reflects that the defensive theory presented by
counsel was that the drugs were not her drugs. Trial counsel made the point that
Appellant was not in exclusive possession of the place where the drugs were
found. When he questioned officers about who else had access to the drugs and
whether Appellant’s son had been indicted at the time of the search, counsel
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advanced the theory that the drugs were those of Appellant’s son. Trial counsel
argued during the guilt phase of trial that Appellant had claimed that the drugs
were hers “to protect her boy who was under indictment at the time.”
      Counsel continued that theme during the punishment phase.              He asked
Appellant during the punishment phase why she told the officers that the drugs and
paraphernalia were hers, and she told the trial court that her son had been caught
with drugs, was being watched, and faced imprisonment. Appellant explained, “I
lied because I would do anything for my children,” and she said, “I didn’t want
them to have more stuff on him.”
      Contrary to Appellant’s claim, counsel must have consulted with her at some
point prior to trial or he would not have known to present those matters during
trial. When Appellant asked the trial court to appoint new trial counsel, Appellant
stated, “[H]e is my attorney, even if he is court-appointed, and he should be telling
me what is going on, and he didn’t.” If Appellant’s complaint is that counsel did
not discuss at length the details of the defense, this complaint does not constitute
ineffective assistance of counsel without a showing of how Appellant would have
benefited from discussing trial strategy in more detail. Nothing in the record shows
counsel’s representation was deficient in this regard; even if we were to assume
that it was deficient, Appellant has failed to show that trial counsel’s strategy was
unsound or that, if had he further discussed trial strategy with her, there is a
reasonable probability that the trial’s outcome would have been different.
      C. Alleged Failure to Complete More Cross-Examination
      Appellant further contends that trial counsel was ineffective because he
“conducted limited cross-examination of witnesses.”          The extent of cross-
examination does not prove ineffective assistance. Matthews v. State, 830 S.W.2d
342, 347 (Tex. App.—Houston [14th Dist.] 1992, no pet.). The decision not to
cross-examine a witness may be based on reasonable trial strategy because of the
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fear of alienating the jury or appearing too aggressive. Navarro v. State, 154
S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Counsel
questioned the officer about other people in the apartment who had access to the
drugs and about Appellant’s son being indicted. Appellant does not explain what
could have been achieved by further cross-examination of the trial witnesses. We
fail to see how further cross-examination could have helped her case.             We
conclude that Appellant has not shown that defense counsel’s cross-examination of
witnesses was deficient.
      D. Alleged Failure to Call More Witnesses
      Appellant next complains that trial counsel failed to call any witnesses
during the guilt phase of trial and failed to call witnesses, besides her, during the
punishment phase.     Appellant can only establish an ineffective-assistance-of-
counsel claim, based on a failure to call witnesses during trial, with evidence in the
record to show that those witnesses were available to testify and that the testimony
would have benefited the case. Hunnicutt v. State, 531 S.W.2d 618, 625 (Tex.
Crim. App. 1976), overruled in part on other grounds by Hurley v. State, 606
S.W.2d 887, 889–90 (Tex. Crim. App. 1980). Although Appellant complains that
trial counsel failed to call witnesses, there is nothing in the record to show what
witnesses he should have called, whether those witnesses would have been
available to testify, and what those witnesses would have testified to if they had
been called and had testified. In the absence of such information, we cannot say
that trial counsel provided ineffective assistance when he did not call additional
witnesses.
                                   V. Conclusion
      The court has considered the totality of the representation provided by trial
counsel and concluded that Appellant has not satisfied both the performance and


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prejudice prongs under Strickland to sustain her claim of ineffective assistance of
counsel. Appellant’s sole issue on appeal is overruled.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


August 8, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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