Perez v. State

• Decision Date: 26 May 2010
• Docket Number: No. PD-0560-09.,PD-0560-09.
• Citation: 310 SW 3d 890
• Parties: Oscar PEREZ Jr., Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

310 SW 3d 890

Oscar PEREZ Jr., Appellant, v. The STATE of Texas.

No. PD-0560-09.

Court of Criminal Appeals of Texas.

May 26, 2010.

Tommy James Stickler, Alvin, for Appellant.

David A. Dowdy, Asst. Crim. Dist. Atty., Angleton, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion for a unanimous Court.

Appellant, Oscar Perez Jr., was convicted of aggravated robbery, and the court assessed punishment at thirty-five years' confinement. Appellant's second court-appointed attorney filed a motion for new trial citing ineffective assistance of counsel. The hearing on the motion for new trial focused on the lack of preparation performed by Appellant's trial counsel and the witnesses who could have testified on Appellant's behalf had they been contacted. The trial court denied the motion for new trial, and Appellant appealed to the Fourteenth Court of Appeals. The court of appeals concluded that trial counsel's performance was deficient, but that the proposed witnesses would not have benefitted Appellant. We granted review to consider whether the court of appeals erred by failing to conclude that Appellant was prejudiced by his counsel's deficient performance. We will affirm the court of appeals.

I. Facts

On the evening of November 30, 2005, two men wearing bandanas around their faces entered the home of Maria Rangel. Maria lived there with her thirteen-year-old son, Ernesto. When one intruder's bandana slipped, she recognized him as Marcus,¹ a friend of her older son. She did not recognize the other man. Marcus demanded money and then rummaged through Maria's belongings, pointing a knife in her direction the entire time. Ernesto was able to recognize both men. He identified the man whose face remained partially covered as Appellant. Ernesto knew Appellant as his brother's ex-girlfriend's brother. They had met approximately three times. According to Ernesto, Appellant pointed a knife at him while Marcus "trashed everything."

II. Trial court

Appellant was charged with aggravated robbery and burglary of a habitation. However, after the State rested, it asked to reopen for the purpose of presenting more testimony regarding the use of a deadly weapon.² The State also informed the judge that it would be abandoning Count 2 of the indictment, the burglary of a habitation charge, and proceeding only on Count 1, the aggravated robbery charge. In response, defense counsel, Mark Racer, requested an instruction on the lesser-included offense of robbery in exchange for the State's reopening. As a result, the jury charge included instructions on aggravated robbery and robbery, and it did not include the burglary offense. The jury returned a verdict finding Appellant guilty of aggravated robbery. The judge entered a deadly-weapon finding and sentenced Appellant to thirty-five years' confinement.

After the date of judgment, Racer filed a motion to withdraw as counsel. The court appointed another attorney, Tom Stickler, to represent Appellant. Stickler filed a motion for new trial citing five grounds, including ineffective assistance of counsel. At the hearing on Appellant's motion for new trial, Racer testified that his attorney fee voucher noted an hour and a half of trial preparation. A court-appointed investigator listed four people who could possibly have served as witnesses for Appellant at trial had Racer sought their testimony. One of the people named was Roselie Padilla. She lived in a two-bedroom apartment with seven other people, including Appellant. Appellant slept on the sofa in the living room, near to Padilla and her son, both of whom slept on the floor. In her affidavit, offered at the hearing as evidence of an alibi, she stated that she was certain Appellant slept on the couch every night the week of the robbery.³ The court denied the motion for new trial, finding that Appellant did not meet his burden of showing prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III. Strickland

Strickland defines the elements required to show ineffective assistance of counsel. Id. at 687, 104 S.Ct. 2052. There are two required components: a performance component and a prejudice component. Id.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.

Id. To satisfy this prong of the analysis, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" based upon "prevailing professional norms." Id. at 688, 104 S.Ct. 2052. For this performance inquiry we consider all of the circumstances, with "a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 688-89, 104 S.Ct. 2052.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052. To satisfy this element, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. To succeed on an ineffectiveness claim, a defendant must show both components; failure to show either deficient performance or prejudice will defeat the ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The defendant bears the burden of proving ineffectiveness by a preponderance of the evidence. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.App.2005); Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). It was Appellant's failure to show the second prong that resulted in the denial of his motion for new trial.

IV. Court of appeals

On appeal, Appellant argued that the trial court erred by denying his motion for new trial. Specifically, he cited the failure to pursue his alibi witness and the failure to do "any meaningful preparation or investigation" as constituting ineffective assistance of counsel. The court of appeals reviewed Appellant's claim under Strickland's two-prong test. Perez v. State, No. 14-07-00414-CR, 2008 WL 5220302, 2008 Tex.App. LEXIS 9293 (Tex.App.-Houston 14th Dist. Dec. 11, 2008, pet. granted).

Under the first prong, the court decided that counsel's performance was deficient based on the totality of the circumstances. Id. 2008 WL 5220302, at *5, 2008 Tex.App. LEXIS, 9293 at *13-14. In particular, the court noted the following facts as evidence that counsel's representation fell below the standard of prevailing professional norms: Racer met with Appellant only two or three times before trial; he prepared for an hour and a half the day before the trial commenced; and, at trial, he did not present any witnesses or offer any evidence at all. Id. 2008 WL 5220302, at *4-5, 2008 Tex.App. LEXIS 9293, at *11-13. Therefore, the court concluded that Appellant met his burden under Strickland's performance component.

Turning to the second prong, the court evaluated whether counsel's failure to call witnesses at trial prejudiced the defense. The court reviewed Padilla's affidavit and the testimony of Christina Pereda, who appeared at the hearing. Pereda lived in the same apartment as both Appellant and Padilla. Pereda said that while she could not provide an alibi for Appellant, Padilla could, and that she would have given Padilla's contact information to Racer had she been given the opportunity to talk with him. The court found Pereda's testimony and Padilla's affidavit to be too unspecific to be helpful, and concluded that counsel's deficient performance did not affect the judgment. Id. 2008 WL 5220302, at *6, 2008 Tex.App. LEXIS 9293, at *16-17. Because Appellant did not satisfy his burden under Strickland's prejudice component, the court of appeals decided that Appellant had not received ineffective assistance of counsel. Id. 2008 WL 5220302, at *6-7, 2008 Tex.App. LEXIS 9293, at *18.

V. Analysis

We granted review to consider whether the court of appeals erred by failing to conclude that Appellant was prejudiced by Racer's deficient performance. This issue pertains to Strickland's second prong, and therefore we need not repeat the court of appeals's analysis under the first prong, which determined that counsel's performance was deficient. Counsel had "a duty to make reasonable investigations or to make a reasonable decision that particular investigations were unnecessary," and the record clearly shows that this duty was neglected.⁴ Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Turning to the issue before this Court, Appellant asserts that he met his burden under the second Strickland prong by showing that if Racer had properly investigated and prepared for trial, Padilla would have served as an alibi witness, and the jury would have likely found Appellant not guilty. To succeed under the prejudice component, Appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. It will not suffice for Appellant to show "that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. Rather, he must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052. We review the totality of the evidence when evaluating Appellant's ineffectiveness claim. Id.

So, we ask whether there is a reasonable probability that the jury would have had a reasonable doubt as to Appellant's guilt had Padilla appeared at trial...