No. 4-03-00289-CR
Delivered and Filed: February 15, 2006. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-1190, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
Santiago Alvarado appeals his conviction for aggravated assault with a deadly weapon, and his resulting sentence of twenty years imprisonment. On May 19, 2004, this court issued an opinion abating the appeal and remanding to the trial court for an evidentiary hearing on Alvarado's motion for new trial alleging ineffective assistance based on counsel's failure to investigate the facts of the case; this court overruled all of Alvarado's other issues on appeal. In his supplemental brief, Alvarado asserts that, based on the motion for new trial record, he has established that his trial counsel rendered ineffective assistance by failing to conduct an independent factual investigation, and the trial court therefore abused its discretion by denying his motion for new trial; he also contends the trial court abused its discretion by limiting the evidence presented at the motion for new trial hearing. We overrule Alvarado's issues and affirm the trial court's judgment.
Factual Background
The facts of this case have already been set forth at length in our earlier opinion, and need not be repeated here. See Alvarado v. State, No. 04-03-00289-CR, 2004 WL 1102764 at *1-4 (Tex.App.-San Antonio May 19, 2004, no pet.) (not designated for publication). To the extent particular facts are important to the issue before us, they are discussed below. Suffice it to say here that Alvarado was convicted of shooting his live-in girlfriend's ex-husband, Sandro Salgado, in the early morning on December 28, 2000, and was sentenced to twenty years imprisonment. In our prior opinion, we held the evidence was legally and factually sufficient to support Alvarado's conviction, and the trial court did not abuse its discretion in denying his motion for mistrial after voir dire questioning was conducted using an improper enhancement allegation that was later dropped. Id. at *4-5. We now resolve Alvarado's remaining complaint on appeal, his allegation of ineffective assistance of counsel. Analysis
Alvarado asserts he was denied the effective assistance of trial counsel in violation of his rights under the Sixth Amendment to the United States Constitution and Art. I, § 10 of the Texas Constitution, as evidenced by the record from the motion for new trial hearing. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To establish ineffective assistance of counsel in a criminal trial, a defendant must prove two components by a preponderance of the evidence: (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999); Harling v. State, 899 S.W.2d 9, 12 (Tex.App.-San Antonio 1995, pet. ref'd). The Strickland standard applies to claims of ineffective assistance during both the guilt/innocence and punishment phases of trial. Hernandez, 988 S.W.2d at 772. To establish deficient performance, the first prong of the Strickland standard, the defendant must show that counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex.Crim.App. 1999); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). An appellate court does not view trial counsel's performance in hindsight; rather, it is judged based upon the facts of the particular case as viewed at the time of counsel's conduct. Thompson, 9 S.W.3d at 813. To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record. Id. The appellate court does not look at isolated acts or omissions to determine effectiveness, but reviews the totality of the representation. Id.; Harling, 899 S.W.2d at 12. Appellate review is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bone, 77 S.W.3d at 833. The reviewing court should not try to second guess counsel's tactical decisions which do not fall below the objective standard of reasonableness, especially when the decisions concern presentation of a defense. Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App. 1999). To establish deficient performance, a defendant must prove that there is "no plausible professional reason" for counsel's specific act or omission. Bone, 77 S.W.3d at 836. A defendant is not entitled to error-free representation. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). To satisfy the second prong of the Strickland standard, the defendant must establish prejudice. Hernandez, 988 S.W.2d at 772. "Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; Harling, 899 S.W.2d at 12 (citing Holland v. State, 761 S.W.2d 307, 314 (Tex.Crim.App. 1988)). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. Failure to make the required showing of either Strickland prong, deficient performance or sufficient prejudice, will defeat a claim for ineffective assistance of counsel. Id. at 813. Standard of Review.
We traditionally review a trial court's ruling on a defendant's motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). Under that standard, an appellate court must not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995) (at motion for new trial hearing, trial judge is trier of fact and sole judge of witnesses' credibility); Escobedo v. State, 6 S.W.3d 1, 8 (Tex.App.-San Antonio 1999, pet. ref'd). The trial court does not abuse its discretion in denying a motion for new trial when there is conflicting evidence on a fact issue. Lewis, 911 S.W.2d at 7. An appellate court should reverse a trial court for abuse of discretion only when it appears the court applied an erroneous legal standard, or when no reasonable view of the record could support its ruling, viewing the facts in the light most favorable to the court's ruling. Gutierrez v. State, 945 S.W.2d 287, 290 (Tex.App.-San Antonio 1997, no writ). Failure to Conduct an Independent Investigation of the Facts. Alvarado contends that his trial counsel's performance was deficient because he failed to conduct an independent investigation of the facts of the case in preparation for trial. Specifically, Alvarado claims the following omissions by his trial counsel fell below an objectively reasonable standard of professional conduct: (1) failure to interview any of the State's witnesses before trial; (2) failure to interview and call additional witnesses in support of Alvarado's time-line defense or to impeach the complainant's credibility; and (3) failure to investigate and present additional punishment evidence in the form of character evidence from his family and co-workers. It is well settled that trial counsel has a duty to make an independent investigation into the facts of the case, or to make a reasonable decision that makes a particular investigation unnecessary. McFarland v. State, 928 S.W.2d 482, 501 (Tex.Crim.App. 1996), overruled on other grounds, 983 S.W.2d 249, 264 n. 18 (Tex.Crim.App. 1998) (citing Strickland, 466 U.S. at 691). This duty includes a responsibility to seek out and interview potential witnesses. Ex parte Welborn, 785 S.W.2d at 393; see also Cantu v. State, 993 S.W.2d 712, 718 (Tex.App.-San Antonio 1999, pet. ref'd) (defense counsel should not as a matter of course blindly rely on veracity of client's version of facts or witness statements in State's file). We assess counsel's decision not to investigate particular facts for "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." McFarland, 928 S.W.2d at 501 (quoting Strickland, 466 U.S. at 691); Cantu, 993 S.W.2d at 718. An appellant claiming ineffective assistance based on failure to investigate must show how his representation would have improved from further investigation. Paez v. State, 995 S.W.2d 163, 171 (Tex.App.-San Antonio 1999, pet. ref'd). We will reverse a conviction for failure to investigate only if the consequence of the failure to investigate was that the only viable defense available to the accused was not advanced, and there is a reasonable probability that, but for counsel's failure to advance the defense, the trial's outcome would have been different. McFarland, 928 S.W.2d at 501 (citing Strickland, 466 U.S. at 694); Cantu, 993 S.W.2d at 718. In addition, failure to call a particular witness constitutes ineffective assistance only if appellant shows that such witness was available for trial and would have given testimony that actually benefitted the defense. King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983); Cantu, 993 S.W.2d at 719. At the hearing on the motion for new trial, Alvarado's trial counsel testified that he prepared for trial by discussing the facts of the case with Alvarado, interviewing his girlfriend Stephanie, and reviewing the State's file; he did not independently interview any witnesses other than Alvarado, Stephanie, and an aunt that lived down the street from Salgado. Counsel estimated that he spent about 45 minutes reviewing the State's file on two occasions, and reviewed all the police and detective reports, the EMS reports, and the multiple witness statements in the file; he specifically recalled reading the statements of Stephanie Watts-Lea, Cynthia Yancy, Sandro Salgado, and the detectives' reports. Counsel admitted he had a "preconceived idea about this trial," believing that Alvarado's defense based on the narrow time-line and the credibility of his own testimony would be sufficient to create at least a reasonable doubt in the jury's mind. In his assessment, there was not much that any other witnesses could add to Alvarado's defense. Counsel testified that the main defense theory was that Alvarado could not have committed the shooting because of the strict time-line between the time Alvarado clocked out of work at 2:02 a.m., the time EMS was dispatched to Salgado's house at 2:56 a.m., and the time Alvarado arrived home — at the earliest, 3:06 a.m., and at the latest, 3:16 a.m. Alvarado also presented an alibi defense by testifying that he had gone directly to his friend Alex Hernandez's house after work for a beer and had then gone straight home. Counsel described his overall trial strategy as a combination of using the narrow time-line to create reasonable doubt about Alvarado's ability to have committed the offense, the high credibility of Alvarado as a witness on his alibi, and impeaching the credibility of Salgado with the inconsistencies between his trial testimony, his written statements, and the physical evidence collected from the crime scene, e.g., the location of blood and shell casings at the scene that did not match where Salgado said he was standing when shot, and the presence of bullet holes in the jacket Salgado said he had removed before the shooting. Counsel stated he made the conscious decision not to call additional witnesses based upon his assessment of the strength of the State's case, the strict time-line that he believed made commission of the offense by Alvarado improbable, the strength of Alvarado as a witness in his own behalf, his interviews with Alvarado and Stephanie, and his awareness of the existence of certain information that he did not want presented to the jury, e.g., as discussed below, the possible presence of a woman at the scene. He believed this strategy, in combination, made a strong defense. Counsel testified that, even without the additional defense evidence now raised by Alvarado, he believed at the time that he had presented sufficient information through cross-examination of Salgado and the other State's witnesses to raise a reasonable doubt in the minds of the jurors as to Alvarado's guilt. In hindsight, Alvarado's counsel conceded that he could have done a better job defending Alvarado, agreeing that he should have interviewed other potential witnesses. The test, however, is not whether in hindsight counsel believes he could have, or should have, done more in his client's defense, but whether counsel's failure to investigate a particular matter precluded the presentation of his client's only viable defense, creating a reasonable probability of a different outcome. McFarland, 928 S.W.2d at 501; Cantu, 993 S.W.2d at 718. Therefore, we will assess whether counsel's decision not to interview and present the particular witnesses detailed below was reasonable under all the circumstances, giving heavy deference to counsel's judgment. McFarland, 928 S.W.2d at 501. 1. Failure to Interview State's Witnesses Before Trial Trial counsel stated he read the statements and reports by the State's witnesses, but did not interview any of the State's witnesses before trial. He testified the State did not call any witnesses at trial that were a surprise. Counsel testified that he reviewed all of the police and EMS reports, but made a conscious decision not to interview any of the law enforcement officers because he has found those types of pre-trial interviews not to be useful. He stated that his general policy is not to interview law enforcement officers before trial, but to cross-examine them using their reports during trial. The only law enforcement witness that Alvarado specifically identifies as someone who should have been interviewed before trial and called as a defense witness is Detective Joe Morris. Detective Morris did not testify at trial, and there was no evidence presented at the motion for new trial hearing that he was in fact available to testify during trial; Morris testified only that he would have spoken with Alvarado's attorney before trial if he had been contacted. Failure to interview and call Detective Morris therefore can not constitute ineffective assistance. King, 649 S.W.2d at 44; Cantu, 993 S.W.2d at 719. With respect to the complainant, Sandro Salgado, Alvarado's counsel stated he made a conscious decision not to contact him before trial because he did not believe Salgado would be willing to speak with him and he had reviewed his written statements. There is no indication in the record that these decisions by Alvarado's counsel not to interview Detective Morris or the complainant before trial prevented Alvarado from presenting his time-line and alibi defense; thus, this conduct by his counsel does not constitute ineffective assistance. McFarland, 928 S.W.2d at 501. 2. Failure to Interview and Present Additional Defense Witnesses. We next determine whether the failure to interview and present the testimony of the following potential defense witnesses was a reasonable decision by Alvarado's counsel under all the circumstances and viewed at the time rather than in hindsight, and whether his failure to interview those witnesses prevented Alvarado from presenting his only viable defense. In order to show that counsel was ineffective for failing to call the witnesses, the evidence must show that the witnesses were actually available for trial and that Alvarado's defense would have benefitted from their testimony. King, 649 S.W.2d at 44. Cynthia Yancy.
Alvarado argues that his attorney should have interviewed and called Cynthia Yancy to testify in order to impeach Salgado's credibility and to raise the possibility of a female suspect. The written statement given by Cynthia Yancy, a neighbor of Salgado's, said that she heard a woman's voice arguing with Salgado immediately before the shooting. Yancy did not testify at trial. At the motion for new trial hearing, Yancy testified that sometime after 2:00 a.m. on December 28, right before she heard the gunshots, she heard a female voice arguing with Salgado outside, and assumed it was Salgado's ex-wife. She testified that immediately after the gunshots the female voice screamed, "Oh my God;" her written statement only said she heard a female scream. Yancy conceded it could have been a man's scream that sounded like a female voice. Yancy stated that she would have talked to Alvarado's attorney before trial, but he did not contact her. Yancy did not state that she was available to testify on the date of trial. Alvarado's counsel testified that he was familiar with Yancy's written statement and her memory of hearing a woman's voice before the shooting. Counsel stated he made a conscious decision not to develop the idea that a woman was present at the shooting because he believed the jury would reasonably assume it was Salgado's ex-wife Stephanie, and that Alvarado was there with her at the time of the shooting. The State's trial theory was that Alvarado had become angry with Salgado after he slapped Stephanie during a confrontation earlier that day, and he had gone to Salgado's house after work and shot him. At the motion for new trial hearing, counsel agreed that Yancy's statement that she heard a woman's voice before the shooting could have been used to discredit Salgado's version that only Alvarado and two other men were present before the shooting. He conceded that he also could have used Yancy to suggest Stephanie was present at the scene, thereby making her a potential suspect in the shooting. Counsel acknowledged in hindsight that he should have asked Alvarado about pursuing an alternative trial strategy of shifting the blame for the shooting to Stephanie, but stated that Alvarado made it clear that he did not want his attorney to do anything to attack Stephanie. Under the circumstances, we can not say that counsel did not make a reasonable strategic decision that the value of Yancy's evidence regarding the female voice was outweighed by the risk that it could be used to implicate Alvarado in the shooting. In reviewing the performance of trial counsel, we will not second guess counsel's tactical decisions which do not fall below an objective standard of reasonableness. Young, 991 S.W.2d at 837. Moreover, the absence of Yancy's testimony at trial did not impair Alvarado's ability to present his time-line/alibi defense and to impeach Salgado's credibility in other ways, as discussed supra. Finally, there was no evidence presented at the motion for new trial hearing that Yancy was available to testify at trial — only that she would have been willing to talk to Alvarado's attorney. See King, 649 S.W.2d at 44. Alex Hernandez.
Next, Alvarado argues that his attorney should have interviewed and called Alex Hernandez to testify in corroboration of his time-line/alibi defense. Alex Hernandez was a childhood friend of Alvarado. At trial, Alvarado testified that after he punched out of work at 2:00 a.m. on December 28, he spent several minutes warming up his truck, and then drove directly to Alex's house where he had a beer; he then drove straight home to Stephanie's house, arriving at about 2:52 a.m. At trial, Salgado testified that he arrived home around 2:45 a.m.; as he was unlocking his front door, he saw a four door gray car park in his driveway with three guys inside; he heard someone call his name and saw Alvarado walking toward him with a gun; he then heard and felt the gunshots. Salgado testified he saw the driver of the gray vehicle and described him as a light-skinned, heavy-set Hispanic male with a big face, matching the description of Alex Hernandez. Hernandez did not testify at trial. At the motion for new trial hearing, Alex Hernandez testified that Alvarado arrived at his house between 2:20 a.m and 2:30 a.m. on December 28; he stayed about 15 to 20 minutes talking and drinking a beer; Alvarado left by himself between 2:45 and 2:50 a.m. to go home. He stated that Alvarado lived about one minute's drive away. Hernandez stated that Alvarado's defense attorney did not contact him, and he would have talked to him if asked. He was incarcerated at the time of Alvarado's trial and did not testify. Counsel testified at the motion for new trial hearing that he was aware of Alex Hernandez as a potential alibi witness through Alvarado; however, he made a conscious strategic decision not to use Hernandez at trial because he was a "thug" and a "felon" with an extensive criminal history. Counsel stated he did not want Hernandez coming into court dressed in prison garb in front of the jury, believing it would reflect badly on Alvarado. In light of the risk that the jury might view Hernandez's criminal history and present incarceration at the time of Alvarado's trial as a negative reflection on Alvarado's own reputation and credibility, we can not conclude that the decision by Alvarado's counsel not to use Hernandez to corroborate Alvarado's version fell below an objective standard of reasonableness. In addition, the fact that Alvarado was with Hernandez at the time of the shooting, and Hernandez matched Salgado's description of the driver, could have equally been used by the jury to implicate Alvarado rather than exonerate him. Finally, Alvarado was able to establish his time-line/alibi defense through his own trial testimony, and his attorney's failure to interview and call Hernandez as a witness did not preclude the presentation of his defense. McFarland, 928 S.W.2d at 501. Crystal Gonzales Mullins.
Alvarado asserts that his attorney should have interviewed and called Crystal Gonzales Mullins, the sister of Alex Hernandez, to testify in corroboration of his time-line/alibi defense. The written statement given by Crystal states that on December 28, 2000 she was the owner of a gray Honda Accord given to her by Alex; the car was parked at the home she shared with Alex when she left to go out with friends for her birthday at 9:00 p.m. on December 28, and it was still parked in the driveway when she arrived home at approximately 2:30 a.m. Crystal did not testify at trial. At the motion for new trial hearing, Crystal testified in conformity with her statement. She stated she was 99% sure she had the Honda keys with her while she was out with her friends, and that Alex was home alone when she arrived at 2:30 a.m. She also testified that Alex carried her into the house, but denied that she was too intoxicated to walk. Crystal stated she was not asked about the car by any law enforcement officers and was not contacted by defense counsel. There was no evidence presented that Crystal was available to be called as a witness at trial; she only testified she would have talked to Alvarado's attorney if contacted. Alvarado's counsel testified at the motion for new trial hearing that he was aware of Crystal's written statement, but he made a conscious strategic decision not to raise the issue of the gray car used in the shooting before the jury. He explained that no witness had positively identified the car, and he did not want to highlight the issue of the type of car used in the shooting. In light of all the circumstances and the possibility that the jury could have viewed Alvarado's access to a gray sedan through Alex Hernandez as incriminatory evidence, we can not say that counsel's decision not to develop and use Crystal as a defense witness fell below an objective standard of reasonableness. The fact that the sister of Alex Hernandez owned a gray sedan matching the description given by Salgado was not helpful to Alvarado's defense. In addition, Crystal's testimony would not necessarily have benefitted Alvarado's time-line defense because according to one of the State's time-lines, Alvarado did not leave Alex's house in the gray vehicle until 2:30 a.m., the approximate time Crystal said she had returned home and saw the car still there; moreover, Crystal's memory of the exact time she arrived home was subject to challenge based on her admittedly intoxicated state. Finally, Crystal did not state that she was available to testify on the date of Alvarado's trial. King, 649 S.W.2d at 44. Julie Rodriguez.
Alvarado next asserts that his attorney should have interviewed and called Julie Rodriguez, a friend of Salgado's, to testify to impeach Salgado's credibility about the order of the events. The written statement given by Julie Rodriguez said that Salgado told her that the shooter was already waiting for him when he arrived home. At trial, Salgado testified the vehicle carrying Alvarado drove into his driveway after he had arrived home and was walking to his front door. At the motion for new trial hearing, Julie testified in conformity with her statement. She stated that Alvarado's attorney did not contact her, and she would have talked to him if asked. There was no evidence presented, however, that Julie was available to be called as a witness on the date of trial. At the motion for new trial hearing, Alvarado's counsel said he was aware of Julie's written statement, but did not feel he needed to interview or call her as a witness. Even if counsel's failure to interview Julie Rodriguez was unreasonable, it did not prevent Alvarado from pursuing his defense by impeaching Salgado on various other inconsistencies between his statements, trial testimony and the physical evidence. McFarland, 928 S.W.2d at 501. Moreover, because there was no evidence that Julie was available to testify at trial, counsel's failure to call her can not constitute ineffective assistance. King, 649 S.W.2d at 44. Gerard Gonzales.
Alvarado argues next that his attorney should have interviewed and called Gerard Gonzales as a witness at trial. Gonzales was Salgado's neighbor who came to his assistance after the shooting. The written statement given by Gerard Gonzales states that Salgado told him that his ex-wife's boyfriend shot him. Gonzales did not testify at trial. Salgado, however, testified at trial over a hearsay objection that immediately after the shooting he told the neighbor that helped him that "it was my wife's boyfriend [who] did it;" Salgado stated he thought he was dying at the time. At the motion for new trial hearing, Gonzales contradicted Salgado's testimony, and his own written statement, by stating that in fact Salgado was coughing up blood and was unable to say anything to him while they waited for the ambulance to arrive. Alvarado argues Gonzales should have been interviewed and called as a defense witness to impeach Salgado's credibility. The record does not show, however, that Gonzales would have been available to testify on the date of trial; therefore, counsel's failure to call Gonzales can not constitute ineffective assistance. King, 649 S.W.2d at 44. Moreover, even if counsel's failure to interview Gonzales was unreasonable, it did not prevent Alvarado from pursuing his defense by impeaching Salgado on various other inconsistencies. McFarland, 928 S.W.2d at 501. Alvarado's Co-Workers.
Finally, Alvarado argues his attorney should have interviewed and called his co-workers to corroborate his time-line defense, specifically what time he left work on December 28. At the motion for new trial hearing, counsel stated he was aware of Alvarado's co-workers as potential defense witnesses, but recalled that none of them were certain of the time Alvarado left work on December 28. The only co-worker who testified at the motion for new trial hearing to a specific time was Byron Carias; the other co-workers just stated generally that Alvarado usually had to warm up his truck for several minutes before he left the parking lot. Carias stated that on December 28, he remembered that because it was cold outside Alvarado was still warming up his truck in the parking lot when Carias left at 2:18 a.m. Even if Alvarado's attorney had interviewed and called Carias to testify at trial, the State's two alternative time-lines both allowed 15 minutes for Alvarado to warm up his truck after he punched out of work at 2:02 a.m. Therefore, Carias' testimony would not have negated Alvarado's ability to have committed the shooting under the State's time-line theory. In addition, there was no evidence that Carias was available to testify on the date of trial. For the reasons discussed above, the failure by Alvarado's counsel to interview and call these potential witnesses does not constitute ineffective assistance of counsel. See McFarland, 928 S.W.2d at 501; see also King, 649 S.W.2d at 44. 3. Failure to Investigate and Present Additional Punishment Evidence. Alvarado further contends that his counsel's performance was deficient because he failed to interview and call his family members and co-workers as character witnesses during the punishment phase. Again, in order to show that counsel was ineffective for failure to call a witness, the evidence must show that the witness was actually available and the defendant would have benefitted from their testimony. King, 649 S.W.2d at 44; Mares v. State, 52 S.W.3d 886, 892 (Tex.App.-San Antonio 2001, pet. ref'd). The only defense witness presented during the punishment phase was Stephanie Watts-Lea, Alvarado's wife at the time. The testimony of Alvarado's mother and sister April Avila developed at the motion for new trial hearing reveals they would have stated that Alvarado came from a large, close-knit family; he loves his children and they are important to him; he is respectful; he attended church with his family; and he was a responsible and hard worker. The testimony of Alvarado's co-workers at the motion for new trial hearing shows they would have testified that he was non-violent and a good worker. Alvarado's counsel testified that he talked to the family members present, and specifically recalled talking to Alvarado's wife (Stephanie), his mother, and at least one of his sisters about the punishment phase. He testified that he made a conscious decision not to call Alvarado's family members as character witnesses during the punishment phase (except Stephanie) because they were "distraught" and "shocked" at the guilty verdict, and he was concerned they would not accept the jury's guilty verdict and would try to re-litigate the issue of guilt/innocence. Counsel stated his normal practice is to talk to the family members present at a defendant's trial about whether they could testify in the punishment phase without re-litigating the issue of guilt; if they can not do so, he does not call them as punishment witnesses. He made a decision to only call Stephanie because he felt she was the strongest witness on punishment because in addition to giving a general opinion on his character, she could state that Alvarado had never been violent with her, as Salgado had been, and that Alvarado took care of the children she and Salgado had together, both before and after the shooting. He felt this evidence was more important for the jury to hear than that Alvarado was a good worker. He stated he elected not to call several witnesses to say the same thing, i.e., that Alvarado was not a violent person. Based on the record before us, we cannot say that counsel's decision was not based on reasoned trial strategy; therefore, Alvarado has failed to prove that counsel's performance in this regard was deficient. In addition, these is no evidence that had counsel called these witnesses during the punishment phase, the outcome would have been different. Strickland, 466 U.S. at 694. Without a showing of prejudice, we cannot conclude that the failure to call additional witnesses at punishment constituted ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. Conclusion.
We conclude based on the trial record and the motion for new trial record that counsel's decisions not to interview and present the additional witnesses discussed above did not fall below an objective standard of reasonable professional conduct, and did not prevent Alvarado from advancing his viable defense theories based on the time-line/alibi and impeachment of the complainant's credibility. McFarland, 928 S.W.2d at 501. In addition, Alvarado has failed to establish a reasonable probability that, but for counsel's omissions, the trial's outcome would have been different. Id. The fact that another attorney might have pursued a different trial strategy, or developed the same strategy differently, does not itself support a finding of ineffective assistance of counsel. Mares, 52 S.W.3d at 890. Because we hold that Alvarado has failed to prove both prongs of his ineffective assistance claim, we hold that the trial court did not abuse its discretion in denying Alvarado's motion for new trial. Strickland, 466 U.S. at 687; Salazar, 38 S.W.3d at 148. Alvarado's first two issues are overruled. Scope of Evidence on Motion for New Trial Hearing. Finally, in his third issue, Alvarado asserts, without citing any authority, that the trial court abused its discretion in sustaining the State's objections to the relevance of several questions propounded by Alvarado's counsel at the motion for new trial hearing, thereby preventing him from developing the record on his ineffective assistance claim. Alvarado preserved the issue by creating several bills of exception which are included in the record before us. However, he raises only one specific instance in his supplemental brief — exclusion of the proffered testimony by Joe Treviño that sometime during the year 2000, he and his brother Jesse went with Sandro Salgado to his ex-wife Stephanie's home for the purpose of fighting Alvarado; once there, Joe changed his mind about fighting Alvarado, and Sandro and Jesse "went up against him" and were arrested for disturbing the peace. Alvarado asserts Joe Treviño's testimony was critical to impeach Salgado's trial testimony that he did not go to Stephanie's apartment for the specific purpose of fighting Alvarado. During his trial testimony, however, Salgado conceded that he had attempted to fight with Alvarado at Stephanie's home on "a couple" of occasions, and was arrested after trying to kick down the door at Stephanie's house. We review a trial court's ruling excluding evidence under the abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Having reviewed the proffered evidence in light of the scope of the remand order, Salgado's trial testimony, and the extensive motion for new trial record, we hold the court did not abuse its discretion in excluding Treviño's testimony as irrelevant because the jury could have reasonably inferred Salgado's intent to fight Alvarado on that occasion from Salgado's trial testimony that he attempted to fight Alvarado at Stephanie's home on a couple of occasions. See Matchett v. State, 941 S.W.2d 922, 940 (Tex.Crim.App. 1996) (trial court may place reasonable limits on questioning based on concerns of repetition or marginal relevance). Alvarado's third issue is overruled. Conclusion
Viewing the totality of trial counsel's representation at the time of trial, we conclude that Alvarado has failed to establish that he received ineffective assistance of counsel pursuant to Strickland v. Washington. See Strickland, 466 U.S. at 687. Alvarado has also failed to show that the trial court abused its discretion in denying his motion for new trial and in limiting the scope of the motion for new trial hearing. Accordingly, we overrule all of Alvarado's complaints on appeal. The judgment of the trial court is affirmed.