Opinion
14-21-00002-CR 14-21-00003-CR
03-17-2022
FELIPE CASTANEDA, JR., Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause Nos. 19CR2350 & 19CR2351
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
MEMORANDUM OPINION
Tracy Christopher Chief Justice
In this appeal from two separate judgments, appellant argues in two issues that the judgments should be reversed because the trial court abused its discretion by denying a motion to withdraw, and because his trial counsel was ineffective. For the reasons given below, we overrule both of these issues and affirm the trial court's judgments.
BACKGROUND
Appellant was indicted after he allegedly pointed a firearm at his wife and cousin. He pleaded guilty to two separate counts of aggravated assault with a deadly weapon (one for each complainant). As to each count, the trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of seven years.
The State subsequently moved to adjudicate appellant's guilt in both cases. The State alleged in its motion to adjudicate that appellant had violated several terms and conditions of his community supervision. Among those violations, the State alleged that appellant had failed to report to his community supervision officer, that he had failed to pay various fees, that he had failed to enroll in various programs, and most seriously, that he had engaged in criminal activity by committing a theft at Walmart.
Appellant pleaded true to some of the minor allegations, and not true to others, including the theft.
At the live hearing, the State produced evidence from appellant's community supervision officer, who testified that appellant was a respectful person, but that he had not been in compliance with the terms and conditions of the trial court's order of community supervision. The officer said that appellant often made excuses for why he could not comply with the order. Some of these excuses invoked a physical disability, although the officer said that appellant never provided any documentation in support of the disability. Other excuses invoked the coronavirus pandemic, but the officer testified that extensions were made because of the pandemic, and that appellant had still failed to comply.
The State also produced evidence of the theft. This evidence included live testimony from Walmart's loss prevention officer, as well as a surveillance video. The officer testified that he was alerted by a coworker that appellant had twice attempted to leave the store with merchandise through the automotive department. The surveillance video did not capture these attempts, but the video showed appellant later making his way to the front of the store, where he tried to leave through the main entrance instead. In the video, appellant pushed a cart full of items past the registers without paying. He was detained as he passed through the first set of sliding glass doors, before he could enter the parking lot.
Appellant testified in his own defense. Beginning with the minor allegations, appellant said that he could not report to his community supervision officer because of a physical disability. He explained that he was previously involved in a workplace accident, which had left him with back problems. He said that these problems required various surgeries and steroid injections, and that recent injections had prevented him from complying with the terms of his community supervision.
As for the theft allegation, appellant testified that he had no intent to steal. He claimed that he had left his cellphone and wallet with his wife outside of the store, and that he was trying to reconnect with her so that he could pay for the merchandise. He also explained that he chose to keep the cart of items by his side, rather than behind the registers, because he did not want a store associate to return the items to the shelf.
Appellant's wife also testified. She said that she had planned to meet appellant at Walmart, where she would page him over the intercom. She also asked the trial court to give appellant another chance at community supervision. She said that she has three children with appellant, that some of them suffer from serious mental health problems, and that appellant plays an active role in their lives. She also said that she would help appellant complete the terms of his community supervision if given the opportunity to do so.
The trial court rejected appellant's version of events and found all of the allegations to be true. The trial court then adjudicated appellant's guilt in both cases, and sentenced him to concurrent terms of ten years' imprisonment.
MOTION TO WITHDRAW
On the morning of the adjudication hearing, appellant's trial counsel made an oral motion to withdraw from the case and an oral motion for continuance. Counsel represented that he was moving to withdraw because appellant wished to fire him.
The trial court asked appellant why he wished to fire his counsel, and the following exchange ensued:
Appellant: I want to seek new counsel. Just, I feel like he-it's in my best interest to seek new counsel.
The Court: All right. What is your complaint with the representation at this point?Appellant: I feel like I'm being forced to take pleas that I don't want to take.
The trial court denied the motion without any further inquiry. Appellant now challenges that ruling, which we review for an abuse of discretion. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). Under that standard, we must uphold the trial court's ruling unless the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. See State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).
Appellant argues in his brief that a withdrawal was warranted in this case because he was not communicating effectively with counsel and because he lacked confidence in counsel's abilities. But appellant did not advise the trial court of these specific complaints, nor did he produce any evidence in support of them. Thus, even if the complaints were true, appellant has not shown that the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. See King, 29 S.W.3d at 566 (concluding that the defendant had failed to demonstrate an abuse of discretion where the defendant was given an opportunity at the hearing to expand on his reasons for his dissatisfaction with counsel but he failed to do so).
Appellant also argues in his brief that a withdrawal was warranted because counsel had pressured him into accepting a plea deal. Appellant asserted a complaint along these lines at the hearing, but the record does not show that the State offered appellant a plea deal, or that appellant ever accepted one. In fact, the record only seems to indicate that there was a plea deal with the charged offenses (not the motion to adjudicate), and appellant had different representation at that earlier hearing. This complaint does not demonstrate that the trial court abused its discretion either.
Appellant finally argues that the trial court should have granted the motion to withdraw because there was no direct evidence that the motion was intended to manipulate or interfere with the judicial process. This argument is unpersuasive, because the trial court could have inferred such an intent from the surrounding circumstances-namely, that the motion was made on the morning of the hearing, that witnesses were present and ready to testify, and that appellant had neither retained substitute counsel nor voiced any previous complaints about his current counsel. Therefore, we cannot say that the trial court abused its discretion. See Robles v. State, 577 S.W.2d 699, 704 (Tex. Crim. App. 1979) ("An accused, therefore, may not wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel.").
INEFFECTIVE ASSISTANCE OF COUNSEL
A defendant who has been adjudicated guilty has a statutory right to a separate punishment hearing. See Tex. Code Crim. Proc. art. 42A.110(a) ("After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal, continue as if the adjudication of guilt had not been deferred."). But this statutory right does not absolutely mandate a separate punishment hearing after every adjudication. See Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim. App. 1999). Instead, this right requires that the defendant have an opportunity to present evidence in mitigation if he was not afforded to do so during the adjudication phase. See Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) ("Appellant had the opportunity to present evidence during the proceedings. That is all that is required.").
In this case, defense counsel presented mitigating evidence during the adjudication phase. He elicited testimony that appellant has children with mental health problems, and that appellant maintains an active role in their lives. Counsel also made mitigating arguments in his closing summation. He said that appellant should be allowed to continue his community supervision for the benefit of his children.
Following those arguments, the trial court adjudicated appellant guilty and then immediately pronounced a sentence in both cases. Counsel did not object to this pronouncement or otherwise ask for an additional hearing on punishment. Focusing on that omission, appellant now argues that counsel was ineffective "by failing to request a bifurcated hearing."
We review such claims of ineffectiveness under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, appellant must prove by a preponderance of the evidence that his counsel's performance was deficient, and that the deficient performance was so prejudicial that it deprived him of a fair trial. Id. at 687.
To establish deficient performance, appellant must demonstrate that his trial counsel's performance fell below an objective standard of reasonableness. Id. at 688. Appellant contends in his brief that he satisfied this burden, primarily because counsel allowed the trial court to hear objectionable evidence "that normally would not have been admissible until the punishment phase." This argument does not specifically advance a claim that appellant was denied the opportunity to present mitigating evidence, which is the point of a separate punishment hearing. Rather, this argument more appropriately addresses the improper admission of evidence. Regardless of how the argument is couched, appellant has still not demonstrated that he is entitled to relief.
The objectionable evidence to which appellant refers was his wife's testimony that she had been hallucinating at the time of the underlying offense. The wife volunteered this information after counsel asked her the unrelated question of whether appellant had pleaded guilty to assaulting her with a deadly weapon. The wife's mention of her hallucination was nonresponsive, and counsel promptly advised her to not discuss the facts of that other case. On cross-examination, however, the State sought to expand on the wife's claim that she had been hallucinating. When the State broached that subject, counsel objected on the grounds of relevancy, and the trial court sustained the objection. Because the record shows that counsel did not elicit objectionable evidence, and that he objected when similar evidence was elicited later, appellant has not shown that counsel's performance fell below an objective standard of reasonableness.
Appellant also suggests in his brief that counsel's performance was deficient because counsel did not present additional mitigating evidence that had been available to him. As with his previous argument, this argument does not specifically advance a claim that appellant was denied the opportunity to present mitigating evidence because of counsel's failure to demand a bifurcated hearing. Instead, this argument advances a claim that counsel was ineffective because he did not present more evidence during the adjudication phase, alongside appellant's other mitigating evidence.
Appellant raised this more precise claim in a motion for new trial, which he filed with the assistance of his separate appellate counsel. In that motion, appellant indicated that he had two relatives who could have testified on his behalf. These relatives supplied affidavits, in which they said that they were available at the time of the adjudicating hearing, and that they could have opined that appellant had a good character and reputation for nonviolence. Appellant also indicated that there were medical records that counsel could have introduced. These records were attached to the motion, and they tended to support his claim that he was treated for back problems.
Trial counsel was aware of appellant's motion. He was notified by email from the court coordinator that a hearing could be conducted in person, by teleconference, or by affidavit. Trial counsel responded to that email by saying that he was "off the case" but "not opposed to anything regarding the hearing." After trial counsel sent this response, appellate counsel contacted the court coordinator and said that he was not requesting a live hearing on the motion. Thus, no hearing was held, which means there was no live testimony from trial counsel explaining his reasons for not presenting any additional evidence during the adjudication hearing. Trial counsel did not file an affidavit explaining his omission either.
Our review of trial counsel's performance is highly deferential, and begins with the strong presumption that counsel's decisions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant had the burden of overcoming that presumption, and he failed to do so because he did not obtain any affirmative evidence regarding counsel's decisions. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ("Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.").
Even if appellant could establish that counsel's performance was deficient, he could not obtain relief unless he demonstrated a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694.
There is no reasonable probability that appellant's punishment would have been reduced (or that the trial court would not have adjudicated appellant guilty) had counsel produced the additional evidence attached to appellant's motion for new trial. The opinion testimony from the two relatives was general and not compelling. And the medical records primarily related to appellant's excuse for not complying with some of the minor terms and conditions of his community supervision, like reporting to his community supervision officer and enrolling in certain programs.
As counsel recognized during the hearing, those minor violations were not the focus of the adjudication hearing. Counsel argued that the State likely would not have moved to adjudicate appellant's guilt but for appellant's alleged theft at Walmart. There was clear video evidence of this theft. The relatives' opinion testimony and appellant's medical records were not likely to change the trial court's finding that the theft allegation was true. And as the State emphasized during the adjudication hearing, the video evidence undermined any claim that appellant suffered from a physical disability because the video showed him quickly and capably moving past the registers without paying for the items in his cart.
Based on the record as a whole, we conclude that appellant did not show that counsel's deficient performance, if any, resulted in prejudice. We accordingly conclude that appellant's ineffectiveness claim must fail.
CONCLUSION
The trial court's judgments are affirmed.