Opinion
NO. 01-18-00139-CR
08-02-2022
EX PARTE Oscar Minjare SANCHEZ, Jr.
Clay S. Conrad, Michael A. Lamson, 11767 Katy Freeway, Ste. 740, Houston, Texas 77079, for Appellant. Kim Ogg, District Attorney, Harris County, Texas, Chris Conrad, Assistant District Attorney, 1201 Franklin, Ste. 600, Houston, Texas 77002, for State.
Clay S. Conrad, Michael A. Lamson, 11767 Katy Freeway, Ste. 740, Houston, Texas 77079, for Appellant.
Kim Ogg, District Attorney, Harris County, Texas, Chris Conrad, Assistant District Attorney, 1201 Franklin, Ste. 600, Houston, Texas 77002, for State.
Before the court en banc.
EN BANC OPINION ON REMAND
Sarah Beth Landau, Justice
Oscar Minjare Sanchez, Jr. appealed from the denial of his post-conviction application for a writ of habeas corpus filed under Texas Code of Criminal Procedure art. 11.072. Sanchez contended that his trial counsel rendered ineffective assistance by failing to call exculpatory witnesses during the guilt/innocence phase of his trial. We reversed the trial court's denial of habeas relief and remanded for further proceedings. Ex parte Sanchez , 608 S.W.3d 222, 234 (Tex. App.—Houston [1st Dist.] 2020), rev'd, Ex parte Sanchez , 625 S.W.3d 139 (Tex. Crim. App. 2021). The Texas Court of Criminal Appeals granted the State's petition for discretionary review, determined that a court of appeals reviews a trial court's ruling in an article 11.072 proceeding for abuse of discretion, reversed our judgment, and remanded the cause to this Court for further proceedings. Sanchez , 625 S.W.3d at 144. We affirm the trial court's judgment.
There remains some inconsistency about the applicable standard of review when a habeas court is not in an appreciably better position than the reviewing court and the decision does not turn on the credibility or demeanor of witnesses. See Ex parte Martin , 6 S.W.3d 524, 526 (Tex. Crim. App. 1999).
I. Background
Sanchez was the designated driver for his four passengers on a night out. While driving the group home in his Ford F-250, a police chase occurred in front of him. An unmarked police car, a Chevy Impala driven by Harris County Sheriff's Office Lieutenant G. Goudeau, suddenly moved in front of him, causing Sanchez to swerve left to try to avoid an accident.
According to one officer who observed the F-250 and the Impala from his rear-view mirror while participating in a high-speed police chase, the front of the F-250 collided with the back of the Impala. The officer saw the rear of the Impala go up in the air before it struck a curb and spun into a parking lot.
Sanchez continued home without stopping. After Lieutenant Goudeau radioed for help, Sergeant K. Benoit, who was following the vehicles in the chase, testified that he had seen the accident, returned to the scene, and saw that Lieutenant Goudeau was injured. Sergeant Benoit waited with Lieutenant Goudeau until an ambulance transported her to the hospital, where she stayed for four days to treat severe injuries.
After hearing about the accident on the news the next morning, Tomball Police Department Captain R. Grassi, who was a passenger in the car with Sanchez, called the captain of the Harris County Sheriff's Office to share information about the incident. Sanchez was with him.
Sanchez told Deputy A. Marines that an Impala had suddenly darted into his lane on the Highway 249 feeder road and that he hit his brakes, swerved, and entered the middle lane to avoid hitting it. Sanchez did not know where the Impala went after it entered his lane. Sanchez answered Deputy Marines's questions and allowed him to examine the F-250 twice. Deputy Marines testified that it was rare for someone to come forward and cooperate as Sanchez did.
Although Lieutenant Goudeau's vehicle sustained serious damage, the investigation revealed only minor cosmetic damage to Sanchez's truck. Photos depicted a faint scuff mark on the bumper between the fog lamp and the tail ring, a crack on the right side of the grill, a dark plastic piece embedded in the tread of a tire, and a scuff mark on the undercarriage. Deputy Marines did not see it the first time he inspected the truck, but upon a second inspection, he saw a bit of gray metallic paint that appeared to match the Impala. Chemical analysis revealed that the paint could have come from the Impala or any other vehicle with similar paint.
Sanchez was convicted of the third-degree felony offense of failure to stop and render aid. See Sanchez v. State , No. 01-16-00293-CR, 2017 WL 1424949, at *1 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref'd) (mem. op., not designated for publication). The State called none of the passengers in Sanchez's car as witnesses. The defense did not put on any witnesses.
The trial court assessed Sanchez's punishment at 10 years’ confinement but probated the sentence by placing him on 10 years’ community supervision, with 30 days’ confinement in the Harris County Jail as a condition of probation. See id. This Court affirmed Sanchez's conviction. Id. The Texas Court of Criminal Appeals refused Sanchez's petition for discretionary review, and this Court's mandate issued.
Sanchez applied for a writ of habeas corpus under Texas Code of Criminal Procedure article 11.072 and requested a hearing. In his application, Sanchez alleged that his trial counsel had provided ineffective assistance by failing to call necessary exculpatory witnesses. Sanchez claimed that his trial counsel should have called three of the four passengers in his truck, R. Grassi, S. Martin, and B. Flores, to testify. These three witnesses provided affidavits, attached to Sanchez's application, stating that they were passengers in his truck, they saw him swerve around the car that darted out in front of them, and they were unaware of a collision. The State did not respond to Sanchez's application.
The habeas court signed an order denying Sanchez's habeas application without an evidentiary hearing. Sanchez timely filed notice of appeal and the habeas court certified that Sanchez had a right of appeal. Because the habeas court's order did not deny Sanchez's habeas application as frivolous and the clerk's record did not include the required findings of fact and conclusions of law, this Court abated the appeal. See TEX. CODE CRIM. PROC. art. 11.072, § 7(a).
In response to the abatement, the habeas court filed a supplemental clerk's record containing its findings and conclusions. The pertinent findings of the habeas court were that (1) trial counsel did not call any witnesses during the guilt stage of trial; (2) trial counsel elicited testimony on cross-examination that Grassi, Martin, and Flores all made consistent statements about what happened; (3) Sanchez and Grassi made consistent statements with each other; and (4) trial counsel argued in closing that because the State did not call the passengers as witnesses, it failed to bring "every piece of evidence," as promised, because their testimony would not match the State's theory. The habeas court determined that Sanchez failed to show that trial counsel was deficient and failed to establish a reasonable probability that the result of the proceedings would have been different. It also concluded that Sanchez "fail[ed] to show that Grassi, Martin, and Flores were available and that their testimony would have benefitted the defense."
After reinstating the appeal, we reversed the habeas court's denial of habeas relief and remanded for further proceedings. The State appealed our ruling, and the Texas Court of Criminal Appeals reversed our judgment and remanded the case for further proceedings.
II. Standard of Review
We review a trial court's ruling on a habeas corpus application for abuse of discretion. Ex parte Zantos-Cuebas , 429 S.W.3d 83, 87 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Kniatt v. State , 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) ). We "must review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion." Kniatt , 206 S.W.3d at 664. We "will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case." State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
"[I]n Article 11.072 cases, the trial court is the sole finder of fact, and the reviewing court acts only as an appellate court." Sanchez , 625 S.W.3d at 144 (citing Ex parte Garcia , 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011) ). The appellate court affords almost total deference to a trial court's factual findings when those findings are supported by the record. See Ex parte Garcia , 353 S.W.3d at 787–88 ; Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). But mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are subject to de novo review. See Sanchez , 625 S.W.3d at 144 ; Guzman , 955 S.W.2d at 89.
III. Applicable Law
To establish an ineffective-assistance claim, an appellant must show, by a preponderance of the evidence, that (1) his counsel's performance was deficient, and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel's deficient performance. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Ex parte White , 160 S.W.3d 46, 51 (Tex. Crim. App. 2004). An appellant's failure to satisfy either prong defeats the ineffective-assistance claim. See Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
We indulge a presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance, so an appellant must overcome the presumption that the challenged action constituted "sound trial strategy." Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; Williams , 301 S.W.3d at 687. Our review is highly deferential to trial counsel, and we do not speculate on their trial strategy. See Bone v. State , 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To prevail on an ineffective-assistance claim, an appellant must provide a record that shows that counsel's performance was not based on sound strategy. See Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
A defendant in a criminal case is entitled to reasonably effective assistance of counsel, including investigation of the defendant's case. Strickland , 466 U.S. at 690–91, 104 S.Ct. 2052. Part of the duty to investigate is trial counsel's responsibility to seek out and interview potential witnesses. Butler v. State , 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). To show deficient performance by trial counsel based on an uncalled witness, an appellant must show: (1) that witness would have been available to testify; and (2) that witness's testimony would have been of some benefit to the defense. Everage v. State , 893 S.W.2d 219, 222–23 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd). To meet the availability requirement, proposed witnesses must testify or swear in an affidavit that they were available to testify at the defendant's trial. See Ex parte Ramirez , 280 S.W.3d 848, 853 (Tex. Crim. App. 2007).
An ineffectiveness claim based on the failure to call witnesses may be established through either testimony on the record or an affidavit from the uncalled witness. See Ex parte White , 160 S.W.3d at 52 (applicant provided affidavit from uncalled witness).
IV. Analysis
In Sanchez's sole issue, he claims that the habeas court abused its discretion because he proved that his trial counsel was ineffective by showing that Flores, Grassi, and Martin were available to testify and would have aided his defense. The State argues that Sanchez's claim fails because he did not show that the witnesses were available or how their testimony would have benefited the defense. The State also argues that Sanchez failed to address trial counsel's trial strategy and cannot meet either of the Strickland prongs because he cannot show that his trial counsel's performance was deficient or that there was a reasonable probability that the jury would have acquitted him had the witnesses testified.
A. Performance Prong
For the first Strickland prong, performance of counsel, as discussed above, to show ineffectiveness of counsel based on an uncalled witness, an appellant must show two things: (1) the uncalled witness would have been available to testify; and (2) the witness's testimony would have been of some benefit to the defense. See Everage , 893 S.W.2d at 222.
1. Flores's Affidavit Sanchez has failed to show that Flores was available to testify. Flores's affidavit stated that he was a passenger in Sanchez's vehicle on the night of the incident, and that he did not see or feel Sanchez's vehicle strike another vehicle. But Flores did not state that he was available to testify at Sanchez's trial. See Ex parte Ramirez , 280 S.W.3d at 853. Because Sanchez failed to show Flores was available, he cannot show that trial counsel was deficient for not calling him to testify. So we need not address whether Flores's testimony would have been of some benefit to the defense.
2. Grassi's Affidavit
As with Flores, Sanchez has failed to show that Grassi was available to testify. Grassi's affidavit stated that he was a Tomball police captain and that on the night of the incident, he was a passenger in Sanchez's truck when they observed a high-speed car chase conducted by the Harris County Sheriff's Office. Grassi stated that he contacted the Tomball Police Department to advise them what he was witnessing, and he told Sanchez to follow the chase. During the chase, an unmarked police vehicle cut directly in front of Sanchez's truck, but Grassi stated he was never aware of Sanchez's truck striking that vehicle, and he did not see any visible damage to Sanchez's truck the next day. Grassi added that Sanchez's "truck is a large, heavy-duty work truck, so it is possible there was a glancing strike to the other vehicle, but nobody in Oscar's vehicle showed any knowledge of having been in a collision[.]"
Grassi did not state that he would have been available to testify at Sanchez's trial. See Ex parte Ramirez , 280 S.W.3d at 853. Because Sanchez did not show that Grassi was available, he cannot show that trial counsel was deficient for not calling Grassi. Thus, we need not address whether Grassi's testimony would have been of some benefit to the defense.
3. Martin's Affidavit
Martin's affidavit stated that, "[o]n the night of August 11, 2013, my husband [B.] Flores, [R.] Grassi and his girlfriend [M.], Oscar Sanchez and me went out for [Grassi]’s birthday ... at a pub playing shuffle board and then decided to go to Whiskey River." After leaving Whiskey River, "there was a high speed chase on 249 going north" and Grassi asked Sanchez to follow the chase while he contacted his police station. Martin recalls sitting behind Sanchez chatting with M., not paying attention to the road ahead, but also noticing a car ahead on the left of Sanchez's vehicle. "Oscar [slammed] on his brakes and [honked] his horn, and [swerved] away from a car." Martin did not see any collision between Sanchez's truck and any other car. Finally, Martin stated that had she been asked to testify at Sanchez's trial, she would have.
Martin's representation that she would have been available to testify at Sanchez's trial satisfies the first prong of the performance inquiry. See Everage , 893 S.W.2d at 222. The remaining question is whether Martin's testimony would have been of "some benefit" to the defense. See id. Given that Sanchez put on no defense and Lieutenant Goudeau could not recall the collision, the jury heard an incomplete story from those closest to the action with the best opportunity to observe it. The State's witnesses testified that Sanchez's passengers’ recollection of the accident was "consistent with" the State's theory that Sanchez struck Lieutenant Goudeau's vehicle, but Martin's affidavit conveys the opposite.
Even so, Sanchez must overcome the presumption that trial counsel's decision constituted "sound trial strategy." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. "The decision whether to present witnesses is largely a matter of trial strategy." Lopez v. State , 462 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2015, no pet.). When the record is underdeveloped, as it is here because the habeas court held no hearing, we assume a strategic motivation if any can be imagined. Garcia , 57 S.W.3d at 440.
The habeas court found that (1) Flores, Grassi, and Martin all made consistent statements about what happened on the night of the incident; (2) Grassi and Sanchez made consistent statements about what happened that night; and (3) trial counsel argued that the State did not call Flores, Grassi, or Martin because their testimony would not match the State's theory of what occurred that night.
While the record does not support the habeas court's conclusion that Martin was unavailable, it does support the possibility that trial counsel's decision to not call Martin as a witness was strategic. Trial counsel's cross examination of Deputy Musil and Deputy Marines revealed that multiple eyewitnesses made consistent statements that matched Sanchez's statement.
Cross of Deputy Musil:
Q. But at this point now, you know that there are some people, some passengers in a vehicle, right?
A. Yes.
Q. And you also know that there's a driver of a vehicle, right?
A. Yes.
...
Q. So, what you chose to do at that point, which makes perfect sense, is to go talk to these people, right?
A. Yes.
...
Q. Because they're going to give accounts in versions of what they witnessed in that truck, right?
A. Correct.
...
Q. Okay. Now, you interviewed a gentleman named [B.] Flores, right?
A. Yes.
Q. You also interviewed a lady named [C.] Martin, right?
A. Yes.
Q. You interviewed a lady named [M.] Oshman, correct?
A. Yes.
Q. You also interviewed a Captain [R.] Grassi from the Tomball P.D., correct?
A. Yes.
Q. Okay. They're witnesses to an alleged crime?
A. Yes.
...
Q. Okay. Now, each of these people voluntarily met with you, right?
A. Yes, they did.
Q. Without saying what these people told you, they told you the events as they perceived them, right?
A. Yes, they did.
Q. And all of their statements, without saying what they said, were consistent, correct?
A. Yes, they were.
...
Q. What they told you was consistent with your theory of this case?
A. Other than one aspect of it, yes.
Cross of Deputy Marines:
Q. You spoke with Captain Grassi and took down his version of events, correct?
A. Yes, sir.
Q. Then you also spoke to Mr. Sanchez that first day, correct?
A. Yes, sir.
Q. [Sanchez] gives [his] statement, writes it all down, reads it, signs it?
A. I typed it, yes, sir, and gave him a copy of it. He looked at it and agreed to the contents, yes, sir.
Q. In terms of history, it's generally consistent with what he's been telling you all along, right?
A. So far, yes, sir.
Q. And you also had the ability to compare that to what other people had said, correct?
A. I didn't get to speak to the other occupants in the vehicle. I believe Deputy Musil spoke to them. The only people that I was able to speak to in reference to was Captain Grassi and Oscar Sanchez.
Q. And Captain Grassi's statement was consistent, I'm saying generally. You can get in there and find — if you so choose, but generally speaking, both of their stories were consistent?
A. Yes, sir.
Trial counsel's closing argument then tied this testimony in by highlighting that the State had said it would bring "every piece of evidence" but then failed to call multiple eyewitnesses because their statements did not match the State's theory. Moreover, trial counsel continued to emphasize that the State failed to bring every piece of evidence by highlighting that Grassi's phone records and the dispatch tapes related to the incident were not provided, the "black box" from Sanchez's car was not provided, and the dash cam from Sergeant Benoit's vehicle the night of the incident was not provided.
While the record here is silent on trial counsel's reasoning, it does provide support for the Court to "assume a strategic motivation." See Garcia , 57 S.W.3d at 440. Trial counsel could have decided not to call Martin because it fit into his larger argument that the State was failing to provide the jury with all the evidence it had because the excluded evidence would cast doubt on its theory of the case. Moreover, the fact that trial counsel also points to other evidence that was not provided (the cell records, "black box", and the dash cam) shows a unifying strategy on the part of trial counsel. The dissent decides that based on the record, not calling Martin was "not a plausible strategic option." But choosing an "undoubtedly risky" trial strategy that does not pay off is not necessarily unacceptable or "wholly unjustified." See Delrio v. State , 840 S.W.2d 443, 446–47 (Tex. Crim. App. 1992) (per curiam) ; see also Heiman v. State , 923 S.W.2d 622, 626–27 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (holding that counsel was not ineffective for failing to object to evidence of extraneous offenses because the record reflected a plausible trial strategy).
Based on the cross-examination and the defense's arguments in closing, one could conclude that trial counsel intentionally highlighted the State's failure to call all eyewitnesses while still obtaining testimony that the passengers described the accident consistently with Sanchez. See Kniatt , 206 S.W.3d at 664 (reviewing the evidence in the light most favorable to the lower court's ruling). The dissent finds problematic that we did not identify any particular risk Martin could have posed as a witness. But that is not what we are required to do. See Delrio , 840 S.W.2d at 447 ("we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case") (citing Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ). We assume a strategic motivation if any can be imagined, Garcia , 57 S.W.3d at 440, and it is the appellant's burden to overcome the presumption that trial counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 690, 104 S.Ct. 2052.
On a silent record, it is not difficult to imagine a strategic justification for not calling a witness. Trial counsel could have contacted any witness and discovered they did not respond to multiple requests, changed their mind about testifying, had criminal history, were easily impeached, were not credible in the first place, or had poor demeanor in the interview for any number of reasons.
The dissent relies on Ex parte Overton , 444 S.W.3d 632 (Tex. Crim. App. 2014), and Everage to argue that failing to call Martin constitutes ineffective assistance. But trial counsel in Overton and Everage admitted they were ineffective. In Overton , trial counsel described the failure to call a specific witness as "completely ineffective." Overton , 444 S.W.3d at 640. And in Everage , trial counsel admitted "he was not adequately prepared to defend his client." Everage , 893 S.W.2d at 222. These comments by trial counsel obviated any argument that the failure to call witnesses was strategic. But there is no confession of ineffectiveness here.
The dissent's remaining concern is that trial counsel could have highlighted the State's failure to produce all evidence and witnesses while also calling Martin as a witness. But while another defense attorney may have chosen a different trial strategy that does not render trial counsel ineffective. See Strickland , 466 U.S. at 689, 104 S.Ct. 2052. Consequently, Sanchez did not show that trial counsel's decision to not call Martin "was so outrageous that no competent attorney would have engaged in it" to overcome the presumption that counsel's conduct was within the wide range of reasonable professional assistance. See Garcia , 57 S.W.3d at 440.
Because Sanchez has failed to satisfy one prong of the Strickland test, we need not consider the other prong. See Williams , 301 S.W.3d at 687. Thus, the habeas court did not abuse its discretion.
V. Conclusion
In sum, on this record, reviewing the evidence in the light most favorable to the habeas court's ruling, Sanchez did not satisfy Strickland. The habeas court did not abuse its discretion in denying habeas relief. We affirm.
The en banc court consisted of Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
Justice Goodman dissenting.
DISSENTING OPINION
Gordon Goodman, Justice
In this habeas appeal, our court, sitting en banc, originally reversed the trial court's denial of post-conviction habeas relief. The Court of Criminal Appeals, in turn, reversed us, holding we had erred in reviewing the trial court's denial of habeas relief de novo rather than for abuse of discretion. Now, on remand to us, the en banc court affirms the trial court's denial of post-conviction habeas relief. Because the trial court abused its discretion in denying habeas relief, I respectfully dissent.
BACKGROUND
A jury found Oscar Minjare Sanchez, Jr. guilty of the felony offense of failure to stop and render aid after he rear-ended an unmarked police car engaged in a late-night high-speed pursuit, and we affirmed his conviction on appeal. See Sanchez v. State , No. 01-16-00293-CR, 2017 WL 1424949 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref'd) (mem. op., not designated for publication). In this post-conviction habeas proceeding, Sanchez contends he received ineffective assistance of counsel. At trial, the defense unsuccessfully maintained Sanchez did not stop and render aid because he was unaware of any collision. He now argues that his trial counsel was ineffective in failing to call three witnesses to testify: Bobby Joe Flores, Richard Grassi, and Sharleen Martin, all of whom were passengers in his truck when the collision took place.
The trial court denied Sanchez's application for post-conviction habeas relief, ruling that Sanchez had failed to show that Flores, Grassi, or Martin were available to testify at trial or that their testimony would have benefited his defense. Sanchez appeals from the trial court's ruling denying his application for habeas relief.
DISCUSSION
Introduction
Sanchez argues the trial court abused its discretion in denying his application for post-conviction habeas relief. The en banc court affirms. I would not.
The en banc court correctly holds that Sanchez has not shown his trial counsel provided ineffective assistance in failing to call Flores or Grassi as witnesses. As the en banc court says, Sanchez has not shown that either of these witnesses was available to testify, and this is fatal to Sanchez's ineffective-assistance claim with respect to them. See Ex parte Ramirez , 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (per curiam) (habeas applicant must show witness was available to testify at trial to show trial counsel was ineffective in failing to call witness).
But Martin is another matter. As the en banc court concedes, Sanchez has shown that Martin was available to testify. The en banc court nonetheless holds that Sanchez has not shown his trial counsel was ineffective in failing to call Martin as a witness because Sanchez has not shown Martin's testimony would have benefited the defense. See id. (habeas applicant must show uncalled witness's testimony would have benefited defense to show ineffective assistance). The en banc court reasons that Martin's testimony would not necessarily have benefited Sanchez because his counsel could have reasonably opted as a matter of trial strategy to argue that the State's failure to call Martin, as well as Flores and Grassi, showed their testimony would not support the prosecution without subjecting any of these witnesses to cross-examination, which may have been detrimental to the defense.
In essence, the en banc court concludes Sanchez failed to show his counsel's performance was deficient because the record shows a plausible strategic reason counsel did not call Martin as a witness. See Bone v. State , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (defendant must show by preponderance of evidence that there is no plausible professional reason for an act or omission to show deficiency). While I don't disagree with the principle the en banc court invokes, I disagree that it applies here. That is, I disagree that trial counsel could have reasonably opted in this instance to not call Martin as a witness and instead argue to the jury that this witness's absence showed her testimony would be unfavorable to the prosecution.
Applicable Law
To obtain habeas relief based on ineffective assistance of counsel, Sanchez must make two showings by a preponderance of the evidence. Ex parte Ramirez , 280 S.W.3d at 852. First, Sanchez must show that his counsel's performance was so deficient it fell below an objective standard of reasonableness. Id. Second, Sanchez must show that his counsel's deficient performance prejudiced him. Id.
We ordinarily presume trial counsel's performance fell within the broad range of reasonable professional assistance, such that a defendant must overcome a presumption that his counsel's challenged conduct might be the result of sound trial strategy. Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Thus, when the record is silent as to counsel's reasons for the challenged conduct, we usually will assume a strategic reason if one can possibly be imagined. Id. But this assumption does not apply when the record discloses trial counsel's reasons. See Ex parte Saenz , 491 S.W.3d 819, 828–29 (Tex. Crim. App. 2016) (concluding based on counsel's deposition that counsel's omission was not matter of trial strategy). Instead, we must evaluate whether counsel's performance was deficient in light of the ostensible trial strategy disclosed by record. See Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (stating that appellate court assumes trial counsel's decision was strategic if any reasonably sound motivation can be imagined when direct evidence of trial counsel's reasoning is not available on appeal). If the record shows trial counsel did not choose a plausible option from the strategic choices available to him, then his performance was deficient. See Ex parte Flores , 387 S.W.3d 626, 633 (Tex. Crim. App. 2012) (strategic decisions from plausible options made after thorough investigation of law and facts are virtually unchallengeable); Bone , 77 S.W.3d at 836 (defendant must show there is no plausible professional reason for trial counsel's conduct to show his performance was deficient).
In evaluating prejudice, we focus on whether counsel's deficient performance undermined the adversarial process, which we count on to produce justice, to such an extent that the trial result is unreliable. Miller v. State , 548 S.W.3d 497, 499 (Tex. Crim. App. 2018). If counsel's deficiency might have affected a guilty verdict, the question is whether there is a reasonable probability that a juror would have had a reasonable doubt about the defendant's guilt absent counsel's deficiency. Id. ; see also Ex parte Andrus , 622 S.W.3d 892, 899 (Tex. Crim. App. 2021) (prejudice inquiry boiled down to whether there was reasonable probability that at least one juror would have struck different balance in answering mitigation issue in death-penalty prosecution had trial counsel's performance not been deficient). In short, if there is a reasonable probability the outcome would have been different but for counsel's deficient performance, there is prejudice. Lopez , 343 S.W.3d at 142.
Analysis
Martin signed an affidavit in support of Sanchez's habeas application. In her affidavit, Martin stated that she was seated behind Sanchez, who was driving. At one point while driving, Sanchez slammed on his brakes, honked his horn, and swerved away from another car. According to Martin, however, she did not observe a collision between Sanchez's truck and any car that night. In addition, she stated that she would have noticed a collision if they had been in one. Finally, Martin represented that she would have gladly testified if she had been asked to do so.
But Sanchez's trial counsel did not ask Martin to testify. At trial, the defense called no witnesses and rested without introducing any evidence whatsoever.
Instead, defense counsel established through cross-examination of one of the State's witnesses, a deputy sheriff, that Flores, Grassi, and Martin were passengers in Sanchez's truck on the night of the collision. The deputy testified that he interviewed them, and their stories were consistent with one another. The deputy did not testify about the contents of their witness statements, but he did say their statements were consistent with the deputy's theory of the case, apart from one aspect of it. During cross-examination of a second witness, another deputy, defense counsel established that Grassi gave a statement that was generally consistent with Sanchez's. In his statement, Sanchez denied he had hit the unmarked police car.
Then, during closing argument, defense counsel noted the State had failed to make good on its pledge to introduce all the available evidence. Defense counsel argued the jury could reasonably infer from the State's failure to call eyewitnesses to the collision that their testimony would not support the prosecution.
The en banc court concludes that defense counsel's decision to argue the State's failure to call Martin as a witness showed her testimony would not support the prosecution, instead of calling her as defense witness, was a plausible strategic choice. Hence, the en banc court holds Sanchez failed to show his counsel was deficient in not calling Martin as a witness. For three reasons, I do not agree.
First, we must evaluate the reasonableness of defense counsel's conduct in context and view it as of the time of counsel's conduct. Andrews v. State , 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Consideration of the trial record at the time defense counsel chose to rest without calling any witnesses, including Martin, shows his decision to forego Martin's testimony was not a plausible strategic choice.
When the defense rested, the State had already put on its case and the jury had heard legally sufficient evidence to support a finding that Sanchez knew or should have known an accident occurred. Among other things, the jury heard the following:
Lieutenant G. Goudeau, the driver of the unmarked police car, testified that she felt a "violent hit" and heard a sound like a "loud crash" at the moment of impact. Sanchez , 2017 WL 1424949, at *1. The impact caused Goudeau's car to spin and pushed it over a curb and into a parking lot. Id. As a result of the accident, Goudeau was taken to the hospital, where she remained for four days. Id. at *2. She had severe injuries, requiring three surgeries and months of rehabilitation. Id.
A second peace officer responding to the high-speed pursuit testified he saw Sanchez's truck hit Goudeau's police car. Id. at *2, *4. Sergeant K. Benoit stated that Sanchez came up behind Goudeau at a high rate of speed, tried to change lanes to avoid her, and hit the back end of her car. Id. at *1–2. Benoit said he saw the impact, which raised the back of Goudeau's car up into the air. Id. at *2. Goudeau's car was pushed rightward, jumping the curb and entering a parking lot. Id. When Benoit went to Goudeau's aid, she had obvious injuries from the accident. Id.
R. Musil, a deputy sheriff who investigated the accident scene, testified that there was extensive damage to Goudeau's car consistent with being hit by a large pick-up truck. Id. at *3. Another deputy testified that the data from the airbag control module in Goudeau's car confirmed that it had been hit from behind. Id.
A. Marines, another deputy sheriff who investigated, testified that he inspected Sanchez's truck, which matched the description of the one Benoit had given. Id. at *2. Marines saw the truck had damage to its right front bumper and left tow ring. Id. Plastic was embedded in one of the truck's tires, and there was a scuff mark on the undercarriage of the right side of the truck's bumper. Id. Marines testified that the bumper of Goudeau's car was dented, and the dent was similar in diameter to the tow ring on Sanchez's truck. Id. Marines also found gray paint matching the color of Goudeau's car on Sanchez's truck's tow ring. Id.
Marines sent samples of the paint found on the truck for forensic testing. Id. The forensic scientist testified that the paint was consistent with the paint from Goudeau's car but could have come from other vehicles with similar paint. Id.
Given this evidence, deciding not to call Martin as a witness was not a plausible strategic option. Martin's testimony was crucial to Sanchez's defense, which was that he was not aware there had been a collision and his lack of awareness was reasonable under the circumstances. Without Martin's testimony, the lone evidence to this effect consisted of Sanchez's written statement, made during the investigation, in which he denied hitting Goudeau. Testimony from Martin, who was a passenger in Sanchez's truck, that she did not perceive a collision would have been more than merely cumulative. See Ex parte Overton , 444 S.W.3d 632, 637–41 (Tex. Crim. App. 2014) (failure to call witness whose testimony contradicted State's theory of case was ineffective assistance); Everage v. State , 893 S.W.2d 219, 222 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (failure to call witness who could have corroborated defense was ineffective assistance). The alternative opted for by defense counsel—arguing the State's failure to call Martin showed her testimony would not assist the prosecution—is not a substitute for evidence contradicting the prosecution's theory of the case when the State has put on legally sufficient evidence of guilt. While the State had the burden of proof, the State had already introduced sufficient evidence to support a guilty verdict. Defense counsel could not reasonably have hoped to persuade the jury of reasonable doubt by simply arguing in closing that the State had not presented all the available evidence to the jury.
Second, the two alternatives defense counsel ostensibly chose between were not mutually exclusive and therefore did not present the strategic dilemma the en banc court imagines. Sanchez's counsel could have called Martin as a witness and argued in closing that the defense had to do so after the State did not precisely because the State did not think its case would benefit if the jury heard her testimony. In addition, even if the defense had called Martin as a witness, it could have drawn attention to the fact that she was not the lone passenger in Sanchez's truck and emphasized in closing that the State failed to call Flores and Grassi because their testimony would not be favorable to the prosecution. If anything, this approach would have strengthened the defense's closing argument by providing the jury with an example as to what Flores and Grassi would have said via Martin's testimony.
Third, to the extent the en banc court suggests otherwise, the record does not disclose any reason to think Martin's testimony could have been harmful. Certainly, the en banc court does not identify any particular risk Martin posed as a witness.
Defense counsel can reasonably decide not to call a witness after determining the risk of unfavorable testimony outweighs the favorable testimony she can give. See Bone , 77 S.W.3d at 835 (counsel can reasonably decide potential benefit of witness's testimony is outweighed by risk of unfavorable counter-testimony). And appellate courts frequently hold that defense counsel's performance was not deficient in failing to call a particular witness based on this possibility. But appellate courts do so only in two instances, neither of which is applicable in this case. The first instance ordinarily involves direct appeals, when there usually is no evidence as to the counsel's strategic choices. In that context, it is entirely proper for an appellate court to summarily hold that defense counsel's failure to call a witness may have been based on counsel's risk-benefit assessment of the witness's testimony. This is appropriate because an ineffective-assistance claim cannot be built on speculation; the record must affirmatively show counsel was ineffective. Id. In the absence of evidence about the contours of a would-be witness's testimony and counsel's assessment of that testimony, the appellate court must presume counsel made a strategic choice not to call the witness because her testimony could be harmful in whole or part. See id. at 833 (record on direct appeal seldom well-developed enough to overcome presumption that counsel rendered reasonable and professional assistance); Garcia , 57 S.W.3d at 440 (appellate court commonly assumes counsel had strategic motivation for choices he made at trial if any can possibly be imagined when evidence of counsel's reasons is absent from record).
The second instance, which is more likely to arise in habeas proceedings than on direct appeal, occurs when the record contains evidence affirmatively showing a witness's testimony would be a double-edged sword. E.g., Ex parte McFarland , 163 S.W.3d 743, 757–58 (Tex. Crim. App. 2005) (counsel not deficient in failing to call mitigation witness who would have testified defendant was peaceable, given that witness would have been subject to cross-examination about prior violent robbery committed by defendant that resembled crime for which he was being tried); Ex parte White , 160 S.W.3d 46, 52–53 (Tex. Crim. App. 2004) (counsel not deficient in failing to locate witness as defense would not have benefited from his testimony, given that witness's affidavit showed his testimony would have been of little value in impeaching State's evidence and contradicted defendant's testimony).
This case does not fall into either of the preceding categories. Martin's affidavit as to her proposed testimony is in the record, and defense counsel's trial strategy is apparent from his closing argument. Under these circumstances, we should not assume Martin's testimony posed risks not divulged by the record. It's often possible to speculate on both sides of an ineffective-assistance claim. Scheanette v. State , 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). If the appellate imagination is not cabined by the evidence when the record is sufficiently developed, then no applicant could ever obtain habeas relief on the ground that his trial lawyer was ineffective in failing to call a witness because it will always be possible to suppose a witness could have given some unspecified unfavorable testimony.
Here, the only possible adverse testimony suggested by the record is that Martin would testify Sanchez was the designated driver for the evening, driving Martin and his other passengers to and from two different bars. But this information, and that Sanchez drank two beers at the second bar, was already before the jury at trial. Sanchez , 2017 WL 1424949, at *5. In addition, Benoit testified that but for the high-speed pursuit, he might have stopped Sanchez for drunk driving, given the late hour, Sanchez's rate of speed, and proximity to a nearby bar. Id. at *1, *5. On this record, trial counsel could not have reasonably opted not to call Martin on the basis that doing so would subject her to cross-examination about the possibility that Sanchez was drunk driving, given that the evidence already raised this issue.
The en banc court's contrary analysis and conclusion is premised in part on an inaccurate characterization of the record. According to the en banc court, "the record here is silent on trial counsel's reasoning." Therefore, the en banc court reasons, we must "assume a strategic motivation if any can be imagined" by us.
If the record were silent, I would agree with the en banc court. When the record is silent, we give trial counsel the benefit of the doubt and assume he acted strategically if any reasonably sound strategic motive is imaginable. Johnson v. State , 624 S.W.3d 579, 586 (Tex. Crim. App. 2021). So, when the record is silent, the presumption that trial counsel's challenged conduct might result from sound trial strategy ordinarily remains unrebutted and thus defeats an ineffective-assistance claim. E.g., Thompson v. State , 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999).
But the record is not silent as to trial counsel's reasoning. Trial counsel's strategy is apparent from the face of the record. As the en banc court says, the defense's closing argument "shows a unifying strategy on the part of trial counsel."
Though the en banc court does not explicitly say so, its analysis implies that the record is effectively silent for purposes of ineffective-assistance claims whenever, as here, the record lacks testimony from trial counsel about his strategic motives. To the extent this premise informs the en banc court's analysis, the en banc court overstates the law. Testimony from trial counsel as to his motives is often necessary, but this is true only "in the absence of anything in the record to show the tactics or strategic reasoning of counsel." Johnson , 624 S.W.3d at 587.
Here, the face of the record shows trial counsel's strategy as well as the uncalled witness's willingness to testify and the content of her proposed testimony. On this record, the en banc court's exercise of its imagination to conjure other possible reasons counsel might not have called her, rather than confining itself to the strategic reason shown by the record, is a misapplication of the law to the facts.
Finally, because the en banc court concludes Sanchez has not shown his trial counsel's performance was deficient, the court does not address prejudice. But the en banc court's opinion tacitly acknowledges Martin would have played a pivotal role at trial had she taken the stand, given that Sanchez put on no defense whatsoever and Goudeau could not recall the details of the collision. As the en banc court says, the jury did not hear from multiple witnesses, including Martin, who were involved in the collision and thus had the best opportunity to perceive it, if it was perceptible. Martin's testimony would have directly contradicted the State's theory of the case.
Moreover, while the evidence is legally sufficient to support the jury's guilty verdict, the evidence is not overwhelming. In addition to Goudeau's limited recall, Benoit's testimony about the collision was not beyond question. He testified that he saw the collision in his rearview mirror while driving 100 miles per hour away from the scene during a high-speed police pursuit. The physical evidence is similarly questionable. While Sanchez's truck was damaged, the damage was not extensive. As the forensic evidence concerning the gray paint found on Sanchez's truck was inconclusive, the evidence did not rule out the possibility that the damage to his truck could have been caused by something other than the collision at issue.
On this record, Martin's testimony that she did not perceive a collision was critical. A reasonable probability exists that a juror would have had reasonable doubt about Sanchez's guilt if the defense had introduced Martin's testimony at trial.
CONCLUSION
Sanchez has shown Martin was available to testify at trial and her testimony would have benefited his defense. Because trial counsel's failure to call Martin as a witness prejudiced Sanchez's defense, the trial court abused its discretion in denying Sanchez's application for post-conviction habeas relief. I respectfully dissent.