Opinion
02-23-00205-CR
08-29-2024
Gary Dion Daniels, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1690471
Before Kerr, Wallach, and Walker, JJ.
MEMORANDUM OPINION
Mike Wallach Justice
Appellant Gary Dion Daniels appeals from his conviction for assault-family violence with a prior conviction. See Tex. Penal Code Ann. § 22.01(b)(2)(A). In two points, Appellant argues that the evidence was insufficient for the jury to find that he assaulted the complainant and that his retained trial counsel was ineffective for disparaging him throughout direct examination and closing argument during the guilt-innocence trial phase "such that the line between defense and prosecution was obscured." Because the evidence was sufficient to support the jury's guilty verdict and Appellant was not prejudiced by any deficiencies in his trial counsel's performance, we will affirm.
Background
Appellant met the complainant, Camila Espinoza, while she was living with her young children in Tyler, Texas. They began a relationship, and after Appellant told her that he wanted to marry her, Camila and her children moved in with him in Arlington, Texas. In June 2021, Appellant and Camila attended a birthday party at his relative's house. Both drank alcohol at the party. At some point, Appellant and Camila began arguing; Camila claimed that it was because she confronted him after seeing another woman sitting on his lap. He became angry and began pushing Camila toward his truck and then put her in his truck, but Camila began screaming. Appellant's family came outside and told him to leave her alone; he went inside, and she began walking home.
We use a pseudonym to protect her identity. See Tex. Const. art. I, § 30(a)(1); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
Camila testified at trial that on her walk, she saw Appellant driving his truck around looking for her, so she hid behind a building. She called her friend Ruben, who was originally from Tyler but lived in Arlington, and asked him to pick her up. Ruben testified that Camila had called him "scared" and told him that "she was involved in some kind of dispute and [that] she was fleeing from a location." She told him that she had been with her boyfriend at a party where there had been a "situation," and she had tried to leave but her boyfriend "wouldn't let her go." Ruben knew the area, so he told her how to get to a place where he could pick her up. "[S]he felt like she was being followed or chased," so he picked her up and "offered her sanctuary."
When he picked her up, she was "[d]istressed[; j]ust kind of upset about . . . what [had] transpired wherever she was at." "She was just frantic. She . . . was just breathing heavily and seemed paranoid." He testified that he did not remember if he smelled alcohol on her, but to his recollection, she did not seem intoxicated. He offered to let her stay at his home until the morning, but she wanted to be dropped near-but not at-the house where she was living with Appellant so that she could get her car. Camila testified that she had asked Ruben not to drop her off in front of the home she shared with Appellant because she did not want Appellant to get angry that she was with Ruben. But when Ruben was dropping her off, she saw Appellant, so she told Ruben to call 911 if he did not hear from her in 10 minutes. Ruben corroborated that part of her testimony; he testified that Camila told him that if he did not hear from her within "a few minutes . . . that, obviously, the gentleman that she was fleeing from was not going to let her go." Camila called Ruben a few minutes after being dropped off, "and there was commotion, she was screaming that he had punched her, and . . . then the call just-it went dead." In that call, he heard Camila say "Gary, stop." Ruben called 911 and reported that he was concerned for a friend in a "domestic situation with her boyfriend." He told the dispatcher that his friend had called him crying after he had dropped her off and told him that her boyfriend had punched her in the chest. The State played Ruben's 911 call at trial.
Camila explained what happened after Ruben dropped her off. As she walked toward Appellant, he asked her if Ruben was "one of [the] men that [she was] sleeping with," and he punched her in the chest, hard enough to hurt and to knock the wind out of her but not hard enough to knock her down. Appellant then went and sat in his truck, and Camila called Ruben and asked him to call 911. Appellant found $250 that Camila's children's father had given her, and Appellant, talking to her from his truck with the door open, began calling her a thief and a prostitute. At some point, Appellant got out of his truck, took her phone, pushed her against the side of the house-causing her to fall-and then poured his beer on her head. In that altercation, he also hit her face. He then got in his truck and left.
Camila got in her car, but the tire was low, so she went to a QT gas station. CCTV video recorded Camila parking at a gas pump and Appellant driving up in his truck. He parked next to her and opened her passenger door. They appeared to be arguing. Camila then drove off, circled around the gas pumps, and parked in front of the store. She opened her trunk, lifted the flap, and took out a spare tire. Appellant drove off, but about ten minutes later, he returned and parked his truck behind her car. Appellant took Camila's spare tire, put it in his truck, and drove off. He came back a little while later without the tire. According to Camila, he told her that "he threw it."
A person at the QT called 911 and reported that he was "witnessing a domestic situation where this dude is hitting on his girl[;] he is trying to break into her car, and he has flattened her tire, and he's-right now he's taken her tire, and he's, like, leaving her stranded." The witness stated, "[W]hile she's in the car, he'll try to break the window, and he'll, like, push on her and things, and like, put his hands on her."
Arlington Police Officers Jonathan Thalken and Alissa Martin responded to the 911 calls from Ruben and the witness at the QT. Initially, Camila did not want to answer the officers' questions, but she eventually said that Appellant had punched her in the chest. Camila had dirt on her pants, and she told Officer Martin that Appellant had pushed her down. Officer Martin saw a red mark on the left side of Camila's chest, near her collarbone. Officer Martin also saw marks on Camila's tire that were consistent with the tire's having been slashed.
Officer Martin attempted to talk to Appellant, but he yelled at her and initially would not sit down when asked. She and another officer "made him sit down, which agitated him," and he "did not want anything to do with [Officer Martin] after that." But Appellant told Officer Thalken, who arrived after Officer Martin, that Camila had left the party after getting upset, and that when they returned home, she had a flat tire and wanted Appellant to take a tire off his truck to put on her car. Appellant told officers that he had taken the spare tire away from Camila because it was the wrong tire for the car. When Officer Thalken asked Appellant about what had happened, he replied that Camila was just drunk and "was very dismissive of her." Appellant denied hitting Camila and said that he never hit women. When Officer Martin relayed to Appellant what Camila had said regarding his punching her, he told Officer Martin that "if he had punched [Camila] in the chest, he would have broken her" and that if he "was to punch [Officer Martin], [he]'d break [her] face."
After speaking to both Camila and Appellant about her allegation that Appellant had punched her, Officer Thalken decided to arrest Appellant. Appellant had Camila's phone, which had a pink and glittery case, in his possession. When officers returned the phone to Camila, Appellant claimed that it was his phone and "got extremely upset and began . . . almost resisting officers getting into the vehicle."
Officer Martin suspected that Camila was intoxicated because she smelled alcohol on Camila's breath and because Appellant had repeatedly stated that Camila had been drinking. However, based on field sobriety tests, Officer Martin determined that Camila was not intoxicated.
Arlington Police Officer Benjamin Drake testified that he arrived at the QT to meet with Camila several hours after Appellant's arrest, and Camila still did not have a tire for her car and was therefore stranded at the gas station. When Camila had spoken to the officers earlier in the evening, she had not completed what Drake referred to as a "family violence packet"-information about "who's involved in the incident"-so he had gone to the QT to have her complete that paperwork. Someone from Victim Services also came to help her. Camila had a bruise on her nose, which she said was caused by her glasses when she was hit in the face. She also had discoloration on her wrists and near her elbow. Drake called an ambulance so that an EMT could check on Camila's injuries.
The paramedic noted that Camila smelled of alcohol but had no signs of intoxication. The paramedic also noted an abrasion and contusion on Camila's lower back and contusions on her left arm and elbow.
Appellant was indicted for assault-family violence enhanced by a 2008 assault- family violence conviction. See Tex. Penal Code Ann. § 22.01(a), (b)(2)(A). The indictment further included a habitual offender notice. See id. § 12.42(d).
The indictment also contained a second count and a state-of-disaster enhancement, both of which the State waived before trial.
After Appellant's indictment, Camila signed an affidavit for nonprosecution and wrote a letter to the district attorney stating that Appellant had never assaulted her. At trial, she testified that Appellant made her write them.
Appellant also testified. He told the jury that his relationship with Camila was good "until she'd get drunk," which would lead her to "start thinking [that he] was out there doing something with some woman."
Appellant denied ever hitting Camila. He denied that anyone had been sitting in his lap at the party. After Camila became upset, he decided that they would leave the party, but she did not want to get in his truck, so she started walking home. He decided to let her walk a bit to cool off, so he drove home. He claimed that at one point on his drive, he saw her running and that she fell.
No one else that had been at the party-Appellant's family members- testified to corroborate either side's testimony about what happened at the party.
Appellant denied ever seeing Ruben or knowing that Ruben had given Camila a ride home. Appellant claimed that her car's tire was flat before they left for the party, and he stated that the spare tire that she had was not the spare for her car but was instead the spare for his Honda Accord, which had been sitting by the side of his house. He said, "Why [do] you think she never, ever pulled a jack out? She didn't even have a jack in that car." He claimed that he had taken the tire from her at the QT that night because she could not understand that it would not work for her car. His explanation for taking Camila's cell phone that night was that it was his phone that he had been letting her use, "[b]ut if you go leave[,] . . . leave my phone."
Appellant acknowledged that he had been incarcerated in 2017 after he had been accused of (in his words) "g[etting] into a shootout with the Killeen Police Department"-an event that he denied had happened, despite his guilty plea and conviction-and had also been charged with "burglary, manufacturing drugs, [and] bail jumping." He also acknowledged that he had been convicted around the same time for assault-family violence by strangulation. When asked about it, he said that the complainant was "[his] woman right to this day," and when asked if he had gone to prison for strangling her, he denied it. He also admitted to the 2008 assault-family violence conviction and a 2003 conviction for intoxication assault. Appellant testified that the 2008 family violence conviction was a misunderstanding and that he had only held the complainant in that case to stop her from throwing rocks at his car and house. He claimed that the drug charge was also false because he "never had [any] drugs." Regarding the intoxication assault, he stated that he "was innocent the whole time," and he minimized the complainant's injuries. When asked about whether he had violated a protective order by contacting Camila, he denied contacting her and stated that someone had perhaps been trying to set him up.
The offense for which he was convicted for this incident was "the lesser-included offense of aggravated assault."
In 2017, as part of a plea agreement, he was sentenced to two years' confinement for aggravated assault, the assault-family violence, possession of a controlled substance, and several counts of bail jumping and failure to appear.
Both Camila and Appellant testified about a prior incident in which the police had been called. On June 10, 2021-about two weeks before the events at issue in this case-police received a call about a domestic disturbance at Appellant's house. Crystal Rodriguez was one of the officers who responded to the call. When Officer Rodriguez approached the front door, she could hear arguing inside the house. She knocked on the door and "announced Arlington police," but nobody came to the door. She knocked again and heard a man say, "Why are you pulling my hair?" and a woman say that she needed her phone. Because Rodriguez and her partner could hear "some sort of struggle" happening, they opened the unlocked front door and went inside. Rodriguez saw Camila pull Appellant's hair as the couple stood in their living room. Rodriguez took Camila outside to talk to her. Camila, who was intoxicated, said that they were arguing because she was trying to leave to go back to Tyler. Camila had a "jammed or swollen" finger and an eye injury, but she would not explain how the injuries happened and did not want Appellant to get in trouble.
Appellant also did not want to talk about what had happened. Appellant denied that Camila had hurt him. Eventually, the officers issued Camila a citation for assault and took Appellant to jail because of an outstanding traffic warrant. Bodycam video of the officers' encounter with Appellant was played for the jury. In the video, Rodriguez asked him if he wanted to give his side of the story, but Appellant said that it was "nothing," that they were both "good," and that Camila could not hurt him because "she's just a woman. She's just weak."
In another part of bodycam footage, Appellant told the officers that he was someone who "puts a gun to [ ] cops' heads." This was an apparent reference to one of his prior convictions. In his trial testimony, he said that he was not bragging in the video about the offense but was being sarcastic.
Appellant testified briefly about the June 10 incident, stating that he had not wanted Camila to leave because she was drunk. On cross-examination, when he said he had been "trying to help" Camila, the prosecutor asked him, "In what way? By waiting for the police officers to knock and then you hear Arlington police [and] say, Why you keep pulling my hair out, loud enough for them to hear?" Appellant said, "I wouldn't do that. I'm not a girl." He also explained his "weak woman" comment, saying that women are weak because of their emotions and because they menstruate.
Camila also testified about the incident. She explained that they had been arguing outside because she had been talking to her children's father about the children's upcoming visit with him. Camila stated that Appellant had "pushed [her] to the car," and her daughter saw, so she told her children to get inside the car, and she went inside to get her keys to "leave like [she] always tr[ied] to do." Appellant also went inside, and after he pushed her several times, she pulled on his hair and his clothing, ripping them. After police arrested Appellant, they took Camila to a hotel so that she did not have to stay at the house. Her cousins picked her and her children up the next day and took her to Appellant's house so she could get her car. When she got to the house, the car's mirrors were broken, and her seats had cigarette burns. Camila believed that Appellant was responsible. Camila, her daughters, and her cousins left and drove to Tyler. Appellant went after them, apologized to Camila, and asked her to return to Arlington. Camila agreed.
Camila also testified about another incident that occurred after the assault at issue in this case. Appellant carried her into a motel and took off her pants, and although she "told him [she] didn't want nothing to do with him . . . [a]nd [she] kept saying no," "he [did] what he wanted to do." Camila "asked him to let [her] go," but "he said, no, that he was going to call his cousin so they could come beat [her] up." She put on her underwear, and as he walked toward the bathroom, she ran out without her pants on. She told a police officer that day that she had "let" Appellant have sex with her so that he would leave her and her family alone. The State played motel surveillance video of Appellant's carrying Camila over his shoulder from the parking lot. He testified that the sex was consensual and that he had carried Camila into the motel because she was "tipsy" and did not have shoes on.
The jury found Appellant guilty and assessed his punishment at 40 years' confinement. The trial court sentenced him accordingly.
Discussion
I. Sufficiency of the Evidence
Appellant argues under his first point that the evidence did not establish beyond a reasonable doubt that he struck Camila with his hand or fist as charged in the indictment. In his argument, he focuses on what he contends were conflicts in the evidence. Appellant notes that Camila testified that she was pushed against a brick wall and had beer poured on her, but she had not reported that event to the police that night. He further asserts that Camila testified that she had not fallen when Appellant punched her, yet she told Officer Martin that she had fallen. He further states that Officer Martin did not testify or state in her report that Camila's hair or clothes were wet or smelled of beer, and he points out that Camila recanted her allegations in her affidavit of nonprosecution. He asserts, as he did in his trial testimony, that if he had punched Camila as she claimed, she would have had more than the minor bruise that was seen on her that night. He argues that the evidence shows only that Camila fell down on her own.
Specifically, Appellant argues that Camila told Officer Martin that she "got pushed to the ground and punched in the chest" yet testified at trial that she did not fall. This characterization of the evidence is not quite correct. Camila testified at trial that she fell when Appellant pushed her against the wall, not when he punched her. This testimony matches her telling Officer Martin that she "got pushed to the ground" and was also punched.
The State had to prove that Appellant (1) intentionally or knowingly (2) caused Camila, (3) a family or household member or a person with whom Appellant had a dating relationship, (4) bodily injury, i.e., "physical pain, illness, or any impairment of physical condition." See id. §§ 1.07(a)(8) (defining bodily injury), 22.01(a)(1), (b)(2) (setting out assault-family violence elements and making family-violence assault a third-degree felony if committed by defendant with prior family-violence assault conviction); see also Tex. Fam. Code Ann. §§ 71.0021(b) (defining "dating relationship" as used in Section 22.01), 71.003 (defining "family member"), 71.005 (defining "household member"). Viewing all the evidence in the light most favorable to the verdict, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017), we conclude that the jury could have found beyond a reasonable doubt that Appellant committed the offense as charged.
Both Appellant and Camila testified that they were dating and living together. Camila testified that Appellant pushed her against a wall, causing her to fall, and that he punched her in the chest with his fist, which hurt. Ruben testified that Camila called him around the time that Appellant punched her and relayed over the phone what had happened. Camila repeated that allegation to a police officer, who testified about it. Camila also testified that when he punched her, it hurt. The fact that Camila signed an affidavit of nonprosecution and denied the assault at one point did not bar the jury from considering her testimony, including her testimony that Appellant had forced her to deny the assault. See Nash v. State, Nos. 02-17-00236-CR, 02-17-00237-CR, 2018 WL 4495440, at *4 (Tex. App.-Fort Worth Sept. 20, 2018, pet. ref'd) (mem. op., not designated for publication). Instead, it was the jury's responsibility to resolve conflicts in the testimony, to weigh the evidence and its credibility, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021) (noting that it is the jury's role to judge the evidence's weight and credibility). It was up to the jury to resolve any conflicts between Camila's testimony and what she did or did not say to officers on the night of the assault and to decide what weight to give to her testimony and other evidence. See Nash, 2018 WL 4495440, at *4. The jury did not have to accept Appellant's version of events or his contention that Camila would have appeared more injured if he had punched her.
The jury had before it evidence that, if believed, would support a finding beyond a reasonable doubt that Appellant and Camila were dating or living together and that Appellant struck Camila with his hand or fist, causing her pain. We overrule his first point.
II. Ineffective Assistance
In his second point, Appellant argues that his trial counsel was ineffective for disparaging him throughout direct examination and closing argument "such that the line between defense and prosecution was obscured."
A. Reviewing Ineffective Assistance Claims
The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. amend. VI. To establish ineffective assistance, a defendant must show by a preponderance of the evidence (1) that the attorney's representation was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The record must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
In evaluating counsel's effectiveness under the deficient-performance prong, an appellate court may not infer ineffective assistance simply from an unclear record or a record that does not show why counsel failed to do something. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). The appellant has the burden to prove "that there is, in fact, no plausible professional reason" for the complained-of actions. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). If, from the record, "one could conclude that there were legitimate and professionally sound reasons for counsel's conduct or one could speculate that there were not," then the appellant will not satisfy Strickland without an explanation for the trial attorney's actions. Id.
Strickland's prejudice prong requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial-that is, a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, an appellant must show a reasonable probability that the proceeding would have turned out differently without the deficient performance. Id. at 694, 104 S.Ct. at 2068; Nava, 415 S.W.3d at 308. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Nava, 415 S.W.3d at 308. We must ultimately focus on examining the fundamental fairness of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id., 104 S.Ct. at 2069.
B. Analysis of Appellant's Arguments
The record does not include Appellant's attorney's explanation for his trial strategy, and thus we can only guess at it. However, the record does reveal that Appellant had strong opinions on how his defense should be conducted. His trial attorney was at least his fourth attorney in the case. Each of Appellant's previous attorneys had moved to withdraw due to conflicts with him or an inability to effectively communicate with him. Appellant's trial attorney had to find a way to respect Appellant's opinion about trial strategy without abdicating his role to Appellant.
Appellant argues that the record does actually show his attorney's expression of strategy because the attorney asked Appellant in direct examination to confirm that he had chosen the attorney and that he was "kind of caught a little off guard [by] the way [the attorney was] talking to him" but that the attorney had explained to him, "[I]f I represent you, I'm going to represent you." We disagree that this exchange sufficiently explains anything about the attorney's trial strategy except for his unwillingness to let Appellant make all the decisions about how to conduct the defense.
One of the prior attorneys provided as good cause for his withdrawal that, among other grounds, "[Appellant] insists upon an objective that [the attorney] considers repugnant or imprudent or with which [the attorney] has a fundamental disagreement" and that Appellant "demands that [the attorney] succumb to [Appellant's] desires for representation."
Appellant insisted on testifying, and the attorney may have decided to try to address unfavorable evidence head-on before the State did. See Yarborough v. Gentry, 540 U.S. 1, 3, 9-10, 124 S.Ct. 1, 3, 6-7 (2003) (discussing trial strategy of being candid about a defendant's shortcomings and finding no ineffectiveness even though the attorney had referred to the defendant as a "bad person, lousy drug addict, stinking thief, [and] jail bird"); Martin v. State, 265 S.W.3d 435, 446 (Tex. App.- Houston [1st Dist.] 2007, no pet.) (rejecting ineffectiveness claim based on defense counsel's referring to the defendant as a liar, a thief, and a drug dealer who had "committed so many dad-gum crimes [that he] c[ould ]not even remember them all"). For example, the attorney asked Appellant why he had told police that he would never hit a woman when he had two prior assault-family violence convictions. This questioning could have been the attorney's giving Appellant a chance to explain the discrepancy and why the jury should still view him as credible, but Appellant argues that the questioning characterized him as a liar who had harmed Camila. Other questioning may have been intended to give Appellant the chance to explain the couple's volatile relationship and why he had engaged in behavior that could be viewed unfavorably by the jury. For example, the attorney asked Appellant if he had ever disrespected Camila and whether he had followed the teachings of the Koran by helping her get help with her drinking problem. Appellant argues, however, that the attorney painted him as disrespectful and questioned his religious faith.
The attorney said that Appellant had harmed Camila, but the statement was made while the attorney was redirecting Appellant to the issues at hand after one of Appellant's many meandering, nonresponsive answers. Appellant's answer had ended with his stating that Tyler was a small town, to which the attorney said, "I don't care how small the town is, really. My point is that you harmed the woman. Does the woman have a legitimate reason to be in fear of you?" Appellant answered, "No. She ain't got no reason to be in fear, because she-one thing about her, see, she know[s] I'm going to go walk away, and that's something that she always got mad about, see." From the context, it is unclear what the attorney meant with his statement about harm, but the attorney's questioning during trial expressed his belief that the "toxic" relationship between Appellant and Camila was unhealthy and damaging for both parties and that Appellant should not have brought Camila to Arlington or stayed in the relationship.
Appellant stated that he had sometimes done so by "bring[ing] up . . . another woman" or by "the way [he] say[s] things to a person. . . . Sometimes the truth is offensive."
Appellant's answer was that Camila did not follow Islam and that to help someone, the person has to want help.
Appellant also complains that the attorney asked him "only" twice if he had assaulted Camila and had posed the questions "combatively" in a hostile manner; elicited sympathy for Camila by asking Appellant questions like why he had stayed in a toxic relationship with an alcoholic and why he had interfered with Camila's life and brought her to Arlington; and told the jury that if it were up to the attorney, Appellant would not have testified. Appellant further complains that the attorney told the jury in his closing argument which points Appellant had wanted him to make, which Appellant says made his version of the case hard for the jury to believe.
The attorney told the jury that he allows his clients to have input on their defense and that he agreed to convey the points that Appellant wanted him to make because they had some support in the evidence.
Appellant contends that had his attorney performed differently, "it is likely the jury would have lent more credence to his testimony and paid more attention to the actual facts of the case and the lack of evidence amounting to guilt beyond a reasonable doubt." However, even if the attorney's performance was deficient, Appellant still had to show a reasonable probability that the outcome of his trial would have been different with a better performance. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 111-12, 131 S.Ct. 770, 791-92 (2011). The record does not support a conclusion that Appellant was prejudiced by his attorney's performance.
Camila testified that Appellant had punched and pushed her, and she had marks on her body consistent with her testimony. Despite Appellant's contentions to the contrary, Camila's testimony on key points was consistent with her statements to police on the night of the assault. Further, Camila called her friend Ruben while she was running away from Appellant and again right after he hit her, and Ruben testified about what she told him. Camila had been concerned enough about what Appellant might do to tell Ruben to call 911 if he did not hear back from her, and Ruben was concerned enough by what he heard-including Camilla's statement to him that Appellant had just punched her-to make that call.
The jury also had evidence that Appellant's behavior at the gas station that night was aggressive and angry. His behavior there before the police arrived was so concerning that a stranger was willing to call 911 to report it. Even after the police arrived, Appellant did not rein in his angry and aggressive behavior. Officers Martin and Thalken both testified about Appellant's demeanor that evening. Further, Officer Martin and Ruben each concluded that Camila was not intoxicated when she was with them.
The jury also saw video of another encounter that Appellant had with the police in which he appeared angry and disrespectful of women. Moreover, Appellant chose to testify, putting his credibility directly at issue. In his testimony, he made derogatory comments about women. Additionally, he was presented with evidence of multiple prior assault convictions-including two prior assault-family violence convictions-and for each of those prior offenses, he minimized or denied his responsibility.
In summary, the jury heard Camila's testimony and other circumstantial evidence consistent with her allegations, and the only directly contradictory evidence came from Appellant himself, whose testimony gave the jury reason to doubt his credibility. Based on the record in this case, Appellant has not shown a substantial likelihood that the result of his trial would have been different had his attorney performed differently. Because Appellant has not shown prejudice from his attorney's performance, he has not satisfied Strickland. We therefore overrule Appellant's second point.
Conclusion
Having overruled Appellant's two points, we affirm the trial court's judgment.