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Moran v. State

Court of Appeals of Texas, Fourteenth District, Houston
Nov 7, 2006
Nos. 14-05-00879-CR, 14-05-00881-CR (Tex. App. Nov. 7, 2006)

Opinion

Nos. 14-05-00879-CR, 14-05-00881-CR

Opinion filed November 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause Nos. 992659 and 992540. Affirmed.

Panel consists of Justices FOWLER, EDELMAN, and FROST.


MEMORANDUM OPINION


Appellant, Carlos Moran, appeals from an adjudication of guilt for credit card abuse and for making a false statement to obtain credit. Appellant was sentenced by the court to two years' and five years' confinement, respectively. He appeals based on a claim of ineffective assistance of counsel at the punishment phase of his trial. Because we find that the record below is insufficient to support a claim of ineffective assistance, we affirm.

Facts and Procedural Background

Appellant, as a car salesman, obtained personal and financial information from Alberto Rodriguez when Rodriguez came to appellant's car dealership to purchase a van. Appellant opened several credit card accounts in Rodriguez's name, but with appellant named as an authorized user of the card. Appellant used the cards to pay for bills, car payments, cell phone accounts, food, and entertainment. Appellant also dealt fraudulently with Carlos Martinez, who had come to appellant's car dealership to trade a used car for a new car. Appellant did not turn the used car over to the dealership, but kept it for himself for a period of time. He later traded the vehicle in for a new car at a different dealership. He used Martinez's vehicle and a credit card obtained with Rodriguez's information as payment on the vehicle, and he used Martinez's personal information to obtain credit for the balance of the vehicle's cost. Appellant also used Martinez's information to fraudulently obtain insurance for the purchased car. After his arrest, it was also discovered that appellant had used the information of a woman named Cavasos to buy two more vehicles. Again, appellant obtained her information when she bought a car from him. Appellant pleaded guilty to both charges, without an agreement as to his punishment. A punishment hearing was held, at which only the investigating officer testified. Appellant claims that his counsel was ineffective at the punishment hearing for two reasons. First, he claims that counsel was deficient during his cross-examination of the officer by eliciting evidence of an allegedly extraneous offense. This offense consisted of using the card obtained in Rodriguez's name to gratuitously make the down-payment on a car for a woman named Yaneris Perez. Second, he claims counsel was deficient for choosing to "stand on the sworn testimony as to his motion for probation and . . . rest[ing] on the PSI" without presenting mitigating evidence at the hearing.

Analysis

I. Standard of Review This court decides whether counsel was ineffective using a two-part test. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Appellant must first show that counsel was deficient, and second, show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To prove deficiency, appellant must show, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellate review of defense counsel's representation is highly deferential and we presume that counsel's actions fell within the wide range of reasonable and professional assistance. Id. To defeat the presumption of reasonableness on the part of counsel, appellant must present evidence illustrating why trial counsel did what he did. Stults v. State, 23 S.W.3d 198, 208 (Tex.App.CHouston [14th Dist.] 2000, pet. ref'd) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994)). If the record is silent as to counsel's reasons for his conduct, then an appellate court would be speculating if it found counsel ineffective. Id. Recognizing that the reasons for counsel's actions will not normally appear in a trial court's record, the Court of Criminal Appeals has said that "[i]n the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson v. State, 9 S.W.3d 808, 813B14 (Tex.Crim.App. 1999).

II. Appellant Fails to Rebut Presumption in Favor of Trial Counsel

While we may be able to make some educated guesses as to why counsel asked certain questions or failed to call certain witnesses, there is no direct evidence in the record of the reasons why he made the decisions he did. Therefore, without speculation, we cannot determine whether counsel's representation fell below the objective standard of professional norms. In the absence of a record identifying the reasons for his actions, we must presume they were made deliberately and as part of a reasonable trial strategy. See Stults, 23 S.W.3d at 209. We therefore overrule appellant's sole point of error.

Conclusion

Having overruled appellant's sole issue on appeal, we affirm the judgments of the trial court.


Summaries of

Moran v. State

Court of Appeals of Texas, Fourteenth District, Houston
Nov 7, 2006
Nos. 14-05-00879-CR, 14-05-00881-CR (Tex. App. Nov. 7, 2006)
Case details for

Moran v. State

Case Details

Full title:CARLOS A. MORAN, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: Nov 7, 2006

Citations

Nos. 14-05-00879-CR, 14-05-00881-CR (Tex. App. Nov. 7, 2006)