No. 05-05-01048-CR
Opinion Filed November 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-48087-IU. Affirm.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
Opinion By Justice WRIGHT.
Bruno Martinez Olivares appeals his conviction for burglary of a habitation. After the jury found appellant guilty, it assessed punishment, enhanced by two prior felony convictions, at sixty years' confinement. In four issues, appellant contends (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred by denying his motion for continuance, and (3) he did not receive the effective assistance of counsel at trial. We overrule appellant's issues and affirm the trial court's judgment.
Sufficiency of the Evidence
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. We apply well-known standards when reviewing such challenges. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex.Crim.App. Oct. 18, 2006) (factual sufficiency). Under both standards, the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony, and is free to accept or reject any or all of the evidence presented by either side. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Under these points, appellant contends the evidence is legally and factually insufficient because the State failed to prove beyond a reasonable doubt that he was the one who committed the burglary. Appellant acknowledges a burglary was committed and that he was at the location when it occurred. However, appellant claims he was there only because he agreed to take Manuel Gonzales to Jose Fierro's house to collect money Gonzales claimed was owed to him. Appellant also acknowledges that Fierro's neighbor, Maria Romo, identified appellant as the man who broke into Fierro's house and took the television but claims Romo's testimony is not credible. Although appellant argues he has a reasonable explanation for being at the location and that Romo's testimony is not credible, this does not render the State's evidence insufficient to support his conviction. It was the role of the fact finder, not this Court, to resolve conflicts in the evidence and to determine the credibility of any witnesses. After considering the evidence presented at trial, the jury choose to believe Romo and disbelieve appellant. Reviewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's first and second issues. Motion for Continuance
In his third issue, appellant contends the trial court erred by denying his motion for continuance. When, as here, a defendant seeks a continuance because of an absent witness, it is necessary to show (1) the defendant has exercised diligence to procure the witness's attendance, (2) the witness is not absent by the procurement or consent of the defense, (3) the motion is not made for delay, and (4) the facts expected to be proved by the witness. See Harrison v. State, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005). Diligence, in the motion for continuance context, is the exercise of timely and persistent efforts to secure the attendance of witnesses, using the means and agencies provided by law. Tucker v. State, 109 S.W.3d 517, 520 (Tex.App.-Tyler 1999, pet. ref'd) (citing Edwards v. State, 185 S.W.2d 111, 112 (1945)). Further, mere conclusions and general averments are not sufficient; the motion for continuance must show, on its face, the materiality of the absent testimony. Harrison, 187 S.W.3d at 434. The record in this case contains two motions for continuance. The first was filed on the day of trial and consists of three sentences. It alleges only that appellant "has not had time to find and subpoena his alleged accomplice in this matter nor has he had time to issue [a] subpoena to the person to whom the alleged stolen property was sold." The second was filed the next day, after the jury had found appellant guilty. A motion for continuance based on the absence of a witness that is filed the day of trial does not show the diligence required to support the motion. Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App. 1999). Thus, neither motion is sufficient to show the necessary diligence. Further, a mere statement that counsel did not have adequate time to prepare is insufficient to support such a motion. Heiselbetz v. State, 906 S.W.2d 500, 517 (Tex.Crim.App. 1995). We overrule appellant's third issue. Ineffective Assistance of Counsel
In his fourth issue, appellant contends he did not receive the effective assistance of counsel at trial. Specifically, appellant contends counsel was ineffective by failing to: (1) adequately investigate before trial; (2) object to certain evidence; (3) failing to request a hearing regarding the admissibility of his prior convictions; and (4) request a jury instruction or mistrial after certain argument by the State. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his ineffective assistance claim, appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that the result of the proceedings would have been different absent counsel's errors. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). When the record is silent about the motivation of counsel's tactical decisions, the appellant will rarely overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim App. 2001). We generally assume a strategic motive if any can be imagined and find counsel's performance deficient only if his conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Here, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record contains no explanation of counsel's investigation of the case or his motives or strategy in failing to object to evidence or to request a jury instruction or mistrial after certain argument by the State. Without trial counsel's explanation, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance with respect to these complaints. Further, it is critical that an appellant demonstrate the record shows both the alleged deficiencies and the alleged prejudice. Bone, 77 S.W.3d at 833-34; Thompson, 9 S.W.3d at 813. A failure to prove either prong will defeat the ineffective assistance claim. Thompson, 9 S.W.3d at 813. In his briefing, appellant makes no effort to demonstrate how the record demonstrates prejudice under Strickland's second prong. Under these circumstances, we cannot conclude appellant has met his burden to demonstrate that the record shows prejudice. We overrule appellant's fourth issue.