Opinion
NO. 14-16-00844-CR
03-22-2018
ARTHUR LUNA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Cause No. 1404117
MEMORANDUM OPINION
A jury convicted appellant of capital murder, and the trial court sentenced him to life in prison without parole. In two issues, appellant contends that his trial counsel rendered ineffective assistance by not subpoenaing and calling several witnesses and by putting appellant on the stand without properly preparing him to testify. The record does not show that the witnesses were available to testify or how they would have testified; nor does the record show how trial counsel prepared appellant to testify. Accordingly, we affirm.
I. Standard for Ineffective Assistance
To prevail on a claim of ineffective assistance, an appellant must prove by a preponderance of the evidence that (1) counsel's performance was deficient by falling below an objective standard of reasonableness and (2) counsel's deficiency caused the appellant prejudice such that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010).
Often a claim of ineffective assistance may not be addressed on direct appeal because the record is not sufficient to conclude that counsel's performance was deficient under the first Strickland prong. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). "Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation." Salinas, 163 S.W.3d at 740. "To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quotation omitted). If counsel has not had an opportunity to explain their actions, we may not find deficient performance unless the conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quotation omitted).
II. Alleged Failure to Subpoena Witnesses
Two potential witnesses did not testify at trial: one who was in the decedent's apartment at the time of the murder, and one who was riding in a vehicle with appellant before and after the murder.
"A claim of ineffective assistance based on trial counsel's failure to call a witness cannot succeed absent a showing that the witness was available to testify and that the witness's testimony would have benefitted the defense." Stokes v. State, 298 S.W.3d 428, 431 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (citing Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007)). Appellant did not file a motion for new trial and has not otherwise shown that either of the witnesses was available to testify or that their testimony would have benefited the defense. His assertions on appeal—that the witnesses would have been available and "could have" benefitted appellant's defense—are conclusory and insufficient to establish ineffective assistance by a preponderance of the evidence. See id. at 432.
Appellant's first issue is overruled.
III. Alleged Failure to Prepare Appellant to Testify
Appellant gave a statement to the police before testifying at trial. Some of his testimony was inconsistent with his earlier statement, and the State impeached him. Appellant contends on appeal that he had "no assistance as to what to testify to or how to testify" and that trial counsel did not "go over all previous statements with appellant."
The record does not reflect the preparation, or lack thereof, that trial counsel afforded appellant. Faced with a silent record, we cannot speculate about trial counsel's strategy or conclude that trial counsel's conduct was so outrageous that no competent attorney would have engaged in it. See Odom v. State, No. 14-11-00206-CR, 2012 WL 1964580, at *5 (Tex. App.—Houston [14th Dist.] May 31, 2012, no pet.) (mem. op., not designated for publication) (no ineffective assistance on silent record based on claim that counsel failed to prepare defendant for testifying); Romero v. State, No. 14-07-00657-CR, 2008 WL 5244890, at *7 (Tex. App.— Houston [14th Dist.] Dec. 18, 2008, no pet.) (mem. op., not designated for publication) (same).
Appellant's reliance on Perrero v. State, 990 S.W.2d 896 (Tex. App.—El Paso 1999, pet. ref'd), is misplaced. The defendant's trial counsel in Perrero testified at a motion for new trial hearing and fell on his sword; he admitted to being negligent, making a big mistake, and completely overlooking preparation of the defendant to testify in a manner that would not open the door to criminal history. See id. at 899. There is no such evidence in this case. Appellant has not shown that trial counsel was deficient.
Appellant's second issue is overruled.
IV. Conclusion
Having overruled both of appellant's issues, we affirm the trial court's judgment.
/s/ Ken Wise
Justice Panel consists of Justices Busby, Wise, and Yates.
Do Not Publish — Tex. R. App. P. 47.2(b).
Senior Justice Leslie Brock Yates sitting by assignment.