Alberto Montelongo v. the State of Texas

                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 ALBERTO MONTELONGO,                               §               No. 08-16-00001-CR

                                Appellant,         §                  Appeal from the

 v.                                                §           243rd Judicial District Court

 THE STATE OF TEXAS,                               §             of El Paso County, Texas

                                Appellee.          §                (TC#20150D02224)


                                            OPINION

       This appeal is before us for the third time. Our focus here is on the trial court’s findings,

made following a new trial hearing, that Appellant Alberto Montelongo’s trial counsel did not

perform deficiently in representing Appellant in his criminal trial. In our initial opinion, we held

that Appellant failed to preserve the issue of whether the trial court erred by failing to conduct a

hearing on his motion for a new trial. And based just on the trial record, we concluded that he was

not denied effective assistance of counsel or denied a fair trial based on the trial court’s conduct

during jury selection. See Montelongo v. State, No. 08-16-00001-CR, 

(Tex.App.--El Paso July 2, 2018), rev’d, 

 (Tex.Crim.App. 2021). The Court of

Criminal Appeals held we erred by finding Appellant had not preserved his claim over the trial

court’s failure to conduct a hearing on his motion for a new trial. Montelongo v. State, 

, 824-25 (Tex.Crim.App. 2021). On remand, we found the trial court erred by not holding a

hearing on Appellant’s motion for a new trial. We abated the appeal, and remanded the case to the

trial court with directions that it hold an evidentiary hearing to make findings of fact relevant to

Appellant’s claims of ineffective assistance of counsel. Montelongo v. State, 

, 738

(Tex.App.--El Paso 2021, no pet.). Having complied with our directions, the trial court issued its

findings of fact. We now find that Appellant was not deprived of effective assistance of counsel

and affirm the trial court’s denial of his motion for a new trial.

                                         I. BACKGROUND

       We provided the detailed procedural and factual background of this matter in our original

opinion. Montelongo, 

, at *1-2. As a result, here we only provide the background

details necessary to the disposition of this appeal.

       A jury convicted Appellant of attempted capital murder of multiple persons and assault

with bodily injury of a family member twice within twelve months; he was sentenced to

confinement for 99 years and ten years, respectively. Appellant filed a motion for a new trial

alleging he was denied effective assistance of counsel because his trial counsel provided a deficient

defense. He also alleged that trial counsel did not zealously represent him out of fear of the trial

judge—that judge had fined his counsel $500 for contempt of court and threatened to hold counsel

in contempt on multiple other occasions throughout the trial. Appellant incorporated an affidavit

from his trial counsel into his motion for a new trial that claimed, among other things, that he did

not zealously represent Appellant because he was fearful of being held in contempt and

incarcerated.

       Appellant scheduled an evidentiary hearing for his motion for a new trial, but the trial court

sua sponte canceled the hearing without explanation. The motion for a new trial was overruled by



                                                  2
operation of law when the trial court did not rule on it within seventy-five days. See TEX.R.APP.P.

21.8(c).

        We affirmed the trial court’s denial of the motion for a new trial in our initial opinion. We

held that Appellant had waived the issue of whether the trial court abused its discretion by failing

to hold a hearing because there was no evidence “showing [his] efforts to reschedule the hearing

on his motion for new trial.” Montelongo, 

, at *2. Because trial counsel’s

affidavit was not introduced during a hearing, we did not consider it as evidence. 

 We concluded

that “[i]n light of [the] undeveloped record which [did] not include trial counsel’s explanations”

for his trial performance, that Appellant had failed to meet his burden of proving that his counsel’s

performance was so deficient to have rendered him ineffective. Id. at *7. Finally, we held the trial

court’s actions during jury selection, including admonishing prospective jurors about their answers

during voir dire and accusing prospective jurors of attempting to avoid jury duty, did not have a

chilling effect on the jurors or deprive Appellant of a fair and impartial trial. Id. at *9-10.

        The Court of Criminal Appeals, however, disagreed holding “that timely filing and

presenting a motion for new trial that requests a hearing preserves, for appellate review, the issue

of whether the trial court abuses its discretion in failing to hold such a hearing.” Montelongo, 623

S.W.3d at 821. On remand, we found there was a substantial fact question about trial counsel’s

effectiveness “justifying the need for a new trial hearing, and that the trial court erred by failing to

hold a hearing.” Montelongo, 631 S.W.3d at 738. So we abated the appeal and remanded the case

to the trial court to hold a new trial hearing and make findings of fact about the effectiveness of

Appellant’s trial counsel. Id. at 738-39.

        The trial court—now presided over by a different judge than when Appellant’s trial was

held—heard testimony from Appellant’s trial counsel and Appellant’s mother at a hearing on the



                                                   3
motion for a new trial. The trial court also accepted into evidence trial counsel’s affidavit attached

to the motion for a new trial and an affidavit executed by Appellant’s investigator. The trial court

then issued the following findings of fact relevant to this appeal:

       16.     At the time of Montelongo’s trial in 2015, attorney Cervantes had been a
               lawyer for almost 40 years and tried more than 100 cases.

       17.     At the conclusion of jury selection, and out of the presence of the 12 selected
               jurors (who had been released for the weekend), Judge Aguilar held attorney
               Cervantes in contempt for interrupting while the judge was addressing the
               remainder of the jury panel.

       18.     The Court finds credible attorney Cervantes’ testimony and assertion in his
               affidavit that, “After this experience [being held in contempt at the
               conclusion of jury selection], I felt very intimidated.”

       19.     The Court further finds credible attorney Cervantes’ testimony and
               assertion in his affidavit that, “As the trial progressed I became more and
               more intimidated.”

       20.     The Court, however, finds not credible the testimony and assertions of
               attorney Cervantes—a lawyer with approximately 40 years of experience
               who had tried more than 100 cases—that any of his subsequent actions and
               omissions during trial were solely the product of such fear of, or
               intimidation by, Judge Aguilar.

       21.     The Court further finds not credible the testimony and assertions of attorney
               Cervantes that after being held in contempt at the conclusion of jury
               selection, he thereafter engaged in a repeated pattern of advancing his own
               personal interests to the detriment of Montelongo.
               ....

       28.     The Court finds credible attorney Cervantes’ testimony that his decision to
               not call his firearms expert as a witness was a matter of trial strategy, based
               on Cervantes’ belief that the expert’s testimony “was going to be more
               damaging than favorable.”

       29.     The Court finds not credible attorney Cervantes’ testimony that his decision
               to not call the firearms expert as a witness was because he (Cervantes) was
               afraid of Judge Aguilar.

       30.     The Court finds credible attorney Cervantes’ testimony that his decision to
               limit the number of witnesses he called during the punishment stage of trial


                                                  4
      was a matter of trial strategy, based on Cervantes’ believe [sic] that such
      witnesses (members of Montelongo’s family) were biased against the
      victim, as well as his belief that calling additional family members to testify
      would have been merely repetitive.

31.   The Court finds not credible attorney Cervantes’ testimony that he limited
      the number of punishment witnesses he called during the punishment stage
      of trial because he was intimidated by Judge Aguilar.

32.   At the hearing on Montelongo’s motion for new trial, Montelongo presented
      no evidence as to what specific, additional testimony or evidence attorney
      Cervantes could have, but failed, to elicit or introduce at the punishment
      stage of trial.

33.   The Court finds not credible attorney Cervantes’ testimony that he did not—
      after Judge Aguilar had twice sustained the prosecutor’s objections that
      Cervantes’ questions assumed facts not in evidence—pursue his cross
      examination of victim Parra regarding whether or not she had grabbed
      Montelongo’s gun because he (Cervantes) was afraid of Judge Aguilar.
      Rather, the Court finds credible attorney Cervantes’ testimony that he
      (Cervantes) ceased that line of questioning because Judge Aguilar “wasn’t
      giving me anywhere to go with it. Because every time I would try to do it,
      he would sustain their objections, even though I felt it was a different
      question.”

34.   The Court further finds that despite attorney Cervantes’ testimony as to
      whether victim Parra grabbed the gun was crucial to Montelongo’s
      defensive theories of accidental discharge and/or self-defense in this case,
      the record shows that attorney Cervantes did in fact elicit from victim Parra
      whether or not she had actually grabbed Montelongo’s gun. See (RR5 at 97-
      103—where victim Parra, upon cross-examination by attorney Cervantes,
      unequivocally testified—upon questioning by attorney Cervantes—that she
      did not grab Montelongo’s gun until after Montelongo had already shot
      victim Rodriguez and had again pulled the trigger in an attempt to shoot
      victim Parra).

35.   As such, any inability to further develop Montelongo’s accidental-discharge
      or self-defense theories was not the result of attorney Cervantes’ fear or, or
      intimidation by, Judge Aguilar; rather, the evidence (specifically the
      testimony of victim Parra) simply did not support any such defensive
      theories.

36.   At the hearing on Montelongo’s motion for new trial, Montelongo presented
      no evidence as to what specific, additional testimony or evidence attorney




                                        5
      Cervantes failed to elicit, or was prevented from eliciting, from victim
      Parra.

37.   The Court finds not credible attorney Cervantes’ testimony that he did not
      make a bill or proffer of evidence from victim Parra outside the presence of
      the jury after Judge Aguilar sustained the State’s objections because he
      (Cervantes) feared, or was intimidated by, Judge Aguilar.
      ....

43.   The Court finds not credible attorney Cervantes’ testimony that he did not
      object to the prosecutors’ jury arguments at the punishment stage of trial
      that whatever sentences the jury returned on the two counts would run
      concurrently because he (Cervantes) was intimidated by Judge Aguilar, as
      the record shows that Cervantes made other objections to the prosecutors’
      punishment stage arguments.

44.   In his closing argument to the jury at the punishment stage of trial, attorney
      Cervantes instructed the jurors as to how (in his opinion) the parole law
      would be applied to Montelongo.

45.   In his closing argument at the punishment stage of trial, the prosecutor read
      a portion of the Court’s parole-law instruction submitted in the jury charge
      and instructed the jurors to refer to the Court’s charge if they had any
      questions about the application of the parole laws. The Court finds that this
      argument was in response to attorney Cervantes’ argument purporting to
      instruct the jurors how, in his (Cervantes’) opinion, the parole law would be
      applied to Montelongo.

46.   The Court finds not credible attorney Cervantes’ testimony that he did not
      object to the prosecutor’s closing argument at the punishment stage of trial
      regarding the parole laws because he (Cervantes) was intimidated by Judge
      Aguilar.

47.   The Court finds credible attorney Cervantes’ testimony that he believed the
      jurors picked up on Judge Aguilar’s expressions of disapproval of him and
      that the jurors held such disapproval of him against Montelongo.

      ....

49.   As such, the Court further finds—to any extent attorney Cervantes’
      testimony that he failed to object or otherwise engage in conduct so as to
      avoid angering the judge is credited—that the experienced attorney
      Cervantes engaged in such conduct so as to better serve Montelongo; in
      other words, that attorney Cervantes believed it was in Montelongo’s best




                                        6
               interest, and not to Montelongo’s detriment, that he (Cervantes) attempt[ed]
               to avoid raising the ire of Judge Aguilar during trial.

       50.     The Court therefore finds that attorney Cervantes’ assertions of self-interest
               in not angering Judge Aguilar were not adverse to Montelongo’s interest
               during trial, as any attempts to avoid angering Judge Aguilar were of benefit
               to both attorney Cervantes and Montelongo, and attorney Cervantes
               therefore did not advance his own self-interests during trial to the detriment
               of Montelongo. [all internal record cites omitted]

       Both parties supplemented their briefs to the Court after the trial court issued its findings

of fact. Appellant now presents three issues for our consideration. In his first issue, Appellant

claims his trial counsel was ineffective under Cuyler v. Sullivan, 

 (1980) because he

had an actual conflict of interest by protecting himself from an abusive judge. In his second issue,

Appellant argues his trial counsel was ineffective under the traditional two-part ineffective

assistance of counsel standard in Strickland v. Washington, 

 (1984). Whether

proceeding under Cuyler or Strickland, Appellant identifies four shortcomings of his trial counsel

for us to consider: (1) he failed to pursue the defense theory that the gun accidentally discharged

when the victim, Angela Parra, grabbed the gun from Appellant; (2) he failed to call the defense’s

ballistics expert witness; (3) he failed to object to improper jury arguments during the punishment

stage of trial; and (4) he failed to call available witnesses during the punishment stage of trial. In

his third issue, Appellant argues this Court should disregard the trial court’s findings of fact

because they are clearly erroneous and not plausible considering the entire record.

                                    II. STANDARD OF REVIEW

       Because Appellant made his claim of ineffective assistance of counsel in a motion for a

new trial, we must determine whether the trial court erred in denying that motion. See Freeman v.

State, 

 (Tex.Crim.App. 2011). We review a trial court’s denial of a motion

for a new trial for an abuse of discretion, reversing only if the trial judge’s opinion was clearly



                                                  7
erroneous and arbitrary. 

 A trial court abuses its discretion if no reasonable view of the record

could support the trial court’s ruling. Webb v. State, 

 (Tex.Crim.App. 2007).

As fact finder, the trial court is the sole judge of the credibility of witnesses testifying at a hearing,

including when one is held on a motion for a new trial. Okonkwo v. State, 

(Tex.Crim.App. 2013). We review the trial court’s determination of historical fact for an abuse of

discretion, as well as mixed questions of law and fact that turn on an evaluation of the credibility

and demeanor of witnesses, affording almost total deference to the trial court’s findings if

supported by the record. Id.; Guzman v. State, 

 (Tex.Crim.App. 1997). We

cannot substitute our judgment for that of the trial court and must uphold the trial court’s ruling if

it is within the zone of reasonable disagreement. Gonzales v. State, 

(Tex.Crim.App. 2010).

                                            III. DISCUSSION

    A. The record supports the trial court’s factual findings

        In his third issue, Appellant argues the trial court’s factual findings are “clearly erroneous

and not plausible in light of the entire record.” We consider Appellant’s third issue first because

the trial court’s factual findings are central to the remaining two issues.

        Generally, the trial court, “who observes the demeanor and appearance of the witnesses, is

in a better position to determine their credibility than the appellate court is by reading their

testimony as it appears in the record.” Villarreal v. State, 

 (Tex.Crim.App.

1996). As a result, we are instructed to give almost total deference to a trial court’s determination

of historical facts supported by the record, “especially when the trial court’s fact findings are based

on an evaluation of credibility and demeanor.” Guzman, 

.




                                                    8
        Despite this required level of deference, Appellant insists in his third issue that we should

disregard the factual findings in this case. He broadly claims there is a conflict between the trial

court’s finding that his trial counsel was intimidated and feared the trial court judge and that the

intimidation and fear did not adversely affect his defense. How, asks Appellant, could an attorney’s

fear of a trial court judge not affect his decisions or trial strategy? But the trial court explained its

reasoning in its findings of fact:

        20.     The Court, however, finds not credible the testimony and assertions of
                attorney Cervantes—a lawyer with approximately 40 years of experience
                who had tried more than 100 cases—that any of his subsequent actions and
                omissions during trial were solely the product of such fear of, or
                intimidation by, Judge Aguilar.

This finding is supported in the record by trial counsel’s testimony about his professional

experience at the motion for a new trial hearing. Thus, the trial court’s determination that

Appellant’s experienced trial counsel did not let the actions of a trial court judge impact the

representation of his client is entitled to almost total deference by this Court.

        The record also supports the trial court’s specific factual findings relevant to this appeal.

Its finding that trial counsel did not call an expert witness as a trial strategy, for example, is

supported by his testimony that he “felt that [the expert’s] testimony was going to be more

damaging than favorable” and he “didn’t want the jury to be misled.” Similarly, the trial court

found that trial counsel limited punishment witnesses because he testified he felt the witnesses

were biased as they “had a real beef going on with” the victim. He also felt his “direct examination

of these witnesses was limited under the character evidence rule” of evidence.

        Nor did the trial court believe trial counsel’s testimony that he failed to pursue a vigorous

cross examination of the victim about grabbing the gun from Appellant before he shot it because

he was afraid of the trial court. Instead, the trial court believed counsel abandoned the line of



                                                   9
questioning because the theory was not supported by the evidence at trial. And this finding is

supported by the record. The victim told the jury during trial counsel’s cross examination that she

did not grab the gun until after Appellant fired it:

       Q. ([Trial Counsel]) So what you are telling the ladies and gentlemen of
               the jury is you never reached for the weapon before he fired it?
       A. No.

       Q. Okay.

       A. After.

       The record also supports the trial court’s factual finding that trial counsel’s failure to object

to the State’s closing argument at the punishment stage of trial was not due to his fear of the trial

court. The trial court did not believe trial counsel was afraid to object because in fact he made an

objection during closing arguments. The record shows the trial court overruled trial counsel’s

objection to argument outside the record without repercussion.

       To challenge the trial court findings, Appellant relies on testimony from trial counsel that

his representation of Appellant was colored by his fear of the trial judge. But the trial court, which

witnessed the demeanor and appearance of Appellant’s trial counsel, was in the best position to

judge his credibility. And as the sole trier of fact and judge of credibility during the motion for a

new trial hearing, the trial court was free to believe or disbelieve any or all of trial counsel’s

testimony. See State v. Garcia, No. 08-10-00362-CR, 

, at *4 (Tex.App.--El Paso

July 25, 2012, pet. ref’d) (not designated for publication). Based on its findings, the trial court did

not believe trial counsel’s actions (or inactions) during Appellant’s trial resulted from any

intimidation or fear of the trial court judge. It instead found that trial counsel’s decisions were

based on trial strategy or dictated by the direction of the trial. Because the record supports its




                                                  10
findings, we must give them almost total deference. Consequently, we overrule Appellant’s third

issue.

   B. Ineffective assistance of counsel under Cuyler

         In his first issue, Appellant claims that he was deprived of effective assistance of counsel

because his trial counsel developed an actual conflict of interest that adversely affected his

performance during trial. He argues the trial judge’s intimidation tactics and threats of contempt

required his trial counsel to forego strategies that would have advanced Appellant’s defense

because he needed to protect himself.

         1. Applicable Law

         We described the standard for ineffective assistance of counsel based on an actual conflict

of interest in our initial opinion. See Montelongo, 

, at *3-4. That standard still

applies. In brief, an actual conflict of interest that adversely affects a lawyer’s performance is one

way a counsel’s assistance may be rendered constitutionally ineffective. Strickland, 

. To establish ineffective assistance of counsel due to counsel’s conflict of interest, an

appellant must show that counsel had an actual conflict of interest and the conflict colored

counsel’s actions during trial. Acosta v. State, 

 (Tex.Crim.App. 2007)

(adopting the rule set out in Cuyler, 

). “[A]n ‘actual conflict of interest’ exists

if counsel is required to make a choice between advancing his client’s interest in a fair trial or

advancing other interests (perhaps counsel’s own) to the detriment of his client’s interest.” 

, citing Monreal v. State, 

 (Tex.Crim.App. 1997). A mere possibility of a

conflict of interest cannot overturn a criminal conviction. See Cuyler, 

. A defendant

who did not object at trial must demonstrate by a preponderance of the evidence that an actual




                                                 11
conflict of interest adversely affected counsel’s performance. 

 (Marshall, J., concurring);

Odelugo v. State, 

 (Tex.Crim.App. 2014).

       2. Preservation of the Issue

       To begin, the State argues that Appellant did not raise a Cuyler ineffective assistance of

counsel claim in his motion for a new trial. It asserts that Appellant raised the issue for the first

time at the hearing on the motion, which, because it occurred more than thirty days after the trial

court imposed a sentence, was untimely under Texas Rule of Appellate Procedure 21.4(b). We

disagree.

       A defendant’s motion for a new trial must be filed “no later than 30 days after, the date

when the trial court imposes or suspends sentence in open court.” TEX.R.APP.P. 21.4(a). A motion

is a prerequisite for the trial court to grant a new trial; the court may not do so on its own motion.

State v. Frias, 

 (Tex.App.--El Paso 2016, pet. ref’d). The accused must allege

enough detail to give the other party and the trial court notice of what is being complained of so

they can properly prepare for the hearing. 

 citing State v. Zalman, 

(Tex.Crim.App. 2013).

       It is undisputed here that Appellant timely filed his motion for a new trial within thirty days

of being sentenced. In his motion for a new trial, Appellant stated the trial court held his trial

counsel in contempt and threatened to hold him in contempt more than once throughout the trial.

He alleged that “[a]s a result of the court’s contempt finding and the numerous warnings

throughout the trial, defense counsel failed to effectively and zealously represent” Appellant.

Appellant also attached and incorporated by reference his trial counsel’s affidavit into his motion

for a new trial. See Dugard v. State, 

 (Tex.Crim.App. 1985), overruled on

other grounds by Williams v. State, 

 (Tex.Crim.App. 1989) (stating that a juror’s



                                                 12
affidavit attached to a motion for a new trial is a part of the pleading). In his affidavit, trial counsel

detailed how the trial court’s contempt holding and threats intimidated him. He stated that because

he “was fearful of being held in contempt and incarcerated, [he] did not zealously represent”

Appellant. He also provided several examples of when his fear of the trial court judge impacted

his representation. We hold this was sufficient detail to give the State and the trial court judge

notice of Appellant’s ineffective-assistance-of-counsel claim under Cuyler. It was, therefore,

timely raised under Rule 21.4.

        3. Analysis

        Appellant argues his trial counsel developed an actual conflict of interest as early as voir

dire when the trial judge began to threaten him over the form of his examination of the jury panel.

And the intimidation and fear grew as the trial progressed, according to Appellant, when the trial

judge fined his trial counsel $500 at the end of voir dire, threatened him with contempt several

times, and continually admonished him in front of the jury. Appellant claims his trial counsel acted

in fear of “being confined in jail or fined an unreasonable amount,” which caused him “to

intentionally and knowingly forego strategies that would have advanced” Appellant’s interests. He

argues his trial counsel’s conflict of interest caused him to make four trial errors: 1) he failed to

pursue the defense theory that the gun accidentally discharged when the victim, Angela Parra, had

grabbed the gun from Appellant; 2) he failed to call the defense’s ballistics expert witness; 3) he

failed to object to improper jury arguments during the punishment stage of trial; and 4) he failed

to call available witnesses during the punishment stage of trial.

        Yet even if a conflict of interest existed, under the trial court’s findings, we would find that

it did not color trial counsel’s representation of Appellant at trial—an essential element of the

Cuyler analysis. See Acosta, 

 (stating that to establish ineffective assistance of



                                                   13
counsel under Cuyler, an appellant must prove that counsel had an actual conflict of interest, and

the conflict colored counsel’s actions during trial). As discussed, the trial court did not find it

credible that trial counsel—who has approximately forty years of experience as an attorney and

has tried over 100 cases—allowed a trial judge’s tactics to impact his representation. The trial

court further found that the specific trial decisions Appellant complains of were not dictated by

trial counsel's fear of the trial court judge, but were made for strategic reasons intended to further

Appellant’s defense. As a result, we hold that trial counsel’s conduct was not colored by preserving

his self-interest. Appellant’s first issue, therefore, is overruled.

    C. Ineffective assistance of counsel under Strickland

        In his second issue, Appellant complains he was denied effective assistance of counsel

because his trial counsel’s deficient performance prejudiced his defense. Appellant claims his trial

counsel was ineffective for the same four deficiencies he identified in his first issue. We will

discuss each in turn after outlining the applicable law.

        1. Applicable Law

        When no actual conflict of interests exists, we analyze an ineffective assistance of counsel

claim under the well-established standard in Strickland. See Acosta, 

. To

prevail under this standard, “a defendant must demonstrate two things: deficient performance and

prejudice.” Miller v. State, 

 (Tex.Crim.App. 2018). To do so, a defendant

must show that (1) his trial counsel’s representation fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that but for counsel’s deficiency the result

of the proceeding would have been different. Strickland, 

; see Hernandez v. State,

 (Tex.Crim.App. 1986). A “reasonable probability” is one sufficient to

undermine confidence in the outcome. Strickland, 

. The two prongs of the



                                                   14
Strickland test need not be analyzed in order, and an appellant’s failure to satisfy either prong

defeats a claim of ineffective assistance of counsel. Garcia v. State, 

(Tex.Crim.App. 2001), citing Strickland, 

.

       Our review of counsel’s representation is highly deferential, and we presume that counsel’s

actions fell within the wide range of reasonable and professional assistance. Bone v. State, 

 (Tex.Crim.App. 2002). Absent evidence of counsel’s strategic motivations for

his actions at trial, we indulge a strong presumption that counsel rendered adequate assistance and

that his actions resulted from a sound trial strategy. Thompson v. State, 

(Tex.Crim.App. 1999). A defendant bears the burden of proving both elements by a preponderance

of the evidence. Id.

       2. Failure to pursue a defense theory

       Appellant argues that his trial counsel’s performance fell below the objective standard of

reasonableness because he failed to pursue his defense theory that the gun was accidentally

discharged when Parra grabbed it from him. We disagree. The record shows that while trial counsel

struggled to overcome the State’s objections to his cross-examination of Parra, he elicited from

her that she did not grab the gun from Appellant before he shot it. Thus, Appellant’s defense

theory—that the gun accidentally discharged when Parra grabbed it from him—is not supported

by the facts in the record. As a result, his trial counsel was not deficient in pursuing the theory

further. See Bellard v. State, No. 01-92-00122-CR, 

, at *2-3 (Tex.App.--Houston

[1st Dist.] June 24, 1993, no pet.) (not designated for publication) (holding that trial counsel was

not ineffective for failing to pursue defense theories not supported by the facts on the record).




                                                 15
          3. Failure to call an expert witness

          Appellant asserts that his trial counsel was ineffective because he did not call a retained

ballistics expert witness to testify that the “gun had been discharged by accident due to the poor

condition of the weapon and a ‘very light’ trigger pull.” The State responds that trial counsel was

not ineffective for not calling the ballistics expert because it was a matter of trial strategy.

          Whether or not to present witnesses is largely a matter of trial strategy. Noriega v. State,

No. 01-16-00404-CR, 

, at *5 (Tex.App.--Houston [1st Dist.] Aug. 22, 2017, no

pet.) (not designated for publication). That trial counsel’s decision to not call his expert was

strategy is not doubted in this case. He testified at the hearing on the motion for new trial that he

did not call the ballistics expert because he “felt that [the expert’s] testimony was going to be more

damaging than favorable” and he “didn’t want the jury to be misled.” And Appellant does not

provide any support for his argument that this strategy fell below an objective standard of

reasonableness. As a result, we find that trial counsel was not ineffective for not calling the ballistic

expert.

          4. Failure to object to jury argument

          Appellant claims his trial counsel was ineffective for failing to object to several portions

of the State’s closing argument during the punishment phase of the trial. He contends trial counsel

should have objected to the State’s application of the parole law to Appellant, its explanation to

the jury about Appellant’s sentences running concurrently versus consecutively, its insinuation

that Appellant had committed other bad acts not presented on the record, and the accusation that

“for all intents and purposes, [Appellant is] the same as a murderer.”

          In his closing argument, Appellant’s trial counsel tried to explain the parole law to the jury.

He specifically stated that in making its punishment determination, the jury could not “consider



                                                    16
what the department of pardons and parole will do,” but “[i]f you give him 20, he’ll do 20.” The

trial court sustained the State’s objection to this portion of trial counsel’s argument. On rebuttal,

the State told the jury it was extremely limited in what it could tell it about the parole laws, but

that the judge had given it an instruction in the jury charge. The State then read the portion of the

jury charge related to parole to the jury and stated, “[t]hose of you that are good at math are going

to realize there’s something magical about 60 years if the instruction is what it is.” The State’s

argument on parole law was permissible, and thus not improper because it responded to the view

of opposing counsel. See French v. State, No. 05-02-01006-CR, 

, at *2

(Tex.App.--Dallas June 12, 2003, no pet.) (not designated for publication) (holding that argument

from the State in response to the defense’s closing argument is not improper). If a jury argument

was proper, counsel cannot be ineffective for failing to object to it. Cruz v. State, No. 08-13-00297-

CR, 

, at *6 (Tex.App.--El Paso Aug. 5, 2015, pet. ref’d) (not designated for

publication).

       The State also argued to the jury that Appellant’s sentences would run concurrently:

       Now, again, the sentences on these cases are going to run concurrent. So don’t think
       that they’re going to be stacked up. If I give the defendant let’s just say 20 years on
       count 1 and I give him 10 years on count 2, he’s going to do 30 years. That’s not
       what happens. The cases are going to run concurrent. So if you give the defendant
       20 years on count 1 and ten years on count 2, he’s doing a combined 20 years. And
       then once he’s done with the ten years, he still has the ten years to do for count 1.
       So they run concurrent that way. They’re not stacked up.

This is a correct recitation of the law applicable Appellant’s case. TEX.PENAL CODE ANN. § 3.03(a).

Yet Appellant cites Marin v. State, No. 04-06-00381-CR, 

 (Tex.App.--San

Antonio May 9, 2007, no pet.) (not designated or publication) in support of his contention that this

was improper argument that his trial counsel should have objected to. Other courts of appeal,

however, have found jury argument that accurately details the law of concurrent sentences to be



                                                 17
proper. See Snow v. State, Nos. 05-09-00233-CR, 05-09-00234-CR, 

, at *3

(Tex.App.--Dallas June 7, 2010, no pet.) (not designated for publication) (“And because the trial

court in this case was permitted to instruct the jury that appellant’s sentences would run

concurrently, we conclude it was not error for the prosecutor to convey that information to the

jury.”); Pruett v. State, No. 01-89-01227-CR, 

, at *4 (Tex.App.--Houston [1st Dist.]

Jan. 17 1991, pet. ref’d) (not designated for publication) (“Since the trial court could properly have

instructed the jury on the law regarding concurrent sentencing, it was not error for the prosecutor

to disclose the law to the venire panel. . . .”). But even if we assume the argument were improper,

Appellant has not shown that his defense was prejudiced by trial counsel’s failure to object to it.

See Strickland, 466 U.S at 670 (“If it is easier to dispose of an ineffective assistance of counsel

claim on the ground of lack of sufficient prejudice, that course should be followed.”). The Court

of Criminal Appeals has held that a jury’s knowledge that sentences would run concurrently is a

“two-edged sword.” Haliburton v. State, 

 (Tex.Crim.App. 1979). The jury

could use that information “to increase the punishment or, just as easily, . . . to reduce the number

of years to avoid excessive punishment.” 

 Consequently, we cannot presume Appellant suffered

any prejudice by trial counsel not objecting to the State’s argument. And Appellant has produced

no evidence to show he was actually prejudiced. He has therefore not met his burden of proving

trial counsel was ineffective for his failure to object to this portion of the State’s jury argument.

       Appellant next argues his trial counsel was ineffective for not objecting to the State’s

speculation during its argument that Appellant had committed other bad acts. After summarizing

Appellant’s misdeeds, the State said and “this is just the stuff we know about.” Appellant also

claims it was ineffective of his counsel to not object to the State’s characterization of him as being

“for all [intent] and purposes, the same as a murderer.” Appellant, however, has produced no



                                                  18
evidence or even argument showing why his trial counsel did not object to these statements or how

it prejudiced his defense. Indeed, there was no mention of these statements at all during trial

counsel’s testimony at the motion for a new trial hearing. We thus find that Appellant has not met

his burden of proof to overcome the strong presumption that counsel rendered adequate assistance.

See Thompson, 

.

       5. Failure to call witnesses at the punishment stage of trial

       Appellant contends his trial counsel was ineffective for failing to call several witnesses

during the punishment phase of trial. He claims that his “father, mother, brother, two cousins, an

uncle, an aunt, and three good friends” were available to testify at the punishment phase on his

behalf. He cites an affidavit submitted by his investigator in support of his motion for a new trial

as evidence that these individuals were available to testify but were not called by his trial counsel.

When claiming ineffective assistance of counsel for an attorney’s failure to call particular

witnesses, however, the defendant must show that the witness was available to testify and the

witness’s testimony would have benefited the defense. State v. Hradek, No. 08-15-00342-CR,

, at *16 (Tex.App.--El Paso Aug. 24, 2022, no pet. h.) (not designated for

publication). Here, Appellant did not make any offer of proof to demonstrate what any of the

available witnesses would have said if they had been called to testify. Indeed, Appellant called his

mother to testify in support of his motion for a new trial, but did not ask her what she would have

testified to if trial counsel had called her as a witness. Thus, because Appellant has not shown how

or whether he was prejudiced by his trial counsel’s failure to call additional witnesses during the

punishment phase of trial, we cannot find that he was deprived of effective assistance of counsel.

See Garcia, 

 (holding that the failure to satisfy either prong of the Strickland test

defeats a claim of ineffective assistance of counsel).



                                                 19
       Because Appellant did not meet his burden of proving that trial counsel’s performance was

deficient or that any deficiency prejudiced his defense, the trial court did not abuse its discretion

in denying his motion for a new trial based on ineffective assistance of counsel. As a result, we

overrule Appellant’s second issue.

                                      IV.     CONCLUSION
       For these reasons, we affirm the trial court’s denial of Appellant’s motion for a new trial.



                                              JEFF ALLEY, Justice

December 22, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)




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