Opinion
06-21-00124-CR
07-14-2022
JOSE JUAN EDUARDO SANTANA A/K/A JOSE JAUN EDUARDO SANTANA, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH
Date Submitted: May 25, 2022
On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2028095
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
Jose Juan Eduardo Santana entered a plea of "no contest" to one charge of sexual assault. After a hearing, the trial court found Santana guilty, sentenced him to ten years in prison, imposed a fine of $5,000.00, and assessed him court costs and fees. In a single issue on appeal, Santana contends that he received ineffective assistance from his court-appointed trial counsel. Because ineffective assistance of counsel has not been shown, we affirm.
The record refers to the appellant as both Jose Juan Eduardo Santana and Jose Jaun Eduardo Santana.
As many cases have noted, the right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to make a showing under either prong of the Strickland test defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).
To prove ineffective assistance of counsel, a defendant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 687-95; Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test to review of claim of ineffective assistance of counsel under Texas statutes and constitutional provisions). Under Strickland, the defendant "must prove, by a preponderance of the evidence, that there is ... no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). The defendant must also show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 833. A "reasonable probability" means a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Judicial scrutiny of counsel's performance must be highly deferential, and the defendant must overcome the presumption that, under the circumstances of the case, the challenged action might be considered sound trial strategy. Id. at 689. We apply a strong presumption that trial counsel was competent and presume that counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Before a judge sentences a defendant in a felony case, the judge shall direct a community supervision officer to prepare a pre-sentence investigation (PSI) report, which it is statutorily permitted to consider. See Tex. Code Crim. Proc. Ann. art. 42A.252. Among other things, the report is required to contain information pertaining to "the circumstances of the offense with which the defendant is charged" as well as "any other information relating to the defendant or the offense as requested by the judge." Tex. Code Crim. Proc. Ann. art. 42A.253(a)(1), (9). The report can also include certain types of otherwise inadmissible evidence, including hearsay. Bell v. State, 155 S.W.3d 635, 638 (Tex. App.-Texarkana 2005, no pet.). The judge shall allow the defendant or his counsel to review and comment on the report and, with leave of the court, proffer evidence as to any factual inaccuracies therein. Tex. Code Crim. Proc. Ann. art. 42A.255.
Here, Santana was indicted for sexual assault in three separate indictments. Santana admitted that he had sexual relations with the victim but claimed that it was consensual. Before trial, the State agreed to dismiss two of the indictments against Santana in exchange for Santana's plea of "no contest" to the third charge. After hearing brief testimony from the victim, the court concluded that the evidence was sufficient to support the State's case and Santana's plea of no contest, deferred any further findings, took the matter under advisement, and ordered the preparation of a PSI report. A few weeks later, the trial court reconvened the case to consider the resulting report as well as other witnesses and evidence. The victim and community supervision officer testified at the hearing, and the report included Santana's version of the offenses, his background, information regarding his risk of recidivism, and letters from character witnesses who spoke of Santana's good work ethic and moral character. On being asked by the trial court whether he had any comment on the report, Santana said, "No." The report was not introduced into evidence, but it was considered by the trial court before sentencing.
On appeal, Santana contends that the report "relied on" videos of the victim's interview with law enforcement and that his counsel was ineffective for failing to object to the report because the recorded interviews relied on by the report were cumulative and repetitive of the victim's testimony and served only to bolster her unimpeached testimony.
The ineffectiveness of counsel is a matter that must be firmly founded in the record, but here the record does not support Santana's argument. See Smith v. State, 51 S.W.3d 806, 812 (Tex. App.-Texarkana 2001, no pet.). Neither the report nor any recorded interview was admitted into evidence, and the record does not indicate that the report included such an interview. It is unclear from the record whether the report relied on a recorded interview, and Santana has failed to demonstrate that the trial court viewed any such recording in reviewing the report. Even if the interview was included in, or relied on by, the report and the court viewed the recording, Santana has failed to cite any authority indicating that this is error, and we have found no such authority. On the contrary, Article 42A.253 contains "broad language concerning the information to be included in a PSI" report including information relevant to the "circumstances of the offense" and "any other information relating to the defendant or the offense." See Tex. Code Crim. Proc. Ann. art. 42A.253(a)(1), (9); see Fryer v. State, 68 S.W.3d 628 (Tex. Crim. App. 2002). Moreover, the record is silent as to why Santana's trial counsel did not object to any interview being relied on by the report, and when an appellate record is silent on why trial counsel failed to take certain actions, the appellant has "failed to rebut the presumption that trial counsel's decision was in some way-be it conceivable or not- reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). The ineffectiveness of counsel is a matter that must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Smith, 51 S.W.3d at 812. In the absence of such a record, and based on the record before us, we cannot find that Santana's trial counsel was ineffective. See Holland, 761 S.W.2d 307, 321 (Tex. Crim. App. 1988) (record must support appellant's claims of ineffective assistance). Accordingly, we overrule this point of error and affirm the trial court's judgment.
Santana claims that prior to sentencing, the trial court stated that it had watched the recordings, but the context of the statement references Santana's ability to speak and understand English:
Now, we have a translator that is here. I've watched the videos. It's clear that Mr. Santana has a very good working knowledge of English. However, with the complexities of this and potential other witnesses, we arranged to have Mr. Kregel here for the bench trial, and then he's here again today, so I'm going to go ahead and get Mr. Kregel sworn in.(Emphasis added).
No motion for a new trial was filed in this case, and no post-trial hearings were conducted. We thus have no record to explain why trial counsel conducted the trial as he did.
Allegations of ineffectiveness "must 'be firmly founded in the record.'" Bone, 77 S.W.3d at 833 n.13 (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).