Opinion
NO. 01-16-00096-CR NO. 01-16-00307-CR
04-13-2017
DELFINO MALDONADO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 337th Judicial District Court Harris County, Texas
Trial Court Case No. 1310476
MEMORANDUM OPINION
Appellant Delfino Maldonado pleaded guilty, without an agreed recommendation as to punishment, to intoxication manslaughter. Following the preparation of a presentence investigation ("PSI") report and a punishment hearing, the trial court sentenced Maldonado to 20 years' confinement. The trial court denied Maldonado's motion for new trial alleging ineffective assistance of counsel, and Maldonado appealed. In his sole issue, Maldonado contends that his trial counsel rendered ineffective assistance by failing to call witnesses and introduce all available mitigating evidence at the sentencing hearing. We affirm.
Background
Maldonado pleaded guilty to intoxication manslaughter without an agreed recommendation as to punishment. The trial court held a sentencing hearing on January 28, 2016. At the sentencing hearing, the PSI report was admitted into evidence without objection.
The PSI report detailed the charged offense. According to the PSI report, Maldonado rear-ended Fausto and Maria Mejia's car at a high speed around 4:00 a.m. on June 20, 2011. Mrs. Mejia was ejected from the car and died at the scene. Following the accident, Maldonado fled on foot but then returned approximately 30 minutes later and approached a Harris County Sheriff's Office Deputy who had responded to the accident. Maldonado admitted to officers that he had drunk approximately 20 beers between 1:00 a.m. and 4:00 a.m. that morning. He was taken to the hospital where he was treated for minor injuries and his blood was drawn. His blood-alcohol concentration was 0.12 grams of alcohol per 100 milliliters of blood and his blood tested positive for cocaine metabolites. At the time of the accident, Maldonado did not have a driver's license. According to the PSI report, Maldonado's driver's license record showed 34 suspensions.
At the sentencing hearing, Fausto Mejia testified on behalf of the State regarding the impact that the accident and his wife's death had on him and his family. He testified that by killing his wife, Maldonado had killed him and his family as well. He testified that his children did not want to be at home anymore because the house reminded them of their mother. Following Mejia's testimony, the State rested.
The defense presented no live testimony. But, before sentencing, Maldonado submitted a letter to the trial court in which he admitted committing the crime and expressed remorse. Maldonado also submitted certificates from Houston Community College reflecting his successful completion of four different courses while incarcerated. He also submitted an attendance log reflecting his participation in 12-step meetings. The trial court admitted character letters from Maldonado's friend, his sisters, his sister-in-law, his niece, his goddaughter, his godson, and his son. The letters discussed the effect the accident had on Maldonado, his character, his remorse, and his past, including the fact that he lost his mother at a young age and that his son was diagnosed with leukemia at age one.
Before sentencing Maldonado, the judge noted that the details of Maldonado's offense were egregious—he drank, did drugs, and was speeding. She also emphasized that Maldonado's license had been suspended 34 times, stating that "it's not without warning that this has happened to you." The trial court then sentenced Maldonado to 20 years' confinement to run concurrently with a seven-year sentence he was already serving for a federal drug offense, with credit for time served.
Maldonado filed a motion for new trial alleging that his trial counsel rendered ineffective assistance at the sentencing hearing by failing to object to the PSI report or to call witnesses to testify on Maldonado's behalf. The motion attached updated letters and affidavits from five individuals whose letters had been submitted at the sentencing hearing. It also included letters from four additional friends and family members, including Maldonado's wife, his father, a friend, and his Alcoholics Anonymous sponsor. The motion also attached updated certificates of completion for the four classes Maldonado had completed at Houston Community College and a certificate for an additional class. In the motion, Maldonado asserted that he did not have an opportunity to review the PSI report before the hearing. He further noted that he paid for his counsel to hire Cherri Schultz to prepare a mitigation report, but one was never provided.
Maldonado's trial counsel, Lott J. Brooks, filed an affidavit in response to Maldonado's motion for new trial. Brooks averred that he "did not call family because they were not aware of several issues that would not have been beneficial for the hearing" and that they opted by agreement not to introduce photos so that Maldonado's family could retain custody of them. Brooks also averred that he and Maldonado reviewed the PSI report together before the hearing. He explained that he hired mitigation specialist/investigator Cherri Schultz to supervise Maldonado's treatment and to work on the PSI report. Brooks averred that the mitigation report would have been ineffective because it was "so remote in time." The trial court denied Maldonado's motion for new trial.
Discussion
In his sole issue, Maldonado contends that the trial court abused its discretion in denying his motion for new trial.
A. Standard of Review
We review a trial court's ruling on a motion for new trial for an abuse of discretion, "reversing only if the judge's opinion was clearly erroneous and arbitrary." Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the court's ruling, must not substitute our judgment for that of the trial court, and must uphold the ruling if it was within the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). If there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Riley, 378 S.W.3d at 457. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support its ruling. Id.; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
B. Applicable Law
We evaluate claims of ineffective assistance of counsel under the two-prong test adopted in Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064-65 (1984). Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999); Goody v. State, 433 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). To prevail on an ineffective assistance claim, an appellant must show that (1) counsel's performance was deficient, meaning it fell below the objective standard of reasonableness, and (2) the deficiency prejudiced defendant, meaning that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Ex parte Bryant, 448 S.W.3d 29, 39-40 (Tex. Crim. App. 2014); Hernandez, 988 S.W.2d at 770 & n.3; Goody, 433 S.W.3d at 78. A reasonable probability is a probability sufficient to undermine confidence in the outcome; counsel's errors must be so serious as to deprive appellant of a fair trial. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009).
Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim. App. 2002) (en banc). In proving that his counsel's performance was deficient, an appellant must overcome the strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; 104 S. Ct. at 2065; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813.
"Strickland does not require counsel to investigate every conceivable line of mitigating evidence," but "counsel can . . . make a reasonable decision to forego presentation of mitigating evidence [only] after evaluating available testimony and determining that it would not be helpful." Goody, 433 S.W.3d at 80-81 (alteration in original) (quoting Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 2537 (2003)). If counsel's investigation was deficient, then appellant must show that a reasonable probability exists that the fact-finder's assessment of punishment would have been less severe in the absence of defense counsel's deficient performance. Goody, 433 S.W.3d at 81. "The likelihood of a different result must be substantial, not just conceivable." Id. (quoting Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011)).
"The decision whether to present witnesses is largely a matter of trial strategy." Lopez v. State, 462 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd)). "A defendant who complains about trial counsel's failure to call witnesses must show the witnesses were available and that he would have benefitted from their testimony." Cantu v. State, 993 S.W.2d 712, 719 (Tex. App.—San Antonio 1999, pet. ref'd) (first citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983), then citing Kizzee v. State, 788 S.W.2d 413, 416-17 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd)). An attorney's decision not to present particular witnesses at the punishment stage "may be a strategically sound decision if the attorney bases it on a determination that the testimony of the witnesses may be harmful, rather than helpful to the defendant." Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005), pet. dism'd as improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007). When the trial judge presiding over a motion for new trial also presided over the trial itself, we presume that the judge knew how evidence admitted at the motion for new trial would have affected her ruling on punishment. Goody, 433 S.W.3d at 81 (citing Smith, 286 S.W.3d at 344-45).
C. Analysis
Maldonado asserts that his counsel's performance was deficient because he failed to investigate and present available mitigating evidence. Specifically, Maldonado contends that his counsel failed to submit Maldonado's personal statement or statements by interested parties with the PSI report and that counsel failed to discuss Maldonado's life-shaping events in the social history section of the PSI report. Maldonado also argues that the support letters submitted were ineffective because they were addressed to a different judge and dated nearly two and a half years before the sentencing hearing and because there is no evidence that the trial court read or took judicial notice of them. Maldonado further challenges his counsel's decision not to call live witnesses at the sentencing trial, arguing that there were many available and willing to testify. The State responds that Maldonado failed to establish that any witnesses other than his father were available to testify. The State also asserts that Maldonado failed to establish that any additional evidence would have benefitted him or created a reasonable probability that the result of the proceeding would have been different.
We need not decide whether Maldonado's trial counsel's performance was below a professional standard of care because we conclude that Maldonado has not met his burden to establish prejudice given that the substance of the evidence referenced in his motion for new trial is duplicative of that which was already admitted. See Goody, 433 S.W.3d at 81 (holding court need not reach question of whether counsel was ineffective for failing to produce documents at sentencing hearing where appellant failed to establish prejudice). At the sentencing hearing, Maldonado's counsel submitted letters from Maldonado and six family members and friends. These discussed Maldonado's remorse over the incident, his past, his character, and his relationships with his family and friends. In his letter, Maldonado indicated that he had sworn off drugs and alcohol after the accident. During his closing, Maldonado's counsel argued that Maldonado had completed the Right Step program, sought private counseling, and attended AA after the accident. He stated that Maldonado had availed himself of programs in prison and submitted four certificates of completion from Houston Community College to evidence his progress. He reiterated Maldonado's remorse for the accident. The judge acknowledged receipt of the submitted materials and admitted them into evidence.
Maldonado does not explain how the additional evidence submitted with his motion for new trial differs from that which was already admitted, such that it would be outcome determinative. See Jagaroo v. State 180 S.W.3d 793, 800 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (holding appellant did not establish counsel's performance was deficient or that he was prejudiced because he failed to show how testimony by live witnesses would have differed from statements and letters already submitted). In an affidavit attached to his motion for new trial, Maldonado alleges that his sisters, brother, sisters-in-law, aunt, cousin, and wife were present at the sentencing hearing and willing to testify. He also avers that his brother-in-law, childhood friend, god-children, and AA sponsor were willing to testify though they were not present during the sentencing hearing. According to Maldonado, these witnesses would have testified about how the accident and Mrs. Mejia's death affected him and the changes that he made in his life since the accident, including abstaining from alcohol and drugs, completing alcohol and drug treatment programs, apologizing to the victim's family, and attempting to pay for their expenses. Similarly, Maldonado submitted four additional letters and affidavits from his wife, father, another friend, and his AA sponsor which also discussed his remorse, his character, and his abstinence from drugs and alcohol after the accident.
Considering the additional evidence referenced in Maldonado's motion for new trial and the evidence submitted by his counsel during the sentencing hearing, we cannot conclude that the outcome would have been different but for Maldonado's counsel's failure to introduce additional evidence during sentencing. Thus, we cannot conclude that any alleged deficiencies in Maldonado's counsel's performance prejudiced him. Because Maldonado failed to establish a reasonable probability that the outcome would have been different if the additional evidence cited had been introduced at sentencing, we conclude that the trial court did not abuse its discretion in denying his motion for new trial. See Lumpkin v. State, 129 S.W.3d 659, 665 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (holding appellant failed to establish his counsel was ineffective for failing to call witness at sentencing hearing because he failed to show that testimony would have benefitted him); Hoang v. State, 825 S.W.2d 729, 732-33 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd) (holding no ineffective assistance of counsel at punishment phase where appellant failed to present evidence that testimony from four additional witnesses would have been favorable or produced a different result).
We overrule Maldonado's sole issue.
Dual Notice of Appeal
Maldonado filed two notices of appeal—one following entry of judgment and another following the denial of his motion for new trial—respectively, Cause Nos. 01-16-00096-CR and 01-16-00307-CR. Because Maldonado's second appeal, No. 01-16-00307-CR, arises from the order on his motion for new trial rather than from his final conviction, we dismiss that appeal for lack of jurisdiction. See TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2); see also State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990) (en banc) (noting that defendant's general right to appeal under Code of Criminal Procedure has always been limited to appeal from "final judgment").
Conclusion
We affirm the judgment of the trial court and dismiss all pending motions as moot.
Rebeca Huddle
Justice Panel consists of Justices Keyes, Bland, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).