JOSE AMAYA VELASQUEZ v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Moseley

A jury convicted appellant Jose Amaya–Velasquez of aggravated sexual assault.   Appellant brings three issues on appeal.   In his first two issues, he asserts his trial counsel, Bill Stovall, rendered ineffective assistance because:  (1) Stovall interviewed a trial witness without a third party present who could testify to any statements of the witness inconsistent with his trial testimony, and (2) Stovall failed to call himself as a witness or withdraw from the representation after an alleged conflict of interest arose.   In his third issue, appellant argues the trial court erred by failing to act sua sponte to determine whether Stovall had a conflict of interest that precluded him from continuing the representation.   The background and facts of the case are well-known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.   Tex.R.App. P. 47.2(a), 47.4. We affirm.

Appellant was prosecuted for having a sexual encounter with an under-age girl, M.G. After the encounter, appellant talked to his pastor, Felix Larios, about his relationship with M.G. Larios testified at trial that appellant told him the relationship with M.G. was a sexual relationship.   Shortly before he testified, Larios was interviewed by Stovall at the courthouse;  no third party was present.   The men disagree about what Larios said during this interview, and the disagreement forms the basis for appellant's complaints on appeal.

After the trial, appellant filed an amended motion for new trial in which he asserted his ineffective assistance of counsel claim.   His amended motion included two declarations—one by Stovall and a second by Clint Broden, appellant's appellate counsel.   Stovall's declaration states that Larios told him during the pre-testimony interview that appellant reported having a “relationship”with M.G.;  “Larios told me that he was merely speculating that it was a sexual relationship and that Mr. Amaya–Velasquez could have been referring to a friendship type relationship.” ¹  The trial court denied the amended motion and Stovall appealed.

Appellant's first two issues assert his trial counsel rendered ineffective assistance because Stovall interviewed Larios alone and because Stovall did not call himself as a witness or withdraw from the representation after he realized he was the only person who could testify to Larios's out-of-court statement.   To obtain reversal based on ineffective assistance of counsel, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different.   See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005).   Our review of counsel's performance is highly deferential and we assume counsel's conduct fell within the wide range of reasonable professional assistance.   See id.   An ineffective assistance claim must be “firmly founded in the record,” and the record must “affirmatively demonstrate” the claim has merit.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).   In most cases, a silent record will not overcome the strong presumption of reasonable assistance.   See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).

The two declarations filed with appellant's amended motion for new trial are insufficient to meet his burden to show ineffective assistance.   Neither Stovall's nor Broden's declaration explains the reasons for Stovall's actions (why he handled the interview with Larios alone and decided not to step down from the representation).   And the record includes no other evidence explaining Stovall's actions or trial strategy, which would overcome the presumption that Stovall provided reasonable assistance.   See id.   Moreover, Stovall's failure to have a third party present during an interview and not stepping down from the representation were not “so outrageous that no competent attorney would have engaged in” those actions.   See Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001).

In light of this record, we conclude appellant has not demonstrated Stovall's performance was deficient or that the outcome of his trial would have been different but for Stovall's actions.   See Andrews, 159 S.W.3d at 101.

In his third issue, appellant argues the trial court erred by failing to act sua sponte to determine whether Stovall had “a conflict of interest in continuing to represent Mr. Amaya–Velasquez when it became clear that Stovall was a necessary witness for the defense.”   A conflict of interest exists if counsel is required to make a choice between advancing his client's interests in a fair trial or advancing other interests to the detriment of his client's interest.  Acosta v. State, 233 S.W.3d 349, 355 (Tex.Crim.App.2007).   To prove ineffective assistance of counsel based on a conflict of interest, the appellant must show that his counsel “ ‘actively represented conflicting interests' and that counsel's performance at trial was ‘adversely affected’ by the conflict of interest.”  Id. at 353 (quoting Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980)).

Appellant has not shown that Stovall had any interests to advance other than those of appellant.   Appellant's general assertion of a conflict is insufficient to satisfy his burden.   Because he has not shown Stovall had a conflict of interest, appellant has not shown that he received ineffective assistance of counsel due to a conflict of interest.

We overrule appellant's three issues.   We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JOSE AMAYA–VELASQUEZ, Appellant

No. 05–11–00166–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No. Cause No. F09–30213–W).

Opinion delivered by Justice Moseley, Justices Lang–Miers and Murphy participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 8, 2012.

/Jim Moseley/

JIM MOSELEY

JUSTICE

FOOTNOTES

FN1. On cross-examination, the following exchange occurred between Larios and Stovall:Q. And you and I spoke in this room right out here yesterday, didn't we?A. Uh-huh.․Q. And when you and I spoke yesterday in that room, I asked you what [appellant] said to you when he came to you, didn't I?A. Yes.Q. And your exact words to me were that he said he was in a relationship with [M.G.];   is that not true?A. Yes.Q. And I asked you did he ever mention sex, did he ever say anything about sex, and you said no;  is that not true?A. I said that his words were clear to—- for it to be understood that it was a sexual relationship.Q. Pastor Larios, that's not what you said in that room.   What you told me yesterday was that you inferred from the word “relationship” that he was talking about a sexual relationship;  isn't that true?A. Yes, that's what he told me.Q. He told you that he had had a relationship, didn't he?A. But a sexual relationship, also.Q. Didn't I ask you yesterday did he say sexual relationship, and you said no?A. I said sexual relationship.Q. Pastor Larios, when did you change your testimony, yesterday or today?A. No..  FN1. On cross-examination, the following exchange occurred between Larios and Stovall:Q. And you and I spoke in this room right out here yesterday, didn't we?A. Uh-huh.․Q. And when you and I spoke yesterday in that room, I asked you what [appellant] said to you when he came to you, didn't I?A. Yes.Q. And your exact words to me were that he said he was in a relationship with [M.G.];   is that not true?A. Yes.Q. And I asked you did he ever mention sex, did he ever say anything about sex, and you said no;  is that not true?A. I said that his words were clear to—- for it to be understood that it was a sexual relationship.Q. Pastor Larios, that's not what you said in that room.   What you told me yesterday was that you inferred from the word “relationship” that he was talking about a sexual relationship;  isn't that true?A. Yes, that's what he told me.Q. He told you that he had had a relationship, didn't he?A. But a sexual relationship, also.Q. Didn't I ask you yesterday did he say sexual relationship, and you said no?A. I said sexual relationship.Q. Pastor Larios, when did you change your testimony, yesterday or today?A. No.

JIM MOSELEY JUSTICE