Gamboa v. State — (Leagle)

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Leagle

GAMBOA v. STATE  No. 09-90-184 CR. 822 S.W.2d 328 (1992)

Manuel Cardenas GAMBOA, Appellant, v. The STATE of Texas, Appellee. Court of Appeals of Texas, Beaumont.

January 8, 1992.

Rehearing Denied January 27, 1992.

Discretionary Review Refused April 29, 1992.

 Clyde W. Woody, Houston, for appellant.  Peter Speers, III, Dist. Atty., Kathleen Hamilton, Asst. Dist. Atty., Conroe for the State.

Opinion

WALKER, Chief Justice.

This is an appeal from a conviction for the third degree felony offense of Injury To A Child. A jury found appellant guilty and assessed his punishment at seven (7) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant urges two points of error on appeal, viz: Point of Error One: The appellant, Manuel Cardenas Gamboa, was denied effective assistance of counsel.

Point of Error Two: Submission of Parole Charge was fundamental error and deprived the appellant of a fair and impartial trial. Appellant timely filed a Motion For New Trial and a hearing on the motion was held September 20, 1990. Appellant retained different counsel to prosecute his Motion For New Trial and subsequent appeal. The basis of appellant’s Motion For New Trial was ineffective assistance of his trial counsel in that, during the trial, appellant’s counsel was taking a prescription drug, “Prozac,” which appellant claimed is well known for causing suicidal or aggressive behavior.

Appellant’s trial counsel was the only witness in the motion hearing.   He testified that a week or so prior to trial, a psychiatrist diagnosed him as “manic-depressive” and prescribed the “Prozac.”   Trial counsel further testified that he had started taking the drug about four days prior to the start of appellant’s trial. Trial counsel admitted that as a result of taking the drug, he felt very mellow and virtually non-aggressive.  Trial counsel also stated that the drug caused his mind to be “fluffy,” and that although he was still representing a few clients in non-complicated legal matters, he was abstaining from the practice of law. Trial counsel testified that he did not feel that he represented appellant effectively as a result of the effects of the drug.  The trial court denied appellant’s request for a new trial.

To support a claim of ineffective assistance of counsel, appellant must prove: 1) that counsel’s performance was deficient and 2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App.1991); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.App.1986). Absent both showings, we cannot conclude that a defendant’s conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Strickland, supra 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Moreover, if a defendant fails to prove the prejudice component (the second prong), the Court need not address the question of counsel’s performance. Strickland, supra 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. The method for proving the prejudice component was spelled out as follows:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland, supra 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In the instant case, appellant’s counsel on appeal only cursorily touches on the prejudice factor in their appellate brief. Such conclusory statements as, “Due to the fleeted in the length of sentence he received, counsel’s actions in failing to protect Appellant cannot be considered sound trial strategy.”; and, “Proper and timely objections were not made by defense counsel thereby placing the Appellant in the position of having waived his right to object on appeal to testimony and evidence admitted before the jury which was improperly admitted and which prejudiced and inflamed the jury against the Appellant herein.”, do not suffice to show us that, even if such alleged conduct was found to be deficient, the results (either conviction or sentence) would have been different. In short, appellant’s argument under his first point of error deals exclusively with the deficiency component of Strickland to the exclusion of the prejudice factor.  The testimony elicited from appellant’s trial counsel at the September 20, 1990 hearing is completely devoid of any proof of how his drug use and the resulting alleged deficiencies led to results that would have been different had the alleged deficient conduct not have occurred. Point of error one is overruled.