Opinion issued December 8, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00238-CR

———————————

DANG DUY TRUONG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1410374

MEMORANDUM OPINION

A jury convicted Dang Duy Truong of aggravated robbery with a deadly 

weapon. See TEX. PENAL CODE § 29.03. The jury assessed punishment at 40 years 

in prison. In his sole issue on appeal, Truong contends that he received ineffective 
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assistance of counsel during the punishment phase of trial. He raised this issue in a 

motion for new trial, which the trial court denied.

Because the record supports a conclusion that appointed counsel did not 

render deficient performance by failing to adequately investigate or present 

mitigation evidence, we affirm the conviction.

Background

A grand jury indicted appellant Dang Duy Truong for aggravated robbery 

with a deadly weapon arising from a robbery at the Beijing Game Room in 

Houston, Texas. During a trial before a jury, Truong admitted to participating in 

the robbery. The jury convicted him of aggravated robbery with a deadly weapon

and assessed punishment at 40 years in prison. See TEX. PENAL CODE § 29.03. 

During the punishment phase of trial, the appointed defense counsel, 

Thomas Radosevich, called Truong as the only defense witness. He testified about 

his understanding and knowledge of the conditions of probation, and he asked the 

jury to consider placing him on community supervision. 

After trial, Truong filed a motion for new trial alleging ineffective assistance 

of counsel during the punishment phase. At a hearing on the motion, he offered 

into evidence several affidavits supporting his claim that Radosevich was 

ineffective. These affidavits were made by a long-time friend, Christine Nguyen, 
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an ex-girlfriend, Kim Ho, Truong’s adoptive mother, Lucy Thai, appointed 

counsel, Thomas Radosevich, and another attorney, Lott Brooks. 

According to Nguyen’s and Ho’s affidavits, Radosevich sent them text 

messages regarding Truong’s case, but he eventually stopped returning their texts 

and calls. Nguyen would have testified that Truong was “like a little brother” to 

her, that he was “always willing to help others,” that he “learned a lot about how 

easily others had influenced him,” and that “he would have been successful on 

probation.” Ho averred that she would have testified that Truong “is a really sweet 

person” and “was very remorseful of the situation.”

Lucy Thai’s affidavit stated that Truong’s trial attorney “never contacted” 

her, but she “would have testified for him” if she had been “given the opportunity.”

Her testimony would have included information about Truong’s family history. 

She would have testified that his biological father was “not around.” According to 

Thai, her sister was Truong’s biological mother, who suffered from a mental 

illness and gave birth to him when she was 15 years old. Her sister “would wander 

around” and not care for Truong, and as a young child he spent “almost a year and 

a half” living in an orphanage. After her sister died, Thai adopted Truong, and 

when he was 8 years old, they moved to the United States as “refugees escaping 

the communist country.” She also would have testified that Truong “would say or 

do things” that made her think that he “suffered from a mental illness like his 
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mother,” but that he “was a good child” who “graduated from high school,” and

“he feels very bad for this situation.”

Truong also offered an affidavit from Radosevich. He stated that he “did not 

subpoena witnesses” even though he “knew some were available” and that he had 

communicated with Nguyen and Ho regarding the case. Radosevich also said that 

he was “not advised Mr. Truong had an adoptive mother or any other relatives,” or 

he “would have contacted them, too.” In addition, Radosevich’s affidavit said that

“up until the trial, it appeared—and Mr. Truong, Ms. Nguyen, and Ms. Ho seemed 

to believe—that attorney Lott Brooks would be hired to handle the case,” but he 

wasn’t. In another affidavit, Brooks said that the family contacted him but could 

not afford his services, and thus he never began working on Truong’s case. 

The State offered its own affidavit from Radosevich during the hearing. In 

this affidavit, Radosevich contradicted the statements of Nguyen and Ho by 

claiming that he had communicated with them “by e-mail, text, and probably by 

telephone” and he “tried to get them to meet” him. He also repeated that he was 

never advised about an adoptive mother or other relatives, but he added that he 

provided Truong “written memorandums covering varying aspects of defending 

and trying a case,” explaining what was needed from him “and his family and his 

friends, to defend him.” He also averred that he met with Truong in person to view 

and discuss the evidence in the case.
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Based on this evidence, the trial court denied the motion for new trial. 

Truong appealed. 

Analysis

In a single issue, Truong contends that Radosevich provided ineffective 

assistance of counsel during the punishment phase of his trial. He argues that 

Radosevich failed to investigate his background or present mitigation evidence. 

When a claim of ineffective assistance of counsel is asserted by a defendant 

in a motion for new trial, and that motion is denied after an evidentiary hearing, the 

denial of the motion is reviewed under an abuse-of-discretion standard. Holden v. 

State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Anderson v. State, 193 

S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). “We view the 

evidence in the light most favorable to the trial court’s ruling and uphold the trial 

court’s ruling if it was within the zone of reasonable disagreement.” Webb v. State, 

232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Anderson, 193 S.W.3d at 39. We do 

not substitute our judgment for that of the trial court; rather we decide whether the 

trial court’s decision was arbitrary or unreasonable. Holden, 201 S.W.3d at 763. 

When, as in this case, the trial court makes no findings of fact regarding the denial 

of a motion for new trial, we “impute implicit factual findings that support the trial 

judge’s ultimate ruling on that motion when such implicit factual findings are both 

reasonable and supported in the record.” See Johnson v. State, 169 S.W.3d 223, 
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239 (Tex. Crim. App. 2005). A trial court only abuses its discretion in denying a 

motion for new trial when no reasonable view of the record could support its 

ruling. Id.

Claims that a defendant received ineffective assistance of counsel are 

governed by the standard announced in Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052 (1984). Strickland mandates a two-part test: (1) whether the 

attorney’s performance was deficient, i.e., whether counsel made errors so serious 

that he or she was not functioning as the “counsel” guaranteed by the Sixth 

Amendment, and if so, (2) whether that deficient performance prejudiced the 

party’s defense. 466 U.S. at 687, 104 S. Ct. at 2064. “The defendant has the burden 

to establish both prongs by a preponderance of the evidence; failure to make either 

showing defeats an ineffectiveness claim.” Shamim v. State, 443 S.W.3d 316, 321 

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Lopez v. State, 343 

S.W.3d 137, 142 (Tex. Crim. App. 2011)).

A reviewing court “must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance,” and the 

appellant bears the burden to overcome the presumption that, under the 

circumstances, the challenged action was a result of sound trial strategy. 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. An accused is not entitled to 

perfect representation, and a reviewing court must look to the totality of the 
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representation when gauging trial counsel’s performance. Frangias v. State, 450 

S.W.3d 125, 136 (Tex. Crim. App. 2013).

An attorney representing a criminal defendant has a duty to make an 

independent investigation of the facts of the case. McFarland v. State, 928 S.W.2d 

482, 501 (Tex. Crim. App. 1996); Ex parte Duffy, 607 S.W.2d 507, 516–17 (Tex.

Crim. App. 1980). This includes conducting a legal and factual investigation and 

seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 

391, 393 (Tex. Crim. App. 1990). An attorney also must conduct an adequate 

investigation into potential mitigation evidence. Wiggins v. Smith, 539 U.S. 510, 

522–23, 123 S. Ct. 2527, 2536 (2003); Goody v. State, 433 S.W.3d 74, 80 (Tex. 

App.—Houston [1st Dist.] 2014, pet. ref’d). In considering whether trial counsel 

conducted an adequate investigation for potential mitigation evidence, a court

focuses on whether the investigation supporting counsel’s decision not to introduce 

mitigation evidence was reasonable. Wiggins, 539 U.S. at 522–23, 123 S. Ct. at 

2536; Goody, 433 S.W.3d at 80. An attorney’s decision not to investigate or to 

limit the scope of the investigation is given a “heavy measure of deference” and 

assessed in light of all of the circumstances to determine whether reasonable 

professional judgment would support the decision. Strickland, 466 U.S. at 691, 104 

S. Ct. at 2066. But failure to uncover and present mitigation evidence cannot be 

justified when counsel has not conducted a thorough investigation of the 
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defendant’s background. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—

Houston [1st Dist.] 2005, pet. dism’d).

The affidavits presented at the hearing on the motion for new trial were the 

only evidence offered in support of the ineffective assistance of counsel claim. 

Based on these affidavits, Truong argues that Radosevich should have called 

Nguyen and Ho to present mitigation evidence, and he uses the affidavits of his 

adoptive mother and Brooks to show that Radosevich did not conduct a thorough 

investigation of his background.

With respect to Truong’s argument that Radosevich should have called 

Nguyen and Ho as mitigation witnesses, the trial court was the “sole factfinder and 

judge of . . . credibility at the motion for new trial hearing, both during live 

testimony and in affidavits.” See Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. 

App. 2012). Radosevich’s decision not to call Nguyen and Ho is given a heavy 

measure of deference. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. In this 

case, there was a conflict between the affidavits. The trial court could have 

disbelieved Nguyen’s and Ho’s affidavits and believed Radosevich’s, and found 

that he tried to contact and meet with them. See Kober, 988 S.W.2d at 233. A

reasonable view of the record supports a finding that Radosevich used reasonable 

professional judgment in deciding not to call Nguyen and Ho because they would 

not meet with him prior to trial. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
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Because a reasonable view of the record supports the trial court’s judgment, 

we conclude that the trial court did not abuse its discretion by refusing to grant 

Truong’s motion on the ground that Radosevich failed to call Nguyen and Ho. See 

Strickland, 466 U.S. at 687–90, 104 S. Ct. at 2064–66; Webb, 232 S.W.3d at 112; 

Riley, 378 S.W.3d at 457.

Additionally, the record supports the trial court’s implicit rejection of 

Truong’s claim that Radosevich failed to conduct an investigation into his 

background. Radosevich’s affidavit demonstrated that he discussed with Truong 

what was needed from him and his family, and it shows that he contacted two 

character witnesses. The affidavits of Thai and Brooks are the only evidence that 

suggest a lack of investigation into Truong’s background. Radosevich averred that 

he never knew of Thai and there is no evidence in the record to suggest he should 

have known of her. Further, there is no evidence in the record that Radosevich 

failed to investigate Truong’s background because it appeared to him that Brooks 

was going to handle the case. 

Based on the limited and conflicting evidence presented, the trial court 

reasonably could have found that Truong did not meet his burden to overcome the 

strong presumption that Radosevich’s conduct fell within the wide range of 

reasonable professional assistance and that his actions were the result of sound trial 

strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Therefore, Truong did 
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not satisfy the first prong of Strickland, and the trial court did not abuse its 

discretion in refusing to grant Truong’s new-trial motion. See id.; see also Shamim, 

443 S.W.3d at 321. 

Because the trial court did not abuse its discretion by refusing to grant a new 

trial, we overrule Truong’s sole issue on appeal. 

Conclusion

We affirm the judgment of the trial court. 

Michael Massengale

Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).