NUMBER 13-11-00301-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

TIMOTHY MENDOZA A/K/A “TIMO”, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court 

of Victoria County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza 

Memorandum Opinion by Justice Rodriguez

Appellant Timothy Mendoza a/k/a "Timo" challenges his convictions for murder 

and engaging in organized criminal activity. See TEX. PENAL CODE ANN. § 19.02(b) 

(West 2011), § 71.02(a)(1) (West Supp. 2011). By two issues, Mendoza argues that: 

(1) the trial court erred in denying his motion for mistrial; and (2) he received ineffective 

assistance of counsel at trial. We affirm.
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I. Background

Mendoza was indicted for murder and engaging in organized criminal activity in 

connection with his alleged participation in the stabbing death of John Gilbert Licon in 

January 2006. Mendoza pleaded not guilty to both counts, and his case was tried to a 

jury. The State introduced the testimony of fourteen witnesses at trial; Mendoza 

presented no witnesses. During the guilt-innocence phase of the trial, the State also 

played a tape recording of Mendoza's statement to the police. Although the State made 

assurances to Mendoza's counsel that discussions of Mendoza's prior convictions and 

prison time had been redacted from the taped statement, the audio played to the jury 

included conversation between Mendoza and the police about his prior incarcerations. 

After the close of evidence and arguments by counsel, the jury returned a guilty verdict as 

to both counts. 

A day after the jury returned its verdict but before the hearing on punishment 

commenced, Mendoza filed a motion for mistrial and a motion for new trial, arguing that 

the improperly redacted tape that contained references to Mendoza's time in prison 

prejudiced the jury. The trial court denied both motions. The trial court then held a 

hearing on punishment and assessed Mendoza's sentences at life imprisonment for both 

counts, with the sentences ordered to run concurrently. This appeal followed.

II. Motion for Mistrial

By his first issue, Mendoza argues that the trial court erred in denying his motion 

for mistrial because the State's failure to redact the portions of Mendoza's taped 

statement regarding his prison time incurably prejudiced the jury. In general, we review

a trial court's ruling on a motion for mistrial for abuse of discretion. Wead v. State, 129 
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S.W.3d 126, 129 (Tex. Crim. App. 2004) (citations omitted). But to preserve error, the 

motion for mistrial must be timely and specific. See Griggs v. State, 213 S.W.3d 923, 

(Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)); 

see also TEX. R. APP. P. 33.1(a). "A motion for mistrial is timely only if it is made as soon 

as the grounds for it become apparent." Griggs, 213 S.W.3d at 927 (citations omitted);

see Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994) (citation omitted). 

Here, Mendoza failed to object and move for a mistrial when the grounds for the motion 

became apparent, i.e., at the time the State played the unredacted audio tape of 

Mendoza's statement to police. Mendoza's motion for mistrial, filed a full day after the 

jury returned its guilty verdict, was too late to preserve any error in the trial court's 

admission of the tape. Mendoza's first issue is overruled.

III. Ineffective Assistance of Counsel

By his second issue, Mendoza argues that he received ineffective assistance of 

counsel that prejudiced his case because his trial counsel failed to adequately investigate 

the case and "create any reasonable trial strategy" and, as a result, the State's evidence 

appeared to the jury to be "overwhelming."

To establish ineffective assistance of counsel, Mendoza must show that: (1) his 

attorney's representation fell below an objective standard of reasonableness; and (2) 

there is a reasonable probability that, but for his attorney's errors, the result of the 

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 684 

(1984); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). 

Our review of counsel's representation is highly deferential, and we will find ineffective 

assistance only if Mendoza rebuts the strong presumption that his counsel's conduct fell 
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within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 

689; Jaynes, 216 S.W.3d at 851. Mendoza must prove ineffective assistance of counsel 

by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. 

Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)). 

To prove that counsel's performance fell below the reasonableness standard, "the record 

must contain evidence of counsel's reasoning, or lack thereof." Moreno v. State, 1 

S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd). 

Usually, the trial record will not be sufficient to establish an ineffective assistance 

of counsel claim. Thompson, 9 S.W.3d at 813–14; Kemp v. State, 892 S.W.2d 112, 115 

(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This is true because, normally, a 

record is silent with regard to counsel's decision-making processes, and therefore, 

appellant often cannot rebut the presumption that counsel's performance was the result of 

sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813 

S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In the case of 

such a silent record, "the challenged conduct must be 'so outrageous that no competent 

attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. 

App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

Here, the details of trial counsel's investigation and other preparation for trial, or 

alleged lack thereof, are not apparent from the trial record. The trial record in this case is 

undeveloped as to the alleged failings of Mendoza's trial counsel and does not contain 

sufficient information to permit us to fairly evaluate the merits of Mendoza's ineffective 

assistance allegations on appeal. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. 

App. 2007); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Neither can we 
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conclude from the record before us that trial counsel's actions were so outrageous that no 

competent attorney would have engaged in them. See Roberts, 220 S.W.3d at 533.

Without evidence in the record of trial counsel's decision-making process and 

strategy, we cannot conclude that Mendoza has overcome the strong presumption that 

his trial counsel provided professional, objectively reasonable assistance. See 

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because Mendoza did not 

establish that his trial counsel's performance fell below an objectively reasonable 

standard, he has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855. 

His second issue is overruled.

IV. Conclusion

We affirm the judgments of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

15th day of June, 2012.