### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00227- CR

Jay Jon Boh ac, Appellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F B ELL COUNTY NO. 2C12- 0555 5, H ONO RAB LE JO HN MI CHAEL M ISCH TIAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The trial court found appell an t J ay J on Boha c g uilty of misdemeanor assault with injury to a fa mily

member—his then- wife, K ristal Boha c, see Tex. Pena l Code § 22.01(a) (1), and

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sentenc ed Boha c to 200 day s in the county jail and a $1,000 fine. The court also s uspended this sentenc e and place d Boha c on community supervision for 18 months. Boha c filed a motion for new trial, which the trial court denied. I n his sole appellate issue, Boha c con t en d s that the trial court abused its di s cr et i o n i n failing to g rant the motion for new trial beca use he rec eived ineffe ctive assistance of counse l. We will affirm the trial cour t’s judgme nt of conviction.

Be cause she and the appellant share the same last name, we will ref er to Kristal Boha c by 1 her f irst name for

the sake of cla

rity

.BACK GR OUND At the bench trial, Kristal testified to the following fac ts. She and Boha c g ot into an arg ument at their home on J une 15, 2012. Boha c took her car key s to preve nt her from driving awa y . Kristal took Boha c’s set of key s, which included a key to her car , and put them in her purse. Boha c then pulled her purse awa y , injuring her arm. Kristal walke d out of the home and down the street, and Boha c pulled up beside her in h i s t ru ck

. Krist al g ot into the truck, and they continued the arg ument. Boha c struck Kristal on the back of her head, her neck, and the side of her fac e. Try ing to g et awa y or signa l for help, Kristal opened the truck door, but Boha c pulled the seatbe lt acr oss her and held onto it. Kristal eve ntually g ot out of the truck a

nd walked to the police station. Boha c also testified at trial. Acc ording t o Bo h ac, the arg ument at their home was purely verba l, a

nd Boha c never struck Kristal or pulled her pur se aw ay . Kristal left the home, and Boha c pursued her in his truck. Kristal g ot into the truck, and Boha c continued driving

. Whil e he

was driving at about 45 miles per hour, Kristal opened the truck door and started leaning out. Boha c g rabbe d her a

rm and seatbelt to prevent he r fr om falling out. Of fi cer Nea l Holtzclaw of the Killeen Police Depa rtment testified at trial t h at h e spoke with Boha c and Kristal afte r they returne d home. Of fice r Holtzclaw took photogr aphs of Kristal at the scene , and these photogr aphs wer e admitted into evidenc e. He testified that he could

s e e “ a s ma ll r e d a

r e a ” o n K r is ta l’ s f a c e in th e p h o to g r a

p h s a n d th a t th is w a s “ c o n s is te n t w it

h tr a u ma . ” Offic er H oltz claw f

urther te stified that other photog raphs showe d bruising on K ristal’s ar m. Boha c was found g uilty and sentenc ed. He then filed a motion for new trial, which the trial cour

t denied. This appe al followed.

2STANDARD OF REVIEW We revie w a trial court’s denial of a motion for a new trial for a b u s e of di scre tion. See State v. Herndon , 215 S.W .3d 901, 907 (Tex. Crim. App. 2007). Acc ording ly , when analy zing the trial court’s failure to g rant a new trial on the basis of ineffe ctive assistance of counsel, we view the rele vant leg al standards throug h the prism of abuse of discretion. State v. Gill , 967 S.W .2d 540, 542 (Te x . Ap p . — Au s t in 1998, pet. ref’d). We do not substitut e our judgme nt for that of t he trial court; rather, we decide whether the t rial court’s decision was arbitra ry or unreasonable. W

eb b v. State , 232 S.W .3d 109, 112 (Tex. Crim. App. 2007). A trial court abuses its discr etion in de ny ing

a motion for new trial only when no rea sonable view of the rec ord could support the trial court’s ruling

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

DISCUSSIO N I n his sole issue, Boha c contends that the t ri al court err ed in failing to g rant his motion for new trial on the basis of ineffe ctive assistance of counsel beca use his trial counsel failed to obtain a transcr ipt of Officer Holtzclaw’s testimony g iven at a prior civil proce eding rela ted to the B ohacs’ divorce . Acc ording to Boha c, Of fice r Holtzclaw’s testim ony at his criminal trial wa s inconsistent wi t h t h e o ff icer ’s testimony at the divorce proce eding , and “[b] y not obtaining the testimony of Holtzclaw g iven under oath in the civil trial, trial counsel was unable to confr ont the office r wit h the s worn inconsist ency .” Specifica lly , Boha c points out that Offic er Holtz claw “did not note in his repor

t any fac ial bruising nor did he testify to that under oath in the civil proce eding ” and that “[t] he office r’s conclusion of fac ial injury was based entirely upon looking at photogr aphs”

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t B o h a c ’ s c r im in a l tr ia l. B o h a c a l s o n o t e s t h a t t h e f o ll o w in g e xc h a

n g e o c c u r r e d a t th e c iv il p r o c e e d in g : [Question:] But y ou don’t rea lly know whethe r or not the visible injuries occ urre d from him g rabbing the purse or him try ing to preve nt her from g etting out of a moving c ar? [Officer Holtzclaw:] Correc t. I t could have be en either way .

Ba sed on this prior testimony , Boha c arg ues that “[ t ] h e b ru i sing on Ms. Boha c’s arm could very well have come from Appellant preve nting her from exit ing a moving car , the lesser of two evils.”

To preva il on an ineffe ctive-a ssistance-of -counse l claim, a defe ndant must prove by

a prep o n d er ance of the evidenc e that (1) counsel’s perf ormanc e was defic ient and (2) counsel’s defic ient perf

ormanc e prejudice d the defe ndant. See Ramirez v. State , 301 S.W .3d 410, 415 (Tex. App.—Austin 2009, no pet.); see also Strickland v. W ashington , 466 U.S. 668, 687 (1984); Ex parte Ramirez , 280 S.W .3d 848, 852 (Tex. Crim. App. 2007) (per curia m). Assuming, without deciding , that Boha c’s counsel’s p er fo rm ance was defic ient in that he did not obtain the transcr ipt, we must consider whether this a lleg ed defic ient perf ormanc e 2 prejudice d Boha c. Al t h o u gh Boha c char acte rizes Offic er Holtzclaw’s testimony at the divorce p ro ce ed i ng as inconsistent with his testimony at the criminal trial, we disag ree . At the divorce

We note t hat, at the hearing on Boha c’s moti on for new t rial, hi s trial counsel ex plained 2 his decision not to obtain a copy of the transcr ipt of Offic er Holtzclaw’s ear lier testimony as follows: I did not have it beca

use [Bohac’ s prior counsel] repr esente d him in the divorce , and she actually ref

err ed him to me for the criminal case . And s he advise d me that t he office r’s testimony , she fe l t , was very damag ing ag ainst Mr. Boha c. And she also advised me that in the Protective Orde r hear ing, that the testimony of Kristal Boha c was not that damag ing toward Mr. Boha c. So I did not

— I did not reque st his testimony ; that’s corr ect. 4proce eding , Offic er Holtzclaw testified that the injury to Kristal’s arm could have been cause d either

by Boha c g rabbing her purse or by his g rabbing her seatbe lt. On redire ct immediately afte r he g ave this answe r, Offic er Holtzclaw was asked, “Did y ou believe that the injuries wer e from him g rabbing the purse? ” He answe red, “At the time I believe d t hat.” This response is consistent with his testimony at Boha c’s cri m i n al t ri al that Kristal had bruising on her arm and that “an assault had

occur red.” Offic er Holtz claw acknowle dg ed at the criminal trial that he did not reme mber seeing Kristal carry ing a purse at the scene and that no purse had been admitted into evidenc e. Offic er Holtzclaw also acknow ledg ed at Boha c’s criminal trial that his repor t indicated that h e “d i d n ot observe any visible marks on Kristal’s fac e or head” at the scene and that he was “looking for visible marks” but “did not see any .” This testimony does not contra dict Offic er Holtzclaw’s testimony in the civil proce eding , and the transcr ipt of his ear lier testimony was not neede d to establish this point. Finally , the photogr aphs on which Offic er Holtzclaw relied during his testimony at the criminal trial

wer e admitt ed int o evidenc e, and the t rial cour t, as fac t-finder , could j udg e for itself whether they showed injuries to Kristal’s fac e or head. For these rea sons, we conclude that Boha c’s trial counsel’s failure to obtain a copy of the transcr ipt from the civil proce eding , even if defic ient perf ormanc e, did not prejudice Boha c.

B e c a u s e B o h a c h a s n o t e s ta

b li s h e d th a

t h is tr ia l c o u

n s e l’ s a ll e g e d d e f

ic ie n t p e r f o r m a n c e prejudice d him, we cannot conclude that the trial court abused its discretion in fail i n g t o g rant Boha c’s moti on for new t rial on the ground of ineffe ctive assist ance of counse l. Accor dingly , we

overr ule B ohac’ s sole appellate issue.

5CONCLUSION We affir m the judgme nt of conviction.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: January

5, 2017 Do Not Publish

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