### Bexar County Public Defender's Office Paul Elizondo Tower 101 W. Nueva St., Suite 310 San Antonio, TX 78205^

_ _ 

### Phone: (210) 335-0701 Fax: (210) 335-0707 iRfcCESVED S N COURT OF CRIMINAL APPEALS

Mr. Mark Anthony Garcia TDCJ# 01891224 Garza West Transfer Facility May 6, 2015 

### "'" 29 2015
Abe! Acosta, CSerk 

## 4250 HWY 202 FILED IN Beeville, TX 78102 „«,mTAr«n,.m,., .nn-.. « COURT OF CRIMINAL APPEALS 

### Re: MarkAnthony Garcia v. State ofTexas maw o q ?G15 

## Appeal No. 04-13-00818-CR TMT a Trial Court No. 2009-CR-2731A Abel Acosta, Clerk Dear Mr. Garcia: 

### The Fourth Court ofAppeals issued its opinion in your case on May 6, 2015. The Court ofAppeals affirmed the judgment ofthe trial court. This means that your conviction and sentence will stand. I believe that the opinion ofthe Court ofAppeals is legally valid. I 

### was appointed to represent you at the court of appeals level only. If you want to pursue your appeal further, you will have to do so on your own, or with another attorney. The rest ofthis letter explains your options. Motion for Rehearing: You may file a motion for rehearing with the Fourth Court of 

### Appeals ifyou believe that there are legal grounds for a rehearing. Ifyou decide to file a motion for rehearing, one original and one copy ofthe motion must be filed with the 

### Clerk ofthe Fourth Court ofAppeals within 15 days after the date ofthe opinion, that is, no later than May 21, 2015. Ifthe Court ofAppeals denies your motion for rehearing, you will then have 30 days to file a petition for discretionary review with the Court of Criminal Appeals ofTexas. 

### Petition for Discretionarv Review: You can skip filing the motion for rehearing and file a petition for discretionary review directly with the Court ofCriminal Appeals. The 

### petition is called "discretionary" because the Court ofCriminal Appeals is free to refuse 

### the petition, or grant it and hear the case, for any reason they choose. Texas Rule of 

### Appellate Procedure 66.3 sets forth a list ofreasons why the Court might grant review. In my opinion, none ofthose reasons apply to your case. Because I believe that a petition for discretionary review would be frivolous, I will not file one for you.

### Ifyou decide to file your own petition for discretionary review, you will have to file the original plus 11 copies ofthe petition with: Abel Acosta, the Clerk ofthe Court of 

### Criminal Appeals ofTexas, P.O. Box 12308, Austin, Texas 78711. The petition must be 

### filed within 30 days afterthe Court ofAppeals rendered itsjudgment. Sincethejudgment was rendered on May 6, 2015, the 30-day deadline will be June 5,2015. A copy of the 

### petition mustalsobe served on theBexarCounty District Attorney's Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St. Suite 710, San Antonio, Texas 78205. 

### Yet another copy of the petition must be sent to the State Prosecuting Attorney, Lisa C. McMinn, P.O. Box 13046, Austin, Texas 78211. 

### I have enclosed a copy of thejudgment and opinionof the Fourth Court ofAppeals. I have also encloseda copy of Rules 66-69 ofthe Texas Rules of Appellate Procedure. Those rules set out the requirements for filing a petition for discretionary review. You should review them before deciding to file your own petition. 

### Do nothing at all: Youdon't haveto do anything at all. Thisis yourthird option. If you don't do anything, a document called the "mandate" will be issued by the Court of Appeals in about 90 days. Your conviction and sentence will then become final. 

### Separate and apart from your appellate rights, you may also apply for a writ ofhabeas 

### corpus. Again, you will have to hire another attorneyor file the writ applicationon your own. If you decide to file a writ application, you will have to wait until the Court of 

### Appeals issues the mandate and thejudgment becomes final. I will send you a copy ofthe mandate when I receive it. 

### With this letter, I am closing out your file, other than to send you a copy ofthe mandate. I wish you well. 

### Sincerely,

RICFIARD B. DULANY, JR. Attorney at Law 

### Certified Mail - Return Receipt Requested Article No. 7012 1640 0002 4217 9963 Enclosures: Opinion (copy) TRAP 66-69Page 68
64.1. Time for Filing A motion for rehearing may be filed with the Supreme Court clerk within 15 days from the date when the Court renders judgment ormakes anorderdisposing of a petitionforreview. In exceptional cases, ifjustice requires, the Court mayshorten the time within which themotion maybefiled orevendenytheright to file it altogether.
64.2. Contents The motion must specify the points relied on for the rehearing. 64.3. Response and Decision No response to a motion for rehearing need be filed unless the Court so requests. A motion will not be granted unless a response has been filed or requested by the Court. But in exceptional cases, ifjusticesorequires, theCourt maydenythe right to file a response and act on a motion any time after it is filed.
64.4. Second Morion TheCourtwillnotconsidera secondmotionforrehearing unlesstheCourt modifies itsjudgment,vacatesitsjudgmentand rendersa newjudgment,or issues a differentopinion.
64.5. Extensions ofTime The Court may extend the time to file a motion for rehearing in theSupremeCourt,if a motioncomplyingwith Rule 10.5(b)is filedwith the Court no later than 15 days after the last date for filing a motion for rehearing. 64.6. Length of Motion and Response A motionor responsemust be no longer than 15 pages.
Notes and Comments Commentto 1997 change: This is former Rule 190. the service andnotice provisions offormer subdivisions (b) and(c) are deleted. See Rule 9.5. Other changes are made. Comment to 2008 change: Subdivision 64.4 is amended toreflecttheCourt's practiceofconsidering a secondmotionfor rehearing aftermodifying itsjudgmentor opinion inresponse to a prior motion for rehearing. When the Court modifies its opinionwithoutmodityingits judgment, theCourtwillordinarily deny a second motion for rehearing unless the new opinion is substantially different from the original opinion.
Rule 65. Enforcement ofJudgment after Mandate

68 TEXAS RULES OF APPELLATE PROCEDURE

65.1. Statement ofCosts The Supreme Court clerk will prepare, and send to the clerk to whom the mandate is directed, a statement of costs showing: (a) the costs that were incurred in the Supreme Court, with a notation of those items that have been paid and those that are owing; and (b) the party or parties against whom costs have been adjudged, 65.2. Enforcement ofJudgment Ifthe Supreme Court renders judgment, the trial court need not make any furtherorder. Upon receiving the Supreme Court's mandate, the trial court clerk must proceed to enforce the judgmentofthe Supreme Court'sas in anyothercase. Appellate court costs must be included with the trial court costs in any process to enforce the judgment. If all or part of the costs are collected, the trial court clerk must immediately remit to the appellate court clerk any amount due to that clerk.
Notes and Comments Comment to 1997 change: Subdivision 65.1 is new. Subdivision 65.2 is from former Rule 183.

SECTION FIVE: PROCEEDINGS IN THE COURT OF CRIMINAL APPEALS Rule 66. Discretionary Review in General
66.1. With or Without Petition The Court of Criminal Appeals may review a court of appeals' decision in a criminal case on its own initiative under Rule 67 or on the petition of a party under Rule 68. 66.2. Not a Matter ofRight Discretionaryreviewby the Court of Criminal Appeals is not a matter of right, but ofthe Court's discretion. 66.3. Reasons for Granting Review While neithercontrollingnor fully measuringthe Court of Criminal Appeals' discretion, thefollowing willbeconsidered by the Court in decidingwhether to grant discretionary review:Page 70 (a) FirstPetition. The petitionmust be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by the court of appeals, 

### (b) SubsequentPetition. Even if the time specified in (a) has expired, a party who otherwise may file a petition may do so within 10days after the timely filing of another party's petition. (c) Extension ofTime. The Court ofCriminal Appeals may extend the time to file a petition for discretionary review if a party files a motion complying with Rule 10.5(b) no later than 15 days after thelastdayforfiling thepetition. TheCourtof Criminal Appeals may extend the time to file a response orreply ifaparty files a motion complying with Rule 10.5(b) either before orafter the response or reply is due.
Notes and Comments Commentto2011 change: The amendmentto Rule68.2(a) resolves timely filing questions concerning motions forenbanc reconsideration byincluding those motions incalculatingtimeto file. 68.3. Where to File Petition (a) Thepetition andallcopies ofthepetition mustbefiled withthe clerk oftheCourt ofCriminal Appeals. (b) Petition Filed in Court ofAppeals. If a petition is mistakenly filed inthecourtofappeals, thepetition isdeemed to < have been filed the same day with the cIefJs*of the Court of-, Criminal Appeals, and the court of appeals clerk must immediately send the petition to the cleric" of'the Court of Criminal Appeals. i,
Notes and Comments Comment to2011 change: Rule 68.3 ischanged torequire petitions for discretionary review to be filed in the Court of Criminal Appeals rather than inthe court ofappeals. With the deletion of Rule 50, there is no reason to file petitions in the court ofappeals. Rule 68.3(b) is added to address and prevent theuntimely filing ofpetitions fordiscretionary review that are incorrectly filed in the courtofappeals rather thanin the Court ofCriminal Appeals. 68.4. Contents ofPetition A petition for discretionary review must be as brief as 

### possible. Itmustbe addressedtothe "Court of Criminal Appeals ofTexas" and must state the name of the party or parties

70 TEXAS RULES OF APPELLATE PROCEDURE applying forreview. The petition must contain the following items: (a) Table ofContents. The petition mustincludea table of contents with references to the pages of the petition. The table of contents must indicate the subject matter ofeach ground orquestion presented for review. (b) Index ofAuthorities. The petition must include an index of authorities arranged alphabetically and indicating the pages of the petition where the authorities are cited. (c) Statement Regarding Oral Argument. The petition must include a short statement ofwhy oral argument would behelpful, or a statement thatoral argument is waived. If a reply or cross-petition is filed, it likewise must include a statement of why oral argument should or should not be heard. (d) Statementof the Case. Thepetition must state briefly the nature of the case. This statement should seldom exceedhalfa page.The detailsof thecaseshouldbe reserved and stated with the pertinent grounds or questions. (e) Statement of Procedural History. The petition must state: (1) the date any opinion ofthe court of appeals washandeddown, or thedateof anyorderof the court of appeals disposing of the case without an opinion; (2) the date any motion for rehearing was filed (or a statement that none was filed); and (3) thedate themotion forrehearing was overruled or otherwisedisposed of. (f) GroundsforReview. Thepetition must statebriefly, without argument, thegrounds onwhich thepetition isbased. Thegrounds mustbeseparately numbered. If the petitioner has access to the record, the petitioner must(aftereachground) refer to thepage of the record where the matter complained of is found. Instead of listing grounds for review, the petition may contain the questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of questionsshouldbe shortand concise, not argumentative or repetitious. (g) Argument. The petition must contain a direct and concise argument, with supporting authorities, amplifying thereasonsforgranting review. SeeRule"7 ' f- Ct-o I " 

# A » jfourtf) Court ot Appeal* 

# •Ay 6. t? ^ _^

\^*



### JZZ: MEMORANDUM OPINION
No. 04-13-00818-CR Mark Anthony GARCIA, Appellant

v. The STATE ofTexas, Appellee 

### From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR2731A 

### Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: RebecaC. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: May 6, 2015
AFFIRMED AS MODIFIED Appellant Mark Anthony Garcia was charged by indictment with one count ofmurder. The jury returned a guilty verdict and assessed punishment at twenty-years' confinement in the Institutional Division ofthe Texas Department of Criminal Justice. On appeal, Garcia contends 

### (1) he was denied effective assistance ofcounsel and (2) the trial court erred in assessing attorney's 

### fees. We modify the judgment to delete the assessment of attorney's fees and affirm the trial 

## court'sjudgment as modified. ; "^ U>wi 7~fal a>/)tj Qr°v„c/S04-13-00818-CR 

### the result of the proceeding would have been different.'" Id. at 158 (footnote omitted) (quoting Strickland, 466 U.S. at 694). 

### "An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "There is a strong presumption that counsel's conduct fell within the wide range ofreasonable professional assistance." Id. (citing Strickland, 466 U.S. at 689). Therefore, Garcia "'must overcome the presumption that, under the circumstances, the 

### challenged action might be considered sound trial strategy.'" Exparte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 689). 

# B. Arguments ofthe Parties ^ ^ ^ ^
Garcia contends that by asking the question, trial counsel-unintentionally opened the door to otherwise inadmissible extraneous offense evidence. Such testimony could only lead the jury to see Garcia as a "drug-crazed, remorseless killer, instead of a good guy who was just trying to 

### stop a tragedy." The State counters that a single, inarticulate question—asked during an otherwise vigorous representation and well above the objective professional standard of reasonableness—cannot

amount to ineffective assistance ofcounsel. C. ,. Ineffective AssistanceofCounsel 

### "A substantial risk offailure accompanies an appellant's claim ofineffective assistance of counsel on direct appeal." Thompson, 9 S.W.3d at 813. "In the majority ofinstances, the record 

### on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. at 813-14. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107,111 (Tex. Crim. App. 

### 2003); accord Menefield, 363 S.W.3d at 593. An "appellate court should not find deficient04-13-00818-CR 

### performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Menefield, 363 S.W.3d at 593 (quoting Goodspeedv. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Often on direct appeal, because the record is silent on counsel's reason, the defendant asks the appellate court to "speculate as to the reasons why trial counsel 

### acted as he did," but the court is required to "presume that [counsel's] actions were taken as part of a strategic plan for representing the client." Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. refd). Here, however, the record specifically provides defense counsel's reasons for asking the question. D. Analysis 1. Testimony in Question On the tenth day oftestimony, after the State rested its case in chief, Garcia took the witness 

### stand. Garcia articulated his version ofthe events that evening. Garcia denied firing the weapon that killed Morales. He further explained that he was actually attempting to stop Lozano "from doing something stupid." Defense: At the time that you were in the office talking with the detective, all right, did you believe that you'd some day end up on the stand being tried for murder? State: Objection, Your Honor, relevance. Defense: State ofmind, Your Honor, at the time. Demeanor they placed him. 

### Trial Court: Ask your question again. Defense: At the time that you were placed in custody in — with Detective 

### Angell, all right, did you ever believe that you would be on trial for murder?
Trial Court: It's sustained. 

### Defense: Did you have anything to hide that night when you were talking to the detective?

-5-04-13-00818-CR 

### Here, trial counsel clearly articulated that he did not anticipate or believe that his questions might open the door to the State's propounding questions pertaining to Garcia's possession of 

### cocaine. Butsee Garciav. State, 308 S.W.3d 62, 67-68 (Tex. App.—San Antonio 2009, no pet.) (concluding trial counsel's multiple blanket questions opened the door to extraneous bad acts and his repeatedfailure to object to admission of extraneous offenses deprived defendant of a fair 

### trial). Even acknowledging that "a single egregious error of omission or commission" can constitute ineffective assistance, the allegations ofineffectiveness must be "firmly founded in the 

### record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813 (citing McFarlandv. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We, therefore, look to trial counsel's representation throughout the trial. Trial counsel conducted two days ofpre-trial motions, two days ofvoir dire, fourteen days oftestimony during the guilt/innocence portion ofthe trial, and two days ofpunishment testimony. During the guilt/innocence phase of the trial, trial counsel cross-examined twenty-two State's 

### witnesses and presented ten defense witnesses. There were a plethora of objections lodged by defense counsel preventing damaging testimony from being heard by the jury. Additionally, sixtyone defense exhibits were admitted by the trial court. Defense counsel presented impassioned 

### closing arguments in both the guilt/innocence and the punishment phases of the trial. Garcia contends this trial turned on his credibility; yet, the record demonstrates several witnesses identified Garcia (the individual in the yellowish-colored shirt) as obtaining the weapon 

### from the vehicle, placing the weapon in his waistband, and firing the weapon at Morales. Moreover, although Garcia's "jovial" disposition is mentioned during closing arguments, the State 

### was comparing his appearance shortly after the shooting to his somber appearance in court. 

### Neither party mentioned possession of cocaine or any other narcotics during closing arguments. Importantly, although the trial court ruled that defense counsel's question opened the door to

-7-04-13-00818-CR 

### 1. Trial Court's Findingof Indigence 

### The Texas Code of Criminal Procedure provides that a criminal defendant "without means 

## to employ counsel ofmy own choosing," may petition the court to appoint counsel to represent him at the county's expense. Tex. Code Crim. Proc. Ann. art. 26.04(o) (providing oath of 

### indigence language); id. art. 26.05(f) (requiring counties to pay indigents' costs and attorney's fees). 

### In Dieken, 432 S.W.3d at 447, this court analyzed the inherent conflict in article 26.04's 

### mandate withthat ofarticle 26.05(g). We concluded that "[ajrticle 26.05(g) authorizes a court to determine that a defendant is able to pay a portion of the costs of his legal services but is unable to paythebalance." Id. (citing Tex.Code Crim. Proc. Ann. art. 26.05(g) ("Ifthecourt determines 

### that a defendant has financial resources that enable him to offset in part or inwhole the costs of the legal servicesprovided, including any expenses and costs, the court shall order the defendant to payduring the pendency of the charges or, ifconvicted, as court costs the amount that it finds the defendant is able topay.'")). We must, therefore, determine whether the trial court's conclusion 

### that Garcia was able to pay for part, but not all, ofthe legal services he received was reasonable.
2. Relevant Evidence 

### Although the record does not contain any documents determining Garcia's indigency, Garcia was clearly represented by appointed counsel during his trial. The trial court further 

### approved payment of an investigator for the defense. From these documents, we presume Garcia "'remainfed] indigent . . . unless a material change in [Garcia's] financial circumstances 

### occurred].'" Id. at 448 (second, fourth alterations in original) (quoting Tex. Code Crim. Proc. Ann. art. 26.04(p)); see also Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 557. 

### As the State points out, on January 13,2009, the trial court signed a Special Condition of Release on Bond, setting Garcia's bond at $100,000.00 and ordering full-house arrest and

-10-04-13-00818-CR 

### electronic-monitoring as conditions of bond. On October 28, 2011, the bond was apparently 

### increased to $200,000.00. Although it appears Garcia was able to post bond, the clerk's record does not contain any actual documentation ofGarcia's bond. 

### OnMay 31,2012, defensecounsel fileda Motionto ModifyConditions of Bondrequesting Garcia's electronic monitoring be modified to accommodate his work schedule at a local 

### restaurant. On November 20, 2013, defense counsel's motion to withdraw indicatingthat Garcia "remains indigent and cannot affordto hire an attorney to represent him [on] appeal" was granted 

### and, the trial court appointed an assistantpublic defenderto represent Garcia on appeal. 3. SufficientEvidence 

### To impose the attorney's fees on Garcia, the trial court had to find, either expressly or implicitly, that a material change occurred and Garcia had the ability to pay $3,110.00 in court costs and attorney's fees. See Tex. Code Crim. Proc. Ann. art. 26.05(g); Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 556. The record does not contain either an express written or oral 

### finding supporting the same. Additionally, the record does not contain a bill ofcosts outlining a portion for which the trial court reasonably determined Garcia could pay. Because the record shows Garcia had court-appointed counsel at trial and on appeal, and does not include either an express or implicit finding of a material change in Garcia's ability to pay the attorney's fees, we modify the judgment to delete the assessment of attorney's fees. See Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 556.
Conclusion Having overruled Garcia's ineffective assistance claim, we affirm the trial court's judgment as modified. Patricia O. Alvarez, Justice
DO NOT PUBLISH

-11-

# Jf ourtf) Court ofAppeal* 

# RECEIVED IN COURTOFCRIMINALAPPEALS MAY 29-2015 

# AbeMoosfa.Ctefk

JUDGMENT
No. 04-13-00818-CR Mark Anthony GARCIA, Appellant

The STATE ofTexas, Appellee 

## sV 

# ^ 1 a 

# S (X

From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR2731A 

### Honorable Lori I. Valenzuela, Judge Presiding BEFORE JUSTICE MARTINEZ, JUSTICE ALVAREZ, AND JUSTICE CHAPA 

### In accordance withthis court's opinion ofthis date,we MODIFY the trial court's judgment to delete the assessment ofattorney's fees and AFFIRM the trial court's judgment as MODIFIED. SIGNED May 6,2015. 

# £SQU*3uSE/w> Patricia O. Alvarez, Justice

Ali 

# ^ r ' \-k'

/ /