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 SN

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: Mark Anthony 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 of Appeals issued its opinion in your case on May 6, 2015. The Court

of Appeals affirmed the judgment ofthe trial court. This means that your conviction and

sentence will stand. I believe that the opinion ofthe Court of Appeals 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 if you believe that there are legal grounds for a rehearing. If you decide to file a

motion for rehearing, one original and one copy ofthe motion must be filed with the

Clerk ofthe Fourth Court of Appeals within 15 days after the date ofthe opinion, that is,

no later than May 21, 2015. Ifthe Court of Appeals denies your motion for rehearing,

you will then have 30 days to file a petition for discretionary review with the Court of

Criminal Appeals of Texas.

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.
If you 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 of Texas, P.O. Box 12308, Austin, Texas 78711. The petition must be

filedwithin 30 days aftertheCourt of Appeals 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 TexasRules 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 of habeas

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 the judgment 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 66-69
Page 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 maybe filed 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

unlesstheCourtmodifies itsjudgment,vacatesitsjudgmentand

rendersa newjudgment,or issues a differentopinion.

64.5. Extensions of Time

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. SeeRule 9.5. Other changes are made.

Comment to 2008 change: Subdivision 64.4 is amended

toreflecttheCourt's practiceof considering a secondmotionfor

rehearing aftermodifying itsjudgmentor opinion inresponse to

a prior motion for rehearing. When the Court modifies its

opinionwithoutmodityingitsjudgment, theCourtwillordinarily

deny a second motion for rehearing unless the new opinion is

substantially different from the original opinion.

Rule 65. Enforcement of Judgment

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 of Judgment

Ifthe Supreme Court rendersjudgment, 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 of Right

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 ifthe 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 ifa party files a motion complying

with Rule 10.5(b) either before orafter the response

or reply is due.

Notes and Comments

Commentto2011 change: The amendment to Rule68.2(a)

resolves timely filing questions concerning motions forenbanc

reconsideration byincluding those motionsincalculating timeto

file.

68.3. Where to File Petition

(a) Thepetition andallcopies ofthepetition must befiled

withthe clerk oftheCourt ofCriminal Appeals.

(b) Petition Filed in Court of Appeals. 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 of appeals. With the

deletion of Rule 50, there is no reason to file petitions in the

court of appeals. Rule 68.3(b) is added to address and prevent

theuntimely filing ofpetitions fordiscretionary review that are

incorrectly filed in the courtof appeals rather thanin the Court

ofCriminal Appeals.

68.4. Contents of Petition

A petition for discretionary review must be as brief as

possible. Itmust be addressed tothe "Court ofCriminal Appeals

of Texas" 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 shortstatement ofwhy oral argument

would be helpful, 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) Statementofthe Case. The petition muststate 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 ofProcedural 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 wasfiled); and

(3) thedate themotion forrehearing was overruled

or otherwisedisposed of.

(f) GroundsforReview. Thepetition muststatebriefly,

without argument, thegrounds onwhich thepetition

isbased. Thegrounds mustbeseparately numbered.

If the petitioner has access to the record, the

petitionermust(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*

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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 of the 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/S
04-13-00818-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 of counsel.

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 deficient
04-13-00818-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 of ineffectiveness 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 of pre-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. TrialCourt's FindingofIndigence

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 of article 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 hislegal services but is unable

to paythe balance." 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 anyexpenses and costs, the courtshall order the defendant

to payduring the pendency of the charges or, if convicted, as court costs the amount that itfinds

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.

OnMay31,2012, 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 of costs 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-
Jfourtf) Court of Appeal*

RECEIVED IN

COURT OFCRIMINAL APPEALS

MAY 29-2015

AbeMoosfa.Ctefk

JUDGMENT

No. 04-13-00818-CR

Mark Anthony GARCIA,

Appellant

The STATE of Texas,

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 opinionofthis date,we MODIFY the trial court's judgment

to delete the assessment of attorney's fees and AFFIRM the trial court's judgment as MODIFIED.

SIGNED May 6,2015.

£SQU*3uSE/w>

Patricia O. Alvarez, Justice

Ali

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