### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00272
- CR

Ex parte Christopher Lopez

FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY NO S . D
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- DC
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- 100158 & D
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- DC
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- 205012 THE HONORABLE TAMARA NEEDLES , JUDGE PR ESIDING

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

Chr istopher Lopez was charged with aggravated kidnapping, aggravat ed assault family violence, endangering a child, and ev ading arrest. See Tex. Penal Code §§ 20.04, 22.02 , .041

. Consistent with a plea

- bargain agree ment, t he tr ial c ourt , after accepting Lopez ’ s guilty pleas , deferred his adjudication of guilt for the aggravated

- kidnapping and aggravated

- assault

o ffenses , placed h im on deferred

- adjudication community supervision for ten y ears for those offenses, and s e nt enced him to e ighteen months in a state jail for the e ndangering offense. S ee Tex. Code Crim. Proc . art. 42 A.101 ; Tex. Penal Code § 12.35

. Almost seven years later and after the S t at e filed motions to adjudi cate his guilt, Lopez filed an application f or writ of ha beas corpus asking t he habeas co urt to discharge him from comm unity supervision, allo w him to withdraw his guilty pleas, and convene a trial. Following a hearing, the trial court denied Lopez ’ s writ application. Lopez appeals the trial court ’ s order denying his requested habeas relief. We will affirm the trial court ’ s or der.2 BACKGROUND In August 2015, Lopez was dating Liliana Espino za, who had a five

- year - old son J. D. 1 According to the probable

- c ause affidavit supporting Lopez ’ s ultimate arrest of which t he habeas court took judicial notice, Espinoza an d Lope z were in an argument resulting in Lopez approaching her with a pistol and firing the weapon at her feet , causing rocks from the gravel driveway to f

l y up and hit her on her leg and t orso . A neighbor saw the incident who then led Espinoza to hi s house

. At tha t point , Lopez yelled for J.D. to come to him. After seeing J.D. walk ing to wards Lopez, Espinoza asked Lopez to return her child multiple times, but Lopez refused and walked awa y with J.D. after removing J. D

. ’ s shoes, which would light up each time
J.D. took a s tep. The neighbor saw Lo pez wa lk ing away from the property with J.D. and noticed that Lopez had the handgun in hi s posses sion

. The police were called , responded to the s cene , and helped l ook for J.D.

W hile some officers searched for J.D., other s noticed a bag of ammuni tion with .45 caliber bullets as w ell as an empty gun case in Lopez ’ s car , and officers also discovered two .45 caliber casings in the area where L opez approach ed Espinoza with a pistol . Another officer talked with Espinoza . The officer noted that Espino za had injuries on her leg and abdomen

. Espinoza related that she had told Lopez that she was going to end the ir relationship after learning that he cheated on her and th a t he then threatened to kill J.D. and her. The officer confirmed th e threats by lo oking at Espin oza ’ s text exchange s with Lopez ’ s phone in which the sender from Lopez ’ s phone sta ted : J. D. “ is dead, ” “ Bye bye no more mommy, ” a nd “ Your dead whore

. ” A pprox i m ately ten hours later, Lopez was spotted leaving a nearby wooded area with

1 Becau se E spinoza ’ s child was a minor at the time of the offense, we will re fer to the chi ld by a ps e udon ym . See Tex. R. App. P. 9.10(a) (listing sensitive dat a in criminal cases).3

J.D. , and Lopez got into his car and drove off with J.D. in the car. During the ensuing chase, Lopez drove his car over 100 miles per hour and nea rly hit several police cars befo r e ultimately crashing his vehicle. After examining J.D., the officers noticed that he had injuries to his feet consistent with walk ing without shoes and had injuries to his face from when the airbag in the car went off. The police took Lop ez into c ustod y .

J.D. was scheduled fo r a forensic interview after he was released from the
h o spital. While at the c hil d

- advocacy center, J.D. n oticed for the first time the injuries to his for ehead and the bruise on his head, and he refu sed to talk to the inter viewe r . During a second
in terview, J.D. described being in a car with Lopez and described Lopez driving fast while there were police ca rs around. J.D. s t ated that Lopez wrecked the c ar. When discussing hi s time with Lopez in the woods, J.D. recalled tha t Lop e z was holding a gun and that Lopez and he were hiding in the woo ds.

Following his ar rest, Lopez was charged with aggrav ated kidna pping, aggravated assault family violence , endangering a child, and evading arrest. T he Stat e informed Lopez ’ s
attor ney t ha t it would consider a plea agreement if Lopez agreed to serve a prison term of at least five years . In addition, the S t ate sent L opez ’ s attorney an email on January 15, 2016, explaining that Espinoza had told the victim ser v ices counselor that she had m ad e f alse statements to the police and explained that Espin oza told the counselor t hat she never saw Lopez with a gun that d ay , that she told the police that Lopez had a gun because she was mad at him for making poor financial decisions , that her visi ble i nj u r ies that day were from falling on a rocky path, and that she hoped Lopez would get community supervision and be released

.

A few months later, Lopez filed a motion to substitute his attorney with another attorney, Eric Mc D onald , a nd the trial cou rt gr ante d the motion on April 8, 2016. After talking4

with Lopez and Espinoza and reviewing the discovery in the case, McDonald sent an ema il to the prosecuto rs on the case on July 5, 2016, inquiring whether the y would a g ree to a d eal in which Lopez plead ed gu ilty t o aggravated kidnapping, aggravated assault family violence, and endang ering a child and admitted his guilt to the evading

- arrest charge and in which the S t ate agreed to recommend that his adjudication of guilt on the fi r st two of fenses be defer red, that h e be placed on deferred

- adjudication community supervision for ten years for those two offenses, that his guilt for the evad i ng - arrest charge be considered during his punishment for the endangering charge , and that he be sentenced to eighteen mo nths in s t a te jail for the endange ring charge . McDonald explained that the deal would ben efit Lopez by allowing him to avoid a felony conviction and allow ing him to keep his commer cial driver ’ s license an d his job working for the c ity. After clarifying s ome o f th e terms, one prosecutor respond ed and said that he would need to look over the details more in depth but was lea n ing towards agreeing to the proposal. The following day, July 7, 2016, the pr osecutor filed with the trial c o u rt a notice regarding
t he ex ist e n c e of Brady material , an d the notice explained th at Espinoza told members of the prosecuti ng team on February 26, 2016, that she did not see Lopez use a gun on the day in question and th at her prior statement indicating o t herwise wa s a lie. The notic e wa s sent to McDonald that same d ay.

On July 12, 2016, a plea hearing was held , and the trial c ourt approved the terms of the plea agreement and signed the plea paper work. During the hearing, the parties went over the term s of the agreement, and t he tr ial co u r t inquired whether Lopez understood the ter ms , kn ew the potential punishment range s for the offenses , and was knowingly and voluntarily waiving h is right s to remain silent, to confron t witness es , and to a jury trial. L opez answered that he un d erst ood th e terms of the agreement, the potential punishment range for each offense,5

and the rights th at he was waiving by en tering the plea agreement , and Lopez related that he was freely and volunt arily giving up his rights . Fu r ther, Lopez stated that McDon ald w e n t over the
p lea paperwork with him and that he signed the paperwork, and Lopez pleaded guilty to aggravated kidnapping, aggravated assault family violence, and endangering a child and admi tted his guilt to the evading

- a r rest charge. A f

ter acce pting Lopez ’ s plea s and consis tent with the terms of the agreement , the trial court deferred his adju dication of guilt for the aggravate d

- kidnapping and aggravated

- assault charges, placed him on deferr ed

- adjudication community supe r vision for those offense s for ten y e a rs, an d considered his guilt for t he evading

arrest charge when imposing an eighteen

- month sentence for t he endangering charge.

Starting in October 2020 and continuing through October 2022 , the S t ate filed multiple m o tions to adjudicate Lope z ’ s g ui lt all e g ing that he fail ed to comply with the terms of his deferred

- adjudication community supervision by failing to report to the supervision office and committing additional offenses by intenti onal ly and knowingly possessi n g a handgun on multiple occas ions , in t e ntionally or knowingly possessing a handgun that had its serial number removed, recklessly driving a moto r vehicle, discharging a fire arm at more than one vehicle, shooting m ore than one pers on, threat en ing someone wit h bo dily injury while d isp la ying a d e a dly wea p on, committing multiple aggravated robber ies , and assaulting a police officer

.

A few months later, on March 13, 2023, Lopez fi led an application for writ of habeas c orpus seeking to have the ha beas court disc h arge him from communit y sup ervision,

a l low him to withdraw his guilty plea, and convene a trial. Specifically, Lopez asserted that he

was entitled to his requested relief because M cDonald provided ineffective assistanc e of counsel by failing to conduct a n ind ependent investiga tion, retain an i nvestigator or ask for one to be appointed , and retain an expert to look at mitigatin g factors and his mental he alth

.6 During the habeas hearing, Lopez called McDonald as a witness. In his testimo ny, McDonald relat e d that he had practi ce d law for 27 ye ar s and had been practicing criminal law for 25 years. Regarding his representation of Lopez, McDonald stated that he replaced Lope z ’ s former attorney on April 8, 2016 , and worked on the case for months

. Although McD o nald could not r ecall if he asked to see t he p revious attorney ’ s fil e, he explained that if he takes over a case and if it app ea rs that the prior attorney would have relevant documents, he ask s the prior attorney for those documents

. Further, he stated t h at h e reviewed all the disc overy in the c a se through Travis County ’ s open discovery program . Although McDonald could not recall for certain whether he wat ched the for ensic interview of J.D. as part of his investigation, he believed t hat he likely did a nd looke d at the intervie w sum mary , and he

e x plained that his inability to recall some details was due to the significant time that had passed sinc e he was Lopez ’ s attorney. Next, McDonald admitted that he did not hire an in vestigat o r but stated that he did a thorough investigati on of the ca se on h i s own by talking with Lopez, Espinoza, Lopez ’ s father, and other witnesses, by talking a lot with Lopez abou t his case , and by going to the prison six or seven tim es o ver a s hort period to discuss the case. For th ose reason s , McDonald testi fie d that hir i n g an investigator did not seem necessary.

Although McDonald agreed that it w as important to consider a defendant ’ s mental health, he stated that he did not hire or arrange for th e appointment of an expert to help evaluate
mi tigating e viden ce and that in h i ndsight it might have been a good idea to hire an investigator or an expert; however , he clarifie d that having an expert o r an investigator would not have made a difference in th i s case and that he was able to get all of the relevant mitig ating informati o n from Lopez and from the presentence

- investigation report

. Regarding the presentence

- investigation report, McDonald testified that it sh owed that Lopez had a low to moderate ris k of recidi vism.7

McDonald admitted that he did not m ake a wr it ten request fo r the disclosure of any Brady information and did not go to the alleged crime scene with a witness , but as stated above, he did review all discovery in the case

.

Regarding E spin o za, McDonald stated that she would not have been the St ate ’ s key witness in th e case . F urther, he related that from the time he became Lopez ’ s l awyer, he was

aw are that Espinoza had reca nted many of her st at ements to th e police and that this information

w as co nfirmed in the Brad y notice

. Moreover, McDonald t estif ied that the State i nitially wanted Lopez to serve five years in prison, that the State was not negotiating much, that he used Espinoza ’ s recantation as par t of the negotiati ons to make the S t ate consider community supervision , and that the S tate woul d not have agreed to a c o mmunity

- s upervision term that was less than ten years

. Similarly, McDonald recalled that he filed an application for writ of ha beas

co rpus seeking to have Lopez ’ s b ond r e duce d and would have argued if no plea agreement occurred th at a reduction was warr a n ted given the recan tation and given Lopez ’ s ties to the community

. McDonald believed that he had a reasonable strategy and that he got the best deal he could have from t h e S tate given the serious alle gation s and the evidence of Lo pez ’ s guilt

.

Additional l y , Mc Donald testified th at even with the recant atio n, the S t ate could
h ave proven al l the elements of the crimes , particularly where other witnesses to the i ncident h a d
not recant ed o r revised the ir statements to the police. Furt her, McD onald related tha t he knew that the S t ate would not have to dismiss the case just because of the recantation, that he had been

on a similar case before in which the accused ended up se r ving more than thirty years in prison even though the alleged v ictim recanted , and t hat L o pez provided inculpatory info rmation whe n talking about the cases. When discussing the plea agreement, McDonald explained that he went over the terms with Lo pez , t h a t he discussed the r ights that Lopez was waiving, that he came up8

wi th a creative counte r o ffer that Lope z was pleased with becaus e it would allow Lopez to keep his com mer cial driver ’ s license and keep his job by avoiding a felony conviction, and that Lope z was not bot hered b y the length of the communi ty supervision be cause he stated that he w o u ld not commit any crimes in the future

. McDon ald t estified that Lopez made the decisi on to enter the plea agreement of his own free will.

During the heari n g, t he transcript of the 2016 plea hearing was admitted into evidence. I n add ition , an affidavit f r om one pr osecutor involved in t he plea negotiations was admitted into evidence. In the affidavit, the prosec utor related that another prose c utor sent Lopez ’ s fo rmer attorney an email setting out how Espinoza had recanted some of her prior
statements to t h e police when she talked w ith a victim ser vices counselor. The prosecutor stated that E spinoza did not ever reduce her comments to writing o r submit an affidavit of non

prosecutio n. Further, the prosecutor stated that Espin oza made a similar recantatio n when
t alking with pros ecutor s later and that the recantation was memorialized in a Brady disclosure that was sent to M cDonald on July 7, 20 16 , before the plea agreemen t was finalized and before Lopez entered his plea s on July 12, 2016

. Altho ug h the pros e c uto r explained that the disclosure
was to ensure that there was some record that the recantation had been disclosed b efore a ny plea agreement was finalized, the prosecutor also explained that the notice did not indicate that the first time the disclosure h ap pened was on July 7, 2016, and that the prosecutor did not know when McDonald firs t lear ned of the recantation

.

After co ns idering the testimony and evidence presented at the hearing, the trial court denied Lopez ’ s writ applic ation

. In its order, the t r i al court made findings of fact consistent with the testimony and other evidence summarized above and m ade the following

re le vant findings of fact and conclusi ons of law:9

Findings of Fact 43. At the time of the plea, the presidi ng ju dge performed a thorou g h and appropriate inquiry into whether Applicant ’ s plea was voluntary. 44. At the time of the plea, the presiding judge mad e an explicit finding that Applicant ’ s plea was entered knowingly and voluntarily. 45. The record support s the finding made by the p r e siding judge at the ti me of the plea that Applican t ’s plea was entered voluntarily.

. . . . 50 . The court finds the testi mo ny of Eric M cDonald credible. 51. T he court finds the affidavit of [the prosecutor] credible. Conclusio ns of Law

. . . . 66. The C o u rt further fi nds that attorney Eric McDonald ’s investigation was reasonable, and his de termination not to engage an expert w as li kewise reasonable under the circumstances. 67. Applicant has failed to overcome the strong presump tion that h is counsel ’s rep r e sentation fell with in a wide range of reasonable representation. 68. Applicant has failed to show sufficient evidence to p rove the first prong of the Strickland standard, that counsel ’ s actions fell below an objective standar d of reasonableness. 69. Appl i c ant has fai led to show sufficient evidence to prove the second prong of the Strickland standard, that even if counsel ha d fallen below an obj ective standard of reasonable ness, the outcome would have been different. 70. Applic ant ’s habeas application in w h i ch he challenges the voluntariness of his plea i s DENIED.

STANDARD OF REVIEW AND GOVERNING LAW An individual convicted o f a felony or misdemeanor may seek habeas “relief
from an order or judgment of conviction ordering comm unity supervision.” Tex. Cod e Crim. Proc. art. 11.072, § 1

. When a person files a writ application, he “must be, or have been,10

on community supervisi on , and the application must challenge the legal validity of .

. . the conviction for which or order in w hich community supervision w a s imposed” or “the conditions
of communit y supervision.” Id. art. 11.072, § 2(b)

. When making its determination, the tri al court “may order affidavits, depositions, interrogatories, or a hearing, and may rely on [its]
persona l rec ollection.” Id. art. 1 1

. 0 72, § 6(b)

.

Appellate courts review a trial court ’ s ruling on an application for writ of habeas corpus under an abuse

- of

- discretion standard. Ex parte Zantos

- Cuebas , 429 S.W.3d 83, 87 (Tex. App.

— H ouston [1st Dist.] 2014, n o pet .)

. “A trial court abuse s its discretion when its ruling is arbitrary or unreasonable.” Gaytan v. State , 331 S.W.3d 218, 223 (Tex. App.

— Austin 2 01 1, pet. ref ’ d)

. But a trial court does not abuse its discretion if its ruling l ies within “the zone of

reas onable disagreement.” Bi g o n v. State , 252 S.W.3d 360, 367 (Tex. Crim. App. 2008) ; see Lopez v. State , 86 S.W.3d 228, 230 (Tex. Crim. App. 2002)

. U nder that standard, appellate courts review the record evidence “in the light most favorable to the tri al co urt ’ s ruling.”
Ex parte N

e l son , 546 S.W.3d 742, 746 (Tex. App.

— Houston [1st Dist.] 2018, no pet.)

. The writ of habeas corpus is an extraordinary r emedy. See Ex parte Smith , 444 S.W.3d 661, 666 (Tex. Crim. App. 2014) . To succeed , the applicant must prov e, “by

a preponderance of t h e evidence, the facts that would entitle him to relief.” Ex parte Ali , 368 S.W.3d 827, 830 (Tex. App.

— Austin 2012, pe t. ref’d)

. In habeas corpus proceedings, “[v]irtually every fact finding involves a credi bility determin ation ,” and “the fact finder is t he exclusive judge of the credibility of the witnesses.” Ex parte Mowbray , 943 S.W.2d 461, 465 (Tex. Crim. App. 1996)

. For habeas proceedings under article 11.072 , “the trial court is the
sole finder of fac t,” and appella te co urts afford “almost total d e ference to a trial court ’ s factual findings when supported by the record, especially when those findings are based upo n credibility11

and demeanor.” Ex parte Ali , 368 S.W.3d at 830

. This deferential review ap plies even when the findings are based on affi d a vits rather than live testimony. Ex parte Thompson , 153 S.W.3d 416, 418 n.1 (Tex. Crim. App. 2005)

. “When the trial co urt ’ s findings of fact in a habeas corpus proceeding are supported by the record, they s hould be accept ed” b y the reviewing court. Se e Ex parte Amezquita , 223 S.W.3d 363, 367 (Tex. Crim. App. 2006)

.

To be entitled to post

- conviction relief on the grou nd of ineffective assistance of counsel, “an applicant must demonstrate that (1) counsel ’ s performance wa s def icient, in that it fell belo w an objective standard of reasonableness, and (2) the applicant was prejudiced as a result of counsel ’ s errors, in th at , but for those errors, there is a reasonable probability of a different outcome.” Ex p arte Torres , 48 3 S.W .3d 35, 43 (Tex. Crim. App. 2 0 16)

. To establish deficient performance, the applicant must show by a preponderance of the evidence that his

counse l ’ s performance fell below the standard of prevailing professional norms. Perez v. State , 310 S.W.3d 890 , 893 (Tex. Crim. App. 2010)

. Ap p e llat e review of a trial counsel ’ s performance is “highly deferential,” meaning that there is a “strong presumption” th at his conduct fell within the wide range of reasonable professional assistance. Strickland v. Washing ton , 466 U.S. 668, 689 (1984) ; se e Pere z , 310 S.W.3d at 893

. An ineffective

- assistance claim must be “firmly founded in the record,” and the record “m us t affirmatively demonstrate” the meritorious nature
of the claim. Menefield v. State , 363 S.W.3d 591, 592 ( Tex. Crim. App. 2012) (quoti n g Goo dspeed v. State , 187 S.W.3d 390, 392 ( Tex. Crim. App. 2005) ).

The second prong requires the applicant to establi sh by a preponderance of evidence that it is reasonably probable that the result of the proceeding would have been different absent his co u n sel ’ s deficient performance. Cox v. State , 389 S.W.3d 817, 819 (Tex. Crim. App. 2012)

. A reasonable probab il ity is one that is sufficient to undermine confidence in12

the outcome. See Nava v. State , 415 S.W.3d 289, 308 ( Tex. Crim. App. 2013) ; Cox , 389 S

. W .3d at 819

. For collateral chal lenges to a guilty plea, the focus of the prejudice inquiry is on “whether c ou nsel ’ s constitutionally ineffective performance affected the outcome of the plea process.” See Hill v. Lockhar t , 47 4 U.S. 52, 59 (1985)

. Sta te d dif ferently, “the defendant

must show that there is a reasonable probability that, but for counsel ’ s errors, h e would not have pleaded guilty and would have insisted on going to trial.” Id. ; see Arr eola v. State , 207 S.W .3d 3 87, 39 2 (Tex. App.

— Houston [ 1 st Dist.] 2006, no pet.)

. “Failure to make the required showing of either deficient pe rformance or sufficien t prejudice defeats the ineffectiveness claim.” Strickland , 466 U.S. at 700 ; see Perez , 310 S.W.3d at 893

.

“[C]o unsel has a duty to make reasona b l e investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickl an d , 466 U.S. at 691

. The reasonableness of a decision not to inv estigate must be considered in light of all of t he ci rcumstances and assessed b y applying a heavy amount of deference to an attorney ’ s decision. Ex parte Martinez , 195 S .W.3d 713, 721 (Tex. C ri m. App. 2006)

. “When assessing the
reasonableness of an attorne y ’ s investigation, a reviewing court must consid er th e quantum of evidence alr e a dy known to counsel and whether the known evidence would lead a reasonable attorney to in vestigate further.” I d. In addition, a claim “based on trial counsel ’ s general failure to investigate” will fail in the absence of “a show ing of what an investigat i o n would have revealed that reasonably could have changed the result of the case.” Straig ht v. State , 515 S.W.3 d 553, 568 (Tex. App.

— Houston [14th Dist.] 2017, pet. ref ’ d ). In addi tion, a defendant cannot claim that his tri al co unsel provided ineffecti v e assistance of counsel by failing to call witnesses unless the defendant can show that the witnesses were availa bl e and that their testimony would have benefitted the defendant. King v. State , 649 S.W.2d 42, 44 (Tex. Crim.13

A pp. 1 983) ; Brennan v. State , 3 3 4 S.W.3d 64, 79 (Tex. App

. — Dallas 2009, no pet.) ; Tutt v.
State , 940 S.W.2d 114, 121 (Tex. App.

— Tyler 1996, pet. r ef ’ d)

.
DISCUSSION In his first issue on appeal, Lopez contends that the trial court erred by denying his wri t app lication because McDonald p rovided ineffective as sistance . In his second issue, Lopez argues that the hab ea s court erred by denying his r eq uest for additiona l time to consult with an expert regarding McDonald ’ s testimony

. 2

Ineffecti ve Assistance

In his first set of arguments in h is first issue, Lopez notes that under the Perfor mance Guidelines for Non

- Capital Criminal Defense Represe n tati on and the American Bar Association Criminal Justice Stand ard s for the Defense F unction , an attorney has a duty t o

con duct an independent case r e view and investigation as promptly as possible. See American Bar Associat ion Criminal Justice Standards for th e Defense Function 4

- 4.1 ( “ Defense
St and ards ” ), available at http s : //www.americanbar.org/groups/ criminal_justice/ stand ards/ Defense FunctionFourt hEdition/ (last visited November 27 , 2023); Performance Guidelines for

2 We note that in the S t at e ’ s re sponse to Lopez ’ s writ applicatio n , the State a ss ert ed that his ineffectiveness claims were barred by the doctrine of laches. I n i ts find ings, t he trial court mentioned that the State discussed laches in its response , but the h abeas c ourt did n ot c onclude that Lopez ’ s claims were barred by laches

. T h e rec ord does not contain evidence regarding all the elements for la ches. B ecaus e the habeas court made no determination regarding laches and because we ultimately conclude that Lopez wa s not entit led to his requeste d habeas relie f anyway , w e will assume th at the claims were not barred by the do ctrine in this case in the interests of judicial eco nomy . See In re Steptoe , 132 S.W.3d 434, 436 (Tex. Crim. App. 2004) (Price, J., concurring ) ( expla ining that laches should not be addressed , in part , because tria l cou rt made no determination on issue) ; see also Ex parte Bowman , 4 4 7 S.W.3d 887 , 888 (Tex. Crim. App. 2014) ( noting that before laches issue can be addressed on appeal when record is insuffi cient to determine if it was proved , case should b e reman ded to tr ial court for hearing on la ches )

.14

Non

– Capi tal Criminal Defense Represent atio n 4.1 (State Bar of Tex. 2011) ( “ Performance Guidel in es ” ) , availa ble at ht tps://www.texasbar.com/AM/ Template.cfm? Secti on=Texas_Bar_ Journal&Template=/ CM/ContentDisplay.cfm&ContentID=14703 (last visited on November 27 , 2023)

. After re ferencing th e Per forman ce Gui delines and Defense Standar ds , Lo pe z asserts that
M cDonald fell short o f prevailing professional norms beca use h e did not arrange for an
in vestigator to assist h im and instead c hose to investigate the case himself, which according to Lope z was prob le m a tic because McDonald did not have an in vestigator or another t hird party present with him that would permit McD onald t o effect ively impeach the witnesses with
statement s made during the interview

. See Perfor mance Guidelines 4.1.

Moreover, Lo pez charac te rizes McDonald ’ s investigation as minim al and notes that McDona l d ’ s con versations w ith some of the witnesses w e re do ne by phone, which he contends is “ an inadequate substitute for in

- person lay witness interviews. ” Lopez co ntends that the failure to hav e in

- per son interviews was even more prob le matic re g arding Espinoz a because , according to Lopez, she would have b een “ es sential ” to proving the aggravated

- assault and aggravated

- kidn apping charges. Further, Lo pez asserts that the S t ate would not have been a ble to call her as a witness for the so le purpose of in troducing her prior statement to the police and that had McDo na ld properly investigated , he would have learned that she would have testified at trial that she lied to the police because she was mad a t Lopez. Additionally, Lopez highlights
po rtions of McDonald ’ s te stimony in which he stated tha t he could not re membe r whether he reviewed J.D. ’ s forensic interview and insists that McDonald should have minimally review ed that video because evidence perta in ing to J.D. “ would make or break the S t at e ’ s factual presentatio n at trial. ” Relatedly , Lopez contends that ha d McD on al d properly investigate d the

case , he would have learned that J.D. likely would not have provided incriminating testimony15

given that hi s statemen ts d ur ing his forensic in tervie w indic ated th at he volun tarily went with Lopez whom J.D. perce ived as a fath er figure.

Further, Lopez e mphasiz es that McDonald did not h ire any experts to help on the case or visit the sce ne of the alleged crime an d admitted that in hindsight seeking assi st ance might have made se nse in th e under lying case

. Lopez also argue s tha t the S t ate did not present any witness es at the habe as hearing de monstrating that it could have ind ep end ently prove n its

case irrespectiv e of wh at Espinoza ’ s testimony would have b ee n. Mo reover, altho ugh Lopez acknowledges that the police report sta ted t ha t there was a neighbor who witnessed the incident, he asserts that there is nothi ng in the record establishing whether the neighbor woul d be a relia ble witness. Considering the p re ceding , Lopez contends that the S t ate would likely
not have been abl e to pr ove that he was guilty of aggravated assault family violence o r aggravated kidnapping.

In a related set of arguments, Lopez contends t ha t his trial counsel wa s ineffective becaus e he failed to communicat e the dif ficulties that the S t ate would have in p ro ving the aggravated

- kid napping and aggravated

- assault charges and should have relied on t hose difficulties during th e neg otiations to se e if the S t ate w ould consider having Lopez p le ad guilty
to lesser

- inc luded offenses. Further, Lopez asserts that M cDo na ld ’s coun teroffer was not part of any reasonable strategy because nothing in the record indicates that “he ever even broached the idea o f resolving the case with a plea to lesser

- i nc luded offenses rather t han those in itially charged. ” Moreover, Lop ez co nt ends that if he had been properly informed of the weakness es of the S tate ’s case , he either would not have agreed to plead guilty to the c har ged offenses or would have direct ed McD on ald to contin ue negotia ting . As support for these claims, Lopez ag ain
p oi nts to the Performance Guidelines , which specif y that trial attorneys should not recommend16

accepting a plea without an appropriate inves ti gation of the evidence and gover ning case la w , that one be nefit fro m a plea agreement is dismissal or reduction in o ne or mo re of the charged offens es, and that trial attorne ys should keep their clients f ully informed of any ongoing negotiations and expl ai n all the consequenc es of enter ing a plea ag reement or proceeding t o trial.
See Performance Guidelines 6.1, .2

.

A s an initial matter, we note that best practice s reflected in bar association standards are guides to determine what is rea sonable, not “i nexorable commands.” Padilla v. Kentucky , 55 9 U.S. 356, 366

- 67 (20 10) ; see In re McCann , 422 S.W.3d 701, 707 (T ex. C ri m. App. 2013) ( e xplaining tha t “guidelines are only persuasive authority”). In other words, the gui delines are “ aspiration al ” and do not est ablish a minimum code of conduct that mus t be
met to avoid being i neffective; rath er, to be deeme d ineffecti ve, a n attorney ’ s conduct must be “ s o outrageous that no competent counsel would hav e engaged in it. ” See Thomas v. St ate , 365 S. W

. 3 d 537, 543 , 544 (Tex. App.

— Beaumont 2012, pet. ref ’ d)

. Mo reover, the language of the Defense Standards and Perfor mance Gui de lin es relied on by Lopez indicate that an attorney may perform the investigation and does not mandate that an attorney hire an i nvestigator or an expert. De fense Stan dards 4

- 4.1; Perform an ce G uidelines 4.1 . Reg arding the need for ex pert and investigati ve as si stance, the y simply instruct th e at torney to consider whether th ose type s of assistan ce are appropriate or would be helpful

. De fense Stan dards 4

- 4.1; Performance
G uidelines 4.1

. In this case, alt hough Mc Donald agreed in hindsight that hiring an in ve stig ator

or expert might have been a g ood idea, he also testified that hiring an investi gator or expert witness was not nec essary in this case and would not have made a difference in th e ultimate

o utcome , and t he habeas court found Mc Donald ’ s testim ony c re dible

. See Ex parte Jimenez ,17

364 S.W. 3d 866, 88 3 (T e x. Crim. App. 2012) (explai ning that e ffectiveness claims are evaluate d from viewpoin t of counsel “ at the time he acted and not thro ug h 20/20 hindsight ” )

. A lthough Lopez contends that the intervi ews o f witnesses should have been in pers on an d in the presenc e of an investigator, he does not refer to any binding case law dete rmining that th e failure to conduct interviews in the man ner h e suggests constitutes in effective a ssistance. At the writ hear ing a nd in his wri t application, Lo pez did not identify an expert who could have testified at a trial or what beneficial t estimon y the exper t co uld have provided and similarly failed to se t out what beneficial t estimo ny a third party or investigator could have p rovided regarding statements by the witnesses. See Brennan , 334 S.W.3d at 79 ; see also Brown v. State , No. 03

- 16

- 00011

- CR, 2017 WL 876029 , at * 6 (Tex. App.

— Austin Feb. 28, 2017, pet . ref ’ d) (mem. op., not desig nated for publication) (explaining tha t “ a de fendant cannot claim that his trial coun sel provided ineffective assistance of counsel by failing to call witnesses unless the defendant c an show that the witnesses were available an d that their testimony would have benefitted the defendant ” )

.

Mor eover , McDonald ’ s decision not to hire a n expert or investigator was formed based on hi s own investigation in the case , including mee ting with and t alking with Lopez multiple t imes and talking with Espinoza and other wit ne sses and reviewing all the discover y in th e case through Travis County ’ s o pen file discovery program before Lopez agreed to enter guilty pleas , including the summary o f witness state ments des cribing the offense and the summary of the evidence discovered by the police

. During hi s investigatio n, Mc Do nald learned that Espinoza had recanted many of t he claims and used that information when negotiating with the State to ach ieve the goal o f avoiding a felony con victi on a nd prison time and allowi ng Lopez to re t ain h is commercial driver ’ s license

. S ee Ex p arte Overton , 444 S.W.3d 632, 640 (Tex. Crim. App . 2014) (explaining that “ strategic choices made after thorough investigat ion of18

law and facts relevant to plausible opti ons are virtua lly unchallengeable ” (quot ing Strickland , 466 U.S. at 690 ) )

.

Mc Donal d also testified that the S t ate initially insist ed that Lopez be required
to serve at least five years in prison unde r any pl ea - agreement be fore McDonald came up with a c reat ive counteroffer that Lopez wa s pleased by

. Further, McDonald related that L opez in dicated that he would not c ommit any addition al crimes if he were pla ced on community supervision and that the pres entenc e investigation r e port indicated that Lopez had a r educed risk of rec idivism. A dditionally , McDonald explained that the S tate w as no t receptive to further negotiations and would not accept a more favorable counteroffer than McDonald ’s

. McDonald desc ribed his counteroffer a s the best deal that the Sta te w ould consider. H ad Lopez not enter ed
in to a plea agreement in which he was place d on deferred

- adju dication community supervision, he faced the potential of being co nvicted and sentenced from five years ’ to li fe imprisonment for the aggravate d

- kid nappi ng c harge, two to twenty years ’ imprisonment for the aggravated

- ass ault charge, two t o ten years ’ imprisonment for the evading

- arrest charge, and six months to tw o
years in jail for the endanger ing charge

. See Te x. Penal Code §§ 12.32

- .3 5 , 20.04, 22.02,

. 041, 38.04

. Further, McDonald testified that he had been a c riminal law yer for 25 y ea rs ; that in his experience a recantation would not require the State to drop the charges ; that fam ily

viole nce case s in which there are r ecantation s can still result in co nvic tions ; that Lopez inculpated himself ; th at witnesses other th an Espinoza , inclu di ng the police, could have testified about the incident ; and that the evidence in this case was significan t and established the elements of the charged offenses

. See Wil ke rson v. S t ate , 881 S.W.2d 321, 324 (Tex. Cri m. App. 1994) (ex plaini ng that jur y cou ld reject any or all evidence offered by State or defendant) ; Scugoza v.19

S t ate , 949 S.W.2d 360, 363 (Te x . App.

— S a n Antonio 1997, no writ) (ov erruling challenge
to propriety of expert ’ s testimony discussing how common place recantations are in fa mily

vi olenc e cases )

.

Alt hough Lop ez fa ults the State for not calling the neighbo r as a witness to relate what he w ould have testified to at trial, Lopez had the burden of establishing hi s ineffective assi stance claim by a pre po nderance of the evidence. Ex part e Ali , 3 68 S.W.3d at 830

. Further, investigating officers noted that the neighbor did witness the incid ent, which is why h e told Espinoza to wait in his house , and noticed that Lope z had a gun on him when he left the prop erty with J.D

. Simila rly, Lopez d id not c all J.D. as a witness at the ha b ea s hearing to testify about the incident , and it is there fore un cle ar what t h e specifics of his testimony would hav e been

. Even though M cDon ald explained th at due to the passage of time he could not remember for ce rtain if he had watch ed th e forensic interview of J.D., he believed that he had and stated that he had reviewed the interview summary document ing statements by J.D. that incrimin ated Lopez

. Additionally , McDonald recalled that he was able to get th e relev ant mi ti gating evidence from his discussions with Lopez and from his review of th e presente nce inves tigation report , and Lopez has not identified what addition al mitigating eviden ce a further investigation would have reveal ed

. See Young v. State , 591 S.W. 3d 579 , 606 (T ex. App.

— Austin 2019, pet. ref ’ d) (stating that “ a claim ‘ based on trial coun sel ’ s gen eral failure to investigate ’ will fail in the absence of

‘ a showing of what an inve stigation would have revealed that reaso nably could have changed the resu lt of th e case ’ ” (quoting Straight , 515 S.W.3d at 568 ) )

.

Further , the affida vit for L opez ’ s arrest alleged that investigating officers looked for J.D. for seve ral hou rs before ult imat ely pursuing Lopez in his car after he s ped away and

rea ched speeds over 10 0 mi les per hou r while J.D. was inside. The officers also obser ved Lopez20

wre ck the ca r and doc umented injuries to J.D. that he su stained in the crash. The officers found shell cas ings in the area where Espinoza said Lop ez sh ot at her feet, and the office rs f ound

m atching ammuni tion insid e Lopez ’ s car. W hile interactin g with Espinoza, the officers noticed injuries to her le gs and abdomen and reviewed text messages from Lopez ’ s pho ne to E spinoza ’ s phone in which the send e r threatened to kill J.D. and her

. S ee Ex parte Torres , No. 03

- 14

- 00169

- CR, 2015 WL 2066232, at *6 n.1 (Tex. App.

— Austin Apr. 29, 2015, no pet.) (mem. op., not designated for publication) (observing that habea s cou rts evaluating claim that applicant would have insisted on trial may conside r “e vidence concerning the likeliho od of success at trial”) ; see also Longoria v. Stat e , 154 S. W.3d 747, 758 (Tex. App.

— Houston [14th Dist.] 2004, pet. ref ’ d ) ( noting that “[t ]here is a natural and permiss ible assumption that calls from a person ’ s cellular t el ephone were made by that person ” )

.

When discussing his recomme ndation that Lopez enter in to a plea agreement , McDonald testifie d that he regularly talked with Lopez and that he talked with Lopez about Espin oza ’s rec antation and how it could affect th e ca se. R elatedly , McDonald explained that he went over the terms of the plea with Lo pez, advi sed L o pez of his right to tr ial, and told Lopez that the plea decision was his t o mak e, and McDon ald related that Lopez chose to enter into the plea agreement fr ee ly and voluntarily

. T he record from the plea hearing shows that Lopez w as properly admon ishe d as to the consequences of his pleas, se e Soto v. State , 837 S.W.2d 401, 40 5 (T ex. A pp.

— Dallas 1992, no writ ) (explain ing tha t if record shows that defendant wa s pr operly admonished about consequence s of guilty plea, that is prima facie showing that d efen dant know ingly and voluntarily entered plea), went over with McDonald the plea d ocume nts stating that he was freely and volunt aril y entering his pleas , and infor me d the trial court that he understood the rights that he was waiving as well as the terms of t he plea agreement and21

potential punishment range s for the offenses

. Finally, M c Donal d described his strategy as a reasonable one based on all the information le ar ne d during his investigation.

O n this record a nd given ou r standard of review, we conclude that Lopez f ailed to meet his burden of establishing that McDonald ’ s repre sentatio n fel l below the standard of prevailing profes sional norm s . Cf. Ex parte Simps on , 260 S.W.3d 1 72, 173, 179 (Tex. App.

— Te xarkana 2008, pet. ref ’ d) (determining that habeas co urt did not abuse its discretion by concluding that trial counsel was not ineffect ive w here accepti ng plea offer allowed defenda nt
to “ av oid any criminal convict io n ” and avoid prison during pendency of appeal by being placed on deferred

- adjudication commu nity supervision , where defendant wanted to avoid prison, where trial counsel relie d on his e xtensive experience to evaluate case , and where trial counsel conclud ed t hat best option to keep defendant out of “ prison was to accept that negotiated plea agreem ent ” )

.

Having conclude d that Lopez did not satisfy his burden to prove the first
Stric kland prong , we need not address his rema ining set of arguments in this is su e asserting that McDonald ’ s performance p rejudic ed him. See Strickland , 466 U.S. at 697

. A ccord ingly, we conclude th at the habeas court did not abuse its discretion by denyi ng Lo pez ’ s application for writ of habeas corp us and , therefore , overrule his f ir st issue on appeal

.
Deni al of Request f

or Continuance In his second issue on appeal, Lopez cont ends that the habeas co urt erred by denying his request for ad ditional time to cons ult with an e xpert. Specifically, Lopez high lights that before the h abeas c ou rt mad e it s ruling at the hearing , he requested that he be given the
op portunity to have a n exp ert examine McDonald ’ s testimony from the h abeas hearing to22

analyze what a rea sonab le attorney would have done under the cir cumst ances as desc ribed by
McDon a ld

. S pecifically , Lopez referenced the recan tation by Espinoza , which Lopez ’ s hab eas attorney asse rted he had never heard about before the hearing . T he trial court den ied the reque st and explained that Lopez had plenty of time to consult with an expert i f he wanted because the writ application had been filed more than a month earli er .

On appeal, Lopez contends that the habeas court erred because the request was based on the rec antat ion that had not been dis closed to the de fen se previously. Although Lop ez

a ck nowledges that he made no writ ten request for a continuance, see T ex. Cod e Cri m. Proc.
art. 29.03 , he asserts that his request was m ade during the hear ing and w as more compa rable
to a request for a brief pause in the pr oceeding to accommodate witness s ch eduling than a continuance for the entire matter to a distant date or time. Fur ther, he argues that the trial court ’ s ruling prohibited h im from calling “ an expert witness to test ify about the reasonableness of
Mr. McDon a ld ’ s actions while representin g Mr . Lopez. ” Lopez contends that experts may testify about prevailing pr ofess ional norms to assist trial court s in deciding whe ther a trial attorney ’ s representation was ineffec tive and that this type of evidence would have helped the habeas court evalua te t he reasonableness of McDonald ’ s plea

- negotiation tactics

.

Assuming for th e sak e of argument that Lopez ’ s request was as sugg ested a request for a continuance, appell ate cour ts re view a ruling denying a motion for contin uance for an abuse of discretio n. See Vasque z v. State , 67 S.W.3d 229, 240 (Tex. Crim. App. 2002)

. Under th a t sta ndard, a trial co urt ’ s ruling will o nly be reversed if it is arbitrary or unreason able. Gaytan , 331 S .W.3d at 223

. Further, to establish an a buse of discretion for this t yp e of ruling,

“ the defendant must show that he was actually prejudiced by the denia l of his motion. ” Va squ ez , 67 S.W.3d at 240

. In other words, a “ defendant must show ‘ specific p rejud ice to his defense ’ to23

establish that the trial court abused its discr et io n in r efusing to grant a continuance. ” Renteria v.
S tat e , 206 S.W.3d 689, 699 ( Tex. Crim. App. 2006) (quoting Heiselbetz v. State , 906 S.W.2d 500, 51 2 (Tex. Cr im

. App. 1995) ) ; see a lso Jasper v. St ate , 61 S.W.3d 413, 421 ( Tex. Crim. App. 2001) (explai ni ng that “ [a] trial judge has broad discretion in maintaining control and
expe ditin g the trial ” )

.

As an initial matter, we note that it is not entirely clear what additional info rmati on Lopez believed had been disclosed duri ng the hearing that prompted th e request for

a continuance. During the hearing, Lopez explained the need fo r the exper t witness by saying that he “ didn ’ t know about the recantation that he talked about. [McDo nald ] just told me about that today. ” However , in Lopez ’ s motion to stay a dj ud ica tion that he filed a month before the
h abeas hearing, he stated that he had l earned about Espinoza ’ s recanting her statement to the police after the S t ate provided him with a copy of an e mail sent to Lopez ’ s first trial attorney setting out Espinoza ’ s s tatements to a victim services counselor. Accordingly, that information had alr eady been dis closed by the time of the h abeas hearing.

I n any event , Lopez called McDonald to t he st and to d iscuss his representation, and th e habeas court could have rea so na bly concluded th at Lopez would have anticipated before the hearing the need for havi ng an expert witness to evaluate whether Lopez ’ s representation fell below the standards of pre va iling professional norms. Further, alt ho ugh Lopez generally contends t ha t the habeas court c ould have be nefitted from an expert ’ s testimony, he does not

s peci fy what the expert would have testified to or how the testimony would have benefitted his
in effec tiven ess claim. See Renteria , 206 S.W.3d at 702 (explaining that case la w “ requires more than . . . speculation to j ustify an appellate reversal of a case fo r a trial court ’ s failure to grant a24

continuance ” ). Additio n ally, Lopez effectively question ed Mc Donald regarding his knowledge of the rec antation and regarding whether M cD onald provided effec tive assistance

.

On this record, we are unable to con c lude that the habeas court abused its discretion by denying Lopez ’ s requ est for a continuance an d, the refore , overrule his second issue on appeal. See Heiselbetz , 906 S.W. 2d a t 512

.
CONCLUSION
H aving overru led Lopez ’ s issues on appeal, we affi rm t he habeas court ’ s order denying his application for writ of habeas co rpus.

__________________________ ________________ Thomas J. Baker , J ustice Before Justices Baker, Triana, and Smith Affirmed Filed: November 30 , 2023
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