Malek v. State

Raouf Ishak Malek, Appellant v. The State of Texas, Appellee

NO. 03-10-00534-CR

NO. 03-10-00535-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Filed: February 1, 2012

ON MOTION FOR REHEARING

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NOS. C-1-CR-09-213428 AND C-1-CR-09-213429,

THE HONORABLE DAVID CRAIN, JUDGE PRESIDING

MEMORANDUM OPINION

We withdraw the opinion and judgments issued herein on December 22, 2011 and substitute the following in lieu thereof.

Appellant, Raouf Ishak Malek, entered pleas of no contest to the offenses of gambling promotion and keeping a gambling place, both Class A misdemeanors, and opted for the court to assess punishment. See Tex. Penal Code Ann. §§ 47.03, 47.07 (West 2011). At the conclusion of the punishment hearing, the trial court assessed appellant's punishment for each offense at confinement for 225 days in the county jail. See id. § 12.21 (West 2011).

On appeal, appellant raises two points of error, both complaining that his trial counsel provided ineffective assistance during the sentencing proceeding. Because appellant fails to meet his burden of demonstrating ineffective assistance of counsel in either point of error, we affirm the judgments of the trial court.

I. Background

Appellant left his engineering job and career to establish a full-time illegal gambling enterprise, the Fun Poker Club, which he operated out of his home. Neighbors repeatedly complained about the impact of the ongoing gambling activities on the neighborhood—first to the homeowners association and then, ultimately, to law enforcement. Law enforcement officers conducted an undercover investigation, eventually obtaining a search warrant for the gambling house. When officers executed the search warrant, they found evidence of an extensive, sophisticated, and well-organized gambling operation: multiple poker tables and associated poker equipment, an employee manual, an operating and security manual, documentation of a financing partner, a business plan, a marketing plan, a schedule of operations, and revenue projections.

After the raid of the gambling house, appellant was arrested and subsequently charged by information with gambling promotion and keeping a gambling place. He retained Jesus Gabriel Hernandez, a defense attorney and former patron of the Fun Poker Club, to represent him on these charges. The record contains evidence that during the course of his representation, Hernandez obtained discovery from the State, provided copies of the discovery to appellant for his review,engaged in plea negotiations with the State,¹ discussed trial options with appellant, filed pretrial motions, and prepared for trial.

The record also contains evidence that, throughout his representation, Hernandez advised appellant that he thought his punishment would most likely be community supervision, from either a jury or the judge, but that he could not guarantee such a result. He informed appellant that jail time was a possibility, though he did not think it likely. Hernandez testified that appellant repeatedly rejected an offer of lengthy community supervision until the weekend just before the case was set for jury trial, when he informed Hernandez that he would accept the probation offer. Both appellant and Hernandez thought that the community supervision offer would still be available on the day of trial; however, the prosecutor informed Hernandez that no offer was available.

On the day of trial, appellant entered pleas of no contest to both offenses and waived a jury trial, opting for the court to assess his punishment. At the punishment hearing, the State presented evidence that demonstrated the extensive nature of appellant's illegal gambling enterprise as well as the fact that minors routinely smoked marijuana and drank alcohol while they gambled at the club. The State's evidence also showed that appellant continued running the illegal operation even after an incident in which his club patrons were robbed at gunpoint while they were gambling in his home. Appellant testified on his own behalf, primarily about his educational and employment background and lack of criminal history. According to his testimony, he has a master's degree inchemical engineering and worked briefly for IBM and ARCO, but quit his job and gave up his profession to become a professional gambler. He admitted that he ran his illegal gambling operation for approximately five or six years—knowing it to be illegal—out of the house his parents owned. Citing the extensive nature of the gambling operation, appellant's knowledge of the illegality of the business, and the negative impact of the poker club on the community, the trial judge sentenced appellant to serve 225 days in jail for each offense.

After sentencing, appellant retained new counsel who filed a motion for new trial, alleging that appellant was denied effective assistance of counsel at the punishment hearing. The trial court conducted a hearing on the motion, but made no ruling. Consequently, the motion was denied by operation of law. See Tex. R. App. P. 21.8(c). On appeal, appellant complains of ineffective assistance of counsel.

II. Discussion

In two points of error, appellant asserts that his trial counsel provided ineffective assistance during the sentencing proceeding. First, appellant argues that his counsel was ineffective because he failed to adequately prepare for the punishment hearing and, further, failed to call character witnesses to testify on appellant's behalf. Second, appellant contends that he suffered ineffective assistance of counsel because his attorney had a conflict of interest that adversely impacted counsel's performance.

A. Ineffective Assistance of Counsel

In his first point of error, appellant complains initially that he suffered ineffective assistance of counsel because his trial counsel failed to prepare for the punishment hearing. He then asserts that his trial counsel was ineffective for failing to call mitigating character witnesses at the punishment hearing. However, appellant fails to demonstrate that counsel's overall performance was deficient or that any alleged deficiency prejudiced him. Accordingly, appellant did not meet his burden under the two-prong Strickland v. Washington standard.

1. The Standard of Review

To prevail on a claim of ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that: (1) the performance of trial counsel was deficient in that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance of counsel prejudiced the defense—that is, there is a reasonable probability, one sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Branch v. State, 335 S.W.3d 893, 904-05 (Tex. App.—Austin 2011, pet. ref'd). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez, 310 S.W.3d at 893; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the purported ineffectiveness.Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Thompson, 9 S.W.3d at 813); see Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

In reviewing a claim of ineffective assistance, we must evaluate the quality of the representation from the totality of counsel's representation rather than counsel's isolated acts or omissions. Strickland, 466 U.S. at 689; Perez, 310 S.W.3d at 893; see Branch, 335 S.W.3d at 905. Our decision must be based on the facts of the particular case viewed at the time of counsel's conduct so as to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 690; Martinez, 330 S.W.3d at 901; Thompson, 9 S.W.3d at 813. We must indulge a strong presumption that counsel's representation falls within the wide range of reasonable professional assistance—that is, we must presume that trial counsel's actions or inactions and decisions were reasonably professional and motivated by sound trial strategy. Strickland, 466 U.S. at 686; Salinas, 163 S.W.3d at 740; see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004); see Sessums v. State, 129 S.W.3d 242, 246 (Tex. App.—Texarkana 2004, pet. ref'd).

In addition, the burden is on the appellant to affirmatively demonstrate "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 687). To overcome the presumption that counsel rendered adequate assistance, the appellant must identify the specific acts or omissions of counsel that allegedly constitute ineffective assistance and thenaffirmatively prove that they fall below the professional norm for reasonableness. Strickland, 466 U.S. at 690; Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Even if an appellant shows that particular errors of counsel were unreasonable, the appellant must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at 693-95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no pet.). Merely showing that the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at 693; Martinez, 330 S.W.3d at 901. The appellant must prove...