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Dunn v. State8/19/2004
nsel. Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982); Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App. 1980), overruled on other grounds, Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). A natural consequence of this notion is that counsel has the responsibility to seek out and interview potential witnesses. Ex parte Duffy, 607 S.W.2d at 517. It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision. Id. at 526. Counsel has a duty to bring to bear such skill and knowledge as will render the trial a “reliable adversarial testing process.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. In Ex parte Lilly, 656 S.W.2d 490, 493-94 (Tex.Crim.App. 1983), the court found ineffective assistance of counsel because the record showed that at the time of the trial, trial counsel knew nothing about the facts of the case, had not consulted with the applicant about the case, did not review the prosecuting attorney’s file, and had done no independent investigation or preparation for trial. The court found that since trial counsel had less than five minutes to prepare for trial, he was unable to investigate the scene of the offense, interview and investigate the State’s witnesses, or properly review the enhancement paragraphs. Id. at 493.
Here there is no evidence that counsel was unprepared. While we agree that there was confusion over the handling of the stipulation, at the time of trial in 2002, the state of the law was still somewhat in flux. Although Tamez was issued in 2000, Hollen did not issue until 2004. The progression in analysis meandered through our own decisions in Martinez v. State, No. 08-00-00094-CR (Tex.App.--El Paso August 2, 2001, no pet.)(not designated for publication) 2001 WL 871687 and Orona v. State, 52 S.W.3d 242 (Tex.App.--El Paso 2001, no pet). Specifically, the admissibility of the stipulation and the propriety of its use in voir dire and closing statement were not clear cut. Compare Orona with Hollen v. State, 87 S.W.3d 151 (Tex.App.--Fort Worth 2002), rev’d, 117 S.W.3d 798 (Tex.Crim.App. 2003), cert. denied, __ U.S. __, 124 S.Ct. 2022, 158 L.Ed.2d 499 (2004). Accordingly, we find counsel’s conduct falls within the realm of reasonable trial strategy.
We next address the testimony of Veronica Montes. In his motion for new trial, Appellant alleged that her testimony at trial was materially different from her testimony in the police report. The testimony differed regarding whether she was being tailgated by Appellant’s vehicle or whether she was behind his vehicle. Trial counsel had an opportunity to effectively cross-examine Montes and explore the differences in her statement to police and her testimony at trial. In fact, counsel questioned her specifically about whether she was in front of or behind Appellant’s truck that evening. In so doing, counsel brought the inconsistencies in her statements to the jury’s attention. Appellant has failed to show that trial counsel’s conduct fell below the objective standard of reasonableness under prevailing professional norms.
Failure to Preserve Error
Next, Appellant complains that his trial counsel failed to object during voir dire at the first mention of his prior convictions and that he failed to challenge the prosecutor’s withholding of the stipulation until after objectionable information had reached the panelists. He concludes that counsel effectively waived his appellate issue as to the denial or withdrawal of the stipulation by failing to object.
As the Court of Criminal Ap
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