Leonardo Cruz v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00175-CR

LEONARDO CRUZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 290th District Court
Bexar County, Texas
Trial Court No. 2023CR4292B

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

A Bexar County1 jury convicted Leonardo Cruz of three counts of aggravated assault

with a deadly weapon and one count of injury to a child. See TEX. PENAL CODE ANN.

§§ 22.02(a)(2), 22.04(f) (Supp.). Cruz was sentenced to twenty-year terms for each of the

aggravated assault with a deadly weapon offenses and ten years for the injury to a child offense.

On appeal, Cruz argues that he received ineffective assistance of counsel. Because we find that

Cruz failed to make a showing of prejudice, we affirm the judgments.

I. Background

In an amended indictment, the State alleged in three counts that Cruz committed

aggravated assault with a deadly weapon by striking three different children with a bat. The

State alleged in a fourth count that Cruz also struck one of the children with a paddle, causing

bodily injury. A jury found Cruz guilty of all four counts and sentenced him to twenty years on

each of the first three counts and ten years on the fourth count. Cruz appeals.

II. Ineffective Assistance of Counsel

In his sole issue on appeal, Cruz argues that his defense counsel was ineffective for

failing to adequately cross-examine several of the State’s witnesses.

A. Standard of Review and Applicable Law

The Sixth Amendment to the United States Constitution guarantees an accused the right

to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI;

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Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We are unaware of
any conflict between precedent of the Fourth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
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Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We “look to the totality of the

representation” in evaluating the effectiveness of counsel. Auld v. State, 652 S.W.3d 95, 113

(Tex. App.—Texarkana 2022, no pet.).

While ineffective assistance of counsel claims may be raised on direct appeal,

“[g]enerally, a writ of habeas corpus is the preferred vehicle for ineffective assistance [of

counsel] claims.” Ex parte Okere, 56 S.W.3d 846, 855 (Tex. App.—Fort Worth 2001, pet. ref’d)

(citing Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999)). The Texas Court of

Criminal Appeals gives preference to a collateral attack, as opposed to a direct appeal of

ineffective assistance of counsel claims, because “[i]n the majority of instances, the record on

direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999) (citing Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam)).

Even so, we consider Cruz’s claims of ineffective assistance on direct appeal. The right

to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006). To show that trial counsel was ineffective, Cruz must demonstrate that

(1) trial counsel’s performance was deficient because it “fell below an objective standard of

reasonableness” and (2) “a probability sufficient to undermine confidence in the outcome”

existed that, “but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Thompson, 9 S.W.3d

at 812. “A reasonable probability [means] a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. A failure to make a

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showing under either prong of the Strickland test defeats a claim for ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). “Thus, we need not

examine both Strickland prongs if one cannot be met.” Turner v. State, 528 S.W.3d 569, 577

(Tex. App.—Texarkana 2016, no pet.) (citing Strickland, 466 U.S. at 697). The Strickland test

“of necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S.

362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in

judgment)). We “must look to the totality of the representation, and [our] decision must be based

on the facts of the particular case, viewed at the time of counsel’s conduct so as to eliminate

hindsight bias.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig.

proceeding) (citing Strickland, 466 U.S. at 690). “In all cases, the ‘ultimate focus of inquiry

must be on the fundamental fairness of the proceeding.’” Id. (quoting Strickland, 466 U.S. at

696); Sabella v. State, 578 S.W.3d 137, 141 (Tex. App.—Texarkana 2019, no pet.) (quoting

Ex parte Martinez, 300 S.W.3d at 901).

We apply a strong presumption that trial counsel was competent and presume that

counsel’s actions and decisions were reasonably professional and motivated by sound trial

strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Also, when an

appellate record is silent on why trial counsel failed to take certain actions, “the appellant has

failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable

or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see

Thompson, 9 S.W.3d at 814.

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B. Cruz Has Failed to Meet his Burden of Showing Prejudice

Cruz asserts that his trial counsel failed to adequately cross-examine several of the State’s

witnesses. “The applicant has the burden to prove ineffective assistance of counsel by a

preponderance of the evidence.” Ex parte Martinez, 330 S.W.3d at 901 (citing Thompson,

9 S.W.3d at 813). Cruz, however, presents no argument, authority, or support to satisfy the

second prong of Strickland, specifically that, but for his counsel’s errors, if any were determined,

“the result of the proceeding[s] would have been different.” Strickland, 466 U.S. at 694.

“To avoid forfeiting a legal argument for inadequate briefing, an appellant’s brief must

contain ‘a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.’” Taylor v. State, 558 S.W.3d 215, 218 (Tex. App.—Texarkana

2018, no pet.) (quoting TEX. R. APP. P. 38.1(i)) (citing Lucio v. State, 351 S.W.3d 878, 896–97

(Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Cardenas

v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000)). “Because the Texas Court of Criminal

Appeals has emphasized that an appellate court has no obligation to construct and compose

issues, facts, and arguments for an appellant, encompassed within Rule 38.1 is the party’s task of

explaining or discussing why an argument has substance.” Id. (citing Wolfe v. State, 509 S.W.3d

325, 343 (Tex. Crim. App. 2017); Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673).

“To avoid forfeiture, a party must provide substantive analysis by applying the law to the

facts.” Id. (citing Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J.,

concurring in refusal to grant petition for discretionary review)). “A brief that fails to apply the

law to the facts does not comply with Rule 38.1 and presents nothing for review.” Id. (citing

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Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003)). Except for an unsupported,

one-sentence assertion that “trial counsel’s ineffectiveness resulted in an extreme sentence,”

Cruz has presented nothing for our review as it relates to the second prong of the Strickland test.

Because conclusory statements do not lay the predicate for an ineffective-assistance claim, Cruz

has forfeited his claim of ineffective assistance. See Lucio v. State, 351 S.W.3d 878, 896 (Tex.

Crim. App. 2011); Ruiz v. State, 293 S.W.3d 685, 693 (Tex. App.—San Antonio 2009, pet. ref’d)

(complaint waived where defendant’s “brief contain[ed] no argument or authorities” to support

contention that his counsel was ineffective); Tufele v. State, 130 S.W.3d 267, 270–71 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (ineffective-assistance-of-counsel complaint waived

for inadequate briefing).

In any case, the record does not disclose a basis for determining that Cruz was prejudiced

by counsel’s alleged errors. This highlights why ineffective-assistance claims “are generally not

successful on direct appeal and are more appropriately urged in a hearing on an application for a

writ of habeas corpus.” Lopez, 343 S.W.3d at 143. The record may be developed through a

motion for new trial; even so, “[o]n direct appeal, the record is usually inadequately developed

and ‘cannot adequately reflect the failings of trial counsel’ for an appellate court ‘to fairly

evaluate the merits of such a serious allegation.’” Id. (quoting Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002)).

Because Cruz does not address the alleged prejudice he suffered as a result of his

counsel’s alleged deficiencies regarding cross-examination, which we do not reach in this

memorandum opinion, we find that Cruz has failed to meet his burden to establish ineffective

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assistance of counsel. See Turner, 528 S.W.3d at 577 (citing Strickland, 466 U.S. at 697); TEX.

R. APP. P. 38.1. Cruz’s sole issue is overruled.

III. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: March 5, 2025
Date Decided: March 17, 2025

Do Not Publish

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