Joseph Sanchez Contreras v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00784-CR

Joseph Sanchez CONTRERAS,
Appellant

v.

The STATE of Texas,
Appellee

From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2020CR11338
Honorable Stephanie R. Boyd, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice

Delivered and Filed: May 6, 2026

AFFIRMED

A jury convicted appellant, Joseph Sanchez Contreras, of aggravated robbery. See TEX.

PENAL CODE ANN. § 29.03. The trial court, in light of Contreras’s status as a habitual offender,

sentenced him to the statutory minimum of twenty-five years’ imprisonment. In two issues,

Contreras contends that he was denied a speedy trial and his attorney provided ineffective

assistance by failing to request the lesser included offense of theft in the jury charge. We affirm.
04-24-00784-CR

I. BACKGROUND

Contreras was arrested on September 28, 2020, on a charge of aggravated robbery arising

from an incident earlier that day at a Family Dollar. Unable to post the $65,000 bond, Contreras

remained in jail. He was indicted on November 19, 2020. On January 27, 2021, Contreras filed a

motion for speedy trial. On August 6, 2021, he filed an application for habeas relief and a reduction

of the bond amount. Contreras’s habeas application asserts that “the State cannot provide a speedy

trial as jury service has again been suspended in Bexar County under August 4, 2021 Local

Administrative Judge’s Order[.]” At the December 12, 2021 hearing on Contreras’s request for a

bond reduction, he did not assert his request for a speedy trial; the trial court reduced bond to

$50,000. Contreras remained in custody until his trial on May 24, 2022.

At trial, Alice Osowiecki testified that on September 28, 2020, she was working at a Family

Dollar in San Antonio, Texas. As Osowiecki was working in the back of the store, she recognized

Contreras in the candy aisle. Osowiecki saw Contreras “getting it” and “stuffing it in his jacket.”

Osowiecki asked Contreras to return the merchandise, and he responded, “don’t ‘F’ with me.”

Contreras then pulled out “a blade — a black knife out of his side.” When Contreras opened his

jacket to reach for the knife, Osowiecki saw “all the candy and some other stuff that he stole.”

Contreras waved and flicked the knife toward Osowiecki and another customer who had come to

her aid. All the while, he continued to tell Osowiecki to “leave him effing alone or he’s going to

‘F’ us up.” Osowiecki then called the police, and that prompted Contreras to put his knife away

and walk out of the store. As Contreras was in the store’s parking lot, he turned back, pulled the

knife back out, and told Osowiecki that he would return for her when she got off work.

On cross examination, Contreras’s counsel questioned Osowiecki on the fact that the

store’s surveillance cameras would have captured Contreras taking the merchandise and that

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Osowiecki knew the customer who came to her aid but did not provide his name to the

investigating police officers. Contreras’s counsel impeached Osowiecki on a prior inconsistent

statement. On police bodycam footage admitted into evidence, Osowiecki told officers she was

not afraid of “him;” at trial, she testified she meant “them.” Osowiecki elaborated what she meant

was that she generally is not afraid of shoplifters, but Contreras frightened her enough to call the

police. Osowiecki recalled that, in addition to candy bars, Contreras stole a couple of electronics

valued at eight to ten dollars.

Eric Torres, a police officer with the San Antonio Police Department, responded to the call

for service, and he interviewed Osowiecki. After other police officers found Contreras nearby and

returned him to the store, Officer Torres searched him. Officer Torres recalled Contreras had a

knife in his possession. No merchandise believed to be stolen was found on Contreras. Contreras’s

counsel questioned Officer Torres on whether he knew of the other customer who came to

Osowiecki’s aid. Officer Torres did not know of this other customer. Officer Torres did not

interview the other store employee. Officer Torres acknowledged that, because none of the

allegedly stolen merchandise was found on Contreras, reviewing surveillance video from the

relevant area would have been important to establishing that a theft occurred.

Contreras testified that he visited the Family Dollar to check the balance on a debit card,

and then he decided to get ice cream. The store did not have the ice cream that Contreras wanted,

and he left. Contreras denied stealing any items or displaying a knife. When the arresting officers

told Contreras that he was being charged with aggravated robbery, he asked them what the

surveillance video showed. On cross examination by the State, Contreras could not explain how

Osowiecki knew he had a black knife if he never pulled it out in her presence. After leaving, he

went to a nearby Dollar General and stole ice cream.

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During closing arguments, Contreras’s counsel argued the State presented no evidence that

Osowiecki was placed in fear of imminent bodily injury or death or that Contreras stole or even

attempted to steal candy or electronics from the Family Dollar. Contreras’s counsel also argued

the State failed to present corroborating evidence, such as testimony from the cashier or the other

customer who came to Osowiecki’s aid. Contreras’s counsel framed the ice cream that he stole

from the Dollar General in contrast with the alleged charge of aggravated robbery, arguing:

You know why he told you that? Because my client takes responsibility for his
actions. My client takes responsibility for what he does. But he — but don’t
confuse the situation. We are not here for a shoplifting case at a Dollar General.
That is not why we’re here. That charge tells you we are here for an aggravated
robbery . . . . That’s why you’re here. Don’t confuse that issue.

The jury charge included only the offense of aggravated robbery. The jury found Contreras

guilty. After the jury’s verdict, Contreras pleaded true to two prior convictions. Both sides

recommended the statutory mandatory minimum of twenty-five years’ imprisonment, which the

trial court imposed. Contreras filed a motion for new trial asserting that the jury’s verdict was

contrary to the law and against the great weight and preponderance of the evidence. No hearing

on the motion is reflected in the record. Contreras timely appeals.

II. SPEEDY TRIAL

In Contreras’s first issue, he argues the length of the delay from when he was arrested on

September 28, 2020 until he was tried on May 24, 2022 constitutes a violation of his right to a

speedy trial under the U.S. Constitution. The State emphasizes Contreras failed to raise the issue

before the trial court. Consequently, no evidentiary hearing was held to support a speedy trial

violation.

Preservation requirements apply to speedy-trial claims. Henson v. State, 407 S.W.3d 764,

768 (Tex. Crim. App. 2013). In Bacon v. State, No. 12-23-00123-CR, 2024 WL 3292666, at *6

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(Tex. App.—Tyler July 3, 2024, no pet.) (mem. op., not designated for publication), our sister

court observed:

[T]he “mere filing” of a motion does not preserve for appellate review a complaint
of violation of the right to a speedy trial — a motion must be “presented” to the
trial court to preserve error, meaning that “the movant must make the trial judge
aware of the motion by calling the judge’s attention to it in open court” and obtain
a ruling thereon.

Id. (citing Crocker v. State, 441 S.W.3d 306, 311–12 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d) (quoting Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.] 1999,

pet. ref’d))); see also Romero v. State, No. 05-23-00689-CR, 2025 WL 992710, at *8 (Tex. App.—

Dallas Apr. 2, 2025, pet. ref’d) (mem. op., not designated for publication) (holding that a speedy

trial complaint was not preserved where a speedy trial motion was filed, but it was never heard;

and the record did not reflect that the motion was ever ruled on or even that a ruling was sought).

In this case, as in Bacon and Romero, Contreras filed a speedy trial motion. However, there is no

indication that the motion was ever heard or that a ruling was ever sought. Indeed, Contreras’s

appellate brief acknowledges that “[i]t doesn’t appear the motion [for a speedy trial] was ever

taken up by the court.” Accordingly, Contreras failed to preserve his speedy trial complaint.

We overrule Contreras’s first issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In Contreras’s second issue, he argues, for the first time on appeal, that he was rendered

ineffective assistance of counsel because his trial counsel failed to request an instruction on the

lesser included offense of theft. The State argues that Contreras’s trial counsel was not ineffective

because not requesting the lesser included charge may have been reasonable trial strategy.

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A. Applicable Law

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court set the two-

pronged test for determining claims of ineffective assistance of counsel: (1) whether counsel was

deficient, and (2) whether the defendant suffered prejudice because of counsel’s error. See Hart

v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). Both prongs are assessed under the totality

of the circumstances as they existed in trial. Ex parte Flores, 387 S.W.3d 626, 633–34 (Tex. Crim.

App. 2012). “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s

need to consider the other prong.” Gonzales v. State, No. 04-24-00283-CR, 2025 WL 1248621,

at *2 (Tex. App.—San Antonio Apr. 30, 2025, pet. ref’d) (mem. op., not designated for

publication) (quoting Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)).

“To establish that counsel’s actions were deficient, the appellant must show, by a

preponderance of the evidence, that counsel’s actions fell below an objective standard of

reasonableness.” Id. (quoting Hart, 667 S.W.3d at 781). “This requires showing that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Strickland, 466 U.S. at 687. We review defense counsel’s

representation with high deference and presume that counsel acted within the range of professional

assistance and reasonableness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Absent

an opportunity for trial counsel to explain their conduct, “an appellate court should not find

deficient performance unless the challenged conduct was so ‘outrageous that no competent

attorney would have engaged in it.’” Sandoval v. State, 665 S.W.3d 496, 545 (Tex. Crim. App.

2022) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). “We will not

second-guess legitimate strategic or tactical decisions made by counsel in the midst of trial.”

Williams, 301 S.W.3d at 687.

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B. Arguments & Analysis

Contreras relies on Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994), for its

holding that “a defendant is entitled to an instruction on a lesser included offense if evidence, from

any source, affirmatively raises the issue.” However, Bignall concerned a trial court’s refusal to

submit the charge on the lesser included offense of theft after the defendant’s counsel requested it.

See Bignall v. State, 899 S.W.2d 282, 283 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (op.

on remand). Here, the issue Contreras presents is whether his trial counsel was ineffective for not

requesting a lesser charge instruction. Moreover, raising this issue for the first time on appeal, the

record here is silent as to counsel’s reasoning. Absent such evidence, we must presume counsel

acted reasonably. See Sandoval, 665 S.W.3d at 545.

In Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004), referenced by the State, the

Texas Court of Criminal Appeals held that the appellant’s counsel was not ineffective for failing

to request jury instructions on lesser included offenses because the defendant chose not to request

them as part of an “all-or-nothing” trial strategy. The record here suggests, as in White, that

Contreras’s counsel adopted an all-or-nothing trial strategy.

Contreras’s counsel’s opening statement asserted that “the officers didn’t find a single item

that Ms. Osowiecki claimed was taken.” Later, in cross examining of Officer Torres, Contreras’s

counsel asked, “And you were searching for items that were allegedly taken from the store?”

Officer Torres answered, “Yes, ma’am.” Contreras’s counsel followed up, “But you didn’t find

any of these items on my client, right?” To which, Officer Torres answered, “No, ma’am.” In

questioning Mario Prado, another San Antonio police officer who helped in the investigation,

Contreras’s counsel asked, “And, once again, nothing that the complaining witness said was stolen

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was found on my client, right?” Before closing arguments, Contreras’s counsel requested a

directed verdict because:

. . . there’s been no evidence to show that my client stole anything from the — from
that Family Dollar from that store . . . There’s been no evidence to show that my
client attempted to steal or stole anything from the Family Dollar . . . . And for those
reasons, I am asking you to grant my motion for a directed verdict.

In closing arguments, Contreras’s counsel argued, “You’ve received absolutely no credible

evidence that my client stole or even attempted to steal any candy or electronics from that store.”

We cannot conclude Contreras’s counsel’s all-or-nothing trial strategy was unreasonable

under the circumstances. Bone, 77 S.W.3d at 833. The record shows Contreras’s counsel tried to

obtain an acquittal based on the lack of evidence as to the items that were allegedly stolen.

Contreras’s counsel may have reasonably believed this strategy was an effective way to counter

the inference that Osowiecki’s knowledge of the knife’s color supported brandishing. The record

contains no affidavit from trial counsel. Thus, we cannot conclude Contreras’s counsel’s

performance was so “outrageous that no competent attorney would have engaged in it.” 1 See

Sandoval, 665 S.W.3d at 545. Because we will not second guess the trial counsel’s strategy, we

overrule Contreras’s second issue. See Williams, 301 S.W.3d at 687.

IV. CONCLUSION

We affirm the trial court’s judgment.

Rebeca C. Martinez, Chief Justice

DO NOT PUBLISH

1
Because Contreras failed to satisfy that his trial counsel’s actions satisfied the first prong of the Strickland test, we
need not address the second prong regarding prejudice. See Williams, 301 S.W.3d at 687.

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