
    Jose Edis ESCOBAR, Appellant, v. The STATE of Texas, Appellee.
    No. 01-05-00162-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 22, 2006.
    Discretionary Review Refused April 18, 2007.
    
      Connie B. Williams, Houston, TX, for Appellant.
    William J. Delmore III, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

ELSA ALCALA, Justice.

We withdraw our opinion of October 12, 2006, and issue this opinion in its stead. See Tex.R.App. P. 19.1 (Court of appeals retains plenary power for 60 days after judgment issues). Our judgment of the same day remains unchanged.

Appellant, Jose Edis Escobar, appeals the trial court’s judgment convicting him of Class A misdemeanor assault. See Tex. Pen.Code Ann. § 22.01 (Vernon Supp. 2005). Appellant pleaded not guilty. A jury found him guilty, and the trial court assessed punishment at 120 days in the Harris County Jail. In his sole issue on appeal, appellant contends that the trial court erred by denying his motion for new trial, which alleged that his trial counsel rendered ineffective assistance by failing to properly inform him of his right to testify. We conclude that the trial court did not abuse its discretion by denying appellant’s motion for new trial because appellant failed to demonstrate that counsel’s performance was deficient. We therefore affirm.

Background

Appellant and complainant were coworkers at a Harris County apartment complex. Complainant was a leasing consultant, and appellant was part of the maintenance staff. In September 2004, while complainant was in an empty apartment, appellant approached her, grabbed her, and tried to kiss her. Appellant squeezed her arms hard enough to leave bruises. After telling appellant to stop, complainant tried to escape the apartment, but appellant blocked her departure by kneeling in front of her and kissing her midsection. With appellant on his knees, complainant was able to push him aside, to escape through the front door.

Appellant was charged with assaulting complainant. Appellant hired trial counsel, who met with him five times prior to trial. A few days before the jury trial began, appellant, appellant’s niece, and appellant’s sister had a meeting with appellant’s trial attorney, who advised appellant not to testify. At this meeting, appellant signed a document, provided by his attorney, that confirmed that appellant did not wish to testify at his trial. The document signed by appellant, however, was not produced as an exhibit, nor was it ever described in detail.

At the jury trial, the State called five witnesses, and appellant called three witnesses. Appellant did not testify. After the jury convicted him, appellant filed a motion for new trial claiming that his trial counsel provided ineffective assistance by not properly informing appellant of his right to testify at the jury trial.

The trial court conducted an evidentiary hearing concerning the allegations in the motion for new trial. Appellant stated that he did not testify at the jury trial because he had already given his version of the events to his trial attorney. According to appellant, his trial attorney advised him not to testify because (1) the translator would not translate the words correctly, and (2) he might answer questions prematurely, before the translation was complete, because of his ability to understand some English. Appellant stated that his trial attorney “suggested that it was better for me not to take the stand.”

Appellant testified that he believed that his signature on the document prepared by his attorney precluded him from testifying at the jury trial. Appellant said that he disagreed with the testimony elicited from the State’s witnesses, and wanted to testify, but that he never informed his attorney during the trial that he wished to testify. Appellant acknowledged that his attorney never told him that he could not testify, that his attorney never told him he could not change his mind about his decision not to testify, and that appellant’s attorney said that it was appellant’s decision whether to testify. Appellant further stated that during trial, his attorney instructed him not to shake his head to signal disagreement with the testifying witnesses.

Appellant’s niece testified that she heard appellant’s trial attorney advise appellant that he shouldn’t testify at trial because of various difficulties that result when translators are used at trial. Appellant’s niece also testified that she understood that appellant had given up his right to testify at the jury trial when appellant signed the document in counsel’s office.

Contrary to the testimony presented by appellant and his niece, appellant’s trial attorney testified that he did not call appellant as a witness at the jury trial because appellant “didn’t want to testify.” The attorney explained, “We had numerous discussions about him testifying because the incident happened between him and the complaining witness and they were the only two that were in that room ... [a]nd the information Mr. Escobar gave me was very similar [to the complainant’s story] except for a couple of things.” The attorney stated that he told appellant that the “decision not to testify will remain open until the day of trial.” Further, according to the attorney, after the State concluded its presentation of the evidence to the jury, the attorney again asked appellant if he wanted to testify, and appellant twice said “No,” despite the attorney’s advice that appellant was “the only one that can clarify some of these things.” The attorney said that the prospect of using an interpreter to translate appellant’s trial testimony was not a factor in appellant’s decision not to testify. The attorney explained that his strategy was to show through witnesses other than appellant that “it was all horseplay that was happening at the apartment complex.” The trial court denied the motion for new trial.

Effectiveness of Counsel

In his sole issue, appellant contends he is entitled to a new trial because his attorney rendered ineffective assistance. We review the trial court’s denial of a defendant’s motion for new trial under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004). We do not substitute our judgment for that of the trial court; we decide only whether the trial court’s decision was arbitrary or unreasonable. Id. A trial court abuses its discretion only when no reasonable view of the record could support the court’s ruling. Id.

A criminal defendant has a fundamental constitutional right to testify in his own defense. Johnson v. State, 169 S.W.3d 223, 232 (Tex.Crim.App.2005). “[D]efense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant.” Johnson, 169 S.W.3d at 235. “Strickland provides the appropriate framework for addressing an allegation that the defendant’s right to testify was denied by defense counsel.” Id. at 225 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Under Strickland, an ineffective assistance claim has two components: appellant must show “that counsel’s performance was deficient, and that the deficiency prejudiced the defense.” Ex parte Briggs, 187 S.W.3d 458, 466 (Tex.Crim.App.2005) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2529, 156 L.Ed.2d 471 (2003)). To show counsel’s deficiency, a defendant must demonstrate that counsel performed “below an objective standard of reasonableness.” Id. To show prejudice, “[t]he defendant must show that there is a reasonable probability that the outcome of the proceeding would have been different had his attorney not precluded him from testifying.” Johnson, 169 S.W.3d at 239. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001). “While the ultimate question of prejudice under Strickland is to be reviewed de novo, the trial court should be afforded deference on any underlying historical fact determinations.” Johnson, 169 S.W.3d at 239. For an appeal based on ineffective assistance of counsel to succeed, an appellant must show both deficiency and prejudice by a preponderance of the evidence. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996).

Allegations of ineffectiveness of counsel must be firmly founded in the record. Mallett, 65 S.W.3d at 63. When, as here, the trial court makes no findings of fact regarding the denial of a motion for new trial, we should “impute implicit factual findings that support the trial judge’s ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.” Johnson, 169 S.W.3d at 239.

The record shows that before and during trial, appellant was asked by his attorney if he wished to testify at the trial, and appellant declined the opportunity. At the meeting at appellant’s attorney’s office prior to trial, appellant documented in writing that he did not wish to testify at the trial. After the trial began, appellant’s attorney stated that he again asked appellant if he wished to testify, and advised appellant that appellant was “the only one that can clarify this.” Appellant persisted in his decision not to testify at the trial. The record further shows that prior to trial, appellant’s attorney advised appellant that the decision whether to testify would “remain open.” Stating that he knew that “it was my decision” whether to testify, appellant acknowledged that his attorney told him that the ultimate decision whether to testify belonged to appellant.

By repeatedly asking appellant if he wished to testify, appellant’s attorney adequately informed appellant of his right to testify. See Johnson, 169 S.W.3d at 235. Additionally, the record shows that appellant understood that the ultimate decision to testify belonged to him. See id. We conclude that appellant has failed to establish that the trial court abused its discretion by finding that appellant did not show by a preponderance of the evidence that counsel performed below an objective standard of reasonableness. Appellant thus failed to meet the “deficiency” part of the Strickland test. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. We hold that the trial court did not err by denying appellant’s motion for new trial.

We need not reach the question of whether appellant was prejudiced by not testifying at trial. See McFarland, 928 S.W.2d at 500 (failure to meet any portion of the Strickland test will defeat appeal based on ineffective assistance). We overrule appellant’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.  