AFFIRMED

AUGUST 23, 1990

NO. 10-89-077-CR

Trial Court

# 8395

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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NOE GOMEZ,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

From 12th Judicial District Court

Madison County, Texas

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Pleading not guilty, appellant Noe Gomez was found guilty by a jury of the felony offense of carrying a deadly weapon while confined in a penal institution. Texas Penal Code §46.11(a)(1). Punishment, enhanced by a prior felony conviction for murder which the jury found to be "True," was assessed by the jury at confinement in the Texas Department of Corrections for a term of twenty years and a fine of $10,000.

The indictment alleged that appellant carried on or about his person "a deadly weapon, to-wit: a razor blade, that in the manner of its use and intended use was capable of causing death and serious bodily injury" while appellant "was then and there confined in a penal institution." The State's evidence established the elements of its case.

Appellant seeks reversal of the judgment of conviction on a single point of error, asserting ineffective assistance of counsel on several grounds. We overrule these contentions and we affirm the judgment.

The six major areas of ineffective assistance of counsel alleged by appellant are these: (1) lack of pretrial hearings and motions, (2) lack of objections to the testimony of the State's witness Calvin Johnson, (3) lack of objections to the testimony of the State's witness John Isbelle, (4) lack of requests for mistrial or instructions to the jury, (5) harmful deficiencies in closing argument to the jury at the guilt/innocence phase of the trial, and (6) failure to present defensive evidence at the punishment phase of the trial.

Evidence at trial established that appellant's counsel had practiced law for more than twenty-five years. He was consistently prepared and always did a "good job". Appellant was indicted in this case in February 1988, and his counsel was appointed the next month, thirteen months prior to the trial in April 1989. During those thirteen months counsel had at least twelve different interviews or confrontations either in court or out of court. He had been in court four times. He had been to the correctional unit where appellant was incarcerated at least three times. Additional time was devoted to briefing. He had filed several motions, including the discovery motion provided for in article 39.14, Tex.Code Crim.Proc. As a result of the filing of this motion, the State's attorney permitted him to view the State's complete file on the case. He made a request to see the weapon but learned that it had been misplaced. In his words, he had "covered nearly everything you can cover. I see by my file that I put what appears to be something like fifteen hours or so on [the case] before we ever got to the trial court." He said, "I don't say that there couldn't be some more done, but up until today we have worked on every avenue we could possibly see that we could get prepared. And I feel like we're about well prepared. We have witnesses here that he gave us. At least one of them, I think, I will be able to use. I think we have enough to at least show his side of the case fairly well." There is no evidence that a Batson motion, raised by appellant in his brief, should have been filed. The case was a one-day trial with simple facts. Appellant has not suggested any legitimate motions which, under the record, should have been filed during the trial. Neither has appellant shown any need for additional pretrial motions or hearings.

Appellant complains because counsel did not file a Brady v. Maryland motion for the production of potentially exculpatory evidence and because he did not pursue to a hearing the discovery motion that was filed. The undisputed evidence shows that the State released its entire file to appellant's counsel for review. This negated any need for pursuing the filed motion or for filing a Brady v. Maryland motion. Furthermore, it would have been folly for the prosecutor to fail to disclose evidence favorable to appellant because such failure, if harmful, would have resulted in the reversal of any conviction. United States v. Agurs, 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392 (1976).

Appellant asserts that counsel was ineffective in failing to prevent the admission of the "irrelevant" testimony of the State's witnesses Johnson and Isbelle which related to an alleged attack on Isbelle by appellant with a razor blade. Appellant asserts the testimony "was totally irrelevant and highly prejudicial in that in the crime charged, there is no victim." The testimony was, in fact, essential to the State's case. The State was required to prove that a small, common, one-edged, disposable razor blade was used or was intended to be used as a deadly weapon.

The trial record shows that counsel was consistent in lodging proper objections, and that he regularly requested and was given all relief necessary under the circumstances at the time.

Using only a short excerpt from counsel's argument to the jury on guilt/innocence, appellant seeks to categorize the entire argument as ineffective. Considered in its entirety, the argument demonstrates that counsel centered his statements to the jury on the evidence surrounding the nature of the weapon and its use or attempted use by appellant, seeking to raise a doubt in the jurors' minds as to whether or not the State had proven its allegation that the weapon was a deadly weapon. This argument followed the defensive theory set up by counsel during the selection of the jury, and the record shows that it was probably the best defense available against the State's case.

Appellant has offered no reasoning indicating that the best strategy at the punishment phase was to present defensive testimony.

Considered under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984), or under the "totality of the representation" test set forth in Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App. 1980), the representation afforded appellant by trial counsel in our case was effective representation. Appellant's point of error and the contentions raised under it are overruled. The judgment is affirmed.

                          VIC HALL

DO NOT PUBLISHJustice