Angel Serna v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00227-CR

ANGEL SERNA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. DC-2024-CR-0688, Honorable William R. Eichman II, Presiding

March 20, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Angel Serna, Appellant, raises three issues in this appeal from his conviction for

aggravated assault of a family member causing serious bodily injury with a deadly

weapon, a first-degree felony. 1 We affirm the judgment of the trial court.

1 TEX. PENAL CODE § 22.02(b)(1)(A).
BACKGROUND

Appellant and the complainant, Alonso Estrada, are first cousins. At the time of

the offense, they were living next door to one another and had a contentious relationship

replete with accusations and threats. On the morning of March 5, 2024, Estrada was in

his backyard feeding his dogs when he heard the gate open. When Estrada turned

around, he was shot in the face. Estrada was knocked to the ground. He looked up and

saw Appellant standing over him, trying to squeeze the trigger again. Estrada’s son, Ivan,

was inside the house and saw the shooting. He ran outside and confronted Appellant,

attempting to get the gun away from him. Ivan’s uncle came outside to break up the

struggle and Appellant then left the scene. Ivan called 911. Police soon located and

detained Appellant, who admitted to shooting Estrada. Police then recovered the gun

used in the offense from the location Appellant described.

Appellant was charged with aggravated assault of a family member causing

serious bodily injury with a deadly weapon. Following a jury trial, Appellant was found

guilty of the offense and sentenced to ten years’ imprisonment. Appellant’s motion for

new trial was overruled by operation of law. This appeal followed.

ANALYSIS

Exclusion of Evidence

In his first issue, Appellant argues that the trial court erred in excluding evidence

of Estrada’s alleged methamphetamine use, violating Appellant’s right to confrontation.

When error has been properly preserved, we review a trial court’s decision to admit or

exclude evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d
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77, 82–83 (Tex. Crim. App. 2016). A trial judge abuses his discretion when his decision

falls outside the zone of reasonable disagreement. Id. at 83.

At trial, Appellant sought to introduce evidence that Estrada had used

methamphetamine in the past, that Appellant had witnessed such drug use, that Appellant

was familiar with Estrada’s behavior when under the influence of methamphetamine, and

that Appellant observed such behavior in Estrada on the morning of the shooting.

Specifically, Appellant claims that “the habit of aggressive confrontation when under the

influence of methamphetamine is what Appellant sought to demonstrate for the jury.” On

appeal, Appellant maintains that the trial court’s exclusion of this evidence prohibited

Appellant from presenting a meaningful and complete defense in violation of his

constitutional rights.

The State responds that Appellant did not raise his constitutional right to present

a full defense argument with the trial court and it has not been properly preserved. We

agree. To preserve a complaint for appellate review, the record must show a specific and

timely complaint was made to the trial judge and the trial judge ruled on the complaint.

TEX. R. APP. P. 33.1(a). The issue raised on appeal must comport with the objection made

at trial. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (en banc).

At trial, Appellant argued that evidence related to Estrada’s drug use was being

offered to show Appellant’s state of mind at the time of the offense. Appellant’s counsel

stated, “[Appellant] gave an oral statement to the police that he engaged in the conduct

because he was afraid . . . of the victim. And I think that’s part of the reason that we think

that . . . is admissible to show those things were going through his mind when he shot at

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the victim to scare him.” The trial court confirmed its understanding that Appellant was

“offering it to go to his state of mind at the time and how the defendant was feeling based

on that.” Appellant did not contend that the trial court’s rulings denied him his

constitutional right to present a meaningful and complete defense.

Appellant’s constitutional right to a meaningful opportunity to present a complete

defense arises from the Due Process Clause of the Fourteenth Amendment and the

Compulsory Process and Confrontation Clauses of the Sixth Amendment, and is a right

subject to procedural default. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App.

2009); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (en banc) (holding

appellant failed to preserve claim he was denied right to present defense and right to due

process and due course of law because he did not make such objections at trial).

Because Appellant did not make the objection before the trial court that the exclusion of

evidence of Estrada’s alleged drug use violated Appellant’s constitutional rights, he has

failed to preserve this issue for our review. Accordingly, Appellant’s first issue is

overruled.

Ineffective Assistance of Counsel

Appellant asserts, in his second issue, that he received ineffective assistance of

counsel during the punishment phase of the trial because his trial counsel failed to present

additional witnesses to mitigate the offense. To prevail on a claim of ineffective

assistance of counsel, an appellant must satisfy the two-prong test set forth in Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Rylander

v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (en banc). The first prong

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requires a showing that counsel’s performance fell below an objective standard of

reasonableness, and the second prong requires a showing that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 687; Smith v. State, 286 S.W.3d 333, 340–

41 (Tex. Crim. App. 2009).

We begin our Strickland analysis with the presumption that counsel was competent

and that his decisions “fell within the wide range of reasonable professional assistance.”

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Strickland, 466 U.S.

at 689 (establishing presumption that actions “might be considered sound trial strategy”).

An appellant must affirmatively “prove, by a preponderance of the evidence, that there is,

in fact, no plausible professional reason for a specific act or omission” to overcome that

presumption and succeed on the first Strickland prong. Bone v. State, 77 S.W.3d 828,

836 (Tex. Crim. App. 2002); see also Landers v. State, 110 S.W.3d 617, 622 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d) (noting sound trial strategy presumption “cannot be

overcome absent evidence in the record of the attorney’s reasons for his conduct”). “If

counsel’s reasons for his conduct do not appear in the record and there is at least the

possibility that the conduct could have been legitimate trial strategy, we will defer to

counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.”

Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002) (en banc).

During the punishment phase, Appellant presented testimony from his pretrial

services supervisor, who testified that Appellant was compliant with requirements, and

from a community supervision officer, who explained how probation works. Appellant

also presented testimony from his younger brother, who testified that Appellant is a good,
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caring, hardworking person. Appellant’s brother stated that Appellant has no criminal

history, is not violent, and does not cause trouble. He further testified regarding the

challenges of living near Estrada.

In his motion for new trial, Appellant provided affidavits from eight witnesses who

indicated their willingness and availability to testify in Appellant’s favor during the

punishment phase of trial, and from one witness who was called but was not asked certain

questions “that would have adduced important and mitigating testimony.” 2 The affidavits

generally indicate that the individuals would have testified that Appellant is a good,

hardworking person who does not cause trouble. Affiants also stated that Estrada

regularly harassed Appellant and that Appellant was fearful of Estrada.

Appellant did not develop a record explaining trial counsel’s conduct in not

presenting additional witnesses during the punishment phase. The record does not

reflect whether defense counsel interviewed these individuals or why defense counsel

decided not to call them as witnesses. There is simply no evidence to overcome the

presumption that trial counsel’s failure to call these witnesses was strategic. “A reviewing

court cannot speculate as to the reasons why trial counsel acted as he did, rather a

reviewing court must presume the actions were taken as part of a strategic plan for

representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San

Antonio 2010, pet. ref’d). Because the record is silent regarding trial counsel’s strategy,

2 Four of the nine affidavits are written in Spanish. No translation from Spanish to English is
provided in the record.

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Appellant’s allegation that he provided ineffective assistance is not firmly founded in the

record.

Appellant also fails to show that, but for counsel’s failure to call these witnesses,

the result of the proceeding would have been different. See Strickland, 466 U.S. at 694.

Some of the testimony that would have been offered by the witnesses was already before

the jury. For instance, Appellant’s uncle testified that Appellant never got in trouble and

is a “good guy.” Appellant’s girlfriend testified that Estrada had a history of harassing her

and Appellant. Appellant himself testified regarding Estrada’s history of accusations and

threats, that he was scared of Estrada, and that Estrada wanted to hurt him. Appellant

told the jury that he avoided trouble and that he intended to merely scare Estrada when

he fired his gun. All three witnesses testified that the morning’s confrontation began

because Estrada broke Appellant’s window. Appellant has not demonstrated that he

would have received a more lenient sentence but for the absence of similar mitigation

testimony. We conclude the record does not affirmatively establish alleged ineffective

assistance based on the failure to call additional witnesses during the punishment phase

of trial.

Appellant’s second issue also includes a passing reference to trial counsel’s failure

to request an instruction on self-defense, alleging that such failure also rose to the level

of ineffective assistance of counsel. Deciding which defensive issues to request is a

strategic decision left to the lawyer and the client. See Posey v. State, 966 S.W.2d 57,

63 (Tex. Crim. App. 1998) (en banc) (and cases cited therein). The record does not reveal

that this decision was anything other than a strategic decision by Appellant’s trial counsel.

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Moreover, the record does not indicate that the issue was sufficiently raised by the

evidence to require an instruction on self-defense.

For the foregoing reasons, we overrule Appellant’s second issue.

Hearing on Motion for New Trial

In his final issue, Appellant claims that the trial court erred by failing to hold a

hearing on his motion for new trial. Appellant’s motion for new trial was premised on (1)

the need for an interpreter for his uncle, Humberto Celis, when he testified and (2) trial

counsel’s alleged ineffective assistance based on failure to present additional mitigation

evidence. No hearing was held on the motion and it was overruled by operation of law.

We review a trial court’s denial of a hearing on a motion for new trial for abuse of

discretion, and reverse only when the trial judge’s decision was so clearly wrong as to lie

outside the zone of reasonable disagreement. Smith, 286 S.W.3d at 339.

A defendant has no absolute right to a hearing on his motion for new trial. Hobbs

v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). To obtain a hearing on a motion

for new trial alleging ineffective assistance of counsel, a defendant must allege sufficient

facts from which a trial court could reasonably conclude both that counsel failed to act as

a reasonably competent attorney and that, but for counsel’s failure, there is a reasonable

likelihood that the outcome of his trial would have been different. Smith, 286 S.W.3d at

340–41.

Appellant has not shown that he was entitled to a hearing on either allegation of

ineffective assistance. As set forth above, he has not demonstrated a reasonable

likelihood that the presentation of additional mitigating evidence, showing generally that
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he was a good, hardworking person who had been fearful of Estrada, would have caused

the jury to assess a more lenient sentence. The jury heard such evidence, along with

evidence regarding Appellant’s suitability for community supervision, from other

witnesses. Similarly, he has not shown how the presence of an interpreter for Celis would

have impacted the outcome of the trial in any way. At trial, Celis clearly testified that

Estrada caused many problems for Appellant and that Estrada started the confrontation

on the morning of the offense. Although Appellant alleges generally that Celis became

confused during his testimony, Appellant’s motion for new trial did not indicate that this

confusion resulted in inaccurate testimony or otherwise affected the outcome of the trial.

In short, there are no facts demonstrating that, but for trial counsel’s failures, “there is a

reasonable likelihood that the outcome of [Appellant’s] trial would have been different.”

Smith, 286 S.W.3d at 340–41.

Therefore, we overrule Appellant’s third issue.

CONCLUSION

Having overruled each of Appellant’s issues on appeal, we affirm the judgment of

the trial court.

Judy C. Parker
Chief Justice

Do not publish.

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