Bermudez, Antonio
PD-1074-15
| Tex. App. | Oct 20, 2015Background
- Defendant Antonio Bermudez was convicted by a jury of aggravated assault and sentenced to 60 years; he filed a motion for new trial alleging trial counsel had a significant hearing impairment.
- Trial lasted four days; lead counsel repeatedly asked speakers to repeat or speak up and the trial court adjusted bench-conference procedures and at times excused the jury so discussions could occur out loud.
- Bermudez alleged in a verified motion and affidavit that lead counsel missed or misheard unspecified portions of the trial (including voir dire), and requested an evidentiary hearing to develop the claim.
- The trial court denied the motion for new trial without a hearing; Bermudez appealed to the First Court of Appeals.
- The court of appeals held Bermudez preserved the complaint but concluded the motion did not present reasonable grounds not determinable from the record and affirmed the denial without a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying a hearing on motion for new trial | Bermudez: motion + affidavit raised matters not determinable from record and established reasonable grounds for a hearing | State: record shows court and co-counsel addressed hearing issues; motion was insufficient/boilerplate | Court: preserved issue but no abuse of discretion — motion failed to present reasonable grounds not determinable from the record |
| Whether counsel's hearing impairment warrants Cronic presumption of prejudice | Bermudez: extreme hearing loss is analogous to unconscious counsel (Burdine), so constructive absence requires presumed prejudice under Cronic | State: presence/assistance of co-counsel and trial accommodations show counsel was not constructively absent | Court: did not adopt Cronic presumption — co-counsel and court responses distinguish case from Burdine and support no constructive absence |
| Whether counsel's performance satisfies Strickland deficiency/practice prejudice | Bermudez: missed voir dire and evidence could have affected outcome; inability to hear undermines reliability of proceedings | State: record shows attempts to compensate; counsel retained ability to exercise judgment; no showing of Strickland prejudice | Court: Strickland is the proper standard; record shows mitigation steps and does not establish reasonable grounds for relief not determinable from record |
| Whether appellate court erred by relying on Dent and McFarland analogies | Bermudez: Dent and McFarland are distinguishable; record may hide harms requiring hearing | State: Dent and McFarland support resolution from record where co-counsel and judge remedied hearing problems | Court: found Dent analogous and McFarland supports rejection of Burdine-type presumption when co-counsel is available |
Key Cases Cited
- Cronic v. United States, 466 U.S. 648 (presumption of prejudice when counsel is absent or constructively absent)
- Strickland v. Washington, 466 U.S. 668 (two-prong standard for ineffective assistance of counsel)
- Bell v. Cone, 535 U.S. 685 (identifies contexts where prejudice may be presumed)
- Burdine v. Johnson, 262 F.3d 336 (5th Cir.) (unconscious or sleeping counsel equated to constructive absence)
- Tippins v. Walker, 77 F.3d 683 (2d Cir.) (record may hide prejudice from counsel incapacitation; trial judge interventions may not cure)
- Gonzalez v. State, 304 S.W.3d 838 (Tex. Crim. App.) (standards for when hearing on motion for new trial is required)
- Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App.) (trial judge must grant hearing if motion raises matters not determinable from the record and reasonable grounds)
- Ex parte McFarland, 163 S.W.3d 743 (Tex. Crim. App.) (Burdine rule inapplicable where co-counsel is awake and available)