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Date: 08-12-2019

Case Style:

Michael Reshkovsky v. The State of Texas

Case Number: 01-18-00259-CR

Judge: Peter Kelly

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Clinton A. Morgan

Defendant's Attorney: Scott Christopher Pope
Melissa Martin

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In 2016, Reshkovsky pleaded guilty to robbery, and the court deferred
adjudication of his guilt for five years while he served community supervision. In
2017, the State filed a motion to adjudicate guilt, alleging that Reshkovsky had
robbed Hieu Tran at gunpoint in a store parking lot. He pleaded “not true” to the
allegation, and the court held a hearing. At the hearing, Tran and the responding
officer testified. Tran testified that he was walking out of a store with his parents
when Reshkovsky pulled up in a car and asked for directions. Reshkovsky then
showed him a gun and demanded his cell phone. Tran gave him the cell phone and
went inside the store for help. The responding officer testified that the cell phone
was found at Reshkovsky’s house moments after the incident. When the officer
arrived, the car Tran had described was in Reshkovsky’s driveway. When the officer
and Reshkovsky returned to the parking lot, Tran identified Reshkovsky as the
person who had robbed him. The defense did not put on any witnesses or offer any
evidence. The court found that Reshkovsky had violated the conditions of his
community supervision by committing another offense, adjudicated him guilty of
the original offense, and sentenced him to 18 years’ imprisonment.
Reshkovsky filed a motion for new trial based on ineffective assistance of
counsel. He alleged that his counsel was ineffective for failing to seek out and
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present mitigating evidence. After a hearing, the court denied the motion.
Reshkovsky appealed.
Ineffective Assistance of Counsel
In his sole issue, Reshkovsky contends that the trial court abused its discretion
in denying his motion for new trial based on ineffective assistance of counsel. He
argues that his counsel was ineffective for failing to pursue information related to a
2013 incident in which Reshkovsky was sexually assaulted by a teacher, for failing
to seek an independent psychological evaluation once he was aware of the assault,
and for failing to present character witnesses who could attest to his behavior before
and after the assault. He argues that had this information been presented to the court,
he would have received a lighter sentence.
Reshkovsky submitted to an independent psychological examination before
the hearing on his motion for new trial, and the report was admitted into evidence
during the hearing. He also included records related to the sexual assault and
affidavits from trial counsel, family members, and friends. His trial counsel testified
at the hearing, and appellate counsel described the affidavits in detail for the court.
The same judge who adjudicated Reshkovsky’s guilt heard and denied the motion
for new trial.
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A. Standard of Review
We review a trial court’s ruling on a motion for new trial after a hearing under
an abuse of discretion standard. Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d). We view the evidence in the light most
favorable to the trial court’s ruling and uphold the trial court’s ruling if it was within
the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.
Crim. App. 2004). We do not substitute our judgment for that of the trial court, but
rather we decide whether the trial court’s decision was arbitrary or unreasonable.
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Biagas, 177 S.W.3d at
170. A trial court abuses its discretion in denying a motion for new trial only when
no reasonable view of the record could support its ruling. Webb, 232 S.W.3d at 112.
We evaluate claims of ineffective assistance of counsel under the analytical
framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, an appellant must show both that (1) counsel’s performance fell below
an objective standard of reasonableness and (2) but for counsel’s unprofessional
error, there is a reasonable probability that the result of the proceeding would have
been different. Id. at 688, 694; Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim.
App. 1992). Strickland defines reasonable probability as a “probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694.
5

In reviewing whether trial counsel conducted an adequate investigation for
potential mitigating evidence, we focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of Reshkovsky’s
background was reasonable. See Goody v. State, 433 S.W.3d 74, 81 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d). “Counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. Counsel can make a reasonable decision
to forgo presentation of mitigating evidence only after evaluating available
testimony and determining that it would not be helpful. See Goody, 433 S.W.3d at
81–82 (quoting Wiggins v. Smith, 539 U.S. 510, 533 (2003)). An attorney’s decision
not to investigate is given a “heavy measure of deference” and assessed in light of
all circumstances to determine whether reasonable professional judgment would
support the decision. Id.
In addition to demonstrating that counsel’s performance was deficient, the
appellant must also show that a reasonable probability exists that the factfinder’s
assessment of punishment would have been less severe in the absence of the deficient
performance. Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d). We accord “almost total deference to a trial court’s findings of
historical fact as well as mixed questions of law and fact that turn on an evaluation
of credibility and demeanor.” Riley v. State, 378 S.W.3d 453, 456 (Tex. Crim. App.
6

2012) overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim.
App. 2018). When the trial judge who presided over a motion for new trial also
presided over the trial itself, we presume that the judge knew how evidence admitted
at the motion for new trial would have affected his ruling on punishment. See Smith
v. State, 286 S.W.3d 333, 344–45 (Tex. Crim. App. 2009); Goody, 433 S.W.3d at
81.
B. Analysis
We need not reach the question of whether trial counsel erred because
Reshkovsky has not established prejudice. See Strickland, 466 U.S. at 694. The same
judge who presided over Reshkovsky’s adjudication hearing and levied punishment
heard his motion for new trial. All of the documents which Reshkovsky’s trial
counsel purportedly should have discovered were included in the record at the
motion for new trial. At the hearing, Reshkovsky’s trial counsel testified, and his
appellate counsel discussed the exhibits in detail. We note that Reshkovsky’s new
trial evidence consisted of sworn declarations from family and friends. However, a
trial court is under no obligation to accept as true testimony, even if unrebutted,
offered at a hearing on a motion for new trial. See Gaston v. State, 136 S.W.3d 315,
322 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). We presume from the trial
court’s denial of the motion that the documents and testimony, even if discovered,
would not have affected the court’s decision on sentencing. See Smith, 286 S.W.3d
7

at 344–45; Goody, 433 S.W.3d at 81.* We hold that Reshkovsky has failed to show
that he was prejudiced by his attorney’s failure to produce the documents or
witnesses at his punishment hearing. We overrule his sole issue.

Outcome: We affirm the judgment of the trial court.

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