SUE WALKER, Justice.
A jury found Appellant Joe Manuel Diaz guilty of Class A misdemeanor driving while intoxicated
Diaz was arrested for DWI after Northlake Police Officer Chris Loftis observed him speeding and driving erratically. When Officer Loftis approached Diaz's vehicle, he detected a strong odor of alcohol coming from Diaz. Officer Loftis radioed for a backup officer because Diaz was acting aggressively and in a threatening manner. Diaz refused to perform field sobriety tests and also refused to voluntarily provide a breath or blood sample. Based on Diaz's driving and behavior, Officer Loftis obtained a search warrant for Diaz's blood and took him to the hospital for the blood draw.
Diaz's defense counsel filed a motion to suppress arguing that there was no probable cause to support the arrest or the search warrant for Diaz's blood. The same trial judge who signed the search warrant for Diaz's blood also presided over the hearing on the motion to suppress and at trial. After a pretrial hearing, the trial court denied the motion to suppress. At trial, defense counsel continued to object to the probable cause for the arrest and search warrant.
In Diaz's sole point, he argues that he received ineffective assistance of counsel because defense counsel did not pursue a motion to recuse the trial judge or otherwise complain or object that the same judge who had signed the blood warrant also presided over the suppression hearing and the trial.
To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App.2009).
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing
The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, an appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S.Ct. at 2070.
The mere fact that the same judge signed a defendant's search or arrest warrant and then presided in subsequent criminal proceedings does not establish bias. Kemp v. State, 846 S.W.2d 289, 306 (Tex.Crim.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). Judges are often called on to reconsider matters they have previously ruled on. See id. Generally, a judge is not required to be recused based solely on his prior rulings, remarks, or actions. Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim.App.2011). A judge's bias or partiality may be grounds for a recusal motion only if the conduct shows a "`deep-seated favoritism or antagonism that would make fair judgment impossible.'" Id. (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1150, 127 L.Ed.2d 474 (1994)).
Counsel is not required to file futile motions. Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App.1991); Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.-Austin 2007, no pet.). Nor is counsel's failure to file a pretrial motion categorically deemed ineffective assistance of counsel. Madden v. State, 911 S.W.2d 236, 241 (Tex.App.-Waco 1995, pet. ref'd) (holding that counsel was not ineffective for not filing a motion to recuse the judge who presided at trial when the judge had also prosecuted a prior case that was used to enhance the current case). A record that is silent as to defense counsel's trial strategy and provides no explanation of counsel's actions generally will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003); Edwards v. State, 280 S.W.3d 441, 445 (Tex.App.-Fort Worth 2009, pet. ref'd). Defense counsel's performance should not be found deficient
Here, Diaz concedes that "the mere fact that a judge authorized arrest and search warrants involved in a case is not a barrier to that judge presiding over the trial of that case on its merits." But Diaz argues that because his entire case rested on the validity of the search warrant, "[a] reasonable person would necessarily question the judge's impartiality" because a judge would not invalidate a warrant he had authorized. Diaz further argues that defense counsel's failure to pursue a motion to recuse the trial judge cannot be a strategic decision because there was "no hope of success" and "no conceivable scenario in which having the trial judge conduct the hearing would benefit Diaz."
The fact that the validity of the search warrant was Diaz's sole defense has no bearing on whether the trial judge was subject to recusal for bias. As conceded by Diaz, Texas case law makes clear that the fact that the same judge who signed a search warrant also presided over the subsequent proceedings, including a motion to suppress, is not enough to show that the judge acted with the "deep-seated favoritism or antagonism" that would give Diaz's defense counsel cause to pursue a recusal motion. Gaal, 332 S.W.3d at 454; see Kemp, 846 S.W.2d at 306. The trial judge in this case made no comments, remarks, or other indications during the hearing on the motion to suppress or at trial that would cause Diaz's defense counsel to think the judge was biased or prejudiced against Diaz's case and subject to recusal.
Based on the record before us and the strong presumption of reasonable assistance, as well as the absence of any explanation regarding defense counsel's strategy, we cannot say that Diaz has met his burden of showing by a preponderance of the evidence that his counsel's failure to file a motion to recuse the trial court judge or failure to object that the same judge who had signed the blood warrant presided over the suppression hearing and the trial fell below the standard of prevailing professional norms.
Having overruled Diaz's sole point, we affirm the trial court's judgment.
DAUPHINOT, J. filed a concurring opinion.
LEE ANN DAUPHINOT, Justice, concurring.
The trial judge who signed the warrant heard the motion to suppress the fruits of the warrant. In effect, the trial judge heard the appeal from his own action in determining the sufficiency and validity of the affidavit in support of the warrant. Although not called to testify, the trial judge was also a witness to the accuracy of the date and time the warrant was signed and to the identity and authority of the magistrate who signed the warrant.
In the case now before this court, the issue is not that of traditional bias on the part of the trial judge but, rather, as in Duvall, the trial judge's position as a witness and the necessary ramifications of the trial judge's position. Because the majority does not adequately address this significant issue, I must respectfully concur.