Joe Cepeda Lopez v. State

Opinion issued October 2, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00888-CR JOE CEPEDA LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1049001 MEMORANDUM OPINION Appellant, Joe Cepeda Lopez, was charged by indictment with the offense of aggravated robbery, enhanced by two prior felony convictions. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). Appellant pleaded not guilty to the primary offense and pleaded “true” to the enhancements. A jury found him guilty as charged, found the enhancements true, and assessed punishment at 57 years’ confinement. In his sole issue, appellant contends that he was denied his Sixth Amendment right to effective assistance of counsel at trial based on his trial counsel’s failure to (1) conduct a sufficient voir dire; (2) failure to make an opening statement; (3) failure to file a motion to suppress photographic identification; (4) failure to make objections to the parties charge; (5) failure to preserve valuable evidence; and (6) making prejudicial statements, including calling the appellant a “criminal” during counsel’s punishment phase argument. We affirm. Background On November 15, 2005, Jason Lee was alone at his parents’ home on Shadymist Drive in Houston when the doorbell rang. Lee saw a Hispanic man standing outside his door, holding up a piece of paper that covered his face. When Lee opened the door, the man came into the house and pointed a firearm at Lee. A struggle ensued and another man entered the house. Lee was struck in the back of his head and forced to the floor. The men covered Lee’s face with a shirt, tied him up, and demanded money. One of the men received a telephone call, then both of the men ran out of the house through the back door. Lee testified that he only saw two men in the house, but that it seemed that there were more than two men involved. The next-door neighbor, Mahdieh Dabibi, had been sitting in her house watching television when she heard the sound of tires screeching to a halt outside. Dabibi looked out and saw a black car parked in Lee’s driveway with three men inside. She saw two of the men get out of the car and approach Lee’s home. The driver remained in the car. Dabibi could hear slamming and banging going on at the Lee house, and she called 9-1-1. When Officer C. D’Agostino of the Houston Police Department (“HPD”) arrived, he found Lee lying on the floor with his hands bound. Officer D’Angostino testified that Lee reported that there were three men involved. A large perimeter was secured around the neighborhood. Officer M. Rooney of HPD found one of the men, later identified as Felix Leonardo Hernandez, hiding behind some bushes. Officer Rooney later discovered a fully loaded .38 caliber revolver in the bushes where Hernandez had been hiding. Officer R.L. Mason of HPD found a second man, later identified as Wainer Renteria, also hiding in some bushes. Officer Mason’s police dog extracted Renteria from the bushes and then alerted on a baseball cap, a cellular telephone, and a loaded firearm in the same area. Dabibi identified Hernandez and Renteria as two of the men she had seen at the Lee home that morning. After speaking with Hernandez and Renteria, the police began investigating appellant. The police located the car that had been used by the assailants, a 1995 Nissan Maxima, and determined that it was owned by a person named Sergio Madrigal at 10110 Forum Park in Houston. The police also found “lab paperwork” in the glove box that contained appellant’s name and the same address that appeared on the vehicle registration. Appellant was arrested while driving a black Lincoln Navigator, which was also registered to Sergio Madrigal. Initially, appellant falsely identified himself to police as “Carlos Porto Correra” and gave a false date of birth. Dabibi identified appellant out of a live lineup. In addition, Lee identified appellant from a photo array. Three police dogs made positive alerts on scent traces that were taken from the vehicle found at the scene of the robbery and from appellant after his arrest. Appellant was charged with the offense of aggravated robbery and trial was set. The first trial resulted in a mistrial, and appellant was appointed new counsel for his second trial. At the second trial, a jury convicted appellant and assessed punishment at confinement for 57 years. There was not a motion for new trial. This appeal followed. Ineffective Assistance of Counsel In his sole issue, appellant contends that he was denied effective assistance of counsel at the guilt/innocence and punishment phases of trial. A. Standard of Review Appellant is entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. 2068. To prevail, appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. See Robertson, 187 S.W.3d at 482–83; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). A failure to make a showing under either prong defeats a claim of ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (emphasis added). As the reviewing court, we look to the totality of the representation and to the circumstances of the case, not to isolated errors. Robertson, 187 S.W.3d at 483–84. We must consider the adequacy of assistance as viewed at the time of trial, not through hindsight. Id. at 482. Each representation must be judged on its own merits under the circumstances in which it occurs and may not be determined by hindsight comparison with how other counsel might have tried the case. Pryor v. State, 719 S.W.2d 628, 633 (Tex. App.—Dallas 1986, pet. ref’d), cert. denied, 485 U.S. 1036, 108 S. Ct. 1599 (1988). “Each trial, even a retrial, is unique: witnesses testify differently, the jury is different, and as in this case, even the judge may not be the same.” Id. Thus, each trial offers unique challenges, requiring different strategies by each trial counsel, and we will evaluate counsel’s performance by the totality of his representation in the second trial only. Id. Additionally, we cannot speculate as to the reasons supporting counsel’s behavior. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Allegations of ineffectiveness must be firmly founded in the record. Id. at 833 & n.13. Ordinarily, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions. Rylander, 101 S.W.3d at 110–11. Thus, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. Id. In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court should not find deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The same standard applies to the review of claims that counsel was ineffective during the punishment phase of trial. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999); Wynkoop v. State, 251 S.W.3d 628, 630 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). B. Voir Dire Appellant first contends that his trial counsel failed to conduct a sufficient voir dire. Specifically, appellant contends that his counsel “mentioned general issues,” covered “ten topics in twelve minutes,” and additionally never used the topics he presented as a means of educating the panelists or discovering their views in order to make informed use of his challenges and strikes. In making this contention, appellant attempts to compare the conduct of his counsel at his retrial with the conduct of his counsel during his first trial. We must evaluate counsel’s performance by the totality of his representation in the second trial only. See Pryor, 719 S.W.2d at 633. The actions of appellant’s counsel during his first trial will not be used to determine the ineffectiveness of appellant’s counsel during his retrial. See id. In Jackson v. State, the court of criminal appeals held that a “ten minute voir dire” by defense counsel does not render assistance of counsel per se ineffective. 491 S.W.2d 155, 155–56 (Tex. Crim. App. 1973). The court reasoned that the length of a voir dire examination can be dictated by trial strategy. Id. at 156. Additionally, in Leija v. State, we determined that defense counsel was not ineffective on the basis of the brevity of his voir dire because the record demonstrated that counsel’s voir dire followed a 40-minute examination by the State, during which the State explained the burden of proof; that jurors must be fair and impartial; that jurors may choose to believe or disbelieve any portion of the testimony; and that jurors may not consider whether the defendant testifies. No. 01-06-00063-CR, 2006 WL 3751434, at *4 (Tex. App.—Houston [1st Dist.] Dec. 21, 2006, no pet.) (mem. op., not designated for publication). In addition, the trial court fully educated and admonished the panel on several issues. Id. Defense counsel further questioned the venire members regarding whether any had been crime victims, their ability to consider the full range of punishment, and the weight given to police testimony. Id. Here, similar to Leija, appellant’s counsel’s voir dire followed a thorough explanation by the trial court, which took up the first half of the day, and included thorough explanations of the process of voir dire, the presumption of innocence, and burdens of proof. The trial court also questioned the veniremembers regarding their personal experiences regarding relevant issues. The State conducted a 30-minute voir dire, during which it extensively questioned the jury and reiterated the issues previously addressed by the trial court. Defense counsel’s voir dire included a discussion of police officer testimony, defendant’s failure to testify, and eyewitness testimony. Here, as in Jackson and Leija, appellant has not shown that his counsel was ineffective based on the mere brevity of voir dire. Additionally, appellant does not specify what should have been asked or show how a failure to ask such questions prejudiced his defense. Nothing in the record shows that defense counsel’s voir dire was the result of an unreasoned strategy or that there was a reasonable probability that it led to an unreliable verdict or unjust punishment. Thus, appellant has not met his burden under Strickland to show that his counsel was ineffective. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. C. Opening Statement Appellant’s second contention is that his counsel was ineffective for having failed to make an opening statement at trial. Appellant again attempts to compare the conduct of his counsel during the first trial with the conduct of different counsel at the second trial. Looking solely at defense counsel’s conduct during the second trial, the decision not to make an opening statement may have been trial strategy. Choosing not to make an opening statement is an inherently tactical decision that is based on the way the trial is unfolding, the strategy employed, and the experience and judgment of the defense attorney along with other factors. Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref’d). Appellant has not shown by a preponderance of the evidence that counsel’s performance was so deficient that it fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. D. Motion to Suppress Appellant next contends that his counsel was ineffective for having failed to move to suppress a photo array from which a witness identified appellant. Appellant contends that, even if the motion had been denied, counsel could have then put on his defense and “at least preserved a sound issue for appeal.” The mere failure to file pretrial motions does not categorically constitute ineffective assistance of counsel. Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref’d). To satisfy his burden under Strickland, appellant must show that a motion to suppress would have been granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Unless appellant shows that a pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion. See id. In his brief on appeal, appellant does not argue any basis for the suppression of the photographic array from which appellant was identified. Appellant has not shown that a motion to suppress the photographic array would have had merit and that it would have been granted. Because appellant has not satisfied his burden to show that a motion to suppress would have been granted, we conclude that appellant has not satisfied his burden under Strickland to show that his counsel was ineffective. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. E. Charge Objections Appellant next contends that his counsel was ineffective for failing to object to the inclusion in the jury charge of an instruction on party liability. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). Under the law of parties, the State is able to enlarge a defendant’s criminal responsibility to include acts in which he may not have been the principal actor. Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996). An instruction should be submitted to the jury when the evidence adduced at trial shows the active participation in the offense by two or more persons. Id. Here, the record shows that the offense was committed by more than one person—with at least three individuals actively participating. Hence, an instruction on the law of parties was warranted. See id. Counsel is not ineffective for having failed to enter a meritless objection. See Riles v. State, 595 S.W.2d 858, 861 (Tex. Crim. App. 1980). Thus, appellant has failed to show that his counsel’s performance fell below an objective standard of reasonableness under the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. F. “Valuable Evidence Lost” Appellant presents his next issue, “Valuable Evidence Lost,” as follows: In the first trial, on cross examination of Officer Nguyen, Appellant’s counsel was able to show that, despite his initial testimony that Mr. Renteria had named Appellant as being with him at the scene of the crime, Officer Nguyen had mis-spoken—he conceded that when he had questioned Renteria, he had not in fact named appellant as being present. . . . The first jury, the hung jury, knew from Officer Nguyen’s testimony on cross examination that Mr. Renteria did not name Appellant as being present at the scene. This issue was not raised during counsel’s cross examination of Officer Nguyen in the second trial, which took only six pages in the record. The State may argue that Mr. Renteria could have been impeached with his subsequent stipulation that he committed the offense ‘along with’ appellant. But counsel at the second trial clearly wanted Mr. Renteria’s testimony; he called him as a witness but made no effort to get his evidence before the jury as previous counsel had been able to do during cross examination. The evidence was lost for this lack of effort. Appellant contends that his trial counsel “might have done several things to try to have this testimony admitted.” The substance of appellant’s contention is not easily discernible. We construe his complaint to be that, apparently, there was testimony by Officer Nguyen in the first trial that Renteria identified appellant as an accomplice and that, later, Officer Nguyen testified the he had mis-spoken. Appellant seems to contend that his counsel at the second trial, the only one that underlies this appeal, was ineffective because he allowed the creation of a false impression that Renteria had identified appellant, when he had not, and that Officer Nguyen should have been cross-examined concerning having mis-spoken at the first trial. Again, we are not permitted to speculate as to what counsel at retrial “might” have done at trial, as compared to counsel in the first trial. Focusing only the testimony that took place at the second trial, as we must, Officer Nguyen did not claim that Hernandez and Renteria named appellant in their interviews. Appellant acknowledges this point in his brief on appeal, but then contends that the “prosecutor’s questioning created that very impression—and defense counsel did nothing to correct it.” Appellant does not direct us to anything in the record to support his conjecture concerning false impressions. Appellant has not met his burden to show that his counsel was ineffective for having failed to question Officer Nguyen about claims that were never made. As such, appellant has not met his burden under prong one of Strickland to show that counsel’s performance fell below an objective standard of reasonableness. Even if we conclude that appellant met his burden under prong one, appellant has not shown that there is a reasonable probability that, but for defense counsel’s conduct, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. G. Statements Made at Punishment Phase Finally, appellant contends that his counsel was ineffective during the punishment phase for having suggested a particular length of punishment to the jury and for having referred to appellant as “a criminal.” Appellant contends that his counsel, in closing, improperly reminded the jury that “the Judge has told you [that appellant will] have to do one half of whatever sentence you give him” and improperly suggested that “40 years would probably be appropriate.” Appellant complains that these statements effectively invited the jury to violate its instructions. The record shows that the prosecution asked for punishment of 99 years’ confinement and that the jury ultimately assessed punishment at 57 years. Appellant does not cite any authority that indicates that defense counsel’s suggestion of 40 years—a punishment that fell within the range of punishment for the offense and well below that which the State requested—constituted ineffective assistance of counsel. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2008) (stating range of punishment for first degree felony enhanced by two prior felony convictions is confinement for life or for any term not more than 99 years or less than 25 years). Appellant has not shown that counsel’s performance fell below an objective standard of reasonableness under the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Appellant further contends that his counsel inappropriately referred to him as a “criminal,” that such reference constituted a “dereliction of [his] duty” to appellant, and that such reference prejudiced the outcome of appellant’s trial. Generally, the record on direct appeal is undeveloped and does not adequately reflect the motives behind the trial counsel’s conduct. Rylander, 101 S.W.3d at 110–11. As such, trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Id. Here, appellant did not file a motion for new trial, during which the record might have been developed on this point. Appellant contends that a motion for new trial was not necessary in this case because “appellant’s allegations of ineffective assistance of counsel are firmly founded and affirmatively demonstrated.” The record shows that appellant stipulated to having committed aggravated robbery in 1994 and to having a deadly weapon in a penal institution in year 2000. These are the convictions that the State used to enhance appellant’s punishment and to which appellant pleaded “true.” At punishment, appellant testified, both on direct and on cross-examination, to the circumstances surrounding these convictions. Subsequently, in closing, appellant’s counsel acknowledged that appellant is “a criminal,” but counsel also asked the jury to consider appellant’s testimony suggesting that the robbery was actually “a debt collection” involving another drug dealer, that nobody had been killed, and that appellant had served out his sentence. In Yarborough v. Gentry, the United States Supreme Court refused to find defense counsel ineffective when he referred to his client as a “bad person, lousy drug addict, stinking thief [and a] jail bird.” 540 U.S. 1, 6, 124 S. Ct. 1, 9 (2003). The Court found defense counsel’s statements to be a calculated risk that went to the heart of an advocate’s discretion and further by “candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case.” Id. at 6–7, 124 S. Ct. 9–11. We conclude that appellant has not demonstrated that his counsel was deficient in his performance by attempting to mitigate the punishment appellant received. After reviewing the totality of defense counsel’s representation at the time of the second trial only and employing the strong presumption that counsel’s conduct might reasonably be considered sound trial strategy, as we must, we conclude that appellant has not met his burden under Strickland to show that his counsel was ineffective. We overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Nuchia and Higley. Do not publish. See Tex. R. App. P. 47.2(b).