Julio Guerra Rodriguez v. State

CR5-242.RODRIGUEZ TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00242-CR Julio Guerra Rodriguez, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 94-844-K368, HONORABLE BURT CARNES, JUDGE PRESIDING A jury found Julio Guerra Rodriguez, appellant, guilty of two counts of aggravated kidnapping and one count of aggravated assault with a deadly weapon. (1) The jury assessed punishment at ninety-nine years in prison for each count of aggravated kidnapping and ten years in prison for aggravated assault. By a sole point of error, appellant contends that he was denied effective assistance of counsel when defense counsel "opened the door" to otherwise inadmissible evidence. We will affirm the trial court's judgment of conviction. To put appellant's point of error in context, and because appellant does not challenge the sufficiency of the evidence supporting his conviction, we briefly review the facts. On April 24, 1994, Meredith Davis, a senior at Southwestern University, was jogging on campus at about 8:30 in the evening. A Hispanic male, whom Davis later identified as similar to appellant, approached her, grabbed her shoulder, and threw her to the ground. The man held her with his arms around her throat and began pulling her toward a car in the parking lot. When Davis screamed, the man put his hand over her mouth and told her to "shut up or die." She escaped, fled to her dormitory, and immediately notified campus police. John Streitman, also a senior, heard Davis' screams and observed a man nearby running to a car later determined to belong to appellant. Victor Mahagan, a Southwestern University police officer, later recovered a digital pager from the crime scene. James Manes, a branch manager for the pager company, identified appellant as the individual who rented the pager from his company. Shortly after Davis' attack, Kathy Trautman was attacked a few blocks away from the scene of Davis' attack. Trautman identified appellant as the individual who followed her, grabbed her, and cut her face and neck with a knife. At trial, Trautman also identified the clothes, a key chain, and a knife as similar to those used by appellant when she was attacked. Later the same day of the two attacks, Laura House saw an individual crawling on the ground at the scene of Davis' attack as if looking for a lost item. She later identified appellant as similar to the individual she saw at the scene of the crime. Following a motion by defense counsel, the trial court suppressed certain of appellant's statements made during a custodial interrogation. The suppressed statements included appellant's confession to committing both aggravated kidnappings and the aggravated assault. The trial court ruled the statements inadmissible because no one informed appellant that he had a right to terminate the interview at any time. At trial, an investigating police officer, Steve Benton, testified for the State. The following exchange occurred during defense counsel's cross-examination of Benton: Defense Counsel: I want to talk about the clothes that were recovered from 1205 Ash [the apartment to which appellant gave his consent to search] and also the vehicle. I want to make it clear that you're not prepared to say that Julio Rodriguez was the one that was wearing those clothes on the 21st, are you? Benton: I can't swear to that other than what he told me. Defense Counsel: Also, with respect to fingerprint evidence, there was a knife that was recovered from 1205 Ash, was there not? Benton: Yes, sir. Defense Counsel: And as far as you know, -- well, actually you were the one who seized it? Benton: Yes, Sir, I was. Defense Counsel: You did not submit that knife for fingerprints did you? Benton: No, Sir, I didn't. Defense Counsel: Was it preserved for fingerprints? Benton: Basically, yes. Defense Counsel: But it was not submitted? It was never tested? Benton: No. Defense Counsel: That would have been very reliable evidence, would it not? Benton: Yes. Defense Counsel: But that wasn't done, was it? Benton: No, sir. Afterward, the State argued that defense counsel had opened the door to further inquiry about appellant's suppressed statements. Particularly, the State contended that the door was opened regarding appellant's statements to Benton about the seized clothes and knife. The trial court ruled that the State could question Benton about appellant's statements regarding these items. Portions of appellant's statements came in as rebuttal evidence regarding the police work related to the clothes and the knife. Appellant contends that because defense counsel opened the door to statements by appellant, he received ineffective assistance of counsel, his conviction should be reversed, and the cause should be remanded for further proceedings. When we review an ineffective assistance of counsel claim, we apply the standard described in Strickland v. Washington, 466 U.S. 668 (1994), and adopted in Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). According to this standard, appellant must demonstrate (1) that counsel made errors so serious that appellant was functionally deprived of the "counsel" guaranteed by the Sixth Amendment; and (2) that but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Appellant bears the burden of proving, by a preponderance of the evidence, ineffective assistance of counsel. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). A reviewing court allows great deference to trial strategy when addressing an ineffective assistance of counsel claim. Strickland, 466 U.S. at 687. Appellant must overcome a strong presumption that counsel's conduct was effective. Id. When reviewing an ineffectiveness claim, we must evaluate the reasonableness of counsel's challenged conduct on the facts of the particular case viewed at the time of the challenged conduct. Id. We assess the adequacy of counsel's assistance by the totality of the representation rather than looking at counsel's isolated acts or omissions. Id. Appellant argues that defense counsel's questioning of Officer Benton cannot be considered sound trial strategy. Appellant argues that defense counsel did not understand or recognize the fact that his questioning opened the door to his inculpatory statements because he continued to argue that the statements were inadmissible because they had been suppressed previously. Appellant contends that defense counsel committed the biggest possible mistake one representing a person accused of a crime could commit by opening the door for the State to bring into evidence previously suppressed confession testimony by the accused. Appellant asserts that, when evaluating defense counsel's performance based upon the two-pronged Strickland standard, but for defense counsel's conduct regarding his cross-examination of Benton, the jury would not have heard any admission of guilt by appellant. Thus, contends appellant, the jury probably would have rendered a different verdict and confidence in the jury's verdict has been undermined. The first prong of Strickland requires appellant to show that his representation fell below an objective standard of reasonableness. While appellant focuses on the single act of defense counsel's opening the door to statements by appellant, we must review the totality of the representation afforded appellant at trial. Carr v. State, 694 S.W.2d 123, 126 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd). When doing so, we conclude that the trial was professionally managed by defense counsel. The witnesses were adequately cross-examined and defense counsel concentrated on the perceived failure of the State to prove specific portions of its case in an effort to raise reasonable doubt in the minds of the jurors about appellant's guilt. Though defense counsel may have made a mistake when embarking on the particular line of questioning with Benton, we hold that such mistake, if any, did not reduce the overall quality of the representation below an objective standard of reasonableness. We cannot help but note that defense counsel was faced with overwhelming direct evidence connecting appellant to the crime. Although his cross-examination of Benton was risky, defense counsel might very well have considered that it was the only possible way to obtain an acquittal. When viewed in its entirety, with the proper degree of deference necessary to eliminate the distorting effects of hindsight, counsel's representation of appellant was reasonably effective. Strickland, 466 U.S. at 689. Even if defense counsel's representation fell below the standard, there is no showing that it prejudiced the defense such that appellant's representation was fundamentally unfair or unreliable. Defense counsel pursued several pretrial motions, had five potential jurors struck for cause, challenged witnesses' testimony, and consistently sought to raise a reasonable doubt. Additionally, circumstantial evidence other than appellant's admission existed that supported the jury's guilty verdict. Accordingly, appellant has failed to show a reasonable probability that, but for counsel's errors, the result of this proceeding would have been different. Id. We overrule appellant's sole point of error and affirm the trial court's judgment of conviction. Jimmy Carroll, Chief Justice Before Chief Justice Carroll, Justices Aboussie and Kidd Affirmed Filed: July 17, 1996 Do Not Publish 1. Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883 (aggravated kidnapping, Tex. Penal Code Ann. § 20.04, since amended), and Act of May 27, 1991, 72nd Leg., R.S., ch. 903, § 1, 1991 Tex. Gen. Laws 3238 (aggravated assault with a deadly weapon, Tex. Penal Code Ann. 22.02, since amended). ong presumption that counsel's conduct was effective. Id. When reviewing an ineffectiveness claim, we must evaluate the reasonableness of counsel's challenged conduct on the facts of the particular case viewed at the time of the challenged conduct. Id. We assess the adequacy of counsel's assistance by the totality of the representation rather than looking at counsel's isolated acts or omissions. Id.