Richard Ancira v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00170-CR Richard Ancira, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0974043, HONORABLE BOB PERKINS, JUDGE PRESIDING Appellant Richard Ancira was convicted of the offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(3) (West 1994 & Supp. 1999). The jury assessed appellant's punishment, enhanced by prior felony convictions, at imprisonment for life. On appeal, appellant asserts that the trial court erred in failing to instruct the jury about accomplice witness testimony and in failing to instruct the jury concerning note taking. Appellant also complains that the State knowingly used false testimony and that he was deprived of his constitutional right to effective assistance of trial counsel. In his second point of error, appellant insists that the trial court erred in failing "to properly instruct the jury regarding accomplice witness testimony." Appellant contends that Angelica Lira was an accomplice witness and that the trial judge was required to submit to the jury an accomplice witness charge. The trial court did not err in failing to submit such a charge because there was no objection to the omission nor a request for such a charge. In the absence of an objection to the charge or a request for the desired charge, a trial court does not err in failing to submit a charge on accomplice witness testimony. See Wiley v. State, 632 S.W.2d 746, 748 (Tex. Crim. App. 1982); McCloud v. State, 527 S.W.2d 885, 886-87 (Tex. Crim. App. 1975); Parker v. State, 378 S.W.2d 848, 849 (Tex. Crim. App. 1964); Bacon v. State, 112 S.W.2d 480, (Tex. Crim. App. 1938); Craven v. State, 46 S.W.2d 219, 220 (Tex. Crim. App. 1932). In Harris v. State, 645 S.W.2d 447 (Tex. Crim. App. 1983), cited by appellant, there was a "timely objection to the court's failure to instruct the jury in this regard." Harris, 645 S.W.2d at 454. We overrule appellant's second point of error. In his third point of error, appellant argues that the trial court erred by failing "to properly instruct the jury regarding juror notes, and thus the jurors improperly took notes of the trial." During the trial, the trial court sua sponte stated that he wanted to give the jurors an additional instruction and proceeded to give the jury instruction on their taking notes. The court's instructions were quite abbreviated in comparison to those suggested by the Court of Criminal Appeals. See Johnson v. State, 887 S.W.2d 957, 959-60 (Tex. Crim. App. 1994) (J. Baird concurring); Price v. State, 887 S.W.2d 949, 954-55 (Tex. Crim. App. 1994). However, appellant did not object to the jurors taking notes or to the court's instructions. Appellant has not directed our attention to proof in the record that any of the jurors actually took notes. Furthermore, appellant does not attempt to show that he was harmed in any specific way. His argument is based on speculation. In view of the record, appellant has failed to preserve the claimed error for appellate review. Moreover, he has not shown that jurors, if they took notes, used them during their deliberations. It has been held that the reversal of a conviction is unwarranted when a defendant makes no showing that jurors actually used their notes during deliberation. See Hollins v. State, 571 S.W.2d 873, 883 (Tex. Crim. App. 1978). Appellant's third point of error is overruled. In his fourth point of error, appellant claims that the "State proffered testimony known by the prosecutor to be false." In support of this point appellant quotes from the prosecutor's jury argument: Now I'd like to talk about Ms. Lira's lies. Yes, we called her. We called her to the stand because she was caught with stolen jewelry on her. So what is Ms. Lira going to do. She's going to do one or two things. She's going to say, "Yeah, we burglarized that place." Number two, she's going to give you a whole pack of lies. Ladies and gentlemen, use your reason and common sense, she got up there and lied, lied about just about everything except for the car, I think. Think about it. Appellant argues that the State knew what Lira's testimony would be before they called her to testify, because she had been a witness and testified at appellant's earlier trial. That trial terminated when the jury was unable to reach a verdict. Although the record in this case shows there was an earlier trial which ended with a hung jury, there is nothing in this record to show that Lira testified in the earlier case. Appellant refers us to another record that is not before us for our consideration. In any event, as the prosecutor argued, the evidence showed that Lira and appellant were selling property taken in the recent burglary for which appellant was being tried. Her testimony was relevant to issues necessary to prove the State's case. Neither the State nor defendant need vouch for the credibility of its witnesses and a party may attack the credibility of its own witnesses. See Tex. R. Evid. 607; Russeau v. State, 785 S.W.2d 387, 390 (Tex. Crim. App. 1990). Lira's testimony, if believed by the jury, furnished appellant a complete defense to the charges for which he was being tried. Based on all of the evidence and the inferences to be drawn therefrom, it was legitimate for the State to argue that Lira had lied to the jury. Nevertheless, based on the record it cannot be said that the State knowingly used perjurious testimony. It was not until after the trial, during the hearing of appellant's motion for new trial, that Lira herself suggested that she lied during the trial. At the hearing of the motion for new trial, although at times she invoked her constitutional right against self-incrimination, Lira testified that she and "Pumpkin," not appellant, committed the burglary. Was Lira's testimony on the motion for new trial truthful? The record fails to support appellant's contention that the State knowingly used perjurious testimony to convict appellant. Appellant's fourth point of error is overruled. In his first point of error, appellant complains that his trial counsel was ineffective because of his failure to: (1) request a jury instruction on accomplice witness testimony; (2) request an instruction to guide the jury in considering appellant's explanation for the possession of recently stolen property; and (3) object to the State's offer of extraneous offense evidence. To show ineffective assistance of counsel, appellant must show that: (1) counsel's performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115, 118 (Tex. App.--Austin 1994, pet. ref'd); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance is to be judged by the "totality of representation" provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). In deciding an ineffective-assistance claim, this Court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct--not by hindsight. We must then determine, in light of all the circumstances, whether the acts or omissions are outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. Appellant bears a heavy burden to prove his ineffective assistance claim. Counsel is strongly presumed to have provided adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Id. We must not look at the errors of counsel in a vacuum. As a general rule, isolated instances in the record reflecting errors of omission or commission do not necessarily render counsel's representation ineffective. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992); Ex parte Owens, 860 S.W.2d 727, 729 (Tex. App.--Austin 1993, pet ref'd). For conviction, the State relied upon the inference to be drawn from appellant's possession of and his assertion of ownership of the property stolen in the recent burglary. The State was required by the evidence to rely on this theory for conviction because there were no fingerprints or any other evidence to show that appellant had ever been on the burglarized premises where the property appellant possessed was stolen. However, indisputable evidence proved that appellant pawned, at four different pawn shops, property recently stolen from the residence burglarized. The State offered the testimony of Angelica Lira, a young woman who along with her small children lived with appellant. She testified that she and appellant were at appellant's sister's house and that while appellant was sleeping, she purchased a bag full of jewelry for $1,000 from a man she knew as Pumpkin. Pumpkin was identified by other witnesses as a man named Steve Vallejo. When appellant awakened, he upbraided Lira for spending the money, although it was her money. Appellant and Lira had intended to use the money to move to new living quarters. To recoup the money, both Lira and appellant took the jewelry Lira had purchased and pawned it at several pawn shops. The defense offered the testimony of Lupe Ancira, appellant's mother, and Joel Cantu, appellant's second cousin. They testified they were present and heard Lira purchase the bag of jewelry from Pumpkin, and that appellant, when he awakened, was upset and berated Lira for purchasing the jewelry. Although the record shows that appellant was tried a few days earlier and that a mistrial was declared because the jury was unable to reach a verdict, the reporter's record of that trial is not before us and we do not know what evidence was admitted in that trial. However, it is reasonable to believe that trial counsel was aware of the evidence offered and the result of the first trial. In his opening statement to the jury in this trial, appellant's counsel quite accurately anticipated what the evidence would show. Counsel told the jury that they would hear that Lira had received more than a $1,000 "in a settlement" and that while appellant was asleep, she purchased the jewelry from Pumpkin. He continued, "unfortunately, you know, my client's girl friend purchased this. Yes, the evidence is that [he] pawned this but this does not make [him] a burglar. It makes him someone who hocked something[;] that wasn't too particularly wise. But the State will not be able to prove that, one, he burglarized the house or, two, that he even knew at the time he was in possession of the items of jewelry that he even knew these items were stolen. And, based upon that, I'm sure that you will come back and render a verdict of not guilty." It appears from the record that trial counsel, knowing what the State's evidence would be and knowing that one jury did not reach a verdict based on that evidence, fashioned a plausible defense within the framework of the anticipated evidence. Throughout the trial, counsel consistently followed that defensive theory. Under the defensive theory adopted by counsel, neither appellant nor his accomplice were guilty of burglary. It would have been inconsistent for counsel to have conceded that Lira was an accomplice witness and to have asked for such a charge. Therefore, it would not have been good trial strategy for counsel to have requested an accomplice witness jury charge. Counsel's failure to request an instruction to guide the jury in considering appellant's explanation for his possession of recently stolen property is also understandable in view of the defense theory used. Counsel's theory for defense, which was supported by evidence, was that appellant and Lira did not commit the burglary and did not know that the jewelry they possessed had been stolen. It would have been inconsistent, and therefore it would have weakened the defense theory to have sought such a charge. Equally as important, our reading of the record makes it doubtful that any explanation made by appellant was timely or sufficient to have required the trial court to give such a charge if it had been requested. It may be argued in light of hindsight that counsel should have objected to evidence that appellant claims showed extraneous offenses. However, counsel's failure to do so was consistent with counsel's purposeful defense theory. Counsel was attempting to win over the jury and gain a favorable verdict rather than to provide grounds for points of error on appeal. Objections often offend jurors, and counsel must consider his overall strategy, sometimes foregoing possible objections. Considering the facts and circumstances in this case, counsel had a well-conceived plan with hope for a successful defense based on the result of the first trial when the State's evidence failed to fully persuade the jury to convict appellant. Counsel should not be judged by hindsight. Appellant has failed to show that trial counsel's performance was deficient to the extent that he made such serious errors that he was not functioning effectively as counsel. Counsel's planned strategy should not be condemned. Considering the facts and circumstances of this particular case, counsel's theory and strategy was reasonable. Appellant has failed to rebut the strong presumption that his trial counsel provided adequate assistance and exercised reasonable professional judgment in making the significant decisions relating to appellant's defense. Appellant's first point of error is overruled. The judgment is affirmed. Carl E. F. Dally, Justice Before Justices Jones, Kidd and Dally* Affirmed Filed: March 11, 1999 Do Not Publish * Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). he even knew these items were stolen. And, based upon that, I'm sure that you will come back and render a verdict of not guilty." It appears from the record that trial counsel, knowing what the State's evidence would be and knowing that one jury did not reach a verdict based on that evidence, fashioned a plausible defense within the framework of the anticipated evidence. Throughout the trial, counsel consistently followed that defensive theory. Under the defensive theory adopted by counsel, neither appellant nor his accomplice were guilty of burglary. It would have been inconsistent for counsel to have conceded that Lira was an accomplice witness and to have asked for such a charge. Therefore, it would not have been good trial strategy for counsel to have requested an accomplice witness jury charge. Counsel's failure to request an instruction to guide the jury in considering appellant's explanation for his possession of recently stolen property is also understandable in view of the defense theory used. Counsel's theory for defense, which was supported by evidence, was that appellant and Lira did not commit the burglary and did not know that the jewelry they possessed had been stolen. It would have been inconsistent, and therefore it would have weakened the defense theory to have sought such a charge. Equally as important, our reading of the record makes it doubtful that any explanation made by appellant was timely or sufficient to have required the trial court to give such a charge if it had been requested. It may be argued in light of hindsight that counsel should have objected to evidence that appellant claims showed extraneous offenses. However, counsel's failure to