Louis Ivan Aviles v. State

Affirmed and Memorandum Opinion filed August 22, 2006 Affirmed and Memorandum Opinion filed August 22, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00219-CR ____________ LOUIS IVAN AVILES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th Criminal District Court Harris County, Texas Trial Court Cause No. 971,688 M E M O R A N D U M  O P I N I O N Appellant, Louis Ivan Aviles, was convicted by a jury of sexually assaulting a child and was sentenced to twenty-five years in prison by the trial court. Appellant raises four points of error to this Court. In points of error one, three, and four, appellant contends he was denied the right to the effective assistance of counsel. In his second point of error, he claims the trial court erred by permitting testimony about extraneous matters prejudicial to his case. We affirm. Prejudicial Testimony Appellant, in his second point of error, complains about the following testimony from Matthew Dexter, the investigating police officer in this case: Prosecutor: Did you have any further contact with this case? Dexter: I spoke with Officer Yanez again after he apprehended the Defendant, and it was agreed that it would probably be in our best interest not to interview the Defendant. Prosecutor: Why is that? Dexter: Because of experience we had with the Defendant. Appellant argues this testimony invites the jury to speculate about facts not presented at trial.[1] He claims Athis testimony causes the jury to speculate as to what the officers are talking about@ and that the State willfully calculated the ill effects of this adverse speculation. Appellant contends this testimony Aleaves an unmistakable mark of guilt that destroys [his] presumption of innocense [sic]. . . .@ Appellant did not object to this testimony. To preserve error for appellate review, an appellant must have made a timely, specific objection and received a ruling or a refusal to rule from the trial court. Tex. R. App. P. 33.1(a). The complaining party must have identified the grounds of the objection with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Id. Even constitutional error can be waived by the failure to object. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Because appellant did not object to this testimony, he has failed to preserve this error for our review. We overrule appellant=s second point of error. Ineffective Assistance of Counsel In appellant=s first, third, and fourth points of error, he claims he was denied effective assistance of counsel when (1) his trial attorney failed to object to Officer Dexter=s opinion testimony that the complainant=s injuries were consistent with a sexual assault, (2) his trial attorney failed to object to Officer Dexter=s testimony that it was best not to interview appellant A[b]ecause of experience we had with the Defendant,@ and (3) his trial attorney extracted evidence about appellant=s gang involvement, opening the door for the State=s damaging cross-examination. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove a claim of ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his trial counsel=s representation was deficient, in that it fell below an objective standard of professional norms. Id.; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). An appellant must also show this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice may be proven with less than a preponderance of the evidence by showing a reasonable probability exists that, but for his counsel=s unprofessional errors, the proceeding=s result would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; Bone, 77 S.W.3d at 833. There is a strong presumption an attorney=s actions at trial were reasonably professional and motivated by sound trial strategy. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). An appellant must rebut this presumption on appeal. Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). A finding of ineffectiveness cannot be supported by second‑guessing an attorney=s trial strategy through hindsight or by the fact that another attorney might have pursued a different course. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Storr v. State, 126 S.W.3d 647, 651 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). Instead, the alleged ineffectiveness must be firmly founded in the record. Bone, 77 S.W.3d at 835; Wade v. State, 164 S.W.3d 788, 795B96 (Tex. App.CHouston [14th Dist.] 2005, no pet.). In the absence of a record explaining trial counsel=s actions, a reviewing court generally cannot find deficient performance unless the attorney=s conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). When evaluating an allegation of ineffective assistance, an appellate court looks to the totality of the representation and to the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). If an appellant fails to satisfy either the deficiency or the prejudice prong of the Strickland test, we do not need to consider the remaining prong. Strickland, 466 U.S. at 697. Dexter=s Testimony that the Injuries were Consistent with a Sexual Assault In his first point of error, appellant complains of his trial counsel=s failure to object to Officer Dexter=s opinion testimony that the complainant=s injuries were consistent with sexual assault. At trial, Officer Dexter testified about the progress of his early investigation into this case. He learned that a medical exam was performed on the complainant the day after the sexual assault. He reviewed this medical report and interviewed the doctor who performed the exam. Appellant contends he received ineffective assistance of counsel when his trial attorney did not object to the following testimony: Prosecutor: Based on the records that you reviewed, the medical records, in your opinion, were the complainant=s injuries consistent with what B with a sexual assault? Officer Dexter: Yes, ma=am. Although defense counsel did not object to this testimony, he addressed it during cross-examination, when he had Officer Dexter admit that he has no medical training or no special scientific background, and that he is not qualified to make medical conclusions by reviewing a doctor=s report.[2] Officer Dexter also conceded it is Afair to say@ that the injuries in the medical report could be consistent with a rougher variety of consensual sex. On re-direct examination, the State established that the victim=s age at the time of the assault (fourteen years old) made it impossible to consent to any sexual activity with appellant, who was twenty-one at the time. Appellant=s attorney never objected during this testimony and never requested to see the medical report. Appellant argues his attorney should not have allowed this witness to give an expert opinion about documents not in evidence that allegedly were never verified as reports of the complainant=s exam. He argues this error totally undermined his case of actual innocence because it was imperative appellant=s counsel attack all evidence supporting the State=s case. Later, John Patlan, the doctor who conducted the complainant=s sex abuse exam, testified he discovered small tears in the complainant=s hymen and vaginal tissues, redness and inflammation of the tissues in that area, and a relatively fresh scratch on her left upper chest (the complainant had already testified this happened as appellant held her down). Dr. Patlan stated these injuries Aappeared to be signs of some forceful penetration.@ On cross-examination, defense counsel again elicited testimony that the exam alone could not reveal whether the forceful penetration was from consensual sex. At final argument, appellant=s attorney urged the jury to consider the fact that no DNA evidence linked appellant to this crime.[3] In light of Dr. Patlan=s testimony, we cannot find appellant has satisfied the second prong of the Strickland test. Officer Dexter=s allegedly harmful testimony was reiterated with greater force by the examining physician. Assuming counsel=s failure to object was error, appellant has not shown there is a reasonable probability that, but for this deficiency, the result of trial would have been different, or that this alleged error undermines confidence in the verdict. Navarro, 154 S.W.3d at 799. We overrule appellant=s first point of error. Dexter=s Testimony about Prior Experience with Appellant In his second point of error, appellant argues his trial counsel should have objected to the same testimony he complains of in point of error two, addressed above. Officer Dexter testified he agreed with Officer Yanez, who was familiar with appellant, Athat it would probably be in our best interest not to interview the Defendant [due to the] experience we had with the Defendant.@ Specifically, appellant argues his trial counsel should have objected to this inadmissible hearsay because it caused the jury to speculate as to what appellant may have done in the past to cause these officers to decide not to question him. Appellant contends this error denied him the right to a fair trial and to his right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. Again, even if counsel=s failure to object amounted to deficient performance under the first prong of the Strickland test, we cannot find appellant has satisfied the prejudice requirement. There is no reasonable probability the result of the trial would have been different without this testimony. The record reveals strong evidence of appellant=s guilt. The complainant testified appellant=s twelve-year-old nephew, a playmate of the complainant=s, found her in their apartment complex=s courtyard talking on a pay phone and asked her to come to his apartment when she was finished. When she came over, appellant tricked her into walking to the back of the apartment by telling her his nephew was in a bedroom; his nephew was not in the apartment. The complainant testified appellant then cornered her and forcefully raped her while she cried and asked him to stop. The complainant was examined the following afternoon by Dr. Patlan, who testified her injuries were consistent with forceful penetration. The complainant=s and appellant=s ages at the time of the assault made it impossible for her to consent to such activity. With regard to the specific harm flowing from this testimony, appellant later testified he had spent time in the Texas Department of Criminal Justice, Institutional Division.[4] This testimony could cast light upon Officer Dexter=s allusion to Aexperience@ with appellant. We find appellant has not met his burden of showing prejudice under Strickland. We overrule appellant=s third point of error. Appellant=s Testimony about Gang Membership Appellant contends in his fourth point of error that his trial counsel=s questioning of him about his gang involvement opened the door to the State=s cross-examination of that involvement. Appellant testified at his trial. During direct examination, his attorney asked whether appellant had ever joined a gang or had ever been in trouble with the law. Appellant testified he joined the Puro Vato Loco (PVL, or Acrazy people@) gang and spent time in various juvenile detention facilities before getting in trouble with the law again and spending fifteen months on a felony charge in the Texas Department of Criminal Justice, Institutional Division. Appellant testified this final incarceration was a Awake-up call@ and, when he was released in 2001,[5] he turned his life around. He stated he had a baby with his girlfriend and opened a repair shop. Before beginning its cross-examination, the State approached the bench and asked to delve further into appellant=s gang membership. The prosecutor said she had a police document showing appellant clearly admitted to gang membership in April of 2003, eight months before the sexual assault in this case. Appellant=s counsel stated the prosecutor had shown him that evidence. The record between appellant=s direct examination and defense counsel=s statement that he had seen this evidence is uninterrupted. The record, therefore, shows appellant=s attorney knew about this evidence prior to his direct examination. During the State=s cross-examination, appellant testified his life changed when he was released from prison, and that he was sure he had stopped hanging out with gang members. When the prosecutor asked, ADo you remember telling the officer [in April of 2003] that you=re a member of the PVL gang?@ appellant replied, AYeah, I remember, but I wasn=t with them at that time.@ Appellant argues most of his negative past would not have been raised at trial without defense counsel=s questioning, including the fact that appellant dropped out of school (appellant also testified he received his GED while detained in juvenile boot camp), and that he was involved with a gang. The record gives minimal insight into defense counsel=s strategy at this point in trial other than his statement that appellant=s testimony on direct shows that, Aif [appellant] changed, it would have been after 2001 when he was released.@ The record reveals no reason, and we can conceive of none, why defense counsel would question appellant about his prior gang membership if he knew the State possessed evidence that appellant admitted to being a PVL gang member eight months before the sexual assault. But even if an appellant shows his attorney=s actions were unreasonable, he must still show the attorney=s error actually had an adverse effect on his defense. Strickland, 466 U.S. at 693. Although appellant admitted that he told a police officer in April of 2003 that he was a gang member, he also testified he was not with them at the time. In light of the strong evidence of appellant=s guilt discussed above, we do not find this testimony sufficient to undermine confidence in the jury=s verdict. Because we can conceive of no reason for defense counsel=s actions does not mean he lacked any sound trial strategy for his actions at the time. We cannot speculate, on this record, that appellant=s trial attorney had no professionally sound reason for his conduct. See Bone, 77 S.W.3d at 836 (AUnder our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.@). The record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Even though this alleged error is one of commission rather than omission, we find this record is inadequate to support appellant=s claim. Appellant=s fourth point of error is overruled.[6] The trial court=s judgment is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed August 22, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] See Berryhill v. State, 501 S.W.2d 86, 87 (Tex. Crim. App. 1973) (finding prosecutor=s reference in closing argument to questions he asked of the defendant, that the defendant had denied, improperly implied the existence of incriminating evidence not before the jury when coupled with the prosecutor=s argument that, although he could not bring those matters to the jury, they should speculate about what those matters might be). [2] Defense counsel continued the cross-examination by asking whether Officer Dexter considered himself qualified to make conclusions based on reading medical reports. Officer Dexter replied, Not with regard to the medical aspect of it, but with regard to what=s consistent with the injuries and the allegations and the circumstances under which they happened. I=ve investigated hundreds of these cases; and in this particular instance, those [injuries] were consistent [with a sexual assault]. [3] His apparent strategy at this point in trial was to show that another person could have caused the complainant=s injuries, as he also established that the complainant dated appellant=s younger brother around the same time as the assault, that appellant=s brother was bigger in size than appellant, and that the complainant also lived with her older brother. [4] Because appellant chose to testify at his trial, the State could have introduced this information under Texas Rule of Evidence 609(a). See Tex. R. Evid. 609(a) (stating that for Athe purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.@). [5] During cross-examination, the prosecutor established appellant was released on March 28, 2002, not in 2001 as he had previously testified. [6] Because appellant did not develop his claim of ineffective assistance of counsel via a motion for new trial, his remedy for developing the error, if any, is by a post conviction writ of habeas corpus. The doctrine generally forbidding a post-conviction writ of habeas corpus on a claim rejected on direct appeal does not apply when the record on direct appeal is insufficient to establish a claim. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997)). In a writ of habeas corpus, there is an Aopportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel=s actions at that juncture of trial.@ Thompson, 9 S.W.3d at 814B15.