Adrian Mora Charles v. State

Affirmed and Memorandum Opinion filed February 22, 2007 Affirmed and Memorandum Opinion filed February 22, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-05-01190-CR ____________ ADRIAN MORA CHARLES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1309127 M E M O R A N D U M   O P I N I O N Appellant Adrian Mora Charles appeals his conviction for bigamy, contending he received ineffective assistance of counsel during the guilt-innocence and punishment phases of his trial. We affirm. I. Factual and Procedural Background In 1998, appellant lawfully married Alma Charles (AAlma@) in Mexico, and the couple subsequently moved to Harris County, Texas. In 2004, after developing a relationship with Anna Martinez (AAnna@), appellant and Anna obtained a marriage license and were married. Appellant was subsequently charged with bigamy. During the guilt-innocence phase of appellant=s non-jury trial, the State introduced certified copies of the marriage licenses both from appellant=s prior marriage to Alma and his subsequent marriage to Anna. The State then called Anna as its first witness. Anna testified that she knew appellant was married to Alma, but did not know that this marriage would invalidate her later marriage to appellant. On cross-examination, appellant=s counsel asked Anna one question: AIs the reason why you got married to the Defendant is because youCit was your belief that the Mexican marriage was not valid in the U.S.?@ Anna replied, AYes.@ The State next called Alma, who testified that she did not know about appellant=s marriage to Anna until he informed her on December 31, 2004 that he was leaving her because he had married Anna some two months prior. Alma further stated that appellant does not help raise their three young children, other than providing financial assistance and visiting them on weekends. Alma concluded her testimony by alleging that, despite her repeated attempts to obtain a divorce, appellant refused to sign any divorce papers until she Ag[ot] the charges dismissed.@ She added that, on the day of trial, appellant told her to leave the courthouse and avoid testifying so the State would dismiss the charges. Appellant=s counsel did not cross-examine Alma. The State and defense then rested. During closing argument, appellant=s counsel announced, AIt is the defense of this prosecution that he reasonably believed that he was divorced . . . .@ He contended that neither appellant nor Anna thought the marriage to Alma in Mexico transferred to the United States, and, thus, both reasonably believed the marriage had in essence ended in divorce. Counsel argued that both appellant=s conductCpaying child support and regularly visiting the childrenCand Anna=s testimony demonstrated their reasonable beliefs regarding the presumed divorce. Appellant=s counsel also explained that appellant=s failure to sign divorce papers after Alma=s repeated requests further evidenced such belief. Despite appellant=s contentions, the court found him guilty of bigamy. At the punishment phase, appellant=s counsel called appellant as the sole witness and asked him only whether he had previously been convicted of a felony or put on felony probation; appellant responded negatively. On cross-examination, when the State questioned appellant about whether he told Alma to leave the trial proceedings and thus compel the State to dismiss the case, appellant replied, AI cannot answer that question because I could get myself into more trouble.@ Appellant=s counsel did not conduct a redirect examination of appellant or offer any further mitigating evidence. The court thereafter imposed the maximum sentence for bigamy, stating that it did so because appellant attempted to Acommit fraud on the Court@ by telling his wife to avoid testifying and by refusing to agree to a divorce until his wife helped him obtain a dismissal of the charges, conduct the court found Areprehensible.@ Appellant thereafter timely filed a direct appeal. On appeal, appellant complains his counsel provided ineffective assistance by (1) deficiently cross-examining Anna, (2) failing to cross-examine Alma, and (3) calling appellant as a witness during the punishment phase. II. Standard of Review Ineffective assistance of counsel claims are governed by the two‑pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). We similarly apply the Strickland test when reviewing allegations of ineffective assistance during non‑capital punishment proceedings. Gholson v. State, 5 S.W.3d 266, 272B73 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). To prove ineffective assistance, appellant must show by a preponderance of the evidence (1) that counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). A Strickland claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. AThis is true with regard to the question of deficient performanceCin which counsel=s conduct is reviewed with great deference, without the distorting effects of hindsightCwhere counsel=s reasons for failing to do something do not appear in the record.@ Id. (footnotes omitted). Absent an opportunity for a trial attorney to explain his actions, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Id. III. Analysis A. Guilt-Innocence Phase Appellant first complains that his counsel deficiently cross-examined Anna by asking a single, self-damaging question: whether she married appellant because she believed appellant=s marriage to Alma in Mexico to be invalid. He contends the question damaged his defense by acknowledging the marriage to Anna and Aloosely implying that Appellant was not guilty because he was ignorant of the law,@ a defense Ano learned trial court [would] accept.@ Appellant next argues that his counsel acted deficiently in failing to cross-examine Alma. He asserts that such failure left unchallenged Alma=s entire incriminating testimony, notably, the allegation that appellant attempted to coerce her into helping him obtain a dismissal of his case. Because the record does not reveal trial counsel=s strategy behind these decisions, appellant has failed to rebut the strong presumption that his counsel acted reasonably. See Green v. State, 191 S.W.3d 888, 894B95 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d); Tello v. State, 138 S.W.3d 487, 495B96 (Tex. App.CHouston [14th Dist.]), aff=d, 180 S.W.3d 150 (Tex. Crim. App. 2005). Moreover, even under this undeveloped record, we do not find trial counsel=s actions so outrageous that no competent attorney would have so performed, either as to his cross of Anna or failure to cross Alma. That counsel=s cross-examination question of Anna acknowledged the bigamous marriage does not render the examination deficient because the record already contained evidence of the marriage, namely the marriage license. See Guevara v. State, 4 S.W.3d 771, 781 (Tex. App.CSan Antonio 1999, no pet.) (holding that counsel=s failure to object when prosecutors asked defense=s character witness if he had heard that appellant was gang member did not constitute ineffective assistance because record already contained numerous references to gang membership). Further, with that question, trial counsel could have sought to bolster the principal defensive theory that appellant reasonably believed he had divorced Alma and could thus legally marry Anna. Contrary to appellant=s assertion, the Penal Code expressly provides for such a defense; therefore, it was not outrageous for his counsel to present this defensive theory at trial. See Tex. Penal Code Ann. ' 25.01(c) (Vernon 2005); see also Young v. State, 991 S.W.2d 835, 837B38 (Tex. Crim. App. 1999) (holding that when applying Strickland test, appellate courts should not second guess trial counsel=s tactical decisions not falling below objective standard of reasonableness, especially where decision in question concerns presentation of defense). We also do not find trial counsel=s decision not to cross-examine Alma outrageous. Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial. Ex Parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Unless there is a good basis on which to cross-examine, it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of his testimony. Id. It is frequently a sound trial strategy not to attack a sympathetic witness without very strong grounds for impeachment. See id. Here, appellant=s counsel may have abstained from cross-examining Alma for a variety of valid reasons. He may have sought to minimize the impact of Alma=s damaging testimony regarding appellant=s attempts to coerce Alma into getting his case dismissed by avoiding cross altogether. He also may have considered AlmaCa mother left by an unfaithful husband on New Year=s Eve to raise three young childrenCa sympathetic witness to avoid assailing on cross. Accordingly, because appellant has failed to rebut the strong presumption that counsel made the above decisions in the exercise of reasonable professional judgment, we hold that the above conduct did not constitute ineffective assistance. B. Punishment Phase Appellant finally argues that his counsel acted deficiently in calling him as a witness during the punishment phase of trial. He asserts that trial counsel had no conceivable reason to call him to ask only whether he had prior felony convictions because such information already appeared on record in a pretrial motion for community supervision. Thus, appellant reasons, his testifying only served to expose him to further damage on cross-examination, particularly about his attempted coercion of Alma. As in our above analysis, because the record does not reveal his counsel=s rationale in calling appellant during punishment, appellant has similarly failed to rebut the presumption his counsel acted with reasonable professional judgment. See Tello, 138 S.W.3d at 495B96. Indeed, the decision to testify or not is absolute and belongs to the appellant, and the record does not show whether counsel advised, or appellant asserted, that he should testify. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, ' 10; Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). Thus, the record does not reveal whether it was counsel=s conduct that in fact exposed appellant to cross-examination. See Escobedo v. State, 6 S.W.3d 1, 10B11 (Tex. App.CSan Antonio 1999, pet. ref=d) (declining to find ineffective assistance of counsel where defendant testified during punishment phase because record did not divulge why defendant testified or whose decision it was for him to testify); see also Hammond, 942 S.W.2d at 710 (holding that counsel cannot be ineffective for failing to advise appellant to not testify when appellant wishes to testify); cf. Salinas, 163 S.W.3d at 741 (declining to find ineffective assistance where defendant did not testify during punishment phase because record did not divulge whether defendant asserted his right to testify and his counsel failed to protect right). Moreover, we do not find the decision to call appellant as a witness during punishment outrageous on its face. Counsel could have offered appellant=s lack of a criminal record as a relevant, mitigating factor to sentencing, which was proper under the rules. See Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Supp. 2006) (A[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing . . . .@); Sanders v. State, 25 S.W.3d 854, 857 (Tex. App.CHouston [14th Dist.] 2000, pet. dism=d).[1] Finally, even if counsel=s actions were deficient, appellant has failed to demonstrate a reasonable probability that the result would have been different. See Salinas, 163 S.W.3d at 740. While it is true that the trial court explicitly imposed the maximum sentence because appellant attempted to coerce Alma to avoid testifying, Alma had already testified to this effect during the guilt-innocence phase, evidence which the court was entitled to consider. See Duffy v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. 1978). The record does not show that the trial judge relied solely on appellant=s statement during cross-examination, nor has appellant shown by a preponderance of the evidence that but for such statement, the judge would have disregarded his conduct and imposed a lesser sentence. As such, we do not find that appellant=s counsel=s conduct during punishment constituted ineffective assistance. Because we do not find that appellant received ineffective assistance of counsel, we affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed February 22, 2007. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant=s contention that his prior criminal record had already been established in a pretrial motion for community supervision is unavailing. The record reveals that a AMotion for Community Supervision@ was filed on October 29, 2005, the day after the punishment proceeding where appellant=s counsel examined him about his prior criminal record. Therefore, the record does not show that his prior criminal record was established pretrial and, thus, that direct examination to this end needlessly exposed him to damaging cross-examination.