Jose Angel Romero v. State

Affirmed and Memorandum Opinion filed December 18, 2008 Affirmed and Memorandum Opinion filed December 18, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00657-CR ____________ JOSE ANGEL ROMERO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 21st District Court Washington County, Texas Trial Court Cause No. 14,808 M E M O R A N D U M   O P I N I O N Appellant Jose Angel Romero appeals his conviction for aggravated sexual assault of a child, claiming ineffective assistance of counsel. We affirm. I. Factual and Procedural Background Appellant, an eighteen-year-old male, engaged in several acts of sexual intercourse with the complainant, a twelve-year-old female. The complainant testified that the acts took place at appellant=s house in Navasota, Grimes County, and at her house in Brenham, which is located in Washington County. Appellant admitted to sexual intercourse, but denied that any act took place in Washington County. He was convicted and the jury assessed punishment at eighteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Following his conviction, appellant filed a motion for new trial, but did not raise ineffective assistance of counsel in his motion. II. Issue and Analysis A. Did appellant receive ineffective assistance of counsel? Appellant cites to seven instances during the guilt-innocence phase in which he claims his trial counsel rendered ineffective assistance: (1) failure to make an opening statement, (2) failure to object to alleged hearsay, (3) failure to challenge the voluntariness of appellant=s confession, (4) failure to cross-examine the State=s witnesses, (5) failure to object to extraneous-offense evidence, (6) failure to object to leading questions, and (7) failure to present evidence challenging guilt. He cites to four instances during the punishment phase in which he claims trial counsel rendered ineffective assistance: (1) failure to challenge the admissibility of extraneous-offense evidence, (2) failure to present mitigating evidence, (3) failure to adequately prepare appellant for his testimony, and (4) failure to find witnesses to sponsor appellant=s probation eligibility. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; see Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation was deficient in that it fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the deficiency prejudiced appellant in that there is 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 687, 104 S.Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy, unless that presumption is rebutted. See id. at 813B14; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). When reviewing a claim of ineffective assistance, we look to the totality of the representation and not to isolated instances of error or to only a portion of the trial record to determine whether the accused was denied a fair trial. Thompson, 9 S.W.3d at 813. A claim for ineffective assistance of counsel must be firmly supported in the record. Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002). When, as in this case, there is no evidentiary record developed at a hearing on a motion for new trial, it is difficult to show that trial counsel=s performance was deficient. See id. at 833. Trial counsel may have had a specific strategy for her conduct, and a reviewing court may not speculate on trial counsel=s motives in the face of a silent record. Thompson, 9 S.W.3d at 814. On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 1. Guilt-Innocence Phase a. Failure to make an opening statement In his first sub-issue, appellant contends his counsel was ineffective for failing to make an opening statement. At the conclusion of the State=s opening statement, appellant=s trial counsel indicated that she did not want to make an opening statement at that time. Because an opening statement provides the State a preview of the defense=s strategy, defense counsel may make a tactical decision not to make an opening statement. See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.CFort Worth 1996, no pet.). After the State rested, appellant=s trial counsel stated that she did not wish to make an opening statement, moved for an instructed verdict, and then rested without calling any witnesses. Appellant contends that his trial counsel=s failure to give an opening statement after the close of the State=s evidence constituted ineffective assistance of counsel. In this case, trial counsel indicated during trial that her strategy was to admit the act occurred, but challenge the venue proof. The record is silent as to appellant=s trial counsel=s trial strategy, if any, in electing not to make an opening statement. However, during the State=s case-in-chief, appellant=s confession was played for the jury. In that statement, appellant admitted engaging in the act, but denied it had taken place in Washington County. Appellant=s trial counsel may have made the decision not to make an opening statement because she did not plan to call any witnesses in support of appellant=s defense or because she deemed it more effective not to do so given her evaluation and perceptions in the courtroom. The record does not establish that appellant=s trial counsel=s decision not to make an opening statement was so outrageous that no competent attorney would have done so. b. Failure to object to alleged hearsay Appellant claims he received ineffective assistance of counsel because his trial counsel failed to object to the following alleged hearsay testimony by Brenham Police Officer Lloyd Powell: (1) The complainant=s mother first reported the potential sexual assault to him. (2) The complainant=s father thought the complainant was protecting appellant=s identity by failing to identify him in a photo lineup. (3) The complainant=s description of the encounters with appellant. (4) An investigator from Navasota informed Powell that the complainant had told her that she and appellant had sexual intercourse in Washington County. All of the complained-of testimony was later admitted through the testimony of the complainant and her parents. Although the investigator from Navasota did not testify, the complainant testified that she and appellant had sexual intercourse at the complaintant=s home in Washington County. Trial counsel was ineffective only if a proper objection would have been sustained, trial counsel=s strategy, if any, for not objecting was unsound, and then only if such performance would have resulted in a different outcome at trial. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). While a proper hearsay objection to Officer Powell=s testimony would have been sustained, the same evidence was admitted through the testimony of the declarants. Therefore, it is unlikely the outcome would have been affected. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). We conclude that, as to these statements, appellant has failed to show counsel=s performance was deficient. c. Failure to challenge the admissibility of appellant=s confession Appellant claims his trial counsel was ineffective for failing to require the State to comply with the predicate requirements of article 38.22 ' 3(a) of the Texas Code of Criminal Procedure. Article 38.22 ' 3(a) provides: Sec. 3 (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless: (1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement; (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning; (3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered; (4) all voices on the recording are identified; and (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article. Tex. Code Crim. Proc. Ann. art. 38.22 ' 3(a) (Vernon 2005). Officer Powell, who took appellant=s statement, read appellant his Miranda[1] warnings and asked if he understood those warnings. Appellant stated that he understood, and agreed to give an oral statement. In that statement, which was played for the jury, appellant admitted that he met the complainant when she was 12 or 13 years old, but she told him she was 16 years old. He stated that he had sexual intercourse with the complainant two or three times at his relatives= home in Navasota. When Officer Powell asked appellant if he ever had sexual intercourse with the complainant in Brenham, which is in Washington County, appellant emphatically denied having met the complainant in Brenham. Officer Powell asked again whether appellant had ever had intercourse with the complainant at her home in Brenham. Appellant answered that he was positive they had never met in Brenham because he was aware of the consequences of being discovered at the complainant=s home. On appeal, appellant admits there is no evidence of the classic grounds of suppression such as coercion or voluntariness, but argues that defense counsel was ineffective because she did not require the State to prove the predicate for admissibility under the Code of Criminal Procedure. The admission of appellant=s confession, however, comports with appellant=s strategy of admitting that appellant engaged in the act, but challenging venue. Therefore, it was within appellant=s strategy to admit the confession. Further, appellant does not claim that his confession was inadmissible; therefore, the outcome would not have been different had appellant objected to the statement. Accordingly, we find no merit in appellant=s assertion that counsel was ineffective in failing to challenge the admissibility of the confession. d. Failure to cross-examine witnesses Appellant contends that by failing to cross-examine three of the State=s seven witnesses, trial counsel rendered ineffective assistance. The record reflects that during the guilt-innocence phase, the State produced four witnesses: the arresting officer, the complainant, the complainant=s brother, and the complainant=s mother. Trial counsel cross-examined the arresting officer and the complainant. At the punishment phase, the State presented an extraneous-offense witness, the complainant, and a probation officer. Trial counsel cross-examined the probation officer with regard to his knowledge of what Immigration and Customs Enforcement would do if appellant received probation. Cross-examination is inherently risky, particularly in criminal cases where pretrial discovery is more limited than in civil cases. Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). The decision not to cross‑examine a witness is often the result of wisdom acquired by experience in the combat of trial. Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973). For example, there is a possibility that appellant=s trial counsel thought she might alienate the jury if she cross‑examined the brother and the mother of a twelve-year-old victim of sexual assault. A decision not to cross‑examine a witness based on fear of alienating the jury or being perceived as too aggressive may be based on reasonable trial strategy. Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). There is nothing in the record to show that trial counsel=s decision not to cross‑examine certain witnesses was anything other than trial strategy. In the face of a silent record, appellant has failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional. See Bone, 77 S.W.3d at 833. e. Failure to object to an extraneous offense and leading questions Appellant contends he received ineffective assistance of counsel because trial counsel failed to object to the complainant=s statement that appellant had stolen a car in his pursuit to visit her. After explaining that she and appellant had sexual intercourse twice while in her home, the complainant testified as follows: A. He B it was about, I=d say around 5:30, 5:45, and he said he needed to get home, because that night he stole his grandma=s car to come see me. Because he wanted me to go over there and I said I couldn=t do it, so he stole his grandma=s car to come see me, and he said he parked it at the library. He said he needed to get home, back to Navasota, because he said that=s when the cops all get out is around 6:00 in the morning. So he left around 5:30, 5:45. Texas Rule of Evidence 404(b) prohibits the admission of evidence of extraneous offenses committed by the defendant for the purpose of proving the character of the defendant in order to show that he acted in conformity with that character on the occasion in question. The rule also provides exceptions to this prohibition, when evidence is admitted to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). If the opponent of extraneous-offense evidence objects on the grounds that the evidence is not relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent must satisfy the trial court that the extraneous-offense evidence has relevance apart from its character-conformity value. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) Appellant further complains of counsel=s failure to object to the following inquiry, asserting that it constitutes an impermissible leading question: Q. So what happened once you got over to Bilski Lane over to the place that you thought was his grandmother=s house? A. We went into the house and he took me to his room, and that=s where we had sex. Q. Okay. When you say Asex,@ are you referring to his penis in your vagina? Appellant contends that the prosecutor was permitted to lead the complaining witness on the ultimate issue to be proved. Because the record is silent as to trial counsel=s strategy for not objecting, appellant has failed to rebut the presumption that trial counsel=s actions were based upon a reasonable decision. See Perez v. State, 56 S.W.3d 727, 731B32 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). As to the first complaint, appellant=s trial counsel may have concluded that an objection would cause unnecessary attention to be called to the fact that the complainant stated appellant Astole@ his grandmother=s car. Likewise, counsel may have concluded that an objection to the prosecutor=s inquiry about the sex act, if the objection were sustained, would have been futile in that the prosecutor need only rephrase his question. Evaluating the attorney=s choices made during trial would require us to second‑guess her strategy through hindsight, an exercise which cannot support a finding of ineffective assistance. Longoria v. State, 148 S.W.3d 657, 659 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). We will not speculate on counsel=s reasons in the face of a silent record. f. Failure to present evidence challenging guilt Appellant makes a general allegation that trial counsel was ineffective for failing to present controverting evidence on the issue of venue. Appellant, however, fails to identify what evidence should have been presented. Any claim of ineffective assistance must be firmly grounded in the record. Counsel=s failure to present evidence is irrelevant absent a showing that such evidence was available and that appellant would have benefitted from the evidence. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Appellant has failed to establish ineffective assistance of counsel arising out of counsel=s failure to present evidence on venue. 2. Punishment Phase a. Failure to object to extraneous-offenses evidence At the punishment phase, the State offered the testimony of another under-age girl who had been sexually assaulted by appellant. Appellant contends that by failing to object to the extraneous-offense testimony, trial counsel rendered ineffective assistance. Unadjudicated extraneous offenses are admissible during the punishment phase as long as the fact-finder is satisfied beyond a reasonable doubt that such offenses are attributable to the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon 2005); see also Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Once the fact‑finder is satisfied beyond a reasonable doubt that such offenses or acts are attributable to the defendant, the fact‑finder may use the extraneous offense or bad acts evidence however it chooses in assessing punishment. Huizar, 12 S.W.3d at 484; see also Taylor v. State, 970 S.W.2d 98, 101B02 (Tex. App.CFort Worth 1998, pet. ref=d). In this case, the trial court properly instructed the jury not to consider the extraneous-offense testimony unless the jury determined that the State had proved beyond a reasonable doubt that appellant committed the offense. Therefore, the extraneous-offense evidence was admissible. See Tex. Code Crim. Proc. Ann. art. ' 37.07 3(a). The failure of trial counsel to object to admissible evidence does not constitute ineffective assistance of counsel. Ortiz, 93 S.W.3d at 93. b. Failure to present mitigating evidence and to find a witness to sponsor probation eligibility Appellant contends his trial counsel was ineffective for failing to present mitigating evidence at punishment and for failing to locate a witness to sponsor probation eligibility. Appellant fails to identify the mitigating evidence he claims should have been presented. Likewise, appellant fails to identify any witness who could have sponsored probation eligibility. Any claim of ineffective assistance must be firmly grounded in the record. Counsel=s failure to present evidence or locate a witness is irrelevant absent a showing that such evidence was available and that appellant would have benefitted from the evidence. See King v. State, 649 S.W.2d at 44. Appellant has failed to establish his trial counsel rendered ineffective assistance by failing to present evidence during the punishment phase.[2] c. Failure to prepare witness for testimony During the punishment phase of trial, appellant testified that he was nineteen years old and had never been convicted of a felony. Presumably, the reason for presenting this testimony was to show his eligibility for probation. During the State=s cross-examination, appellant volunteered that he previously had been placed on misdemeanor probation. Appellant now claims that his counsel was ineffective for failing to adequately prepare him to testify. In support of his claim of ineffective assistance, appellant cites Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.CEl Paso 1999, pet. ref=d). In Perrero, the defendant testified at trial and opened the door to a prior record. The defendant filed a motion for new trial based on a claim of ineffective assistance. At the hearing that followed, the defendant=s counsel admitted he had been deficient in failing to prepare the defendant to testify. Id. at 899. Underlying the court=s finding of ineffective assistance was the fact that counsel was unaware of the defendant=s prior record and that counsel had admitted his performance was deficient. In this case, no motion for new trial was filed, nor is there a record of trial counsel=s preparation. Trial counsel could have properly prepared appellant before the punishment phase, but appellant might have divulged his prior misdemeanor despite counsel=s preparation. Without a record to show the extent of counsel=s preparation, we cannot say that counsel=s conduct was so outrageous that no competent attorney would have engaged in it. On this record, appellant cannot rebut the presumption that his trial counsel=s conduct was based on sound trial strategy. See Thompson, 9 S.W.3d at 813. Moreover, appellant has failed to demonstrate actual prejudice by showing that the outcome would have been different but for counsel=s conduct. Id. at 812. Accordingly, appellant=s sole issue is overruled. The judgment of the trial court is affirmed. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed December 18, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] In his brief, appellant admits these claims could be more fully developed in a habeas corpus proceeding at which the evidence and availability of witnesses could be ascertained. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005).