No. 05-02-00206-CR.
Opinion Filed March 17, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-71596-HS. AFFIRMED.
Before Chief Justice THOMAS and Justices RICHTER and HADDEN.
The Honorable Roby Hadden, Former Judge, Twelfth Court of Appeals, Tyler, Texas, sitting by assignment.
Opinion By Justice HADDEN.
A jury found appellant Gabriel Alcaraz guilty of aggravated robbery. Appellant pleaded true to one enhancement paragraph, and the jury assessed punishment at sixty years' confinement and a $10,000 fine. In six issues, appellant alleges he received ineffective assistance of counsel.
Background
The record shows the complainant, Donnell Bryant ("Bryant"), ran out of gas while driving his vehicle on Interstate 20 in Dallas. Appellant, accompanied by a passenger, gave Bryant a ride to the nearest gas station, where Bryant purchased some gas. Appellant took Bryant back to his car, and Bryant put the gas in the car. Bryant then drove his vehicle to his apartment. Appellant and his passenger followed Bryant to his apartment, where Bryant left his car. The three men continued to ride around together. The men eventually stopped in a public park, where a dispute arose between appellant and Bryant. Appellant struck Bryant's head several times with a tire iron. Appellant and his passenger then left Bryant in the park. As a result of the beating, Bryant suffered numerous skull lacerations, a closed head injury, and broken bones in his hands from trying to ward off the blows. A Dallas police officer patrolling the park found Bryant standing in the road. The officer testified he was shocked that Bryant was still standing because Bryant "was bloody from the top of his head to his waist." The officer took Bryant to the hospital where doctors used stitches and staples to close Bryant's lacerations. Bryant testified his broken fingers required surgery. Bryant stated that, as a result of the beating, he had memory loss, diminished speech and reading abilities, his fingers required additional surgery, and his work as a plumbing engineer was "just a total loss." Bryant testified the two men robbed him of his jewelry and two or three hundred dollars in cash. Appellant chose to testify and admitted to the beating, but he denied robbing Bryant of his jewelry and money. The trial judge included in the jury charge a submission on the lesser-included offense of aggravated assault. However, the jury found appellant guilty of aggravated robbery. On appeal, appellant asserts he received ineffective assistance of counsel because counsel failed to perform a voir dire of the jury, failed to use available evidence to impeach the complainant, failed to object to State's attempt to impeach him regarding his exercise of his right to remain silent, contradicted appellant's testimony in his closing argument, failed to present mitigating evidence during the punishment phase of the trial, failed to request a limiting instruction during punishment, and failed to challenge the admission of an extraneous offense. He further asserts the combined effect of the errors reflect ineffective assistance of counsel. We affirm the trial court's judgment. Applicable Law
To show trial counsel was ineffective, appellant must meet a two prong test. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) his counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) actual prejudice from counsel's deficient performance. Thompson, 9 S.W.3d at 812. Appellant must prove his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In analyzing the claim of ineffective assistance of counsel, we begin with the strong presumption that counsel was competent and that counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Thompson, 9 S.W.3d at 813; see also Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what he did. See Jackson, 877 S.W.2d at 771. In most cases, on a direct appeal, a silent record will provide no explanation for counsel's actions or inactions and will not overcome the strong presumption of reasonable assistance. See Thompson, 9 S.W.3d at 813-814. In other words, appellant cannot meet his burden if the record does not specifically reflect the reasons for trial counsel's conduct. See Osorio v. State, 994 S.W.2d 249, 253 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Voir Dire
In his first issue, appellant alleges counsel was ineffective because counsel essentially conducted no voir dire. Appellant argues counsel only asked the venire panel about their hobbies, whether they could be fair to both sides, and if they had any questions to ask counsel. Contrary to appellant's assertions, counsel actively participated in voir dire and the jury selection process. The record indicates counsel studied the veniremembers' jury questionnaires. Through his questioning, he found several veniremembers who stated they could not be fair to appellant. A number of those veniremembers were excused by agreement with the State, and others were excused when counsel exercised all of the defense's peremptory challenges. Appellant complains counsel's voir dire should have covered more topics, and he lists a large number of topics trial counsel could have covered. However, the prosecutor conducted an exhaustive voir dire during which she explained the law in the case, questioned the veniremembers regarding their willingness to follow the law, and covered many of the areas appellant lists in his brief. Some courts have considered the inquiries made by the prosecutor or the judge in finding that defense counsel was not deficient for failing to make additional inquiries into the same areas. See, e.g., White v. State, 999 S.W.2d 895, 898 (Tex.App.-Amarillo 1999, pet. ref'd); Beck v. State, 976 S.W.2d 265, 267 (Tex.App.-Amarillo 1998, pet. ref'd); Williams v. State, 970 S.W.2d 182, 184 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). The court of criminal appeals has held "the length of voir dire examination could have very well been dictated by trial strategy." Jackson v. State, 491 S.W.2d 155, 156 (Tex.Crim.App. 1973). The record is silent as to defense counsel's strategy in his voir dire and we cannot speculate in hindsight that he was ineffective. See Bone v. State, 77 S.W.3d 828, 834 (Tex.Crim.App. 2002). Even if defense counsel's performance during voir dire was deficient, appellant must still show actual prejudice. Appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. See Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. To show prejudice during the voir dire, appellant must explain why the jurors who were chosen were objectionable or why further questioning might have been in order. See McFarland v. State, 928 S.W.2d 482, 503-04 (Tex.Crim.App. 1996). Here, appellant has not made that showing. Thus, appellant has not shown a reasonable probability that, but for trial counsel's alleged deficient performance, the result of the proceeding would have been different. We resolve appellant's first issue against him. Cross Examination of Complainant
In his second issue, appellant asserts defense counsel was ineffective because he failed to properly cross-examine Bryant regarding evidence reflecting on Bryant's credibility. Specifically, appellant contends that hospital records admitted at trial showed Bryant smelled of alcohol at admittance, complained of being assaulted by "about 3 men" but said nothing about a robbery, still had possession of his checkbook, was taking hydrocodone for a shoulder problem, told the hospital he was disabled and not that he was a plumbing engineer, was "negative for amnesia of events" at the hospital, and did not mention the need for surgery on his fingers. Appellant also asserts counsel should have cross-examined Bryant regarding his testimony that he owned jewelry, that the alleged stolen jewelry was never recovered, that having "quite a bit of jewelry with him" contradicted his employment status as a plumbing engineer or disabled person, and that his use of hydrocodone contradicted his claim he had stopped consuming drugs after a conviction for cocaine possession. The decision of whether to cross-examine a witness is a matter of trial strategy. Valdes-Fuerte v. State, 892 S.W.2d 103, 111 (Tex.App.-San Antonio 1994, no pet.). Often, the decision to not cross-examine a witness is 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). Cross-examination is inherently risky, especially in criminal cases where pre-trial discovery is limited. Dannhaus v. State, 928 S.W.2d 81, 88 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Ineffective cross-examination could bolster the credibility of the witness and, therefore, backfire on counsel. Id. The record does not indicate why counsel did not cross-examine Bryant more extensively. Therefore, appellant has not overcome the strong presumption of counsel's competence. Thompson, 9 S.W.3d at 813. Moreover, appellant has failed to demonstrate prejudice resulting from the lack of cross-examination. He has not shown what evidence would have come before the jury as a result of such inquiries, whether that evidence would have affected Bryant's credibility, or that the result of the proceedings would have been different. Id. at 812. Accordingly, we resolve appellant's second issue against him. Failure to Object
In his third issue, appellant complains counsel was ineffective because he did not object when the State cross-examined appellant on matters about which he had the right to remain silent. During cross-examination, the prosecutor questioned appellant as follows: Q. At no time do you ever go to the police and say, "Hey, let me tell you, what that Donnell Bryant did to me wasn't right. I want to make sure that — make sure they hear my side of the story," during the time you were on the lam, right? A. No, sir. Q. Well, at what point — what point during the time before you were picked up by Detective Meehan of the Balch Springs Police Department did you ever contact the Dallas police and say, "Hey, here's my side of the story. Can I tell you my side?" A. I didn't contact them . . . Q. Of course, you had the opportunity to describe to the police exactly what happened the day after the offense. You chose not to — — to tell your side of the story before the officers made any assumptions, right? A. Yes. Appellant argues the law is well settled that it is improper to attempt to impeach a defendant by making use of his exercise of the right to remain silent. Appellant is correct as to the law applicable to post-arrest silence. But here the prosecutor, in the above inquiries, was referring to a time period before appellant's arrest. The law does not appear to be settled as it applies to such pre-arrest silence. See State v. Lee, 15 S.W.3d 921, 925-26 (Tex.Crim.App. 2000) (stating the law on this issue had not been addressed by the United States Supreme Court or the court of criminal appeals). The Fifth Circuit has held that pre-arrest silence is admissible as substantive evidence of guilt. United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996). State courts are split on the issue. See Lee, 15 S.W.3d at 925 n. 5. The court of criminal appeals has stated, in dicta, that "pre-arrest silence is a constitutionally permissible area of inquiry." Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App. 1988). In Lee, the court held the prosecutor's statement concerning the defendant's pre-arrest silence was not clearly an error. Lee, 15 S.W.3d at 926; see also Rosas v. State, 76 S.W.3d 771, 776 (Tex.App.-Houston [1st. Dist.] 2002, no pet.). Because of the state of the law in the Fifth Circuit and Texas relating to the admissibility of pre-arrest silence, we cannot say that the prosecutor's inquiries were improper or that counsel was ineffective for failing to object. See Ex parte Welch, 981 S.W.2d 183, 184 (Tex.Crim.App. 1998) (counsel not ineffective when claimed error is based upon unsettled law). Even if the evidence of appellant's silence was inadmissible, defense counsel's failure to object can constitute a sound and plausible trial strategy. See Heiman v. State, 923 S.W.2d 622, 626 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (failure to object to inadmissible extraneous offense testimony, without a showing of counsel's reasons for not doing so, did not rise to level of ineffective assistance). Again, the record is silent as to defense counsel's strategy in not objecting and we cannot speculate as to the reasons for counsel's decision. See Duckworth v. State, 89 S.W.3d 747, 751 (Tex.App.-Dallas 2002, no pet.). Moreover, appellant fails to demonstrate prejudice resulting from counsel's failure to object. He has not shown the likelihood of having his objection sustained, obtaining a favorable ruling from the court, or that a favorable ruling could have changed the result of the proceedings. Accordingly, we resolve appellant's third issue against him. Closing Argument
In his fourth issue, appellant complains counsel, in closing argument, asked the jury to find appellant guilty of aggravated assault, a lesser included offense. He argues that by doing so, defense counsel contradicted appellant's testimony relating to self-defense and eliminated the possibility of a not guilty verdict. Appellant testified that when he and Bryant stopped at the park, he ordered Bryant out of his truck. When Bryant refused, appellant pulled Bryant out of the truck. Bryant became belligerent and grabbed appellant's shirt. Appellant was scared for his life, so he began hitting Bryant with the tire iron, which had been in the bed of appellant's truck. We note the trial court charged the jury on self-defense. The court also charged the jury on the lesser-included offense of aggravated assault. There is no evidence in the record explaining defense counsel's trial strategy. However, we begin with the strong presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771. Appellant has not rebutted this presumption by presenting evidence showing counsel's reasons for his conduct. Even if defense counsel's conduct was deficient, appellant has not met his burden to show actual prejudice. Appellant urges this Court to presume he was prejudiced as a result of counsel's remarks in closing argument, but cites no authority for this position. The law places the burden on appellant to affirmatively show from the record that, but for trial counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. Appellant has not shown that by not making the complained-of argument there is a reasonable probability that the decision of the jury would have been different. Accordingly, we resolve appellant's fourth issue against him. Punishment Hearing
In his fifth issue, appellant complains counsel was ineffective because he failed to present any mitigation evidence at the punishment hearing. Appellant relies on Milburn v. State, 15 S.W.3d 267 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd), wherein the defense attorney presented no evidence in mitigation and the court reversed and remanded for a new punishment hearing. The record on appeal in Milburn, however, showed that at the motion for new trial hearing, the defendant presented evidence that twenty friends and relatives would have asked the jury to give the defendant the least punishment available and that defense counsel made no effort to present those witnesses. Id. at 269. The record in this case contains no evidence that witnesses were available and that appellant would benefit from their testimony. Defense counsel's failure to call witnesses at the punishment stage is irrelevant in a claim of ineffective assistance of counsel absent showing that such witnesses were available and appellant would benefit from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). We also conclude that appellant has not shown prejudice. Appellant argues that prejudice should be presumed on the grounds that defense counsel's failure to present mitigation evidence was an actual or constructive denial of assistance of counsel. From the totality of the record, we cannot conclude assistance was denied in this case. In addition to his participation already described, defense counsel filed numerous pre-trial motions and ensured that they were considered by the trial court, participated in an identification hearing conducted outside the presence of the jury, cross-examined witnesses and made appropriate objections, and made jury arguments in both stages of the trial. We conclude appellant has not shown a reasonable probability the decision of the jury would have been different had counsel presented mitigation evidence. Appellant also asserts defense counsel was deficient because, during the punishment phase, he did not request a limiting instruction at the time of the admission of extraneous offense evidence regarding a burglary. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a), (b) (Vernon 1981 Supp. 2003). However, the record shows the trial court, in the punishment phase jury charge, did give a limiting instruction for the jury not to consider evidence of extraneous crimes or bad acts unless it was shown beyond a reasonable doubt the defendant committed them. Therefore, appellant fails to show counsel's performance was deficient and, accordingly, has not met the first prong of Strickland. Moreover, appellant fails to demonstrate from the record any prejudice caused by the manner or timing of the limiting instruction. Additionally, under this issue, appellant further complains counsel made no effort to challenge the admission of evidence of an extraneous burglary offense or attempt to create a reasonable doubt that appellant committed the offense. Counsel did not object to the evidence of the extraneous offense, nor did he conduct a cross-examination of the witness. As discussed above, the decision to not object can be a plausible trial strategy as part of an attempt to create the appearance of being open and completely honest with regard to all questions. See Ahmadi v. State, 864 S.W.2d 776, 783 (Tex.App.-Fort Worth 1993, pet. ref'd); see also Heiman, 923 S.W.2d at 626. Furthermore, as discussed above, cross-examination of a witness is inherently risky and the decision of whether to cross-examine a witness is a matter of trial strategy. Dannhaus, 928 S.W.2d at 88; Valdes-Fuerte, 892 S.W.2d at 111. There is nothing in the record to overcome the strong presumption that counsel's failure to challenge the admission of the extraneous evidence or his failure to cross-examine the witness constituted sound trial strategy. Even if defense counsel's representation was deficient because he failed to challenge the admission of the extraneous offense evidence and did not attempt to create a reasonable doubt, the record as a whole does not show prejudice. Appellant does not point to any evidence in the record demonstrating prejudice. Therefore, we resolve appellant's fifth issue against him. Cumulative Error
Finally, in his sixth issue, appellant claims the cumulation of all of defense counsel's errors amounted to a denial of effective representation. While it is possible that a number of errors might be found harmful in their cumulative effect, the cumulative effect of issues not found to be error cannot constitute error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999). Because we have not concluded appellant received ineffective assistance in this cause, we cannot conclude appellant's various complaints regarding counsel's assistance, taken as a whole, demonstrate a denial of representation. See generally Turner v. State, 87 S.W.3d 111, 118 (Tex.Crim.App. 2002). Accordingly, we resolve appellant's sixth issue against him. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.