Casillas v. State

Full title: GEORGE CASILLAS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 20, 2005

No. 05-04-00310-CR (Tex. App. Apr. 20, 2005)

Opinion

No. 05-04-00310-CR

Opinion Issued April 20, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00163-JN. Affirmed.

Before Justices FRANCIS, LANG-MIERS, and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

LAGARDE, Justice.

Appellant George Casillas complains only of ineffective assistance of counsel in this appeal of the life sentence imposed by the jury after it found appellant guilty of aggravated assault and heard punishment evidence of his ten prior convictions. Concluding the record before us is insufficient to overcome the very strong presumption of effective assistance of counsel, we affirm. The complainant, Juan Flores, testified that after celebrating his brother's birthday on June 30, 2002, he and his wife went home. Being unable to sleep, Flores got out of bed at about 3:00 a.m. without telling his wife, intending to return to his parents' house. When Flores drove by his parents' house, however, there were no lights on, so he drove around, eventually stopping to see a friend, Michael Elizardo, whom he saw standing outside his house. As Flores got out of his truck and walked onto Elizardo's driveway, Flores was attacked by a person he later identified as appellant. Flores did not know appellant; however, Flores said appellant approached him from behind and said, "Do you know who I am, puto [`bitch']? I'm George Casillas." When Flores said he did not know appellant, appellant hit Flores in the face, causing him to fall. Appellant then stabbed Flores in the back four times. Flores was able to get up and run to his truck. Flores drove to his mother's house, which was nearby, almost passing out and hitting a curb on the way there. When Flores reached his mother's house, an ambulance was called. On the way to Parkland Hospital, Flores was choking, had trouble breathing, and thought he was dying. His wife, Monica Gomez, was called and rode with Flores to the emergency room. Flores later developed pneumonia and was rehospitalized. He suffered an injury to the scapula, and was off work for months. Flores showed the jury the scars from his wounds. About five or six months after the assault, Flores talked to Elizardo about what happened. On cross-examination, Flores admitting knowing of Jessie Casillas, appellant's nephew, but said he did not see Jessie on the night of the offense. When appellant told Flores he was George Casillas, Flores said he turned around. Flores was "face to face" with appellant and saw appellant while he was stabbing him. Flores does not wear glasses and both the porch light and a corner street light were on. Flores had not been using drugs. Flores admitted he had drunk several beers earlier that evening, but said he was not intoxicated. Flores denied ever telling anyone he was going to kill appellant. Flores did not know of any problems his wife's family had with appellant. Flores had not had any problems with anyone in the neighborhood, he did not know if appellant lived in the neighborhood, and he had no idea why appellant stabbed him. At the hospital, Flores told Monica that George Casillas had stabbed him, in case Flores died. Monica told the police that appellant had stabbed her husband. Flores's medical records were admitted into evidence. Flores testified he had never been charged with or convicted of a felony, only misdemeanors. Flores later identified appellant from a photographic spread and again in court. Monica Gomez testified she is Flores's common law wife. She has known her husband since she was sixteen. After learning of the stabbing from Flores's father, Monica went to her father-in-law's house and rode with Flores in the ambulance to the hospital. Flores had never had any problems with appellant. However, Monica learned from her mother that her uncles had trouble with appellant before she was born. Monica was surprised to learn appellant had attacked her husband. Flores does not often have trouble sleeping. Flores used cocaine at one time, but no longer uses it. Patrick Boyett, a twelve-year veteran with the Dallas Police Department, was on duty as a patrol officer working the 11:00 p.m. to 7:00 a.m. shift on June 30, 2002. Boyett was dispatched to Parkland Hospital to get information about a stabbing and to relay that information to officers at the scene of the crime. Immediately after Boyett arrived at Parkland, Flores told Boyett he had been stabbed and that appellant had stabbed him. Boyett learned Flores's identity from his belongings. Detective Joe McNulty, a twenty-four-year veteran with the Dallas Police Department, testified that within a week after the stabbing he talked to Flores. Flores told the officers he knew of appellant from the area, but this was the first time he had encountered him. McNulty also went to the scene and later talked to Elizardo. Elizardo positively identified appellant as the assailant from a photographic spread he was shown. Both McNulty and Elizardo initialed the back of appellant's picture, which was admitted, without objection, into evidence at trial. A weapon was never recovered. Elizardo told McNulty he saved Flores's life by pulling appellant off of Flores. McNulty described the assault as a "mean spirited unprovoked attack." He opined that appellant had such a reputation in the neighborhood, he was upset because Flores did not know him. After the State rested its case-in-chief, the defense called Elizardo. Elizardo testified he lived with his parents at 4102 Odessa and that on June 30, 2002, Flores visited him and was "a little drunk." Elizardo was surprised to see Flores in the neighborhood. Elizardo said "nothing happened." Elizardo went inside his house to use the restroom. When he came out Flores was gone. Elizardo denied having a beer with Flores. Elizardo said there was no one else outside when Flores came up or when Elizardo returned from the restroom. Elizardo also denied having been interviewed by the police, making a statement to the police, or telling the police he had pulled appellant off of Flores. He testified that anything the police said in their report about him was false. Elizardo also testified that Flores knew appellant and that Elizardo knew Flores drank and used cocaine on the weekends. Elizardo met Flores at the front of the house near the street, the porch light was not on, and the area was not well lighted. Elizardo did not know why Flores would accuse appellant of stabbing him. Appellant was not there on June 30, 2002, but Elizardo thought Jessie Casillas was there. Jessie is now dead. On cross-examination, Elizardo testified he had lived in that neighborhood all his life, he knows the Casillas family pretty well, and he had been friends with Flores for a couple of years. Elizardo had not seen Flores since the stabbing happened. When asked if the signature on appellant's photograph was his, Elizardo acknowledged it was his signature, but said he did not recall signing it. Elizardo testified he was just sitting outside in the dark when Flores came up. Elizardo and Flores talked for five or ten minutes. Jessie was sitting on his own porch, but he did not say anything. Elizardo was not afraid of the Casillas brothers; however, he had to be subpoenaed to come to court. Elizardo signed an affidavit before a notary while appellant's nephew, Frank Casillas, was present. Frank did not force Elizardo to sign the affidavit. Further, Jessie never told Elizardo about anything that happened while he was inside using the restroom. After the jury was excused, the trial judge ordered that Elizardo be taken into custody for committing perjury in his presence. The trial judge also admonished appellant of his right not to testify. Appellant chose not to testify at trial. Flores was recalled by the defense and testified he had not been talking to Elizardo even a minute before he was attacked and that everything happened in the driveway beside Elizardo's car. Flores was not drunk and he did not have a beer with Elizardo. Flores could not remember if appellant had a beard on the night of the offense, but remembers his face. Flores again identified appellant as the person who stabbed him. Flores thought Elizardo probably did try to help him and thanked Elizardo if he did. On appeal, appellant claims he did not receive effective representation of counsel at trial because trial counsel "failed to advance a cohesive defense" in his behalf and made no objections during the trial. Appellant claims trial counsel allowed the State's witnesses to reinforce the complainant's identification of appellant and to establish, through hearsay, that the complainant suffered serious bodily injury. Appellant also complains trial counsel did not challenge McNulty's qualifications as an expert witness to testify that Flores suffered serious bodily injury and that counsel called Elizardo as a defense witness. Appellant also claims the counsel should have objected to the following argument by the prosecutor, which was detrimental to appellant:

[Prosecutor]:

Don't disrespect George Casillas. Really, that's a lesson to be learned in this trial. It's a lesson that Juan Flores learned that night, and apparently Michael Elizardo has been taught that as well, because it has to be obvious to every single one of you what happened when Michael Elizardo came in here to testify. There is no way that he's putting his life on the line to testify against George Casillas. No way.

I don't care what I told the police officer. I don't care that I signed a lineup saying it was George Casillas that I saw fighting and hitting Juan Flores. I don't care if you bring the police officer, Juan Flores, and anybody else in here to say that I said that, I'm not saying it today. There's no way he's going to do that. In fact he's going to go down and sign an affidavit that's full of lies, as well. Sure, I may go to jail for perjury, for lying[,] but I'll be alive.

Appellant argues that even though Elizardo's arrest for aggravated perjury occurred outside the presence of the jury, the prosecutor asserted, without objection, that the defense witness's testimony was perjured, and attributed it to Elizardo's fear of the appellant.

Standard of Review

The standard of review is well known to the parties. Appellate courts indulge a strong presumption that counsel was competent, i.e., that the challenged action might be considered sound trial strategy. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). To defeat this presumption, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." See id. at 813. On appeal, appellant must show two things to overcome the presumption of competent counsel: that trial counsel's performance was deficient, and that such deficient performance prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland v. Washington, 466 U.S. 668, 688-92 (1984). To show deficient performance, appellant has the burden to show there is no plausible professional reason for counsel's specific act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). The State contends the record before us in this appeal is insufficient to overcome the presumption of reasonable and professional conduct. See id. at 833. Alternatively, the State contends the record is sufficient to allow us to conclude that defense counsel's actions were a result of plausible professional trial strategy. In urging us to reject appellant's claim for lack of a sufficient record, the State relies on Scheanette v. State, 144 S.W.3d 503, 510 (Tex Crim. App. 2004) (rejecting appellant's claim of ineffective assistance because, based on the record presented, the court could only speculate as to why counsel acted or failed to act as they did), cert. denied, 125 S. Ct. 872 (2005). In Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003), the court determined the record was insufficient to support the appellant's claim of ineffective assistance of counsel. And, more recently, the court of criminal appeals reiterated that:

[d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it."

Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005) (citations omitted). But see Andrews v. State, No. PD-0993-03, 2005 WL 658979, at *4 (Tex.Crim.App. Mar. 23, 2005) (reversing conviction "in a rare case" for ineffective assistance of counsel on the trial record alone and concluding it presented court with sufficient information to decide case where defense counsel did not object to prosecutor's misstatement of the law on sentencing during punishment closing argument). We have before us only the record of the trial itself. No post-trial evidence is before us. We conclude, therefore, as did the court of criminal appeals in Rylander, that appellant has not presented this Court with a sufficient record to overcome the very strong presumption of competent counsel. Defense counsel has not been given a chance to explain why he acted or failed to act as he did, thus we can only speculate. See Rylander, 101 S.W.3d at 111. It is possible there was some legitimate reason for counsel's actions that is not apparent in the record before us. The record before us is inadequate to determine whether counsel was ineffective. "Habeas proceedings are a more appropriate avenue in this case." Goodspeed v. State, 2005 WL 766996, at *3 (Price, J., concurring). Moreover, Andrews is distinguishable. In Andrews, there was no possible reasonable trial strategy that would lead defense counsel to choose to remain silent regarding the State's misstatement of the law. Thus, counsel's reasons, if any, were unnecessary to resolve the ineffective assistance of counsel claim. Andrews, 2005 WL 658979, at *3; Goodspeed, 2005 WL 766996, at *3 (Price, J., concurring) (citing Andrews and Matthews v. State, 565 S.E.2d 766, 768 (S.C. 2002) ("concluding that `[C]ounsel cannot assert trial strategy as a defense for failure to object to comments which constitute an error of law and are inherently prejudicial'")). For all the reasons set out above, we resolve appellant's issue against him. We affirm the trial court's judgment.