Fierro v. State

Full title: MAURICIO FIERRO, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Jul 27, 2006

Nos. 05-05-00991-CR, 05-05-00992-CR (Tex. App. Jul. 27, 2006)

Opinion

Nos. 05-05-00991-CR, 05-05-00992-CR

Opinion issued July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F03-58803-Ilk and F04-71957-Hlk. Affirmed.

Before Chief Justice THOMAS and Justices 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

Opinion By Justice LAGARDE.

Appellant Mauricio Fierro was convicted of two aggravated robbery with a deadly weapon offenses. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003). The jury assessed punishment at twenty-three years' imprisonment in cause no. 05-05-00991-CR and fifteen years' imprisonment in cause no. 05-05-00992-CR. In a single issue, appellant contends he was denied the effective assistance of counsel. We affirm.

Background

Appellant was charged with the December 20, 2003 aggravated robbery of Linda Rodriguez and the December 24, 2003 aggravated robbery of Buthan Te. He pleaded guilty to the offenses before a jury. Dallas police detective Angel Lopez testified that on December 20, 2003, he responded to a 911 call at the Super America store on Davis Avenue in Oak Cliff. He spoke to Linda Rodriguez, who told him the store had been robbed. Money from the cash register was taken. Lopez recalled being told a handgun had been used, but did not recall being told shots were fired. No one was arrested at that time. Buthan Te testified he was a native of Cambodia, and had been in the United States since 1981. At about 10:50 a.m. on December 24, 2003, Te was working in his service station/convenience store when two men came in. One man pulled a gun and put it to Te's neck. The men took money from the cash register, a shotgun, and some cigarette lighters. On the way out, one of the men shot at Te. The shot missed Te by a couple of inches. Te identified appellant as the man who shot at him.² Ashley Evans lived with her mother next door to Te's business. On December 24, 2003, as Evans left to go shopping for Christmas dinner, she noticed a car in the driveway near the store. Her attention was drawn to the car because all of the doors were open. A man standing outside the car kept looking back and forth and toward the store. A few moments later, Evans saw two or three men run from the store, get into the car, and drive away. Evans's mother got the license plate number of the car, and they went inside to check on Te. After determining Te was okay, they called 911. Evans identified appellant as one of the men she saw running from the store. Dallas police officer Royson Stacy was called to assist other officers in the search for the suspects in the Te robbery. The officers were at an apartment complex where they believed some of the suspects were hiding in a dumpster and one had jumped through a window into an apartment that was not his. Stacy was given a description of the suspects and their vehicle. When Stacy arrived at the apartment complex, he saw appellant standing with a group of men. Stacy's attention was drawn to appellant because of a tear drop tattoo on his face. During a pat-down of appellant for safety, Stacy found a loaded handgun in appellant's front pocket. Stacy arrested appellant. Dallas police officer Paul Demaagd was assigned to investigate the Rodriguez robbery. Demaagd's attention focused on appellant on December 24, 2003 when appellant was arrested for the Te robbery. Appellant had a tattoo on his face matching the description of the suspect in the Rodriguez robbery. Several days after Christmas Eve, Rodriguez identified appellant's picture as the man who robbed her at gunpoint on December 20, 2003. During the trial, juvenile probation officer Luis Ceballos testified about appellant's juvenile record. During Ceballos's testimony, the following transpired:

[Prosecutor]: Mr. Ceballos, you've had an opportunity to review [appellant's] juvenile record.

[Ceballos]: Yes, ma'am.

[Prosecutor]: And you've been made aware of the offenses that he has been charged with and has picked up since he left your care.

[Ceballos]: Yes, ma'am.

[Prosecutor]: Based on your 10 years experience dealing with juvenile offenders, what in your opinion is the next step in this particular case?

[Ceballos]: It is prison. Prison, based on the history like the defense attorney was saying that he didn't run or anything from the drug treatment facility. That means he stayed there for six months, received all the tools necessary to be released back into the community and turn his life around, and he chose not to.

Time after time after time he receives the services but doesn't respond to the services. And the offenses just keep accumulating time after time to a point where this is the stage that we're at right now.

And based on my experiences with this type of offense, the next level is that you are actually going to take the life of someone. That is my personal experience as well.

Appellant's attorney did not object to the above testimony.

Standard of Review

Federal and state standards for ineffective assistance of counsel claims are co-extensive. See Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992) (per curiam). In reviewing appellant's claim, we apply the two-prong analysis of Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, appellant must show his counsel's performance was deficient. See id. at 687. Specifically, appellant has the burden to prove by a preponderance of the evidence that trial counsel's representation fell below the objective standard of professional norms. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Appellant must prove by a preponderance of the evidence there is, in fact, no plausible professional reason for counsel's specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). We "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and that "the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Under the second prong, appellant must show counsel's deficient performance was prejudicial to his defense. See id. at 687. To establish prejudice, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. Generally, the record on direct appeal is not sufficient to show trial counsel's tactical or strategic reasons for his trial decisions; thus it is usually insufficient to overcome the presumption of reasonable and professional conduct. See Bone, 77 S.W.3d at 833; Weeks v. State, 894 S.W.2d 390, 391-92 (Tex.App.-Dallas 1994, no pet.). It is incumbent on appellant to present a record on appeal that shows a lack of plausible trial strategy. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App. 1994).

Analysis

Appellant claims trial counsel was ineffective in not objecting that Ceballos's testimony was inadmissible expert testimony. Appellant argues that counsel's failure deprived him of his best argument for leniency. Thus, appellant asserts, there is a reasonable probability the outcome of the case would have been different had counsel objected to, and excluded, the inadmissible opinion testimony. The State responds the record is insufficient to rebut the presumption that trial counsel provided professional and adequate representation or that the result would have been different. The State also asserts the complained-of testimony was not presented as expert testimony and, even if it were, it would have been admissible. Finally, the State contends that even if Ceballos was not qualified as an expert, his testimony as a fact witness was properly admitted. The State argues that Ceballos's testimony was directly related to appellant's history in the juvenile system, and in this unitary proceeding, would have been relevant and admissible under article 37.07, section (a)(1) of the Texas Code of Criminal Procedure on the issue of punishment. No post-trial evidentiary hearing was held on appellant's ineffective assistance claim; therefore, our review is limited to the trial record. That record does not reflect trial counsel's reasoning behind his tactical or strategic decisions, and we may not speculate that no plausible professional reasons exist. See Bone, 77 S.W.3d at 836. Because defense counsel has not been given an opportunity to explain his actions, he may not, on this record, be condemned as unprofessional and incompetent. See id. We conclude appellant has failed to present a sufficient record to rebut the presumption of reasonable and professional conduct by trial counsel. See Scheanette v. State, 144 S.W.3d 503, 510 (Tex.Crim.App. 2004) (rejecting ineffective assistance claim for insufficient record).³ We resolve appellant's sole issue against him. We affirm the trial court's judgment.