Summary
holding silent record did not overcome presumption of reasonableness where counsel's purported error involved admitting defendant's guilt during argument
Summary of this case from Davis v. StateOpinion
NO. 09-11-00303-CR
07-11-2012
FRANCISCO CUERVO MENDOZA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 07-05-04569-CR
MEMORANDUM OPINION
Following a jury trial, Francisco Cuervo Mendoza was convicted of two counts of aggravated assault with a deadly weapon and sentenced to ten years confinement on each conviction, sentences to run concurrently. Mendoza argues on appeal that he received ineffective assistance of counsel as a result of statements made by defense counsel during closing argument. We affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Mendoza was convicted of aggravated assault with a deadly weapon for threatening to kill his girlfriend, L.Z., and their two-year-old son, K., with a knife. Mendoza and L.Z. began dating in 2003 or 2004 and had a child together. L.Z. testified that in 2007, she and Mendoza were trying to decide if they were going to stay together. L.Z. testified that on the night of the incident, Mendoza called her and asked to see K. She told Mendoza he could come to the house. When L.Z. arrived home with K. and her nephew, Mendoza's car was in the driveway. Mendoza helped L.Z. get K. into the house. L.Z. told the jury that Mendoza was acting normal at first, but then he called her into the living room where he became angry and began kicking the wall. L.Z. stated that Mendoza began questioning her and accusing her of being with another man.
The order of events is somewhat unclear from the trial testimony. L.Z. testified that Mendoza called and asked someone to bring him drugs and a gun, and he told L.Z. he was going to kill her. L.Z. further stated that Mendoza broke the house phone and got a knife. L.Z. told the jury that Mendoza held her with the knife, threatened to kill K. in front of her, repeatedly stated he was going to kill her and K., spat in her face, slapped her around, grabbed her by the hair and threw her to the ground. L.Z. testified that at one point Mendoza held the knife to her throat and said he was going to kill her, and he also held the knife to K.'s throat. L.Z. stated that she got on her knees and pleaded with Mendoza not to kill K. L.Z. also testified that at one point Mendoza held the knife by the blade and hit her in the head with the handle of the knife. L.Z. told the jury that Mendoza's brother came over and took Mendoza into another room and tried to calm him down. At that point, L.Z. hurriedly left the house with the children and drove to the Willis police station.
The only other witness to testify during the guilt or innocence phase of the trial was the responding officer, Deputy Dison Adams of the Montgomery County Sheriff's Department. Adams testified that L.Z. was "extremely upset," had been crying, her hair was disheveled, and she had "obvious scratches and other redness on her face." Adams observed what he believed were fingernail scratches along her jaw line and ear, and dried blood on her lips. The State introduced photographs of L.Z.'s injuries.
Adams testified that after meeting with L.Z., he and other officers went to her house to try and locate Mendoza, but Mendoza was not there. Adams testified that he observed "obvious signs of some type of struggle." Adams stated that there was a broken cell phone, a broken house phone, a hole that had been punched or kicked in the wall, and a broken knife in the kitchen trash can. Adams testified that the broken knife fit the description of the knife described by L.Z. as having been used during the assault. The State introduced photographs taken at the scene. Adams estimated that the blade of the broken knife was about eight inches long. Adams stated that a warrant was issued for Mendoza's arrest on or around February 7, 2007. Mendoza was arrested in Cameron County, Texas in March 2011, four years after the incident.
Mendoza argues on appeal that trial counsel provided ineffective assistance of counsel during closing argument by inadvertently conceding Mendoza was guilty of the charged offense. In his opening argument, defense counsel framed the case as one in which the jury would have to determine whether "to believe beyond a reasonable doubt the exaggeration of an unfaithful and dishonest [girlfriend] who has a reason to exaggerate because she got caught[.]" Counsel stated "[a]t least part of what you're going to hear is absolutely true. But it's not all true." In his short opening, defense counsel postured the case as one in which the complainant's credibility was at issue. The State presented testimony from Adams and L.Z., and defense counsel cross-examined both witnesses. On cross-examination, defense counsel elicited testimony from L.Z. acknowledging that Mendoza discovered lengthy phone calls on her cell phone bill and when he called the number, a man answered.
In his closing argument, defense counsel stated in pertinent part:
Someone commits an offense if he intentionally or knowingly threatens to cause imminent bodily injury to another and he uses or exhibits a deadly weapon during the commission of the assault, that threat. I would like to suggest to you that the pen you see in my right hand can be used as a deadly weapon. Somebody who knows what he's doing can thoroughly ruin your life or kill you with this pen. Yet we don't say routinely 'Oh, my God, [he's] got a deadly weapon in his hand' Why not? It's a pen for God sakes. It's a tool. We write with it. So what's a knife? Well it's a tool. And I imagine most of you routinely use knives as tools in the kitchen to slice up your vegetables . . . . A knife is a tool. It is not per se, that is, in and of itself a deadly weapon.(Emphasis added). Counsel admitted that Mendoza was "not acting like a nice guy that night" but argued that the question for the jury to answer was whether Mendoza used the knife as a deadly weapon and affirmatively asserted that "[h]e did not[.]" Counsel reiterated, "the knife becomes a deadly weapon only if it is in fact, used to inflict injury or its intended to be used to inflict that kind of injury." Counsel discussed the State's burden of proof and then concluded by again asserting that the "knife was not used as a deadly weapon . . . and you know that intent was not there[.]"
. . . [W]hile [L.Z.] may well have been struck, she may have had her hair pulled she may have been threatened she was not injured by that tool, other than, as I recall testimony, wicked Francisco Cuervo Mendoza whacked her with the handle. . . .
But for whatever it's worth, Francisco Mendoza is not charged today with being an unkind fellow. He is not charged today with using bad language or naughty words. He is not charged today with punching [L.Z.] He's not charged today with slapping her. . . . The thing that turns a tool into a deadly weapon is the manner of its use, of intended use.
So did [L.Z.] get cut with that knife? Nope. Did she get stabbed with that knife? No. Did Francisco Mendoza [p]robably waive the knife around and scare the dickens out of [L.Z.]? Well, evidence is, yeah, he probably did. Well, the prosecutor will likely tell . . . you he certainly intended to use it as a deadly weapon. But then the prosecutor has already told you how do you judge intent? You can't get into his head. You look at his actions. . . .
Did Francisco Mendoza intend to inflict . . . substantial risk of death, cause death, serious permanent disfigurement, protracted loss or impairment, function of any bodily member or organ. I didn't hear any evidence like that. There is no damage done. I suppose we could assume that [L.Z.] was frightened, I'm sure. But what makes that tool a deadly weapon is the matter of its use.
ANALYSIS
To prevail on a claim for ineffective assistance of counsel, Mendoza must show that (1) "counsel's representation fell below an objective standard of reasonableness;" and (2) "there is a reasonable probability that but for counsel's unprofessional errors, the result of his trial would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Mendoza must prove there was no plausible professional reason for specific acts or omissions of his counsel. See id. at 836.
"Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833. "In the absence of an evidentiary hearing in which counsel is called upon to explain his actions, we must presume that, under the circumstances, the challenged action might be simply considered to be part of an overall strategic plan." Jones v. State, 37 S.W.3d 552, 553-54 (Tex. App.—Beaumont 2001, no pet.). Therefore, to overcome the presumption that counsel's conduct was reasonable, the record must reflect that counsel's performance would have been unacceptable regardless of any trial strategy. Id. at 554. When the record is silent as to trial counsel's strategy, we will not conclude that defense counsel's assistance was ineffective unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Mendoza argues that the italicized statements, set forth above, made in defense counsel's closing argument constituted an admission of the charged offense. We disagree. The jury charge defined deadly weapon as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Defense counsel argued that a kitchen knife was not designed for the purpose of inflicting death or serious injury and that Mendoza's use and intended use of the knife was not that of a deadly weapon. Even had counsel affirmatively conceded that Mendoza was guilty, courts have concluded that when the evidence of guilt against a defendant is strong, conceding guilt can be part of a sound trial strategy. See Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992) (holding that counsel was not ineffective in conceding guilt to persuade the jury to convict of a lesser included offense); Jordan v.State, 859 S.W.2d 418, 422 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (holding that counsel was not ineffective in conceding guilt to placate jury and then argue for compassion during punishment stage).
Our review of counsel's representation is highly deferential and presumes his actions were reasonable. Thompson, 9 S.W.3d at 813. The reasonableness standard in Strickland requires us to analyze the "totality" of counsel's representation. Strickland, 466 U.S. at 695. Instead of arguing that Mendoza was not involved in the altercation with L.Z., defense counsel presented the case as one of exaggerated allegations. In counsel's opening statement and during cross-examination, he questioned L.Z.'s credibility. In closing, he urged the jury to look beyond the evidence of Mendoza's violent behavior and focus on his use and intended use of the knife. Defense counsel referenced the evidence that Mendoza hit L.Z. with the handle of the knife and never affirmatively accepted as true her testimony that he held the blade to her throat or threatened to kill her. While generally acknowledging that Mendoza may have hit, threatened, or frightened L.Z., defense counsel argued that Mendoza did not use, or intend to use, the knife to cause serious bodily injury. Therefore, counsel argued Mendoza did not commit aggravated assault with a deadly weapon. The right to effective counsel does not equate to the right to error-free counsel. Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Counsel's closing argument corresponded to his defensive theory that L.Z. exaggerated the allegations regarding the incident and sought to undermine the evidence of one of the elements of the offense.
The record is silent as to the reasons for counsel's actions. Under these circumstances, Mendoza has failed to rebut the presumption that counsel's conduct fell within the wide range of reasonable representation. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Further, Mendoza has not demonstrated that but for the complained of statements in counsel's closing argument, the result of the trial would have been different. Strickland, 466 U.S. at 694. Even where trial counsel's performance is deficient, such does not constitute ineffective assistance unless a defendant affirmatively shows that counsel's actions prejudiced him. Thompson, 9 S.W.3d at 812. To demonstrate he has been prejudiced, a defendant must establish that a "reasonable probability" exists that the result of the proceeding would have been different if counsel had acted professionally. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Mendoza has failed to demonstrate a reasonable probability that but for the statements made in counsel's closing argument, the result of the proceeding would have been different. Mendoza has failed to meet the second prong of Strickland.
We overrule Mendoza's sole issue on appeal and affirm the judgment of the trial court.
AFFIRMED.
__________________
CHARLES KREGER
Justice
Do not publish
Before Gaultney, Kreger, and Horton, JJ.