Opinion
NUMBERS 13-14-00151-CR
01-21-2016
JOSE ROCHA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes
Appellant Jose Rocha was charged with burglary of a habitation, a first-degree felony.See TEX. PENAL CODE ANN. § 30.02(a)(3) (West, Westlaw through 2015 R.S.). A jury convicted appellant, and after the trial court found appellant was a habitual felony offender, it assessed punishment at twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. See id. § 12.42(d) (West, Westlaw through 2015 R.S.). By five issues, appellant contends: (1) the prosecutor made an improper argument commenting on appellant's non-testimonial demeanor; (2) appellant's trial counsel rendered ineffective assistance of counsel; (3) the trial court erred in denying appellant's challenge for cause of a prospective juror who showed bias against appellant's right against self-incrimination; (4) the trial court erred in not granting a mistrial due to a biased juror; and (5) the evidence offered to prove the offenses alleged in the enhancement paragraph was insufficient. We affirm.
In relevant part, the indictment alleged that appellant: "On or about August 13, 2012, in Nueces County, Texas, did then and there intentionally or knowingly enter a habitation, without the effective consent of DIANE RAMIREZ, the owner thereof, and attempted to commit or committed the felony offense of AGGRAVATED ASSAULT."
I. BACKGROUND
Appellant appeared for trial in a wheel chair. During opening statement, his trial counsel told the jury that appellant was "physically incapable" of breaking the complainant's door.
The complainant, Diane Ramirez, testified that she received several phone calls from appellant, her ex-husband. Because his speech was slurred, she could not understand what he was saying. Shortly after the last call, Ramirez heard a noise coming from the side door of her residence. While she was calling 911, the door flew open and appellant walked in with a large "Jim Bowie knife." He shook the knife at her and said, "Don't ever disrespect me." Appellant told her he was going to kill her, and put the knife on her belly. Appellant was accompanied by another man that Ramirez did not recognize. While Ramirez was on the phone with the 911 operator, appellant's companion grabbed him and pulled him away. When the police arrived, appellant and his companion were gone.
Appellant's defensive theory centered on his disability and alleged physical inability to have broken into the complainant's home. Juanita Martinez, appellant's sister, testified that appellant suffers from cirrhosis of the liver. She also explained that appellant had surgery on his back and knees, and while appellant used to get around with a cane, he now uses a walker or a wheelchair. She further testified that on the night of the alleged incident, appellant was using a cane.
The jury convicted appellant, and the trial court, after finding that appellant was a habitual offender, sentenced him to twenty-five years in prison. Appellant did not file a motion for new trial. This appeal followed.
II. JURY ARGUMENT
By his first issue, appellant alleges the State made an improper comment on appellant's "non-testimonial demeanor in violation of his fifth amendment right not to testify." Appellant failed to preserve this issue for review on appeal. A.Preservation
Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim. App. 2007)). To preserve error, an appellant must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). The error alleged on appeal must comport with the objection submitted to the trial court. See TEX. R. APP. P. 33.1(a); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (en banc) ("The legal basis of a complaint raised on appeal cannot vary from that raised at trial").
B. Discussion
Appellant points to the following exchange that occurred during the prosecutor's closing argument in the guilt/innocence phase of the trial:
[STATE]: . . .[Y]ou know, I'm not asking for you to find that he's not physically disabled now. Honestly, I don't know. I don't know because we don't have a medical doctor that came up here and tell us that. I don't know if he is or not. I know he's in a wheelchair today, that's what I can tell you, for sure. I don't know, because there's no medical doctor up here, they didn't bring you one. They didn't bring you a medical doctor that can say in 2012, August 13. . .
[DEFENSE]: Objection, we have no burden to bring any witness whatsoever. That's alluding to a medical doctor, putting the burden on the defendant is totally unreasonable.
THE COURT: All right, counsel—ladies and gentlemen, the statements by the counsel are not evidence.
Appellant argues that the State's comment on appellant's non-testimonial demeanor questioned the legitimacy of appellant's disability and raised the issue that appellant did not testify to the truthfulness of his handicap. However, appellant's argument on appeal does not comport with the objection at trial. As a result, appellant has waived this issue for our review. See TEX. R. APP. P. 33.1(a).
We note that the trial court appeared to sustain appellant's objection and gave a curative instruction; however, appellant did not move for a mistrial. Even assuming the argument was improper, an improper argument may be cured by an instruction to disregard. See Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. ref'd); see also Dickins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (en banc).
Moreover, even if we were to consider appellant's trial objection, we conclude that the prosecutor's comments were rebuttal to appellant's argument that he could not have physically broken into the complainant's home—and therefore proper. Generally, a prosecutor's comments regarding the defendant's non-testimonial courtroom demeanor do not fit within one of the four approved areas, and therefore, are improper. See Good v. State, 723 S.W.2d 734, 736 (Tex. Crim. App. 1986) (en banc). However, it is well settled that a prosecutor, in argument, may comment on the defendant's failure to produce witnesses and evidence. Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005); Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000). It is equally well-settled that such an argument does not constitute an attempt to shift the burden of proof. Bible, 162 S.W.3d at 249; Jackson, 17 S.W.3d at 674.
In addition, defense counsel stated during his closing argument to the jury, given before the State's final reply:
. . . Now, if you believe that the State has carried its burden of proof by him, by Mr. Rocha, kicking this door down with force and effect, then he entered the habitation, I respectfully suggest to you that that did not happen, he was not there. There is no way that this man, in his physical condition, could have broken and busted that door. There's just no way.
The State's response merely pointed out that the defense could have produced medical testimony regarding appellant's physical condition at the time of the alleged offense had it disputed the State's evidence. See Jackson, 17 S.W.3d at 674 (citing McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999) (en banc)). In this context, the challenged comments do not impermissibly shift the burden of proof to the defense. See id. Appellant's first issue is overruled.
III. INEFFECTIVE ASSISTANCE CLAIM
By his second issue, appellant alleges that he received ineffective assistance of counsel. Specifically, appellant claims that counsel was ineffective for failing to file a pre-trial 404(b) request notice that would have revealed relevant evidence of a pending misdemeanor charge with similar facts. See TEX. R. EVID. 404(b) ("On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce [evidence of a crime, wrong, or other act]—other than that arising in the same transaction—in its case-in-chief"). Appellant likens counsel's failure to file a 404(b) request as a failure to properly investigate and concludes trial counsel made decisions "in preparation for trial without the vital knowledge of the prior pending case."
A. Standard of Review and Applicable Law
To prevail on an ineffective assistance claim, appellant must show (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our review of counsel's representation is highly deferential, and we will find ineffective assistance only if appellant rebuts the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851. The record must contain evidence of counsel's reasoning, or lack thereof, to rebut the presumption. Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd). We review the totality of representation rather than isolated instances in determining whether the trial counsel was ineffective. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Lopez, 343 S.W.3d at 143.
B. Discussion
During the pre-trial proceedings, the State revealed that appellant was also facing a pending misdemeanor terroristic threat charge, where appellant allegedly threatened a different complainant with a knife. Trial counsel admitted that he did not file a 404(b) request for notice of extraneous offenses and that he was unaware of the pending misdemeanor. See TEX. R. EVID. 404(b). During the trial, no evidence of this pending misdemeanor was presented during the guilt innocence phase before the jury. However, the pending misdemeanor was discussed, without objection, during the punishment phase before the court.See Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref'd) (a timely request for notice entitles a defendant to notice of the extraneous offenses the State intends to introduce during punishment); see also TEX. CODE CRIM. PROC. ANN. art 37.07 § 3(g) (West, Westlaw through 2015 R.S.).
Appellant elected to have the trial court determine punishment. --------
Assuming without deciding that defense counsel's performance fell below an objective standard of reasonableness, appellant fails to argue how counsel's alleged deficient performance prejudiced the defense. See Strickland, 466 U.S. at 689. Though he concludes that his trial counsel was unprepared, appellant fails to explain what his attorney would have done differently if he had received written notice of the State's intent to introduce this extraneous evidence.
Our review of the punishment phase record does not reveal that appellant's trial counsel seemed unprepared to rebut the extraneous evidence. Appellant's counsel extensively cross-examined the police officer who responded to the alleged terroristic threat. Appellant further testified and denied committing the alleged offense. The complainant in the pending misdemeanor did not testify.
There is also nothing in the record to indicate that appellant would have received a lower sentence had his counsel provided a 404(b) request. The trial court imposed the minimum sentence that appellant could have received as a habitual offender. A written notice of extraneous offenses would not have reduced the sentence given that appellant admitted to the two previous enhancements. Therefore, appellant has not demonstrated that a different outcome would have been possible if trial counsel had provided a 404(b) request and been in possession of written disclosure. See Strickland, 466 U.S. at 694; Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005); see also TEX. R. APP. P. 44.2. Appellant has not established the second prong of Strickland and thus has failed to show that he received ineffective assistance of counsel. See Strickland, 466 U.S. at 689.
Appellant's second issue is overruled.
IV. CHALLENGE FOR CAUSE
By his third issue, appellant argues that "the trial court erred in failing to sustain appellant's challenge for cause of a prospective juror who showed a bias against appellant's right to testify."
A. Preservation
To preserve error on his challenges for cause, a defendant must (1) assert a clear and specific challenge for cause, (2) use a peremptory challenge on the complained-of veniremember, (3) exhaust all of his peremptory challenges, (4) request and be denied additional peremptory challenges, and (5) be forced to accept an objectionable juror on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002), superseded by statute, as stated in Coleman v. State, No. AP-75478, 2009 WL 4696064, at *11 n.46 (Tex. Crim. App. 2009) (not designated for publication); Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).
B. Standard of Review
When reviewing an alleged error involving jury voir dire, we are directed to review the actions of the trial court under an abuse of discretion standard. See Kemp v. State, 846 S.W.2d 289, 297 (Tex. Crim. App. 1992) (en banc). We will reverse only when the trial court's decision was so clearly wrong as to be outside that zone within which reasonable persons might disagree. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc)). When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the trial court's ruling. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995) (en banc). We give great deference to the trial court's decision because the trial judge is present to observe the demeanor of the veniremember and to listen to his tone of voice. Id.
C. Applicable Law
A defendant may challenge any prospective juror who has a bias or prejudice against any phase of the law upon which he is entitled to rely. TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (West, Westlaw through 2015 R.S.). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with law. See, e.g., Patrick, 906 S.W.2d at 489; Hughes v. State, 878 S.W.2d 142, 148 (Tex. Crim. App. 1992) (en banc). However, before a prospective juror can be excused for cause on this basis, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim. App. 1998) (en banc).
D. Discussion
During voir dire, appellant challenged veniremember 28 for cause, arguing that the veniremember was biased due to his preference for a defendant to testify. However, appellant did not use a peremptory strike on veniremember 28. Additionally, assuming that appellant exhausted his peremptory strikes prior to reaching veniremember 28, appellant never requested any additional peremptory strikes. As a result, appellant has failed to preserve this issue for our review. See Feldman, 71 S.W.3d at 744; see also Cardenas v. State, 305 S.W.3d 773, 780 (Tex. App.—Fort Worth 2009), aff'd, 325 S.W.3d 179 (Tex. Crim. App. 2010).
However, even if appellant had properly preserved this issue, his argument is without merit. The State questioned veniremember 28 as follows:
[STATE]: Okay. I have down a note about having an issue with the defendant's right to testify, is that correct?
[VENIREMEMBER]: That's correct.
[STATE]: Okay, and tell me a little bit about that.
[VENIREMEMBER]: I just feel like he should -- he should have something to say. He's here for a reason, I feel like he should defend himself.
[STATE]: Do you understand that the law doesn't require him to testify?
[VENIREMEMBER]: I understand that.
[STATE]: Okay, and I guess the bottom line question is can you follow the law that says that he has a right not to testify and not hold that against him?
[VENIREMEMBER]: Yes, I can.
While the veniremember expressed his preference for a defendant to testify, his later response demonstrates an understanding of the law and willingness to follow the law regardless of his personal views. Given the veniremember's statements, the trial court could have found the veniremember would be able to serve on the jury without bias. Therefore, the trial court did not abuse its discretion in denying appellant's challenge for cause. See Jones, 982 S.W.2d at 390. Appellant's third issue is overruled.
V. CONSTITUTIONAL CHALLENGE
By his fourth issue, appellant asserts "the trial court erred to proceed with the trial after a juror informed the court that she knew the State's lead investigating detective in the case, after the detective had already testified." We construe appellant's argument to mean that the juror's inclusion on the jury deprived the appellant of his right to an impartial jury as guaranteed by the Sixth Amendment and Article I, Sections 10 and 15 of the Texas Constitution. See U.S. CONST. amend. VI; TEX. CONST. art. I, §§ 10, 15.
A. Preservation
While the Sixth Amendment promises the right to an impartial jury, that right is not "an inflexible constitutional imperative which cannot be procedurally defaulted or consciously waived." Delrio v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992) (en banc). "Rather, we have recognized it to be a right of the accused, which must be pressed in some fashion at trial before reversal of his conviction may be predicated upon its breach." Id. The failure to have an impartial jury is not structural error. See State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (en banc) (holding right to an impartial jury "is not to be regarded . . . as a fundamental feature of the system which is not optional with the parties").
B. Discussion
After the closing of the presentation of evidence during the guilt/innocence phase of the trial, a juror approached the bench and disclosed to the trial court that she knew one of the State's witnesses, Officer Lerma. The juror explained that Officer Lerma worked for her company ten years ago, and that she had not had contact with him since. She also stated that there was nothing in her previous relationship with Officer Lerma that would influence her decision in the case. The juror remained on the jury, and appellant did not make any objection to her continued service. Further, appellant's trial counsel affirmatively indicated the he did not oppose the juror's service. See id. We concluded that appellant failed to preserve this issue for appeal. See Delrio, 840 S.W.2d at 445 ("[W]e have no reason to believe that the right to an impartial jury is not subject to ordinary adversarial principles, to be invoked, or not, according to the vicissitudes of trial."). Appellant's fourth issue is overruled.
VI. EVIDENTIARY CHALLENGE
By his fifth issue, appellant alleges that the evidence was insufficient to prove his prior convictions. Specifically, appellant, in effect, is arguing that the State failed to link him to the two prior convictions.
A. Standard of Review
In our review of the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the enhancement paragraphs to be true beyond a reasonable doubt. Jaynes v. State, 216 S.W.3d 839, 845 (Tex. App.—Corpus Christi 2006, no pet.); see Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The same standard applies when considering the sufficiency of the evidence to prove that an appellant is the same person alleged in the enhancement allegations. See Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988) (en banc).
B. Applicable Law
To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt (1) a prior conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to prove these two elements. Id. A certified copy of a final judgment and sentence is one method of proof. See id. The factfinder "fits the pieces of the jigsaw puzzle together and weighs the credibility of each piece," looking to the totality of the evidence to determine whether both elements are proven beyond a reasonable doubt. See id. at 923.
C. Discussion
Appellant's argument is without merit. During the punishment phase of the trial, the State asked appellant on cross-examination about the two prior convictions alleged in the indictment. Appellant admitted that he was convicted in both of the two prior cases and stated that he understood that due to his previous felony convictions, his minimum sentence would be twenty-five years imprisonment.
Texas courts have held that a defendant's stipulation to a prior conviction is tantamount to a judicial admission, thereby relieving the State of its requirement to prove the prior convictions. See Bryant v. State, 187 S.W.3d 397, 402 (Tex. Crim. App. 2005); see also Kuhel v. State, No. 13-09-00180-CR, 2011 WL 3821025, at *3 (Tex. App.—Corpus Christi Aug. 25, 2011, no pet.) (mem. op., not designated for publication). The same reasoning holds true for admissions by the defendant given through his own live testimony. By testifying and admitting to the two prior felonies, appellant removed the need for further proof of those convictions. See Byrant, 187 S.W.3d at 402 (citing Harrison v. United States, 204 F.3d 236, 240 (D.C. Cir.)). Appellant's fifth issue is overruled.
VII. CONCLUSION
We affirm the trial court's judgment.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 21st day of January, 2016.