No. 05-07-00161-CR
Opinion Filed April 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80501-06.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
AMOS L. MAZZANT, JUSTICE.
Gilbert Andrew Rubio was convicted of aggravated robbery and sentenced to thirty-five years in prison. In three issues, appellant argues he was denied the effective assistance of counsel and that the trial court erred in allowing "inadmissible bolstering of the complainant's identification" of appellant. For the following reasons, we affirm the trial court's judgment.
Discussion
In his first and second issues, appellant argues he was denied the effective assistance of counsel because his trial attorney failed to object to extraneous offense evidence and evidence of gang affiliation. In particular, appellant claims that testimony that he ran from officers, struggled with officers, was driving a stolen car, and had gang-affiliated tattoos was objectionable under rule 404(b) of the Texas Rules of Evidence as evidence of "other crimes." Describing appellant's arrest, Officer John Woodruff of the McKinney Police Department explained that, at approximately 1:00 a.m. on October 27, 2005, he noticed appellant's car traveling north at an extremely high rate of speed. Woodruff activated his overhead lights and attempted to pull the vehicle over, but it continued to move at a high rate of speed. A few seconds later, the vehicle hit the curb and veered onto the courthouse lawn, eventually striking a tree. Appellant fled on foot. After officers caught up with him, he struggled with one of the officers while holding a gun in his right hand. The car appellant was driving was later determined to be stolen. Detective Kathy Hudson of the McKinney Police Department described appellant's tattoos to the jury, including two "devil horns" on the top of appellant's head and another tattoo below his left eye. Officers initially believed the tattoo below his eye was a teardrop but they later realized it was the initials "LA." Appellant had numerous other tattoos, and the initials "LA" and the number thirteen appeared often. Hudson testified that the number thirteen was associated with a "pretty well known and very violent criminal street gang" know as "MS-13." Ineffective assistance of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) (en banc). To prevail on an ineffective assistance claim, an appellant must show 1) counsel's performance fell below an objective standard of reasonableness and 2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. "Any allegation of ineffectiveness must be firmly rooted 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). "Ineffective assistance of counsel claims are not built on retrospective speculation; they must `be firmly founded in the record.' That record must itself affirmatively demonstrate the alleged ineffectiveness." Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Our review of an ineffective assistance claim is highly deferential and begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). An appellate court should not try to second guess counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999) (en banc). When, as in this case, the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Trial counsel should ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex.Crim.App. 2005). Because the reasonableness of counsel's choices often involve facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) (en banc). In the majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland because the reasonableness of counsel's choices often involve facts not appearing in the cold appellate record. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). This case is no different. The record in this case is undeveloped and does not shed any light on the motives behind trial counsel's reasons for not objecting to the errors identified by appellant. Without further information in the record before us, we would simply be speculating about why counsel did not object to Woodruff's or Hudson's testimony. It is possible that defense counsel did not object to the complained-of testimony because he believed it was admissible. See Ortiz, 93 S.W.3d at 93 (appellant must prove evidence was inadmissible in order to establish counsel was deficient for failing to object). In addition to the explicit exceptions set out in rule 404(b), extraneous offense evidence may be admissible as contextual evidence. Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000). Other offenses that are committed as part of the same transaction may be admissible to provide the jury with "all the relevant surrounding facts and circumstances" of the offense. Id. Since the State was required to prove appellant used a firearm during the offense, introduction of the handgun was an elemental fact and the State was permitted to introduce contextual evidence to show the circumstances in which the police found the weapon in order to tie it to appellant. Further, appellant's flight from the police is a circumstance from which guilt may be inferred. See Cantrell v. State, 731 S.W.2d 84, 92 (Tex.Crim.App. 1987). "Consequently, evidence of flight is admissible even though it may show the commission of other crimes." Id. "Such evidence is also relevant to show efforts made to locate or apprehend a defendant, his pursuit and capture," and the circumstances of his arrest including his resistance. Id. Moreover, counsel could have reasonably believed that the brief reference to the significance of some of appellant's tattoos was so fleeting that the jury would not focus on the testimony unless counsel drew further attention to it by lodging additional objections. It is also possible that counsel decided not to object to Woodruff's or Hudson's testimony because he wanted to appear open and honest with the jury. Appellant's defense was based on the jury believing his explanation that he stole the complainant's wallet but he did not take it at gunpoint. While acknowledging appellant was "no angel," defense counsel insisted appellant was not an aggravated robber. During closing arguments, counsel attempted to focus the jury's attention on the instant offense by assuring the jurors appellant would be punished for any other crimes in a separate proceeding. So long as counsel's actions could be the product of reasonable trial strategy, he should be given the opportunity to explain his actions before being condemned as unprofessional and incompetent. Bone, 77 S.W.3d at 836. We must presume trial counsel had plausible reasons for his actions. Because appellant has failed to bring forward evidence rebutting that presumption, we are unable to conclude trial counsel's performance was deficient. We overrule appellant's first and second issues. In his third issue, appellant argues that the trial court erred by allowing third-party testimony of an extrajudicial identification by the complainant in support of the complainant's own identification testimony. Specifically, appellant argues that the trial court allowed Hudson to testify that the complainant picked appellant out of a photographic line-up, which amounted to improper bolstering of the complainant's identification of appellant. According to the record, the victim, Alejandro Benitez, identified appellant in court as his attacker and also testified that he picked appellant out of a photographic line-up. Hudson later testified that she put together a photographic line-up and showed it to Benitez. Over appellant's objection to "improper bolstering," Hudson testified that Benitez selected appellant's picture out of the line-up. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim App. 2005); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). If the trial judge's decision is within the "bounds of reasonable disagreement," we do not disturb the ruling on the admissibility of evidence. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). Bolstering is no longer a valid objection when the testimony is not hearsay. See Jones v. State, 833 S.W.2d 634, 635 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd); Henderson v. State, 816 S.W.2d 845, 849 (Tex.App.-Fort Worth 1991, no pet.). Under the Texas Rules of Evidence, a witness may testify to another witness's "identification of a person made after perceiving the person" so long as the declarant testifies at the hearing and is subject to cross-examination. Tex. R. Evid. 801(e)(1)(C)); Smith v. State, 830 S.W.2d 328, 329 (Tex.App.-Houston 14th Dist. 1992, no pet.). Such a statement is admissible evidence and is not impermissible bolstering. Id.; see also Jackson v. State, 846 S.W.2d 411, 414 (Tex.App.-Houston 14th Dist. 1992, no pet.). In the present case, the complainant testified at trial and was extensively cross-examined by appellant's trial counsel. The complainant's identification of appellant in a photographic line-up was therefore admissible and the trial court did not abuse its discretion by allowing Hudson's testimony. We overrule appellant's third issue. We affirm the trial court's judgment.