No. 05-03-00083-CR
Opinion Filed November 12, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 282nd Criminal District Court, Dallas County, Texas, Trial Court Cause No F99-70518-S. AFFIRMED
Before MORRIS, FITZGERALD and LANG.
Opinion By Justice LANG.
Roberto Retana Soto appeals his conviction for aggravated assault for which he was sentenced to 12 years' imprisonment. In three issues, appellant contends: (1) he received ineffective assistance of counsel; (2) his rights to due process of law were violated by the trial court's failure to consider the full range of punishment and by its imposition of a predetermined sentence; and (3) the evidence is legally insufficient to permit a rational trier of fact to find against appellant on his claim of self-defense. For the reasons that follow, we affirm the trial court's judgment.
Factual and Procedural Background
Appellant went to visit his children at his ex-wife's apartment complex and encountered Juan Carlos Rodella (Rodella) outside. Appellant knew his ex-wife had a relationship with Rodella. Appellant thought Rodella would be mad at him, and that Rodella might have a weapon. Appellant saw Rodella coming toward him on foot and fired at him three times, allegedly in self-defense. Rodella survived, but was hospitalized for several weeks. Rodella later married appellant's ex-wife. Appellant was charged with aggravated assault with a deadly weapon. Appellant pled not guilty and waived a jury trial. Judge Greene presided over the guilt or innocence phase of appellant's trial and found him guilty. Some time later, Judge Marshall presided over the punishment phase of appellant's trial. After finding that Judge Greene had made an affirmative deadly weapon finding, Judge Marshall sentenced appellant to 12 years' imprisonment. Ineffective Assistance of Counsel
In his first issue appellant claims he was denied effective assistance of counsel on four grounds. First, appellant claims his counsel failed to seek out and interview witnesses; second, his counsel failed to file a written motion for a continuance; third, his counsel failed to present appellant's theory of the case at the guilt phase of the trial; and fourth, his counsel failed to make any argument for acquittal, or any argument at all, in closing argument. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When the record is silent regarding the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson, 9 S.W.3d at 813-14. Our review of trial counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone, 77 S.W.3d at 833. We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.]1981); Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). When facing a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant claims his lawyer was ineffective for failing to seek out and interview his ex-wife before the trial. The failure to seek out and interview potential witnesses is considered ineffective assistance of counsel when the inaction precludes the accused from advancing a viable defense. See Ex parte Duffy, 607 S.W.2d 507, 517 (Tex.Crim.App. 1980) (finding of ineffective assistance was made in the petitioner's habeas corpus proceeding after direct appeals had failed), overruled on other grounds, Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). Appellant has not shown that his ex-wife's testimony would have had any bearing on his defense. Appellant's ex-wife was not a witness to the shooting, but presumably she could have testified to the relationship between her and Rodella. Appellant argued that his ex-wife could impeach Rodella's testimony, but has not shown what such testimony would be, nor how such testimony would have helped his defense. Because the record contains no evidence of what testimony the ex-wife could have provided, it is not possible to determine whether she could have supplied facts that would have supported appellant's position. See Melancon v. State, 66 S.W.3d 375, 381 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Thus appellant has not shown he was harmed by this failure. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700. Next, appellant claims his lawyer was ineffective for failing to file a written motion for continuance in accordance with Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989) to allow him time to find and interview appellant's ex-wife. Again, appellant has not shown how his ex-wife's testimony would have helped him. The grant or denial of a motion for continuance lies within the trial court's discretion. Duhamel v. State, 717 S.W.2d 80, 83 (Tex.Crim.App. 1996). A motion for continuance that is not in writing is properly overruled. State v. Welch, 810 S.W.2d 13, 15 (Tex.App.-Amarillo 1991, no pet.). Appellant has not shown that the court would have granted a written motion for continuance, or that he was harmed by the court's failure to grant a continuance. Appellant has met neither prong of the Strickland test because he has not shown how failing to file a written motion for a continuance to obtain time to interview his ex-wife fell below an objective standard of reasonableness or prejudiced his defense. Appellant also claims his lawyer was ineffective for failing to present his self-defense and mistake of fact claims at the guilt or innocence phase of his trial. The record is silent regarding the possible tactical reasons for counsel's actions. "Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation." Thompson, 9 S.W.3d at 813. The record of the sentencing hearing offers some evidence regarding appellant's defenses which he alleges should have been raised at his trial. Appellant did not testify at the guilt or innocence phase of his trial, but he did testify at his sentencing hearing regarding his allegations of self-defense and mistake of fact. Appellant testified he and Rodella had never spoken to each other, but appellant knew Rodella had a relationship with appellant's ex-wife. Appellant testified he was in his truck when he saw Rodella walking toward him, and thought he could not back out because of traffic. Appellant testified he thought Rodella might be mad at him and might have a weapon, so he reached into the back of his truck for his gun, got out of his truck and shot at Rodella three times. When asked whether he was trying to kill Rodella, he answered "possibly." To establish his claim of self-defense, appellant must show he reasonably believed that use of deadly force was immediately necessary to protect himself against his victim's use or attempted use of unlawful force. Broussard v. State, 809 S.W.2d 556, 559 (Tex.App.-Dallas 1991, pet. ref'd). Appellant testified he believed Rodella would have shot him if he had a weapon. Even if appellant had offered this testimony at the guilt or innocence phase of his trial, the trial court might well have concluded appellant had failed to prove or even raise the issue of self-defense. See id. at 559. Appellant offered no evidence that his belief was reasonable. To determine whether the elements of self-defense have been raised, the court looks to the surrounding circumstances. Id. There is nothing in the record to indicate Rodella intended to use unlawful force against appellant. Based on this record we cannot conclude appellant has shown that, "but for trial counsel's errors, the result would have been different." Bone, 77 S.W.3d at 833. Additionally, the record does not establish that appellant's lawyer was deficient or that appellant was prejudiced by his lawyer's failure to raise the defense of mistake of fact at the guilt or innocence phase of his trial. It is a defense to prosecution that the actor, through mistake, formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. Tex. Pen. Code Ann. § 8.02(a) (Vernon 2003). Appellant was charged with "knowingly and intentionally" causing bodily injury to Rodella. In the punishment phase, appellant testified he thought Rodella might have a weapon, but offered no reason for this belief and no other evidence was offered to support appellant's belief that Rodella might have a weapon. Even if appellant reasonably believed Rodella did have a weapon, and he had so testified during the guilt or innocence phase, this belief would not affect the culpable mental state with which he was charged, that of "knowingly and intentionally" causing bodily injury. See Goodin v. State, 726 S.W.2d 956, 959 (Tex.App.-Fort Worth 1987) aff'd 750 S.W.2d 789 (Tex.Crim.App. 1988). Finally, appellant claims his lawyer was ineffective for failing to make any closing argument on his behalf. The record shows that appellant's lawyer requested a continuance to subpoena appellant's ex-wife to testify. Appellant's lawyer claimed appellant's ex-wife could impeach Rodella's testimony. The court declined the request. Then, appellant's lawyer declined to make a closing argument, citing the denial of the continuance. When the record is silent, as here, on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Mallett, 65 S.W.3d at 63. In fact, this Court rejected an appellant's complaint that his lawyer's closing argument should have been more strenuous, noting that the record was silent as to "counsel's tactics or strategy concerning his closing argument." Duckworth v. State, 89 S.W.3d 747, 752 (Tex.App.-Dallas 2002, no pet.). Unless no possible basis exists in strategy or tactics for counsel's actions, we will not inquire into trial strategy. Johnson, 614 S.W.2d at 152. It is certainly possible that appellant's lawyer may have declined to make a closing argument to prevent the State from making a more convincing closing in rebuttal. This rationale was suggested as a possible explanation for counsel's action in waiving final argument in the penalty phase of a death penalty case in Bell v. Cone, 535 U.S. 685, 702 (2002). In Bell, the Supreme Court found the state court's application of Strickland was not objectively unreasonable in deeming counsel's waiver of final argument as a tactical decision. Id. The Court noted that by waiving his own summation, the defendant's lawyer prevented the lead prosecutor from offering a summation. The lead prosecutor was very persuasive, and without his summation the jury was left with the brief, matter-of-fact closing offered earlier by the junior prosecutor. Id. at 701-02. Similarly, in Ortiz v. State, 866 S.W.2d 312, 315 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd), the court refused to find a defendant had received ineffective assistance of counsel at the punishment phase of his trial when his lawyer made a short closing argument after the defendant had testified. The court noted the lawyer may have been thereby trying to emphasize the defendant's own testimony. "Which witnesses to call, and what type of closing argument to make, are clearly trial strategy." Id. That appellant's lawyer's decision not to make an additional argument could have been a strategic one is borne out by events at trial. The State's case, presented in this trial to the court, consisted entirely of the testimony of two witnesses: the relatively brief testimony of Rodella himself; and the very brief testimony of the police officer who testified to finding Rodella when he arrived at the scene, and testified that in his opinion a firearm was a deadly weapon. The State made an extremely brief closing argument. One can assume that the evidence was still fresh in the court's mind. The evidence raised no legal defenses for appellant's lawyer to argue. Similar to what transpired in Bell, by waiving a closing argument, appellant's lawyer may have prevented the State from taking advantage of the opportunity to emphasize the facts of the case and make a stronger summation in rebuttal. An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. Based on this record, we cannot conclude appellant has overcome the strong presumption that the decisions of counsel during trial fell within the wide range of reasonable professional assistance. Id. Nor has appellant shown that but for his lawyer's errors the result would have been different. See Bone, 77 S.W.3d at 833. We resolve appellant's first issue against him. Improper Sentencing
In his second issue, appellant claims the sentencing judge failed to consider the full range of punishment and imposed a predetermined sentence based on his assumption that the trial judge had made a deadly weapon finding. Appellant argues the trial judge left the deadly weapon finding open and therefore the sentencing judge had the power to grant appellant probation. A judge cannot grant probation when it is shown that a deadly weapon was used or exhibited during the commission of a felony offense. Tex. Code Crim. Proc. Ann. art. 42.12(3)g(a)(2) (Vernon 1999). Upon an affirmative finding of a deadly weapon, that finding shall be entered in the judgment of the court. Id. An affirmative finding means the trier of fact expressly determined that a deadly weapon or firearm was actually used or exhibited during the commission of the offense. See Polk v. State, 693 S.W.2d 391, 393 (Tex.Crim.App. 1985). Here the sentencing judge could properly conclude the trial judge had made such an affirmative finding. The indictment charged that appellant did "knowingly and intentionally cause bodily injury to JUAN RODELLA, hereinafter called complainant, by shooting said complainant, and said defendant did use and exhibit a deadly weapon to-wit: a firearm, during the commission of the assault. . . ." Thus the indictment specifically pled the use of a deadly weapon, and the weapon pled is per se a deadly weapon because it is a firearm. Tex. Pen. Code Ann. § 1.07(a)(17)(Vernon 2003). At the conclusion of the trial, the judge found appellant guilty. Under the indictment, the sentencing judge could conclude the trial judge made an express finding that a deadly weapon was used. Cf. Polk, 693 S.W.2d at 396 (finding an express determination that a deadly weapon or firearm was used when jury is trier of fact is proper when jury finds defendant guilty as charged in the indictment and the indictment specifically pleads use of deadly weapon or firearm, or the weapon pled in the indictment is per se a deadly weapon or firearm). Appellant argues the guilty verdict does not include an affirmative finding of use of a deadly weapon because it does not include the words "as alleged in the indictment." However, as Judge Marshall observed at the sentencing hearing, "if the judge found him guilty under this indictment, that's the only way she would have found him guilty." A finding of guilty necessarily included a finding that appellant used a deadly weapon because every allegation in the indictment included a deadly weapon allegation. Cf. Ratthamone v. State, 111 S.W.3d 784, 486 (Tex.App.-Fort Worth 2003, no pet.)(upholding the trial court's determination that the jury had made a deadly weapon finding when the jury returned a general verdict of "guilty of the offense of murder" without the phrase "as alleged in the indictment;" but both the indictment and jury charge contained deadly weapon language). The court in Ratthamone cited the recent decision in LaFleur v. State, 106 S.W.3d 91 (Tex.Crim.App. 2003) overruling Davis v. State, 897 S.W.2d 791, (Tex.Crim.App. 1995) for the proposition that "[t]he indictment, jury charge, verdict, and judgment are all relevant sources to consider in determining whether a jury made an express deadly weapon finding." Ratthamone, 111 S.W.3d at 785. In LaFleur v. State, the court reaffirmed its holding in Polk that there must be an express finding of a deadly weapon when the jury is the factfinder, but concluded that " Polk's purpose of ensuring an `express finding' of a deadly weapon is satisfied by looking to the explicit requirements of the application paragraph as well as to the indictment and verdict form." The court in LaFleurconcluded that the jury verdict "NOT GUILTY of Murder as charged in the indictment, but GUILTY of the lesser included offense of Manslaughter" satisfied the requirement that the jury make an express finding of use of a deadly weapon because the application portion of the jury charge for the lesser included offense of manslaughter specifically pled "by shooting complainant with a deadly weapon, to-wit: a firearm." LaFleur, 106 S.W.3d at 93. Under the rationale of LaFleur and Polk, the instrument under which the defendant is found guilty, combined with the verdict, can indicate whether an express deadly weapon finding has been made. Because the trial court here found appellant guilty under an indictment that specifically alleged use of a deadly weapon and use of a weapon that is per se a deadly weapon, we conclude the sentencing judge correctly found the trial judge had made a deadly weapon finding. See Ex parte Empey, 757 S.W.2d 771, 774 (Tex.Crim.App. 1988) (finding made by trial judge as trier of fact when charging instrument alleges deadly weapon and accused found guilty as set forth above, though court failed to enter finding as required). Appellant argues that as the trier of fact at the punishment stage, the sentencing judge had the authority to make the deadly weapon finding, citing Campos v. State, 927 S.W.2d 232 (Tex.App.-Waco 1996, no pet.) and Hall v. State, 937 S.W.2d 580, 587 (Tex.App.-Texarkana 1996, writ ref'd). When "the trial judge is the trier of fact at the punishment stage and he has heard evidence on the issue, he has the authority to make an affirmative finding as to the use or exhibition of a deadly weapon if the jury has not decided the matter." Ex parte Franklin, 757 S.W.2d 778, 780 (Tex.Crim.App. 1988). In the cases cited by appellant, the jury or trial court had not decided the matter. Having found that the fact finder at trial here had made an affirmative deadly weapon finding, the sentencing court properly entered that finding in the judgment. See Franklin, 757 S.W.2d at 780. We resolve appellant's second issue against him. Legal Sufficiency of the Evidence
In his third issue, appellant argues the evidence was legally insufficient to permit a rational trier of fact to find against him on the issue of self-defense. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). Part of the analysis in determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt is a determination whether any rational trier of fact "would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Appellant argues that a rational trier of fact could not have found beyond a reasonable doubt that he was not acting in self-defense, because when he shot Rodella he was acting under the reasonable apprehension of danger to himself. A person is justified in using deadly force against another if he would be justified in using force under section 9.31 of the Texas Penal Code; if a reasonable person in his situation would not have retreated; and if he reasonably believed the deadly force was immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. §§ 9.31, 9.32 (Vernon 2003). In determining legal sufficiency of the evidence, we consider all the evidence, admissible and inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Appellate judges are not factfinders, however. We may not reevaluate the weight and credibility of the record evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). Rodella testified he was walking back to his apartment when the appellant pulled up in his truck, parked and got out, pulled out a gun and started to shoot. Rodella was shot twice, once in the back. Rodella testified he was unarmed. A police officer who arrived on the scene shortly after the shooting testified he found no gun on Rodella and no shell casings around him. Based on this evidence, a rational trier of fact could have concluded appellant had not acted in self-defense. Saxton, 804 S.W.2d at 914; see also Halbert v. State, 881 S.W.2d 121, 127 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd)(evidence legally sufficient because a rational jury could have found against defendant on her self-defense claim, but judgment reversed because defendant was entitled to jury instruction on self-defense). Only at the punishment phase of the trial did appellant testify to his apprehension of danger from Rodella. Even then his testimony was merely that he thought Rodella might be mad at him and might have a weapon. After viewing all the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the appellant did not act in self-defense. Id. We resolve appellant's third issue against him. For the foregoing reasons, we affirm the trial court's judgment.