Gamboa
v.
State

Court of Appeals of Texas, Sixth District, TexarkanaAug 24, 2005
No. 06-04-00157-CR (Tex. App. Aug. 24, 2005)

No. 06-04-00157-CR

Submitted: August 23, 2005.

Decided: August 24, 2005. DO NOT PUBLISH.

On Appeal from the 71st Judicial District Court, Harrison County, Texas, Trial Court No. 04-0237X.

Before MORRISS, C.J., ROSS and CARTER, JJ.


MEMORANDUM OPINION


Mario Anthony Gamboa appeals his conviction by a jury for two separate indictments — escape and aggravated assault on a public servant. The cases were tried together. Because a deadly weapon was used or exhibited in the commission of both offenses, both offenses were first-degree felonies. See TEX. PEN. CODE ANN. §§ 22.02(a), 38.06(e) (Vernon 2003 Supp. 2004-2005). Gamboa has appealed both convictions. Gamboa has raised identical issues in both appeals and briefed both appeals together. Since the two cases have identical issues, we will discuss both in this opinion. The jury assessed Gamboa's punishment at thirty years' imprisonment for the escape, and thirty-five years for the aggravated assault. The trial court sentenced Gamboa consistent with the jury's verdict. On appeal, Gamboa argues that the evidence is legally and factually insufficient and that he received ineffective assistance of counsel. We affirm the judgment of the trial court. After being arrested for possession of a controlled substance, Gamboa agreed to cooperate with the Northeast Texas Narcotics Task Force, a combination of agencies working to suppress narcotics crime in Northeast Texas, including officers from Panola County. At the time, Gamboa was in the custody of Panola County. Gamboa was transported to Texarkana, Texas, to aid the officers in their investigation. While being transported back to the Panola County Jail, Gamboa escaped from custody in Harrison County, using a sharp unidentified object. In the process, Gamboa cut the hand of Sergeant Chad Taylor, a police officer with the City of Carthage. Eventually, the police apprehended Gamboa while he was attempting to cross the Sabine River.

See Gamboa v. State, case number 06-05-00158-CR.

The sentences run concurrently. See TEX. PEN. CODE ANN. § 3.03(a) (Vernon 2003).

The Evidence Is Legally and Factually Sufficient

In his first two points of error, Gamboa challenges the legal and factual sufficiency of the evidence. According to Gamboa, the evidence clearly established that the weapon used in the escape to assault the police officer was a fingernail clipper. Gamboa contends that no rational juror could have concluded that a fingernail clipper is a deadly weapon. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which we may find the evidence to be factually insufficient. Id. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if — when we weigh the evidence supporting and contravening the conviction — we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484-85. "Stated another way, evidence supporting guilt can `outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. at 485. To convict Gamboa of escape, the State was required to prove Gamboa escaped from custody after having been arrested for, charged with, or convicted of an offense. See TEX. PEN. CODE ANN. § 38.06(a) (Vernon 2003); Scott v. State, 672 S.W.2d 465, 466 (Tex.Crim.App. 1984). Escape is defined as an "unauthorized departure from custody." Lawhorn v. State, 898 S.W.2d 886, 890 (Tex.Crim.App. 1995). Custody, in the context of escape, implies a degree of physical limitation, restraint, or control that a reasonable person, under the circumstances, would have believed he or she was not free to leave. See Morris v. State, 739 S.W.2d 63, 66 (Tex.Crim.App. 1987). Escape is a felony of the first degree if the actor "uses or threatens to use a deadly weapon." TEX. PEN. CODE ANN. § 38.06(e)(2) (Vernon 2003). The State's theory of the charge for aggravated assault was that Gamboa used or exhibited a deadly weapon while intentionally, knowingly, or recklessly causing bodily injury to Taylor and that Taylor was a public servant who was lawfully discharging his duties at the time of that assault. See TEX. PEN. CODE ANN. §§ 22.01-.02 (Vernon Supp. 2004-2005). The offense of aggravated assault on a public servant is a first-degree felony. See TEX. PEN. CODE ANN. § 22.02(b)(2). Gamboa's argument focuses on whether the evidence is sufficient to show he used a deadly weapon. The Texas Penal Code defines the term "deadly weapon" as follows:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
TEX. PEN. CODE ANN. § 1.07(a)(17) (Vernon Supp. 2004-2005). Section 1.07 does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Taylor testified that, while he was driving the vehicle in which Gamboa was being transported, he observed Gamboa fidgeting with something in his right hand beside his leg. Because Gamboa had "showed total cooperation" until this point, Taylor had not handcuffed Gamboa. Soon thereafter, Gamboa lifted up his hand, in which he held a sharp object resembling a knife, and ordered Taylor to pull over. Taylor could only see the tip, but testified that the object "[l]ooked like a knife." When Taylor refused to pull over, Gamboa lunged out of his seat and thrust the object at Taylor's throat and face. Although Taylor blocked the thrust, he received a cut from the object requiring closure with stitches. The injury squirted blood onto the driver's side door, dashboard, and even onto the passenger door of the vehicle. Taylor testified the object was a very sharp metallic object and could easily have killed a person if it had hit the jugular vein. Gamboa and Taylor then struggled over control of the steering wheel, causing Taylor to lose control of the vehicle, which then went into a skid. While the vehicle was skidding sideways down the highway, Gamboa opened a door and fled. Gamboa then ran into the woods and disappeared into the swampy undergrowth. Taylor testified that there was no question Gamboa was still in custody and that the investigation into his prior offense was still ongoing. Gamboa knew he was being transported back to the Panola County Jail. Taylor testified he never gave Gamboa permission to leave. The police pursued Gamboa on foot and searched for him with dogs and a helicopter. In addition, several boats were sent to patrol along the Sabine River. Eventually, several police officers and a game warden apprehended Gamboa while he was attempting to cross the Sabine River. After receiving Miranda warnings, Gamboa made a statement in which he admitted escaping from custody. A videotape of the statement was introduced into evidence. The jury was presented with three alternative theories as to what Gamboa used as a deadly weapon. The indictment in this case alleged Gamboa used or exhibited one of the following deadly weapons: a knife, a fingernail file, or an unknown object. The indictment in the companion case alleged Gamboa committed either attempted capital murder or aggravated assault on a public servant and used or exhibited one of the following deadly weapons: a knife, a fingernail file, or an unknown object. The jury found that Gamboa committed escape and aggravated assault on a public servant while exhibiting a deadly weapon, to-wit, an unknown object. Viewed in a light most favorable to the prosecution, a rational juror could have found all the essential elements of both offenses beyond a reasonable doubt. Based on Taylor's testimony, a rational juror could have found that Gamboa intentionally, knowingly, or recklessly caused bodily injury by cutting Taylor's hand with an unknown object. Further, a rational juror could have concluded that the object was used in a manner capable of causing death or serious bodily injury. When viewed in a neutral light, the evidence supporting the verdict, considered alone, is not too weak to support the jury's finding of guilt beyond a reasonable doubt. After weighing the evidence supporting and contravening the conviction, the contrary evidence is not strong enough that the State could not have met its burden of proof. The evidence is factually sufficient. Although the record contains some evidence that the deadly weapon was a fingernail file or clipper which was not sharp, the contrary evidence is not so strong that a rational juror could not have concluded that Gamboa used an unknown object in a manner capable of causing death or serious bodily injury. In his statement, Gamboa stated the weapon he used was a fingernail file. Gamboa stated that he intended the victim to think he had a knife, but that the fingernail file could not have harmed anyone. The police found a manicure set in the car, which was missing a piece. Gamboa introduced a fingernail clipper produced by the same company and alleged it was identical to the missing piece of the manicure set. Taylor testified the fingernail clipper "fits the description" of the object he observed, but was not sure if it was the object used. Taylor admitted the fingernail clipper introduced by Gamboa did not have a sharp point. However, the jury could have reasonably concluded, and apparently did conclude, that the fingernail clipper presented by Gamboa was not equivalent to the weapon used in the escape. The actual weapon used in the escape was not discovered. The jury concluded that an unknown object was used in the offense. Taylor testified the object used by Gamboa was very sharp, and a photograph of his injured hand with several stitches was introduced into evidence. Based on Taylor's testimony and the other evidence at trial, the jury could have reasonably concluded that Gamboa used an object other than a fingernail file or clipper or that the fingernail file or clipper had been modified. The jury was entitled to believe Taylor's testimony that the weapon was sharp and capable of causing a person's death over Gamboa's testimony that the weapon was only a fingernail file and could not have harmed anyone. The jury may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions as it sees fit. Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App. 1974). The jury is the sole judge of the weight and credibility of the witnesses' testimony and may accept or reject any or all testimony of any witness. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). When viewed in a neutral light, the evidence that the weapon was a harmless fingernail clipper is not so strong that the State could not have met its burden of proof that Gamboa used an unknown object in a manner capable of causing death or serious bodily injury. The evidence supporting the remaining elements of both offenses is factually sufficient. Because the evidence is legally and factually sufficient, we overrule Gamboa's first two points of error.

Gamboa Has Not Shown He Received Ineffective Assistance of Counsel

In his remaining point of error, Gamboa argues he received ineffective assistance of counsel. Gamboa alleges his trial counsel only discussed the case with him twice. In addition, Gamboa argues his trial counsel failed to obtain rulings on a written motion for continuance, a motion to proceed pro se, and a motion to change venue. Both the Sixth Amendment and the Texas Constitution confer a right to effective representation by counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. To satisfy the deficiency prong of the test, Gamboa must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Id. Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Bone, 77 S.W.3d at 836; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001); see Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5. On or about October 12, 2004, Gamboa's trial counsel filed a document titled Notice of Substitution of Counsel. In this document, Gamboa's trial counsel stated that Gamboa desired to represent himself pro se or retain other counsel. Accompanying this motion was a motion for continuance and a motion to change venue. All three documents were signed by Gamboa with the notation that Gamboa would substitute as pro se counsel for himself or retain other counsel. The motion to change venue and Notice of Substitution of Counsel contain Gamboa's trial counsel's signature, but the motion for continuance does not. The record does not indicate whether a ruling was sought concerning these motions. Gamboa argues his trial counsel was ineffective for not obtaining a ruling on these motions. Counsel's reasons for not seeking a ruling on the motions are not in the record. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002); see Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App. 2003). First, it is entirely possible Gamboa determined after filing the motions that he did not desire to represent himself pro se or obtain retained counsel. Further, the record contains no waiver of the constitutional right to counsel. An indigent party's right to counsel does not compel the trial court to appoint counsel agreeable to the indigent party. See King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000); Garner v. State, 864 S.W.2d 92, 98 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). The decision not to seek a change of venue could have been based on trial strategy. Because counsel's reasons for failing to obtain a ruling on these motions do not appear in the record and there are strategic reasons for not obtaining a ruling, we will defer to trial counsel's decisions. Gamboa's attorney performed proficient cross-examinations, presented several theories in defense of Gamboa, and managed to get portions of the videotaped statement excluded from the evidence based on being more prejudicial than probative. Trial counsel's opening and closing statements were adequate. Under the totality of the circumstances, Gamboa has not shown that his trial counsel's performance was deficient. Further, Gamboa has failed to satisfy the second prong of Strickland. A defendant does not meet his or her burden by merely showing that an error had some conceivable effect on the outcome of the trial. Strickland, 466 U.S. at 693. The defendant must show a "reasonable probability" that, but for the error, the result of the trial would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. Gamboa has not demonstrated that the probability of a different result is sufficient to undermine confidence in the outcome. Because Gamboa has failed to show that his trial counsel's performance was deficient or a reasonable probability of a different result, we overrule Gamboa's remaining point of error.

Conclusion

The evidence is legally and factually sufficient. Viewed in a light most favorable to the State, a rational juror could have found Gamboa guilty beyond a reasonable doubt. When viewed in a neutral light, the evidence supporting the verdict, considered alone, is not too weak to support the jury's finding of guilt beyond a reasonable doubt. Further, the contrary evidence is not so strong that the State could not have met its burden of proof. Last, Gamboa has not shown he received ineffective assistance of counsel. We affirm the judgment of the trial court.