FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2013-146, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Barry Pizzo of two counts of tampering with physical evidence, see Tex. Penal Code § 37.09, and assessed his punishment, enhanced pursuant to the habitual offender provision of the Texas Penal Code, at confinement for life in the Texas Department of Criminal Justice, see id. § 12.42(d). In twenty-five points of error, appellant raises arguments addressing the legal sufficiency of the evidence to sustain his convictions, the jury charge, venue, alleged ineffective assistance of counsel, the right to a speedy trial, competency to stand trial, the right to self-representation, the right to counsel of choice, and the trial court's decision to have him gagged during the punishment phase of the trial. For the following reasons, we affirm the judgments of conviction.
The jury heard evidence that appellant, who was 54 years old at the time, met "Irene Wright" and her mother in May 2012 after they found his dog and returned it to his house. Appellant invited them inside, showed them his other dogs, and invited Irene to come back. Irene, who was 13 years old at the time, returned to appellant's house on numerous occasions, sometimes alone, until December 2012. Appellant's former girlfriend and others lived at the house during this time period. During visits by Irene to appellant's house, appellant admitted that he photographed and took videos of her, including photographing her on his bed, massaged and played with her hair, and watched movies with her. According to Irene's testimony at trial, she watched movies that contained nudity with appellant at his house, and, on her last visit to his house, appellant kissed her neck while they were alone in the upstairs "movie" room.
Appellant denies that he kissed Irene. At trial, he testified that, in response to Irene speaking about "an animal biting her neck," he "pulled her hair aside and bit her neck and kind of - I didn't bite it, but I went to the motion like I was going to bite her and growled." He explained that he "made the motion like I was the animal biting another animal's neck."
The jury also heard evidence that the New Braunfels Police Department (NBPD) began investigating appellant and his relationship with Irene at the beginning of December 2012 when appellant's neighbor reported to a police officer that she had concerns about the appropriateness of a relationship between appellant and a minor girl. The neighbor told the police officer that appellant's former girlfriend had expressed concerns to her about the relationship between appellant and the girl, but the neighbor was unable to provide the girl's name or address. A NBPD detective was assigned the case, and his investigation included following up in the neighborhood by speaking with residents to try to identify the girl. After hearing about the investigation, Irene's mother contacted the police, and Irene was interviewed several times between February 7 and 13, 2013. As part of the investigation, the police executed a search warrant of appellant's house around 5:00 a.m. on February 15, 2013. By that time, appellant's former girlfriend was no longer living at the house.
Appellant agreed to speak with NBPD detectives at the time that the search warrant was executed, and he was transported to the police station for the interview. During the videotaped interview, appellant talked about his past criminal history and his relationship with Irene and other minor girls. He admitted that he had photographed and videoed Irene and that, "once [he] heard [that he was] under investigation," he deleted pictures and videos of her from his cell phone. He explained that it was not in his "best interest" to keep them but denied any inappropriate conduct with Irene or that the pictures or videos contained inappropriate content. According to appellant, Irene was fully clothed and the videos were of her telling stories that she was writing. Later in the interview, appellant also said that he deleted the pictures and videos before he knew that he was being investigated and that he deleted them because of his cell phone's storage capacity. At the conclusion of the interview, appellant left the police station but, when he returned later to pick up his cell phone, he was arrested for parole violations.
Appellant remained in jail and was indicted on April 10, 2013, for two counts of tampering with physical evidence: one count as to pictures of Irene and the other one as to a video of Irene. Appellant entered a plea of not guilty, and the case was tried before a jury from September 29 to October 7, 2014. The State's witnesses included detectives with the NBPD involved in the investigation, appellant's neighbor who made the initial report to the police, Irene, her sister, and her mother. The detectives testified about the timing and scope of their investigation, including the forensic download of appellant's cell phone, the deletion of pictures and videos from appellant's phone, the search of appellant's house, appellant's criminal history, and the detectives' interview of appellant on the day that the search warrant was executed. The State's exhibits included reports from the forensic download of appellant's cell phone, the video recording of the detectives' interview of appellant on the day of the search warrant, and photographs and other items obtained during the search of appellant's house.
Appellant's neighbor testified about her conversations with the police and her subsequent conversation with appellant in which she told him about the nature of the police's investigation. Irene, her mother, and sister all testified about Irene's relationship and contact with appellant. Irene testified that appellant took pictures of her on "over 15" different occasions and videos of her telling stories when she was at his house and that she did not go back to his house after the incident in December 2012. Irene testified that, on that day in December, appellant's former girlfriend was not there and, while she and appellant were in his movie room, he moved her hair and kissed her neck, making "enjoyed it noises." Irene also testified that, at other times when she was at his house, appellant gave her money, they watched movies that contained nudity, appellant would touch her hair, he "would go through [her] hair with his fingers," and "[t]here was one time that he would rub both his hands down [her] back and possibly touched the very edge of [her] breast," but she answered "no" when asked if there was anything that she thought was inappropriate in the pictures that appellant took of her.
The defense's witnesses included appellant, his former girlfriend who initially raised concerns about appellant's relationship with Irene, some of the investigating detectives, other women who had relationships with appellant, and his parole officer. Pizzo testified about his prior criminal history, including his past incarcerations, his relationships with Irene and other girls, and his hobbies, including photography. His criminal history included convictions for automobile theft, aggravated robbery—where he "ended up disarming the police officer" and put a gun to the officer's head—and charges of indecency with a child by contact. Based on his past prison time, appellant explained that he would not risk his freedom to attempt to establish a sexual relationship with Irene and denied any inappropriate conduct toward her.
See generally Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007).
The jury found appellant guilty of both counts of tampering with physical evidence. After the punishment phase of the trial, the jury found the enhancement paragraphs true and assessed punishment at confinement for life. The trial court entered judgments in accordance with the jury's verdict. Appellant thereafter filed a motion for new trial, which was denied. This appeal followed.
In his first point of error, appellant contends that the trial court erred in refusing to set aside the indictment "due to Appellant being denied a speedy trial under federal and state constitutions and state law." See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.05.
Factors to be weighed in determining whether a defendant has been denied his federal and state constitutional right to a speedy trial include: (1) length of the delay, measured from the time the defendant is arrested or formally accused; (2) reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003). "No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial." Shaw, 117 S.W.3d at 889 (citing Wingo, 407 U.S. at 533). In reviewing the trial court's ruling on a speedy trial claim, "we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components." Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)).
To support his position that he was denied a speedy trial, appellant focuses on the length of delay between his arrest and the trial, settings before the September 2014 setting in which his case was not reached, one of his attorney's request at a pre-trial hearing in April 2014 for a trial setting and her statement that "[we] also move for speedy trial," and alleged prejudice to him by the delay. Appellant also filed a motion for speedy trial on September 19, 2014, moving that the trial be held on September 29, 2014. In the motion, appellant alleged that he lost his job, income, and his residence and that he "suffered pretrial anxiety due to continuous incarceration."
Appellant was arrested in February 2013, indicted for tampering with physical evidence in April 2013, and the jury trial began on September 29, 2014. Based on this length of delay between the formal accusation against appellant and the trial, we conclude that it was sufficient to trigger a speedy trial inquiry. See Shaw, 117 S.W.3d at 889 (explaining that "length of the delay is, to some extent, a triggering mechanism, so that a speedy trial claim will not be heard until passage of a period of time that is prima facie unreasonable under the circumstances" and noting that generally delay approaching one year is sufficient to trigger speedy trial inquiry). Weighing the relevant factors for this inquiry, however, we conclude that the trial court did not err or abuse its discretion by concluding that appellant's right to a speedy trial was not violated. Between the time of the indictment and the trial, appellant's first appointed counsel withdrew for "personal matters" in November 2013 with appellant's approval, and appellant's written motion for speedy trial was not filed until September 19, 2014, in which appellant requested a trial setting of September 29, 2014, the day that trial began. So, the motion was effectively granted. Further, in May 2014, appellant's counsel asked to reset so that he could review additional evidence, and, as to trial settings in July and August 2014, the trial court marked the case "ready" to proceed, but it was not reached because of a congested docket. Moreover, appellant did not offer evidence—such as unusual anxiety or concern beyond the level normally associated with being charged with a felony crime—to support a finding that the delay had caused him prejudice. See id. at 890. We overrule appellant's first point of error.
In April, May, and August 2014, the record reflects that the trial court and attorneys for the State and appellant discussed speedy trial, but no written motion was filed. See Tex. Code Crim. Proc. art. 27.10 (requiring motions to set aside indictment or information and all special pleas and exceptions to be in writing); Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) ("Although a defendant's failure to seek a speedy trial does not amount to a waiver of the speedy trial right, failure to seek a speedy trial makes it difficult for a defendant to prevail on a speedy trial claim." (citing Barker v. Wingo, 407 U.S. 514, 532 (1972)).
Sufficiency of Evidence and Alleged Jury Charge Error
Appellant's second point of error challenges the sufficiency of the evidence to sustain a conviction for tampering with physical evidence under subsections (a) or (d) of section 37.09 of the Texas Penal Code. See Tex. Penal Code § 37.09(a), (d). Relatedly, appellant argues in his twenty-fourth point of error that subsections (a) and (d) of section 37.09 are different offenses and, thus, that the jury charge erroneously allowed for a non-unanimous verdict as to the principal offense of tampering with evidence because the jury was not required to agree on which offense—as alleged under subsection (a) or as alleged under subsection (d)—was committed.
Subsections (a) and (d) of section 37.09 of the Texas Penal Code state in pertinent part:
(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;
. . . .
(d) A person commits an offense if the person:
(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense.
Tex. Penal Code § 37.09(a)(1), (d)(1). In separate paragraphs of the two counts of the indictment in this case, the State alleged alternative theories of the offense of tampering with physical evidence that corresponded with subsections (a) and (d) above, and the application paragraphs in the jury charge permitted the jury to convict appellant under either of the two theories.
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that on or about the 15th day of February, 2013, Barry Louis Pizzo did, knowing that an investigation was pending or in progress, alter, destroy, or conceal a record, document, or thing, to-wit: pictures of Irene Wright (Pseudonym), with intent to impair the verity, legibility, or availability of said pictures as evidence in the investigation or if you believe from the evidence beyond a reasonable doubt that, on or about the 15th day of February, 2013, Barry Louis Pizzo did, knowing that an offense had been committed, alter, destroy, or conceal a thing, to-wit: pictures of Irene Wright (Pseudonym), with intent to impair the verity, legibility, or availability of said pictures as evidence in any subsequent investigation of or official proceeding related to the offense, . . . then you will find the Defendant guilty of the felony offense of Tampering with Physical Evidence as charged in Count I of the indictment.
The application paragraph as to Count II was identical except for the substitution of "a video of Irene Wright" for "pictures of Irene Wright."
We begin with appellant's point of error addressing jury unanimity, a requirement in felony criminal cases. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). "Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act." Id. "If the State charges different criminal acts, the jury must unanimously agree the defendant committed the same criminal act." Ortiz v. State, No. 05-04-01192-CR, 2005 Tex. App. LEXIS 9228, at *20 (Tex. App.—Dallas Nov. 7, 2005, pet. ref'd) (not designated for publication) (citing Francis v. State, 36 S.W.3d 121, 124 (Tex. Crim. App. 2000)). "If, however, the defendant is charged with committing a single offense, the State may allege differing methods of committing the single offense in the indictment." Id. at *20-21 (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)). "And, when alternate theories of committing the same offense are alleged in the conjunctive in the indictment, 'it is proper for the jury to be charged in the disjunctive.'" Id. at *21 (quoting Kitchens, 823 S.W.2d at 258). "In determining whether a defendant's right to a unanimous verdict was violated, we must first determine whether the jury charge alleged different criminal acts or rather a different manner and means of committing the same criminal act." Id. (citing Ngo, 175 S.W.3d at 745-46).
Here, the jury was charged consistently with the State's alternative theories under subsections (a) and (d) of section 37.09 as to both counts. See Tex. Penal Code § 37.09(a), (d). Appellant argues that, in this respect, the jury charge was in error because the jury should have been required to unanimously agree that he knew that an offense had been committed or to unanimously agree that he knew about an impending investigation because subsections (a) and (d) are two separate offenses. In other words, according to appellant, they are not different manner and means of committing the criminal act of tampering with evidence.
Facing a similar challenge to a jury charge as to the offense of tampering with evidence, the Dallas Court of Appeals found that the defendant's right to a unanimous verdict was not violated. The court explained:
The question of whether appellant knew either an offense had occurred or that an investigation was pending or in progress goes to the manner in which he committed the offense of tampering with evidence. . . . Whether he knew an offense had been committed or that an investigation had ensued does not require unanimity because it involves "several possible sets of underlying brute facts" to make up the particular
elements of tampering with physical evidence. . . . In other words, the jury had to unanimously agree that appellant altered, destroyed, or concealed physical evidence with the intent to impair its availability as evidence. The jury did not, however, have to agree about whether he acted knowingly as a result of his belief that an offense had occurred or that an investigation was pending . . . . The jury in this case was required to be unanimous on the elements of tampering with physical evidence but not on the manner in which appellant committed the offense.
Ortiz, 2005 Tex. App. LEXIS 9228, at *21-22 (internal citations omitted); see Gonzales v. State, No. 05-04-01190-CR, 2005 Tex. App. LEXIS 9227, at *19-23 (Tex. App.—Dallas Nov. 7, 2005, no pet.) (not designated for publication) (applying same analysis as to jury unanimity in context of knowledge component of tampering with evidence). Guided by the analysis of the Fifth Court of Appeals in Ortiz and Gonzales, we conclude that appellant's right to jury unanimity was not violated when the trial court charged the jury with alternative manners as to the knowledge component of the offense of tampering with evidence and overrule appellant's twenty-fourth point of error. We turn then to our review of the legal sufficiency of the evidence to support the convictions of tampering with evidence.
Sufficiency of the Evidence
When reviewing the sufficiency of the evidence to support a conviction, we consider all of 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). We review all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The jury, as the exclusive judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton v. State, 235 S.W.3d 772, 778-79 (Tex. Crim. App. 2007).
To support his position that the evidence is legally insufficient to sustain a conviction for tampering with physical evidence, appellant does not dispute that he deleted the pictures and a video of Irene, but he focuses on evidence that the pictures and videos of Irene did not contain illegal content and makes analogous arguments about the knowledge and intent components of subsections (a) and (d) of section 37.09 as he did in his charge error point of error. The jury was instructed that the State had to establish that appellant knew that "an investigation was pending or in progress" when he deleted the pictures and video with "intent" to impair their availability in the investigation, or that he knew that "an offense had been committed" when he deleted the pictures and video with "intent" to impair their availability as evidence in any subsequent investigation related to the offense. See Tex. Penal Code § 37.09(a), (d). Appellant argues that the evidence was insufficient as to subsection (a) because the earliest that an investigation could have commenced was in February 2013 when Irene was interviewed by the police and that he learned he was under investigation "officially" on February 15, 2013, when his house was searched and, at that point, he had already "deleted the photos and video that are the subject of this criminal prosecution." He argues that he deleted the pictures and video after his father told him in December 2012 of an allegation that there was a "runaway" in his neighborhood that was living with appellant. As to the sufficiency of the evidence as to subsection (d), appellant argues that he had no knowledge that an offense had been committed at the time that he deleted the pictures and video because there was no evidence that "any criminal offense was committed."
We begin our review of the sufficiency of the evidence to support his convictions under subsection (a) of section 37.09. Appellant's position at trial was that he did not know of an investigation when he deleted pictures and videos of Irene, that the pictures and videos were not illegal in any case, and that he deleted the pictures and videos of Irene as "just a formality thing," explaining that he "deleted [some of] them for space" and that he keeps his phone "at maximum capacity, apparently, and it lets me know that I need to delete something." The evidence at trial, however, included his testimony that he deleted the pictures and videos after hearing about a possible "runaway" living with him, see Tex. Penal Code § 25.06 (addressing offense of harboring runaway child), and the recording of the interview at the police station in February 2013 in which he admitted deleting pictures and videos "once [he] heard [that he was] under investigation." See Tex. Penal Code § 37.09. The reports from the forensic examination of his cell phone showed that pictures and videos had been deleted and that, at the time of the examination, the cell phone no longer had videos or the pictures of Irene on appellant's bed that appellant admitted that he had deleted. One of the detectives who conducted the interview also testified that appellant's first "response [during the interview] was that once [appellant] found out that he was being investigated, he got rid of [the pictures and videos]" and that it was only later in the interview that appellant changed his explanation for deleting them. Appellant's neighbor also testified about her conversations with the police and her subsequent conversation with appellant about the nature of the police's investigation.
It was for the jury to weigh and resolve the conflicts in the evidence. See Clayton, 235 S.W.3d at 778-79. Faced with the conflicting evidence, the jury could have found appellant's testimony that he deleted pictures and videos of Irene prior to having knowledge of an investigation not credible. Id. (noting that jury entitled to weigh and resolve conflicts in evidence and draw reasonable inferences therefrom and that "most importantly, the jury was able to assess [defendant]'s credibility and demeanor" during testimony). Viewing the evidence in the light most favorable to the verdict and assuming that the jury resolved the conflicts in the evidence in favor of the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant knew that an investigation was pending when he deleted a video and pictures of Irene with the intent to impair their availability as evidence in the investigation. See Tex. Penal Code § 37.09(a); Jackson, 443 U.S. at 319.
Thus, we conclude that the evidence was legally sufficient to sustain the convictions of tampering with evidence. See Anderson v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013) ("When the charge authorizes the jury to convict the defendant on more than one theory, as it did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any theory authorized by the jury charge."). We overrule appellant's second point of error.
In his third point of error, appellant argues that the trial court abused its discretion in failing to conduct an informal competency inquiry and requests this Court remand this case to the trial court and order the trial court to hold a retrospective competency inquiry.
"A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. art. 46B.003(a). "A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence." Id. art. 46B.003(b). The issue of a defendant's competency may be raised by the parties or the trial court on its own motion. See id. art. 46B.004(a). "On suggestion that the defendant may be incompetent to stand trial, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. art. 46B.004(c); see Turner v. State, 422 S.W.3d 676, 691-92 (Tex. Crim. App. 2013).
Here, neither the parties nor the trial court made a suggestion that appellant was incompetent to stand trial and, thus, the trial court did not conduct an informal competency inquiry. See Tex. Code Crim. Proc. art. 46B.004(c-1) ("A suggestion of incompetency is the threshold requirement for an informal inquiry . . . and may consist solely of a representation from any credible source that the defendant may be incompetent."). We review the trial court's decision not to conduct an informal competency inquiry for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds as stated in Turner, 422 S.W.3d at 692; Jackson v. State, 391 S.W.3d 139, 141 (Tex. App.—Texarkana 2012, no pet.). We give "great deference" to the trial court's assessment of a defendant's ability to rationally and factually understand the proceedings and to assist counsel. See McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003). Guided by this standard of review, we turn then to determine whether the trial court abused its discretion by not conducting an informal incompetency inquiry. See Tex. Code Crim. Proc. arts. 46B.004(c-1) (noting that suggestion of incompetency may be based on factors described in article 46B.024(1)), 46B.024(1)(C)-(F) (listing among factors to consider, defendant's capacity to "engage in a reasoned choice of legal strategies and options," "understand the adversarial nature of criminal proceedings," "exhibit appropriate courtroom behavior," and testify), 46B.024(2)-(5) (listing other factors including defendant's history of mental illness and use of psychoactive or other medications).
Appellant argues that the record shows that he did not have a rational or factual understanding of the proceedings against him, arguing that his behavior throughout the trial "was chaotic, irrational and unruly" and pointing to specific instances during the trial and testimony during the punishment phase of trial about an inquiry as to his competency in connection with his prior conviction for the offense of indecency with a child by contact. The record reflects that appellant continuously interrupted the trial, failed to follow the trial court's admonishments to keep his voice down when he was speaking with his attorney, and repeatedly disregarded his counsel's advice. The record, however, does not reflect that this behavior alone was sufficient to obligate the trial court to sua sponte require a competency determination. Moreover there was no suggestion from any other source that defendant was suffering from mental illness or had a history of mental illness or was taking psychoactive or other medications at the time of trial and, despite his disruptive conduct, the trial court could have concluded based on his observations of appellant that appellant had the capacity to "rationally understand the charges against [him] and the potential consequences of the pending criminal proceedings," "engage in a reasoned choice of legal strategies and options," and exhibit appropriate courtroom behavior. See id. art. 46B.024; Montoya, 291 S.W.3d at 426 (noting that "those who observed the behavior of the defendant at the hearing were in a better position to determine whether she was presently competent"); see also Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999) (rejecting "appellant's contention that his unruly and disruptive courtroom demeanor [was] probative of incompetence to stand trial" and observing that, "[i]f such actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior").
On this record, we cannot conclude that the trial court abused its discretion by not conducting an informal inquiry on its own motion into appellant's competence, and we overrule appellant's third point of error.
In his fourth and fifth points of error, appellant argues that he was denied his constitutional rights of self-representation and counsel of choice. See generally United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (discussing right to counsel of choice); Faretta v. California, 422 U.S. 806 (1975) (discussing constitutional right to self-representation).
"[T]he right to self-representation does not attach until it has been clearly and unequivocably asserted," Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008) (quoting Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (citing Faretta, 422 U.S. at 835; Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982))), and must be asserted in a timely manner. See Blankenship v. State, 673 S.W.2d 578, 585 (Tex. Crim. App. 1984) ("The appellant's assertion of the right to defend pro se was made timely in that it was asserted before the jury was empaneled."). "The right to counsel of one's choice is not absolute, and may under some circumstances be forced to bow to 'the general interest in the prompt and efficient administration of justice.'" Rosales v. State, 841 S.W.2d 368, 374 (Tex. Crim. App. 1992) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). And "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." Gonzalez-Lopez, 548 U.S. at 151.
Appellant's Requests for Self-Representation
Appellant initially requested self-representation before the jury was empaneled and then again after the State rested. As to his initial request, appellant asked the trial court to allow him to ask his own questions of the witnesses. The trial court explained that appellant could not have it both ways—"[e]ither you represent yourself or counsel is going to represent you," and appellant responded: "Okay. I'll represent myself." However, after further discussion about what it would mean for appellant to represent himself and the consequences of self-representation, appellant told the trial court that he was not comfortable with trial procedures and rules, that he was "willing to let [his attorneys] run the case," and that he did not think it would be the "wisest thing" to represent himself. The case then proceeded with appellant's trial attorneys continuing to represent him. Given appellant's statements to the trial court during this exchange, we conclude that the trial court could have found within its discretion that appellant's initial request for self-representation was not asserted clearly or unequivocally. See Williams, 252 S.W.3d at 356.
As to appellant's subsequent request to represent himself, appellant asked the trial court to allow him to represent himself after the State rested. Citing disagreement with his counsel about how to proceed, appellant told the trial court that he was dismissing his counsel and choosing to represent himself. The trial court, however, did not allow him to do so at that point in the trial, noting appellant's representations to the trial court at the beginning of the trial that appellant was not comfortable with trial procedures and rules and explaining that it was "not going to disrupt this entire proceeding and have [appellant's counsel] dismissed so that this—so that you can start over." Given the timing of appellant's subsequent request, we conclude that the trial court was within its discretion to find that the request was not asserted in a timely manner. See Blankenship, 673 S.W.2d at 585; see also, e.g., Keys v. State, 486 S.W.2d 958, 959 (Tex. Crim. App. 1972) (finding no abuse of discretion by trial court in denying defendant's pro se motion to dismiss counsel when defendant did not seek dismissal until day of trial and record did not "reflect any bad faith, insecurity or disloyalty toward [defendant] by his attorney").
Appellant's Request for Counsel of Choice
During the above referenced discussion between appellant and the trial court after the State had rested, appellant said that "from this moment, [he] would like to retain counsel." He told the trial court that his father recently offered to obtain counsel for him and that it would take "five minutes." The trial court, however, denied the request to retain new counsel at that juncture in the trial, stating:
I'm not going to place another attorney into that—into that situation, Mr. Pizzo, where the attorney has not been involved in your case, has not had any participation
in it. And you want that person to come in and—whoever that may be—to come in and represent you from this point forward in the middle of trial? No sir.
On this record, we cannot conclude that the trial court abused its discretion in denying appellant's request to retain new counsel. See Gonzalez-Lopez, 548 U.S. at 151-52 (noting that trial courts retain authority to establish criteria for admitting and appointing lawyers, which may serve to limit right to counsel of choice). We also observe that, although appellant represented that his father would retain counsel for him and that it would only take "five minutes," the record does not reflect that his father was present to confirm appellant's representation and the alleged new counsel was unidentified. See Rosales, 841 S.W.2d at 374; see also Andrade v. State, 470 S.W.2d 194, 197 (Tex. Crim. App. 1971) ("In light of appellant's sworn statement that he was too poor to hire counsel and asking for the appointment of counsel, and the fact that he did not assert a desire to seek other counsel until the day set for trial, we do not think that the trial court abused its discretion [by denying the motion for continuance to allow the defendant to employ counsel of his own choosing].").
For these reasons, we conclude that appellant was not denied his constitutional rights of self-representation or counsel of choice and overrule appellant's fourth and fifth points of error.
Venue in Comal County
Appellants' sixth to tenth points of error address venue. He argues: (i) the trial court erred in denying his motion for directed verdict because the evidence was legally insufficient to prove venue as alleged in the indictment; (ii) the evidence "was legally insufficient to prove venue as alleged in the indictment and affected Appellant's substantial rights"; (iii) "[t]he trial court committed fundamental error by enlarging upon the allegations in the indictment" as to venue; (iv) "[t]he trial court erred by submitting additional, alternative, enlarging jury charge on venue that was not raised by the facts"; and (v) "[t]he trial court erred in the jury charge because it allowed for a non-unanimous jury verdict as to venue." These points of error focus on the difference between the indictment that alleged that appellant committed the charged offenses in Comal County and the application paragraphs of the jury charge that provided alternatives for the jury to find venue: the jury was required to find "by a preponderance of the evidence that the offense of Tampering with Physical Evidence was committed in Comal County, Texas or if you find by a preponderance of the evidence that the offense of Tampering with Physical Evidence was committed within the State of Texas and that it cannot readily be determined within which county or counties the commission took place and that the said Barry Louis Pizzo resided in or was apprehended in Comal County, Texas." (Emphasis added.)
Standard of Review
The State bears the burden to establish venue by a preponderance of the evidence. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), overruled on other grounds by Schmutz v. State, 440 S.W.3d 29, 37-39 (Tex. Crim. App. 2014); see Tex. Code Crim. Proc. art. 13.17 ("To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue."). Proof of venue may be established by direct or circumstantial evidence. Black, 645 S.W.2d at 790. And "[v]enue will stand if it is sufficient under any one of the venue provisions the jury was instructed upon." Murphy v. State, 112 S.W.3d 592, 605 (Tex. Crim. App. 2003). Further, because venue is not an element of the offense, the failure to prove venue does not implicate sufficiency of the evidence. Schmutz, 440 S.W.3d at 35.
Venue error is non-constitutional and is subject to harm analysis under Texas Rule of Appellate Procedure 44.2(b). Id. at 39. We disregard non-constitutional error unless the error affects a substantial right. See Tex. R. App. P. 44.2(b). A substantial right is not affected "'if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'" Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)).
Sufficiency of the Evidence and Alleged Jury Charge Error as to Venue
To support his position that the evidence was insufficient to support venue in Comal County, appellant points to testimony by the detectives that they did not know where or when appellant deleted the pictures and videos and appellant's testimony that he was in San Antonio when he deleted them. The jury, however, could have disbelieved appellant's testimony about where he deleted the pictures and credited other evidence to reasonably infer that appellant committed the offenses in Comal County. See Clayton, 235 S.W.3d at 778-79; Black, 645 S.W.2d at 790; Dewalt v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, pet. ref'd) (noting that venue may be proven by circumstantial evidence and that trier of fact may make reasonable inferences from evidence to decide issue of venue). Appellant's residence, the "ranch" where he worked, and his father's residence were in Comal County, and, during the recorded interview with the detectives, appellant admitted taking pictures and videos of Irene at his house, told the detectives that he did not have them anymore, explaining that he did not want any pictures of Irene in his house, and admitted that he deleted them after his conversation with his neighbor that took place in his neighborhood. He also described himself as primarily going from work to home, and his statements during the interview as to when he deleted the pictures and videos were inconsistent and equivocal. See Clayton, 235 S.W.3d at 778-79. Viewing the evidence under the applicable standard of review, we conclude that the evidence was sufficient to prove by a preponderance of the evidence that appellant committed the offenses in Comal County as alleged in the indictment. See Dewalt, 307 S.W.3d at 457.
As to appellant's arguments that the jury instructions improperly enlarged the indictment's venue allegations, the instruction to the jury was supported by the evidence and conforms with articles 13.17 and 13.19 of the Texas Code of Criminal Procedure for purposes of venue. See Tex. Code Crim. Proc. arts. 13.17 ("In all cases mentioned in this Chapter, the indictment or information, or any pleading in the case, may allege that the offense was committed in the county where the prosecution is carried on."), 13.19 ("If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited."). In addition to the evidence stated above that supported a reasonable inference that appellant committed the offenses in Comal County, the evidence showed that appellant lived in Comal County and had not left the state of Texas during the relevant time period, and the officers testified that they were unable to determine the precise location where appellant deleted the pictures and videos. See Murphy, 112 S.W.3d at 605 (concluding that venue was proper in county of appellant's residence "[g]iven the difficulty of determining exactly where the offense occurred" and "that a rational jury could have relied on this provision and concluded venue was proper in . . . the county of appellant's residence").
To the extent that appellant challenges the indictment based on a contention that it did not provide him with adequate notice as to the alternative venue provision that was submitted to the jury, the State was not required to include the alternative venue provision in the indictment for appellant to be fully apprised of the "nature and cause" of the accusations against him. See U.S. Const. amend. VI; Tex. Penal Code § 31.09 (setting out elements of offense); Wilson v. State, 825 S.W.2d 155, 159 (Tex. App.—Dallas 1992, pet. ref'd) (concluding no error in indictment because "offense location is not element of the offense").
We also conclude that appellant's right to jury unanimity was not violated by the trial court's submission of alternative venue provisions. See Ngo, 175 S.W.3d at 745 (requiring jury to agree that defendant committed same criminal act). Consistent with the indictment, the jury was required to agree unanimously that appellant with the requisite knowledge deleted the pictures and video of Irene with intent to impair their availability as evidence in an investigation. See Tex. Penal Code § 37.09; see also Schmutz, 440 S.W.3d at 34 ("As it is not a 'criminative fact,' venue is not an 'element of the offense' under Texas law."). Thus, we conclude that the trial court did not err in its venue instructions to the jury.
We further observe that appellant has not shown any harm or that his substantial rights were affected by the venue allegation in the indictment or the trial court's venue instructions to the jury. See Tex. R. App. P. 44.2(b); Schmutz, 440 S.W.3d at 39; Motilla, 78 S.W.3d at 355; see also Ngo, 175 S.W.3d at 743-44 (setting forth procedure for appellate review of claim of jury charge error); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (same). There was no evidence that the State was forum shopping, that appellant was prevented from presenting a defense because the trial occurred in Comal County, or that the jury or trial court were biased, and Comal County had a substantial connection to the case given that appellant and Irene resided in Comal County, the pictures and video were taken there, and the investigation occurred in Comal County. See Dewalt, 307 S.W.3d at 460-61 (concluding that venue in Comal County did not violate defendant's substantial rights and observing that venue in Comal County was consistent with underlying legislative purposes of venue statutes, including their function to "ensure that jurors have a natural interest in the case because it touched their community; to ensure that prosecutions are initiated in counties that have some factual connection to the case, thus minimizing inconvenience to parties and witnesses; to aid predictability in judicial caseloads, and to prevent forum-shopping by the State"). Finally, we observe that there was overwhelming evidence of appellant's guilt. See id. at 461 (considering "overwhelming evidence" of defendant's guilt in harm analysis). We overrule appellant's points of error addressing venue.
If the trial court's inclusion of the alternative venue provisions in the jury charge was error, the degree of harm necessary for reversal would be "some harm" because appellant timely objected to the inclusion of those provisions before the trial court. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005).
Ineffective Assistance of Counsel
In his eleventh to twenty-third points of error, appellant argues that his trial attorneys were ineffective by eliciting "testimony commenting on the truthfulness and credibility of Appellant's statements" and "inadmissable evidence regarding extraneous conduct of Appellant" and by failing: (i) to request a continuance; (ii) "to fully investigate the instant cause and review all evidence in the possession of the state"; (iii) to object to the introduction of extraneous evidence; (iv) to obtain a ruling on a motion to quash the indictment; (v) to object to "the introduction of irrelevant boxes and tubs of photographs containing evidence of extraneous material"; (vi) to obtain a ruling on a motion to suppress physical evidence; (vii) to object to the use of telephone forensic evidence; (viii) "to request an instruction to disregard or move for a mistrial due to prejudicial statements made during voir dire by a member of the venire panel"; (ix) to make a suggestion of incompetency; (x) "to object to interpretations of case law coming from a witness"; and (xi) to subpoena a punishment witness.
Standard of Review
To establish ineffective assistance of counsel, an appellant must demonstrate by a preponderance of the evidence both deficient performance by counsel and prejudice suffered by the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Nava, 415 S.W.3d at 307-08. The appellant must then show the existence of a reasonable probability—one sufficient to undermine confidence in the outcome—that the result of the proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S. at 687; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Appellate review of counsel's representation is highly deferential; we must "indulge in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08; see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must be "'firmly founded in the record,'" and "'the record must affirmatively demonstrate'" the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Rarely will the trial record by itself be sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392; see Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007) (noting "presumption that trial counsel's performance was reasonably based in sound trial strategy").
Appellant's Complaints of Deficient Performance
Many of appellant's complaints about his trial attorneys' performance are foreclosed because his attorneys were acting at his insistence and against their advice. See Duncan v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986) ("[W]hen a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made."). For example, appellant complains about his trial attorneys' failure to seek a continuance or to review all the evidence in the State's possession at the time of trial, but he insisted that the case proceed to trial despite knowing that his trial attorneys had not reviewed all of the State's evidence. He also complains about his trial counsel's failure to object to extraneous offenses and other materials that were admitted, but again he insisted that the recording of the detectives' interview of him be admitted as well as other evidence addressing these offenses and his past criminal history. See id.
Appellant responded "Yes, absolutely," when asked by one of his attorneys on the record outside the presence of the jury whether he wanted "the State to put everything they have into evidence." The trial court then confirmed with appellant that he was instructing his attorneys to waive the pending motion to suppress evidence that the trial court was holding under advisement. Appellant explained, "Basically, Your Honor, I'm taking this as transparency. I'm not trying to hide anything from anybody."
The record also makes clear that appellant repeatedly refused to follow his counsel's advice. For example, on the record but outside of the presence of the trial court, appellant's trial counsel advised appellant not to call witnesses, including himself, after the State rested because, among other reasons provided, "[b]ringing more witnesses in at this time will potentially produce inflammatory evidence against you," but appellant stated that he was "taking full responsibility, and you are not in any way responsible for anything that happens from this point forward."
The record further reflects pervasive "sotto voce discussions" between appellant and his counsel throughout the trial, and appellant's counsel on multiple occasions outside the presence of the jury stated concerns on the record about the difficulty of representing appellant and that their strategy was being directed by appellant, including making the following statements:
[Appellant]'s telling us not to make objections, and—I can't proceed on that basis and do a good job here. So he needs—because I want it on the record—if we are kept from doing our job, I want it on the record that it was because he wanted us to.
* * *
I would like to put it in the record that it's very hard for me to proceed with questions when my client is telling me what to do every single second. In addition to that, he's ask—he's asking me to present questions that open the door to other evidence, stuff that we have worked very hard to try to keep out.
As to appellant's other complaints about his trial attorneys' actions during trial, appellant did not claim ineffective-assistance of counsel in a motion for new trial, and there was no hearing on these complaints. Consequently, the record before this Court is not sufficiently developed to allow us to evaluate trial counsel's supposedly deficient performance. See Menefield, 363 S.W.3d at 593. Absent record evidence regarding counsel's strategy or reasoning, we will presume they exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863, 879 (Tex. App.—Fort Worth 2009, pet. ref'd); Poole v. State, 974 S.W.2d 892, 902 (Tex. App.—Austin 1998, pet. ref'd); see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ("When such direct evidence is not available, we will assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined.").
The record in this case reveals a defense trial strategy that no crime was committed based on appellant's relationship with Irene, that appellant did not act inappropriately and did not take any inappropriate pictures of Irene, and that deleting legal pictures or videos is not a crime. According to appellant, he did not delete the pictures of Irene necessarily because of an investigation but as a matter of course based on the storage capacity on his phone. Appellant's version of events was that he was honest, transparent, and had nothing to hide and, given his past incarceration and his situation prior to his arrest, he would not have risked his freedom to take any inappropriate action toward Irene. At trial, his counsel presented evidence to support this version of events. Evidence was admitted, including the enormous quantity of photographs, that showed that appellant was an avid photographer who took large amounts of pictures on a daily basis on diverse subjects. Other evidence also showed that he had reasons not to risk his freedom: he was employed and had a new girlfriend who was planning to move into his house. The fact that the defense strategy ultimately proved unsuccessful does not render counsel's assistance ineffective.
Appellant explained his strategy outside the presence of the jury before being cut off by the court at one point during the trial as follows:
Do you understand that I said that I want to handle this as a transparent case, and I'm not trying to hide my past? [My attorneys] want to conceal my past, and I don't think it's necessary. I understand it could inflame a jury, and I'm willing to take that—
Based on the record before us, we conclude that appellant has failed to demonstrate deficient performance on the part of his trial attorneys. See Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of an informed strategic or tactical decision, a reviewing court should presume that trial counsel's performance was constitutionally adequate 'unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.'" (quoting Goodspeed, 187 S.W.3d at 392)). Because appellant failed to meet his burden on the first prong of Strickland, we do not consider the requirements of the second prong—prejudice. See Lopez, 343 S.W.3d at 144; see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong."). We overrule appellant's points of error raising ineffective assistance of counsel.
Gagging of Appellant during the Trial's Punishment Phase
In his twenty-fifth point of error, appellant contends that the trial court abused its discretion by gagging him with tape during the punishment phase of the trial. A trial court, however, "has the authority to take the necessary steps to maintain a quiet and peaceable trial which may include binding and gagging a defendant during a trial." Foster v. State, 713 S.W.2d 789, 791 (Tex. App.—Houston [1st Dist.] 1986) (citing Kimithi v. State, 546 S.W.2d 323, 326 (Tex. Crim. App. 1977)), aff'd, 787 S.W.2d 385 (Tex. Crim. App. 1990); cf. Shaw v. State, 846 S.W.2d 482, 485-87 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) (remanding punishment phase of trial because trial court ordered defendant "bound and gagged" during that phase and record was devoid of "extreme circumstances" justifying restraint of defendant during trial such as when defendant "has repeatedly interrupted the court proceedings"). Here, the record reflects that appellant repeatedly interrupted the court proceedings, including speaking with his attorneys in a voice that could be overheard and refusing to communicate through his attorneys and that the trial court repeatedly admonished him, including advising him with a final warning outside the presence of the jury that appellant would be gagged if he continued with his interruptions. On this record, we cannot conclude that the trial court abused its discretion by gagging appellant with tape during the punishment phase of the trial. See Foster, 713 S.W.2d at 791. Accordingly, we overrule appellant's twenty-fifth point of error.
Having overruled appellant's points of error, we affirm the judgments.
Melissa Goodwin, Justice Before Justices Puryear, Pemberton, and Goodwin Affirmed Filed: March 10, 2017 Do Not Publish