Martinez, Jose DeJesus v. State ( 2002 )

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Opinion issued on July 31, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00260-CR

JOSE DEJESUS MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 847991

O P I N I O N

A jury found appellant, Jose DeJesus Martinez, guilty of possessing at least 400 grams of cocaine, and assessed punishment at 29 years confinement and a fine of $34,000.⁽¹⁾ On appeal, appellant claims that (1) the trial court erred by refusing to suppress evidence found in his house after an illegal search, (2) the trial court erred in replacing a prospective juror who had already been selected, and (3) he received ineffective assistance of counsel. We affirm.

Factual Background

On June 20, 2000, Officer J.R. Bangilan, a narcotics officer with the Pasadena Police Department, received information that there was a large amount of narcotics inside appellant's residence. Within 30 to 45 minutes, Officer Bangilan and several other officers set up surveillance outside appellant's house. When officers arrived at the house, they saw appellant outside on his driveway. The officers approached appellant and explained they were there to investigate. Appellant signed a consent to search form and, after searching appellant's house, officers recovered approximately one kilogram of cocaine in the kitchen, about 912 grams of marihuana from a bedroom, $2,500 in cash, and a drug ledger. The officers also found $1,635 in cash in appellant's pockets.

Motion to Suppress Evidence

In his first, second, and fourth points of error, appellant contends the trial court erred by overruling his motion to suppress evidence, because the evidence seized was the fruit of an illegal search. Although appellant's motion to suppress was filed before trial, it was not presented to the trial court for a pretrial ruling. Instead, appellant brought the motion to the court's attention during trial.

As a general rule, a motion to suppress will preserve error in the admission of evidence, without further objection at trial, if the motion is overruled by the court following a pretrial hearing. Writt v. State, 541 S.W.2d 424, 426 (Tex. Crim. App. 1976). However, if no pretrial hearing is held on the motion, the defendant must object to the evidence at trial in order to preserve error. See Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984). To preserve error in the admission of evidence, a trial objection must be timely. See Tex. R. App. P. 33.1(a)(1); Ross, 678 S.W.2d at 493. To be timely, an objection must be made before the evidence is admitted or as soon as the ground for objection becomes apparent. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).

In this case, the record reflects that appellant did not object until after two police officers testified extensively about the search of appellant's house. Officer Ruben Zermeno testified that, (1) appellant signed a written consent to search form, (2) he entered appellant's house and detained several occupants, and (3) approximately $1,000 in cash was found in the pockets of appellant's clothing. Officer Zermeno identified State's exhibit 4, as the consent-to-search form appellant signed, and it was admitted into evidence without objection.

Next, Officer Bangilan testified that, prior to entering appellant's house, appellant signed a consent-to-search form. Officer Bangilan testified that approximately four officers, including himself, conducted a systematic "room-to-room" search of appellant's house. He testified that he recovered documents which proved appellant was the homeowner, and that, during a search of appellant's kitchen cabinets, he found approximately one kilogram of cocaine wrapped in tape. Officer Bangilan identified State's exhibit 1A as the cocaine found in appellant's kitchen and State's exhibit 1B as the "tape wrapping" appellant used to seal the cocaine. Both exhibits were published to the jury. A photograph of the cocaine was admitted into evidence without objection and published to the jury.

Appellant then lodged an objection, and brought his motion to suppress to the trial court's attention. Appellant's objection came too late. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980) (holding defendant waived error in admission of drug evidence by failing to object to preceding testimony of officers with regard to defendant's arrest and items found in search); Thomas v. State, 884 S.W.2d 215, 216 (Tex. App.--El Paso 1994, pet. ref'd) (same); see also Turner v. State, 642 S.W.2d 216, 217 (Tex. App.--Houston [14th Dist.] 1982, no pet.) (same).

Accordingly, we overrule appellant's first, second, and fourth points of error.

  Voir Dire

In his third point of error, appellant claims the trial judge erred by sua sponte excusing a selected juror, and conducting a separate voir dire with a new panel in order to replace the excused selected juror.

On Wednesday, January 17, 2001, the parties conducted voir dire and selected 12 prospective jurors. Before the jury was sworn, during the judge's admonishments, one of the selected prospective jurors spoke up and informed the judge that she had to go out of town on Friday, to California, to visit her daughter, who was having problems with her pregnancy. She stated that her feelings about having to miss this trip would stop her from being able to fairly and impartially consider the evidence. After a brief off the record discussion with counsel, the judge decided to dismiss this prospective juror. The next day, the judge brought in a panel of 14 new venirepersons in order to complete the jury. Both sides were given three additional strikes, and after a brief voir dire, a replacement juror was chosen.

The law is well-settled that a defendant's failure to object to a trial court's sua sponte exclusion of a prospective juror waives the right to complain of the exclusion on appeal. Cooks v. State, 844 S.W.2d 697, 717-18 (Tex. Crim. App. 1992); Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App. 1989) (holding that, after sua sponte dismissal of prospective juror, any error is waived in absence of objection); Alvarado v. State, 822 S.W.2d 236, 239 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd) (same).

In this case, the record indicates that appellant did not object when the trial judge, sua sponte, excused the selected prospective juror, nor did he object to the judge's decision to conduct a separate voir dire to find a replacement. In fact, the record shows that, immediately after the judge dismissed the prospective juror, appellant's trial counsel stated, "just for the record, your Honor, it's my understanding that we're going to impanel ten people tomorrow and select one juror. And I don't object to that process or excusing this lady." (Emphasis added.) Under the circumstances, we hold that appellant's failure to object waived this point of error. See Tex. R. App. P. 33.1(a); see Cooks, 844 S.W.2d at 717-18; Warren, 768 S.W.2d at 303; Alvarado, 822 S.W.2d at 239.⁽²⁾

We overrule appellant's third point of error.

Ineffective Assistance of Counsel

In his fifth point of error, appellant claims that his attorney was ineffective for (1) calling a particular defense witness, (2) failing to call additional witnesses, (3) failing to prepare his witnesses, and (4) failing to conduct an independent investigation of the facts.

Standard of Review

Appellant did not file a motion for new trial. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). Under Strickland, appellant must first show that his counsel's performance was so deficient that it fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687; see Thompson, 9 S.W.3d at 812-13. Second, appellant must affirmatively prove that he was prejudiced by his counsel's conduct. Thompson, 9 S.W.3d at 812-13. In other words, appellant must prove by a "reasonable probability" that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Id. A "reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial." Id.

The assessment of whether appellant can prevail on a claim of ineffective assistance of counsel is a fact-intensive inquiry. Thompson, 9 S.W.3d at 812-13. Appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence, and it must be firmly supported by the record. Id. Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). This Court will look to the totality of the representation and the particular circumstances of this case in evaluating whether appellant's counsel was effective. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). However, we will not make a finding of ineffectiveness based on speculation. Gamble, 916 S.W.2d at 93.

   Decision to Call Defense Witness

First, appellant claims his counsel was ineffective for calling appellant's sister, Lidie Martinez (Lidie), as a defense witness. Appellant contends that, because Lidie testified that appellant used the bedroom where some of the drugs were found, her direct testimony was without purpose, and should have kept trial counsel from calling her as a witness.

However, the decision to call a witness is generally a matter of trial strategy. Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd); see also Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.--Houston [14th Dist.] 1989, pet. ref'd) (holding it is trial counsel's prerogative, as matter of trial strategy, to decide which witnesses to call). Although some of Lidie's testimony could have compromised appellant's case, the majority of her testimony was favorable to his defense. During direct examination, Lidie testified that there were four or five other men staying at the house at the time of the search, and, on several occasions, other people stayed at appellant's house when he was out of town. Her testimony, if believed, undermines the State's case that appellant was solely responsible for the cocaine found in his house. For us to hold, in hindsight, that the decision to call Lidie was deficient, we would have to speculate and second guess trial counsel's strategy. See Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990). This we will not do. Gamble, 916 S.W.2d at 93.

Decision Not to Call Witnesses

Second, appellant claims that his trial counsel was ineffective because he failed to seek out, and call, "crucial" witnesses. Appellant claims his counsel should have called (1) the other men who lived in the house, (2) his brother, who was in charge of supervising the other men, and (3) an unidentified man who was arrested in a drug buy after he was seen carrying drugs from appellant's house several weeks before the search. Appellant argues that these witnesses could have established his innocence.

However, absent a showing that potential defense witnesses were available, and that their testimony would have in fact benefitted the defense, counsel's failure to call these witnesses is of no moment. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); Simms v. State, 848 S.W.2d 754, 758 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd).

Here, because appellant failed to file a motion for new trial, the record contains no evidence that any of these potential witnesses were available to testify, or how their testimony would have benefitted the defense. Therefore, without speculating, we cannot determine whether appellant's counsel was ineffective on this point. See Simms, 848 S.W.2d at 758 (refusing to find counsel ineffective without showing that witnesses were available and how their testimony would have benefitted defense).

Preparation of Witnesses

Third, appellant claims that his attorney was ineffective because he failed to interview and prepare his witnesses. In support of his argument, appellant relies on a statement his attorney made during closing arguments:

These people, I think you could believe them. I vouch - - I mean, I presented them to you cold turkey. I didn't prepare. I don't do that. Just get them up there so that you could see them in their diapers, like babies. That's the way I like it. I don't play lawyer games, because you're too smart for that. And he's too smart for that. That's the way I do it.

Taking this statement at face value, we cannot say trial counsel did not engage in sound strategy. Gamble, 916 S.W.2d at 93. Although one interpretation would support appellant's argument that his counsel failed to prepare his witnesses, another interpretation would support a finding that counsel was attempting to show that his witnesses were credible, uncoached, and telling the truth. See id.

Moreover, even assuming trial counsel's representation was deficient, appellant has not shown that, absent this deficiency, the result of the proceeding would have been different. Thompson, 9 S.W.3d at 812-13.

Independent Investigation

Finally, appellant claims that his counsel was ineffective for failing to investigate the facts of his case. Specifically, appellant argues that his counsel should have reviewed the utility bills recovered at his house because the addresses found on the bills were different from the address written on the consent-to-search form.⁽³⁾ Appellant, claims that his counsel was ineffective because, had he compared the utility bills to the consent to search form, he would have challenged the search based on the different addresses.

However, we cannot determine from this record whether trial counsel reviewed the bills or whether he was aware that the addresses were different. See Gamble, 916 S.W.2d at 93. Even assuming trial counsel's representation was deficient in this respect, we still cannot hold there is a reasonable probability that, had he challenged the legality of the search on the asserted grounds, the result of the trial would have been different. Thompson, 9 S.W.3d at 812-13. All the evidence at trial indicated that, when officers arrived at 8219 Magnolia, appellant was standing on his driveway, outside his house, and he signed the consent to search his house.

We overrule appellant's fifth point of error.

Conclusion

We affirm the trial court's judgment.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Taft, and Smith.⁽⁴⁾

Do not publish. Tex. R. App. P. 47.4.
1. Tex. Health & Safety Code Ann. § 481.115(f) (Vernon Supp. 2002).
2. We note that even if appellant had objected, the trial court would have properly acted within its discretion in overruling the objection.
See Glivens v. State, 918 S.W.2d 30, 32 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd); Williams v. State, 631 S.W.2d 955, 957 (Tex. App.--Austin 1982, no pet.).
3. The address written on the consent to search form was "8219 Magnolia" and the address on the bills was "8219
E. Magnolia."
4. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.