Bonifacio Cerda v. State ( 2011 )

Affirmed and Memorandum Opinion filed January 27, 2011.

In The

Fourteenth Court of Appeals

NO. 14-09-00813-CR

Bonifacio Cerda, Appellant

V.

The State of Texas, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1197846

MEMORANDUM  OPINION

Appellant Bonifacio Cerda was convicted of murder, and the jury assessed an enhanced punishment of incarceration for 60 years in light of two prior felony convictions.  See Tex. Penal Code Ann. §§ 12.42(d), 19.02 (Vernon 2003).  We affirm.

BACKGROUND

Appellant and his girlfriend, Noemi Ortiz, walked into Noemi’s apartment at night to find Noemi’s daughter Cristina having sex with the complainant in a bedroom.  The complainant rushed to get dressed while Cristina remained in the bedroom crying.  Appellant armed himself with a knife, confronted the complainant inside the apartment, struggled with the complainant as he attempted to exit the apartment, and stabbed the complainant once in the back.  The complainant fled the apartment and later died at the hospital. 

A jury convicted appellant of murder and sentenced him to incarceration for 60 years in light of two prior felony convictions.  See Tex. Penal Code Ann. §§ 12.42(d), 19.02.  The trial court signed a judgment in conformity with the jury’s verdict. 

Appellant filed a motion for new trial, in which he claimed that his trial counsel was ineffective because appellant made a “request for a private investigator to interview his witnesses, and the request wasn’t granted.”  Appellant did not proffer and the record does not contain any evidence regarding trial counsel’s decisions or strategy.  The trial court overruled appellant’s motion for new trial by operation of law. 

In two issues, appellant claims for the first time on appeal that trial counsel was ineffective because he did not request a jury instruction on the two lesser-included offenses of criminally negligent homicide and aggravated assault.  See Tex. Penal Code Ann. §§ 19.05, 22.02 (Vernon 2003). 

ANALYSIS

An ineffective assistance of counsel issue may be raised for the first time on appeal, although the record on such a direct appeal often will not be sufficient to show that counsel was ineffective.  Cannon v. State, 252 S.W.3d 342, 347 n.6, 350 (Tex. Crim. App. 2008).  In determining whether his trial counsel’s representation was so ineffective that it violated appellant’s Sixth Amendment right to counsel, we use the two-prong test laid out in Strickland v. Washington, 466 U.S. 668 (1984).  See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 668).  To establish ineffective assistance of counsel, a defendant must show that (1) his counsel’s performance fell below an objective standard of reasonableness; and (2) but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Id. 

We assess whether a defendant received ineffective assistance of counsel according to the facts of each case.  Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Id. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Id.  We look to the totality of the representation and particular circumstances of each case in evaluating the effectiveness of counsel.  Id.  We must be “highly deferential to trial counsel and avoid the deleterious effects of hindsight.”  Lane v. State, 257 S.W.3d 22, 26 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).  Trial counsel is strongly presumed to have acted within the wide range of reasonable professional assistance.  Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

To establish that trial counsel’s performance was deficient with respect to the jury instructions, appellant must show that he was entitled to an instruction on one of the lesser-included offenses.  See Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999).  To establish that appellant was entitled to such an instruction, he must show that (1) either aggravated assault or criminally negligent homicide is a lesser-included offense of murder; and (2) the jury heard evidence that if appellant was guilty of an offense, appellant was guilty of only the lesser-included offense.  Id.

Assuming without deciding that appellant was entitled to an instruction on any lesser-included offenses of criminally negligent homicide and aggravated assault, we conclude that the record does not support appellant’s contention that trial counsel’s performance fell below an objective standard of reasonableness.  Failure to request an instruction on a lesser-included offense may be a reasonable trial strategy.  See, e.g., Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) (appellant’s decision to adopt all-or-nothing trial strategy in failing to request jury instruction on lesser-included offenses of manslaughter and negligent homicide in murder case not unreasonable). 

Appellant’s defense at trial was that he acted in self-defense or in defense of Cristina and Noemi.  Trial counsel’s closing argument highlighted evidence showing that
(1) Cristina failed to answer several phone calls before appellant and Noemi arrived at the apartment; (2) appellant and Noemi were surprised to find the complainant in the apartment with Cristina; (3) the encounter occurred at night; (4) appellant had never met the complainant before; (5) the complainant was rushing to exit the apartment after being discovered; and (6) Cristina remained in the bedroom crying during appellant’s altercation with the complainant.  The jury was given an instruction on self-defense and defense of a third person. 

The absence of an instruction on lesser-included offenses compelled a choice between finding appellant guilty of murder and acquitting by reason of self-defense, defense of a third person, or because appellant did not intentionally kill the complainant.  Such an all-or-nothing strategy is not unreasonable.  See Ex parte White, 160 S.W.3d at 55; Shanklin v. State, 190 S.W.3d 154, 160–161 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d) (trial counsel does not act deficiently for failing to request instruction on lesser-included offense of manslaughter if pursuing an all-or-nothing strategy in murder case where evidence raises issues of self-defense and defense of a third person).

Without any evidence in the record regarding trial counsel’s reasons for not requesting an instruction on the lesser-included offenses, we cannot hold that appellant has overcome the strong presumption that trial counsel’s actions fell within the wide range of professional assistance.  See Perez, 310 S.W.3d at 893. 

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the judgment of the trial court.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Justices Seymore, Boyce, and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).