David Lorenzo Ochoa v. State ( 2002 )

                    NUMBERS 13-01-522-CR AND 13-01-520-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

DAVID LORENZO CASTILLO OCHOA,                                     Appellant,

                                                   v.

THE STATE OF TEXAS ,                                                         Appellee.

                        On appeal from the 206th District Court

                                  of Hidalgo County, Texas.

                                   O P I N I O N

          Before Chief Justice Valdez and Justices Yañez and Castillo 

                        Opinion by Chief Justice Rogelio Valdez

Appellant, David Ochoa, was convicted of assault and sentenced to one year of confinement in the county jail.  Appellant argues through three issues: the evidence is factually insufficient to support his conviction; the trial court erred in admitting inadmissible evidence; and his Sixth Amendment rights were violated because he received ineffective assistance of counsel.  Appellant further challenges the subsequent revocation of probation resulting from this conviction for assault.  We affirm both the conviction for assault and the revocation of probation.

Factual and Procedural History

Appellant was at A.K=s, a local bar, in the early morning hours of January 30, 2000. He was accompanied by his brother, Gerald Ochoa, and a friend, Manuel Marco Garcia.  When the three men exited the bar at closing time, a fight ensued. Gerald Ochoa was stabbed in his right side by Leroy Garcia.  He was taken to McAllen Medical Center Hospital. 

Arnold Acosta, Jr., the victim in this case, took Leroy Garcia, who was also injured, to Rio Grande Regional Hospital.  While Acosta was parking his vehicle, a group of men attacked and beat him until he became unconscious.  At trial, Acosta testified that he could not identify his assailant because he was drunk, and later unconscious. 

Karen Lee Poor, a registered nurse, was working in the Rio Grande Regional Hospital emergency room that night.  Poor walked outside and saw a young man lying on the ground, immobile; he was being kicked in the face by another man.  The attack took place at the ambulance bay entrance, a well-lit area. Poor stepped into the fight and told the assailant to leave.  As he walked away, the attacker said something like, AYou are dead, bitch.@  Poor testified that she remembered his face because she felt threatened by his comment. Poor made an in-court identification of appellant as the man she saw kicking the victim.

Poor described the attacker to police as a Hispanic male, between 30 and 35, six-foot-two in height, with a ponytail.  When shown a photo array about two weeks later, Poor immediately identified appellant as the man she saw kicking the victim.  In a separate array, she also identified the second person who stood over the victim during the attack.  This man was identified as Christopher Lara, the brother-in-law of appellant and Gerald Ochoa.

Ricardo Davila was working as a security guard at the hospital that night.  He took down the license plate number of the vehicle the assailants left in, a green four-door Ford.

Police traced the license plate to a car registered to Diana Lara, sister of Christopher Lara.  The registration showed an address where Gerald Ochoa also lived.  Police recovered a cell phone at the scene that belonged to a Yolanda Villegas at an address in McAllen.  Yolanda Villegas lives with Gene Ochoa.  Police discovered that Gerald Ochoa also lived at that address. There was no concrete evidence placing Gene Ochoa at the scene of the assault, therefore, he was never a suspect.      

When Gerald Ochoa went to the police station to make a statement about his stabbing, he was driving a green Ford Taurus with the same license plates as the car seen by Davila.  

Theresa Brown, appellant=s fiancee and the mother of his young daughter, testified that appellant=s hair was short on January 30, 2000.  The defense introduced two photographs of appellant with short hair and no ponytail. Brown also testified that appellant and his brother Gene resemble one another and are a year or two apart in age.

Appellant was charged by indictment with one count of aggravated assault.  After pleading not guilty, appellant was found guilty by a jury of the lesser included offense of assault.  On May 16, 2001, appellant was sentenced by the trial court to one year of confinement in the county jail.

Factual Insufficiency

In determining factual sufficiency of the elements of the offense, the reviewing court must view the evidence in a neutral light, and may set aside the verdict only if: (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  The reviewing court must take into account all of the evidence, defer to the jury=s findings, and adequately explain why the evidence in favor of the verdict is greatly outweighed by the contrary evidence.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  A reviewing court will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11.

Appellant bases his assertion of factual insufficiency on conflicting testimony at trial concerning whether or not he was wearing a ponytail on January 30, 2000, and on his alleged resemblance to his brother Gene Ochoa. Mere conflicting testimony does not amount to a factual insufficiency of the evidence supporting a conviction. Id.

In this case, evidence was presented that showed appellant was at the bar when his brother Gerald was stabbed.  The car used by the assailant was later traced to appellant=s sister-in-law.  Further, the cell phone recovered at the scene was linked to the live-in girlfriend of appellant=s brother, Gene Ochoa.  Karen Poor, the nurse who stopped the assault, described the assailant as being a 30-35-year-old Abig@ Hispanic male, taller than she was, with facial hair and a ponytail. Poor got a good look at the assailant in a well-lit area.  Poor picked appellant out of a photo line-up.

Appellant contends that it was his brother Gene who actually committed the assault.  He bases his theory on testimony concerning a facial resemblance between appellant and Gene. However, Gene was not placed at A.K.=s that night, and was never considered a suspect.  This theory was placed before the jury and rejected.  The jury could reasonably have rejected the defense that Gene, not the appellant, committed the assault. 

Based on the eyewitness identification, and testimony concerning the steps the McAllen police officers took in their investigation of the assault, we hold the jury was well within its right, as the trier of fact, the assessor of the credibility and demeanor of the witnesses, and determiner of the weight to be accorded to the testimony of each witness, to find that appellant was the person who committed the charged offense.  Wyatt v. State, 23 S.W.3d 18, 28-29 (Tex. Crim. App. 2000); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).  Thus, after reviewing the record, we conclude the jury=s finding that appellant committed assault is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d at 129.

Admission of Testimony

Appellant alleges the trial court committed reversible error in allowing a witness to testify on overly prejudicial matters.  Appellant asserts that the trial court erred in admitting evidence that he threatened Poor as he fled, and that Poor feared some kind of reprisal from him.  He cites Texas Rule of Evidence 403: Arelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.@ An appellate court must review a trial court=s admissibility decisions under an abuse of discretion standard.  Tex. R. Evid. 403; Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). 

The trial court has broad discretion in conducting a rule 403 balancing test, and an appellate court should not lightly disturb the trial court=s decision.  Moreno v. State, 22 S.W.3d 482, 489 (Tex. Crim. App. 1999).  This standard requires the appellate court to uphold a trial court=s admissibility decision when that decision is within the zone of reasonable disagreement.  Powell, 63 S.W.3d at 438; Montgomery, 810 S.W.2d at 391.  Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996).  When the opponent of evidence satisfactorily demonstrates that its probative value is far less than the danger of unfair prejudice it poses, and he objects to its receipt on this basis, the trial judge must not admit it. Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992); Montgomery, 810 S.W.2d at 392.  In making the determination, the trial judge should consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it.  Fuller v. State, 829 S.W.2d at 206.  Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Jones, 944 S.W.2d at 652-53.

Appellant has failed to show the necessary Aclear disparity between the degree of prejudice of the offered evidence and its probative value.@  Id. Poor testified that she remembered appellant=s face vividly because of the threat he made against her.  This testimony served to rebut appellant=s attempts to discredit her identification, and was therefore highly probative.  Thus, we cannot conclude that the trial court abused its discretion in holding that the testimony was more probative than prejudicial.  See id. 

Ineffective Assistance of Counsel

In his third and final issue, appellant contends his trial counsel was ineffective for: (1) not objecting to an extraneous matter; and (2) not objecting when the State allegedly improperly committed the jury panel during jury selection. 

To prevail on a claim of ineffective assistance of counsel, an appellant must show:  (1) counsel=s performance was deficient; and (2) the deficient performance prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Castellano v. State, 49 S.W.3d 566, 573 (Tex. App.BCorpus Christi 2001, pet. ref=d).   Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.  Strickland, 466 U.S. at 687. The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence.  See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).  We must indulge in a strong presumption that the counsel=s conduct was reasonable.  Strickland, 466 U.S. at 689.  Furthermore, a claim of ineffectiveness cannot be demonstrated by isolating one portion of counsel=s representation.  McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992).  Instead, counsel=s performance must be judged on the totality of the representation. Strickland, 466 U.S. at 670.

Appellant first asserts trial counsel was ineffective for failing to object to testimony that he contends improperly suggested appellant had a police record.  The prosecutor asked if the photograph he had of appellant was one that the police officer on the stand Ahad of him on file.@  The prosecutor then asked if it was the only photograph the police officer had of him on file, to which the police officer responded, AAt the time, yes.@  The prosecutor then asked if the photographs the officer had on file showed appellant with a ponytail.  Appellant asserts that the photograph, coupled with testimony of the investigator, was a clear indication to the jury that appellant had a criminal record. Appellant contends that the jury would automatically conclude that the police had appellant=s photograph because he had a prior criminal history. 

However, there was testimony at trial suggesting that a photograph can be placed in an array merely because a person has agreed to allow himself to be photographed by the police.  An appellant may agree to be photographed.  Trial counsel=s failure to object to and exclude inadmissible testimony is not necessarily ineffective assistance.  Castareno v. State, 932 S.W.2d 597, 603 (Tex. App.BSan Antonio 1996, pet. ref=d.); Ybarra v. State, 890 S.W.2d 98, 113 (Tex. App.B San Antonio 1994 pet. ref=d.).  Isolated failures to object generally do not constitute error in light of the sufficiency of the overall presentation.  Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984).  It is possible that counsel made a conscious decision not to object, as an objection would have drawn attention to relatively harmless evidence.  Castareno, 932 S.W.2d at 603.  Thus, it is certainly plausible that counsel did not object based upon trial strategy. This does not make his performance ineffective.  Hall v. State, 862 S.W.2d 710, 715 (Tex. App.BBeaumont 1993, no pet.); Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992).  Appellant has failed to meet the first prong of Strickland, which is that counsel=s performance was deficient.  Strickland, 466 U.S. at 687.  Appellant has failed to overcome Strickland=s strong presumption that trial counsel=s action in not objecting to this testimony was within the wide range of reasonable professional assistance.  Id. at 689.

Appellant next asserts that he received ineffective assistance of counsel because  his trial counsel failed to object to the State improperly committing the jury panel during the jury selection.  Appellant cites Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001), for the proposition that Ait is improper to commit jurors on a matter not required by law.@

 In Standefer v. State, the Court of Criminal Appeals opined that a question is a commitment question Aif one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.@  Standefer, 59 S.W.3d at 179.  Once it has been determined whether a particular question is a commitment question, the second inquiry is whether the question includes only the facts that lead to a valid challenge for cause.  Id. at 182-83.  If it does not, the question should not be allowed.  Id.  A juror may be challenged for cause if he has established in his mind such as to the guilt or innocence of the defendant that it would influence his verdict.  Tex. Code Crim. Proc. Ann. art. 35.16(a)(10) (Vernon 1989 & Supp. 2002).

We now consider the propriety of the voir dire question posed in the present case:

[State]: My last point I want to hit on is under the law, in certain cases, I can put on one witness and that=s it.  And hypothetically speaking, let=s say on that bar fight inside the bar, the only witness I put on is the bartender, who because it happened right in front of him, while he was tending bar, and that=s it.  You are going to get a jury charge that says, you know, based on the evidence presented by the state, were the elements met?  And is there anybody who would not be able to follow the jury charge because it is only one witness who comes in and testifies to what happened at that time, who is saying, no, I would convict if there was more evidence, but there is only one witness, and since there is only one witness, regardless of what that witness says and regardless of what that witness does, basically could not follow the jury charge?. . . I guess what I am asking you, though, is if you are picked as a juror, would you be able to just judge the credibility of that one witness, taking in all those factors, which are important factors to take into consideration, to come to an end and follow the jury charge, or would you just say off the bat, you know, the State only brought this one witness, that=s it, I am not going to convict, period, I am not even going to try to determine whether or not [sic] the credibility of this witness?

Venireperson Pena: Well, yeah, if he is credible, you know, I could make it, I guess, make a decision.

[State]: Is there anybody, even finding the witness credible, would not be able to follow the jury charge and follow the law?

We must first consider whether or not this question is a commitment question.  Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue in a certain way after learning a particular fact. Standefer, 59 S.W.3d at 178. This question seeks to elicit a commitment from jurors to convict a person on the testimony of one credible witness.  Accordingly, this is a commitment question.  See id.

The question asks whether the prospective juror would fulfill the duty of a jury member: to fairly and impartially assess the evidence before the trier of fact, and to do so regardless of the number of witnesses called by the State.  A venire person who cannot convict based only on the testimony of one witness even if the person Abelieved the State=s only eyewitness and that testimony convinced [the person] beyond a reasonable doubt of the defendant=s guilt can validly be challenged for cause.@   Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995); Leonard v. State, 923 S.W.2d 770, 774 (Tex. App.BFort Worth 1996, no pet.).  This commitment question meets the challenge for cause requirement.  Standefer, 59 S.W.3d at 188.   

The next step is to determine whether the question includes facts (and only those facts) that lead to a valid challenge for cause.  Id. at 190.  The question does not contain any other facts pertinent to the case. Upon review of the question, we note that the question was not improper because it included only facts that would lead to a valid challenge for cause.  Id. at 182-83. The answer to such a question will influence a juror=s verdict, a valid challenge for cause.  Tex. Code Crim. Proc. Ann. art. 35.16(a)(10) (Vernon 1989 & Supp. 2002).

Accordingly, because this question meets the challenge-for-cause requirement and contains only those facts that would lead to a valid challenge for cause, we cannot hold that the question is improper.  Therefore, because it was not an improper question, we cannot hold that appellant=s trial counsel was ineffective for failing to object to a question that was not improper.  Appellant=s final contention of an alleged Sixth Amendment violation is without merit.  Strickland, 466 U.S. at 687.  We overrule appellant=s third point of error.

The judgment of the trial court in cause number 13-01-522-CR is affirmed.

Appellant also appeals from the trial court=s revocation of probationary status, sentencing him to three years in the Institutional Division of the Texas Department of Corrections.  Appellant argues through four issues:  the trial court abused its discretion in revoking probation; the trial court committed reversible error in considering inappropriate evidence in deciding not to continue or modify probation; the trial court committed reversible error in considering inappropriate evidence in deciding not to reduce the term of confinement originally assessed; and his Sixth Amendment rights were violated because he received ineffective assistance of counsel.  

Factual and Procedural History  

In June of 1999, appellant was charged by indictment with one count of possession of cocaine in the amount of one gram or more but less than four grams.  He entered a plea of nolo contendere, was found guilty, and sentenced to three years of imprisonment and ordered to pay a fine of $1,500.00.  The trial court suspended the sentence of imprisonment and ordered that appellant be placed on community supervision for a term of five years.

Appellant was later charged by indictment with one count of aggravated assault for a subsequent criminal offense that occurred on January 30, 2000.

On February 28, 2001, the State filed a motion to revoke the community supervision granted to appellant in his drug possession conviction, based on multiple violations of the conditions of his community supervision, including commission of the aggravated assault.  After an evidentiary hearing, along with a trial on the alleged aggravated assault, the trial court found appellant violated the terms and conditions of his community supervision by:

1.  committing the subsequent criminal offense of aggravated assault on January       30, 2000.

2.  testing positive for cocaine in March, 2000

3.  being delinquent on monthly fees in the amount of $425;

4.  failing to report to the Supervision Officer in January, April, May, June, July,                      August, September, and October of 2000.

5.  being delinquent on the fine imposed in the amount of $425

6.  being delinquent on court appointed counsel fees in the amount of $170;

7.  being delinquent on court costs in the amount of $76.75

8.  failing to Asubmit to screening and evaluation at the Rio Grande Valley                   Council on Drug and Alcohol Abuse Program as directed and/or participate            fully in the prescribed regiment of care or treatment and/or obey all rules or            regulations, as directed;@ and

9.  being delinquent on Crime Stoppers fee in the amount of $25.

The trial court found appellant guilty of assault and sentenced him to one year confinement in the Hidalgo County Adult Detention Center. The trial court also revoked appellant=s community supervision and sentenced him to three years imprisonment.  It is for this revocation that this current appeal ensues.

Abuse of Discretion

Appellant contends the trial court abused its discretion in revoking his community supervision because: the alleged subsequent crime was not proven by a preponderance of the evidence; the test results regarding cocaine usage were based on inadmissible hearsay; and the allegations of failing to report, not paying costs associated with probation, and not submitting to screening and evaluation are false.

Our review of an order revoking probation is limited to determining if the trial court abused its discretion.  Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In a probation revocation preceding, the State must prove a violation of a condition of probation by a preponderance of the evidence.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  The preponderance of the evidence standard is met when the greater weight of the credible evidence before the trial court creates a reasonable belief that a condition of probation has been violated. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983).  In our review, we examine the evidence in the light most favorable to the trial court=s decision.  Cardona, 665 S.W.2d at 493.  In addition, we recognize that the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 787 S.W.2d 96, 97 (Tex. App.BHouston 1990, pet. ref=d). 

If multiple grounds for revocation are alleged, proof of any one ground will support the trial court=s order revoking community supervision.  Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Pettit v. State, 662 S.W.2d 427, 429 (Tex. App.BCorpus Christi 1983, pet. ref=d).  Furthermore, evidence sufficient to support a conviction for a subsequent crime is also sufficient, under the preponderance standard applicable to revocation proceedings, to support the trial court=s finding that the appellant violated a condition of his probation.  Martinez v. State, 6 S.W.3d 674, 681 (Tex. App.BCorpus Christi 1999, no pet.) (citing Thomas v. State, 708 S.W.2d 861, 864 (Tex. Crim. App.  1986)).

Appellant asserts that the alleged assault was not proven by a preponderance of the evidence.  In light of the preceding analysis affirming the conviction for that assault we hold that appellant=s argument is without merit and do not address his remaining contentions concerning whether or not a condition of probation was violated.  Moore, 605 S.W.2d at 926.  Accordingly, we hold that the trial court did not abuse its discretion in finding that the assault was proven by a preponderance of the evidence.^[1]  

Ineffective Assistance of Counsel

In his final issue, appellant asserts that he received ineffective assistance of counsel at his revocation hearing.  He specifically complains that his counsel failed to object to hearsay, namely the supervisory officer=s testimony that appellant tested positive for cocaine use in March of 2000, which the trial court found to be true. 

To prevail on a claim of ineffective assistance of counsel, an appellant must show:  (1) counsel=s performance was deficient; and (2) the deficient performance prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Castellano v. State, 49 S.W.3d 566, 573 (Tex. App.BCorpus Christi 2001, pet. ref=d).   Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.  Strickland, 466 U.S. at 687. The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence.  See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). We must indulge in a strong presumption that the counsel=s conduct was reasonable.  Strickland, 466 U.S. at 689.  Furthermore, a claim of ineffectiveness cannot be demonstrated by isolating one portion of counsel=s representation.  McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992).  Instead, counsel=s performance must be judged on the totality of the representation. Strickland, 466 U.S. at 670.

Appellant has failed to show how his trial counsel was deficient by not objecting to the supervisory officer=s testimony that appellant tested positive for cocaine use. He does not give any support for his implication that the supervision officer=s testimony was inadmissible hearsay.  Appellant has therefore failed to meet his burden of proof, under the first prong of Strickland, and it is unnecessary to proceed to the second prong.  Strickland, 466 U.S. at 687.  Appellant=s last issue is overruled.

Conclusion

The judgment of the trial court convicting appellant of assault in cause number 13-01-522-CR and the revocation of probation in cause number 13-01-520-CR are AFFIRMED.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed                                    

this 5th day of September, 2002.

---

^[1] This Court reads appellant=s second and third issues to challenge the trial court=s revocation of appellant=s probation despite his inability to pay costs associated with probation.  Because of our disposition in the first issue, holding that the trial court did not err in finding appellant violated a condition of his probation, unrelated to his financial obligations, we need not address these arguments.  Tex. R. App. P. 47.1