Julis Edward Perales v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-268-CR
JULIS EDWARD PERALES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
A jury found Appellant Julis Edward Perales guilty of capital murder, and
the trial court assessed his punishment at life imprisonment. In five points,
Perales contends that the trial court erred by admitting a video recording of his
confession into evidence and by failing to appoint two attorneys to assist him
and that he received ineffective assistance of counsel. We will affirm.
1
… See Tex. R. App. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
One night Perales and two other individuals—Darryl Quinones and Jared
Birmingham—decided to rob a convenience store. While Quinones kept lookout
in the getaway car, the other two men entered the store. As Perales attempted
to steal a large television in the store, Birmingham approached the cashier, held
a loaded gun to his head, and shot and killed him. At trial, the State presented
the store’s surveillance videotape showing the robbery and shooting, a video
of Perales’s confession to the police, and the testimony of Quinones and other
witnesses. Perales did not call any witnesses. The jury returned a verdict
finding Perales guilty of capital murder, and the trial court sentenced him to life
imprisonment. Perales now appeals.
III. A DMISSION OF P ERALES’S V IDEOTAPED C ONFESSION
In his first point, Perales contends that the trial court erred by denying his
motion to suppress a video of his confession because the confession was
involuntarily given in violation of the United States and Texas constitutions and
Texas statutory law. See U.S. Const. amends. V, VI, XIV; Tex. Const. art. 1,
§ 10; Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Perales grounds
this point on two contentions: (1) he was too young and inexperienced to
intelligently waive his rights, and (2) his confession was induced by promises
2
of benefits that he would receive if he confessed and by lies that the
investigating detective told him during the interrogation.
Although Perales claims that admission of the video violates the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution, and
Article I, section 10 of the Texas Constitution, he does not separately brief
each issue. Therefore, in our resolution of this point, we will treat the state and
federal constitutions as providing the same protections. See Heitman v. State,
815 S.W.2d 681, 690–91 n. 23 (Tex. Crim. App. 1991).
A. The Videotaped Interrogation
We have reviewed the video and the transcript of the video admitted at
trial. The video reveals that Detective Dishko, the investigating detective, read
Perales his rights—as set forth in the code of criminal procedure article 38.22,
section 2(a)2 —within the first minutes of the interrogation. He asked Perales
if he understood his rights, and Perales indicated that he did. Perales then
signed a form to further verify that he understood his rights. The following
exchange then occurred:
Dishko: Knowing your rights, do you want to talk to me about
what’s going on?
Perales: Nah, I’m asking you what’s—what is going on?
2
… Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a).
3
Dishko: Well, I need to know if you’re willing to talk to me
before we start talking.
Perales: Ah, yeah.
Dishko: Okay. So you—you do want— at least want to start
talking to me?
Perales: I mean, I just want to see what the situation is. Yeah.
Dishko: Okay. In law enforcement, we gotta be very formal
about things sometimes . . . . One of your rights is you
have the right to terminate the interview at anytime.
Perales: Yeah.
Dishko: Okay. I want you to remember that. So you do want
to start talking to me?
Perales: Yeah.
Dishko: Find out what’s going on[] and if you want to stop,
you understand you can stop?
Perales: (shaking head up and down)
The detective told Perales that he was “implicated in a murder.” When
Perales asked what “implicated” meant, the detective explained that it meant
that Perales’s name had been “brought into the investigation” and that evidence
showed that Perales was “part of this situation.”
Detective Dishko proceeded to interrogate Perales for approximately forty
minutes. During that time, Detective Dishko told Perales, “You don’t have to
talk to me if you don’t want to,” and “You make your own decisions. Okay?
4
Do you want to talk to me?” Perales reassured the detective that he wanted
to talk.
During the interrogation, Detective Dishko told several lies, as he candidly
admitted during the suppression hearing. Although Detective Dishko knew that
Perales could not receive the death penalty because of his age (he was
seventeen at the time of the offense), he told Perales that he possibly could
receive the death penalty. At the suppression hearing, Detective Dishko
admitted that he had lied about the use of the death penalty and explained that
he had done so because he “wanted to plant that seed in [Perales’s] head” to
encourage Perales to cooperate.
Detective Dishko told Perales during the interrogation, “How was it an
accident? I want you to explain it to me so I—convince me. ‘Cause if you
want me to believe that Julis, I’ve got to convince a jury.” At the suppression
hearing, Detective Dishko admitted that this was also inaccurate. The detective
also told Perales, “It would benefit you to speak to me about your involvement
because I know that [Birmingham] was the one that pulled that trigger.” At the
suppression hearing and at trial, Detective Dishko maintained that he never
promised Perales anything in return for Perales’s statements. Detective Dishko
testified in front of the jury:
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Q. Did you ever make [Perales] any kind of promise or say, if
you tell me X, Y, and Z, I’ll give you A, B, and C?
A. No, I did not promise him anything.
Q. Did you ever threaten him or coerce him into giving a
statement?
A. No, ma’am.
At the end of the suppression hearing, the trial court concluded that
Perales’s statements were the result of a custodial interrogation, that Perales
received the statutorily required warnings, and that “under subsection 2B
[Perales] waived those rights and proceeded to answer the officer’s questions.” 3
B. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
3
… In his brief to this court, Perales contends that the trial court never
made a specific finding that his statements were voluntary. We note, however,
that by finding that subsection 2(b)—which requires that an accused, prior to
and during the making of the statement, knowingly, intelligently, and voluntarily
waived his rights—was satisfied, the trial court impliedly found that Perales
voluntarily made the statements.
6
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W .3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W .3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
7
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 819.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740
(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.
Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
C. Determining the Voluntariness of a Confession
An accused must give his confession voluntarily before it can be used
against him. Tex. Code Crim. Proc. Ann. art. 38.22 § 2(2)(b); see Penry v.
State, 903 S.W.2d 715, 744 (Tex. Crim. App.), cert. denied, 516 U.S. 977
(1995). Under federal due process principles, a statement is involuntary if the
defendant was offered inducements of such a nature or coerced to such a
degree that the inducements or coercion—not his own free will—produced the
statement. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521–22
(1986); Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d). Article 38.22 of the Texas Code of Criminal Procedure
8
provides that a defendant’s recorded verbal confession to a crime cannot be
used against him unless he first receives a series of statements regarding his
rights and knowingly, intelligently, and voluntarily waives those rights. Tex.
Code Crim. Proc. Ann. art. 38.22 § 2(a)(1)–(2). In determining the question of
voluntariness, a court should consider the totality of circumstances under which
the statement was obtained. Creager v. State, 952 S.W.2d 852, 856 (Tex.
Crim. App. 1997). The ultimate issue is whether the appellant’s will was
overborne. Id.
Once the accused contests the admission of his statement on the ground
of “voluntariness,” the due process guarantee and article 38.22, section 6
require the trial court to hold a hearing on the admissibility of the statement
outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211
(Tex. Crim. App. 1995) (citing Jackson v. Denno, 378 U.S. 368, 380, 84 S.
Ct. 1774, 1783 (1964)); see also Tex. Code Crim. Proc. Ann. art. 38.22, § 6.
At this hearing, the State must prove voluntariness by a preponderance of the
evidence. Alvarado, 912 S.W.2d at 211.
In determining whether the suspect’s will was overborne, courts look at
circumstances such as the length of the detention, denying family access to the
suspect, and refusing the suspect’s request to telephone family or an attorney,
along with the suspect’s age, experience, intelligence, and mental and physical
9
condition. Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App. 2008);
Bell v. State, 169 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet. ref’d).
Youth is usually not enough, by itself, to render a statement inadmissible; it is
merely a factor to consider in determining the voluntariness of the confession.
See Oursbourn, 259 S.W.3d at 173. Furthermore, a suspect could be
uneducated and illiterate and yet still understand the nature of the rights he is
waiving and voluntarily give a confession. Peacock v. State, 819 S.W.2d 233,
235 (Tex. App.—Austin 1991, no pet.); Martinez v. State, 131 S.W.3d 22, 35
(Tex. App.—San Antonio 2003, no pet.).
Apart from youth and education level, a confession may be involuntary
if it was induced by the promise of some benefit to the defendant. See
Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). To render
the confession involuntary, such promise must be (1) positive, (2) made or
sanctioned by a person in authority, and (3) of such an influential nature that
it would cause a defendant to speak untruthfully. Id. In contrast to these
impermissible promises, trickery or deception can be used in obtaining a
confession unless the trickery or deception was calculated to produce an
untruthful confession or was offensive to due process. Creager, 952 S.W.2d
at 856.
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D. The Voluntariness of Perales’s Confession
Although Perales claims that his confession was not voluntary because
he was seventeen years old at the time and only had a ninth grade education,
he points to no evidence that his will was actually overborne because of his
youth or intelligence level, nor do we find any in our review of the record. The
total length of time between Perales’s arrest at his house and the end of the
interrogation was less than two hours. Perales was never denied access to
family or legal counsel or denied access to the restroom, food, or water.
Perales’s young age or low intelligence, standing alone, does not render his
statements inadmissable as involuntary. See Oursbourn, 259 S.W.3d at 173;
see also Martinez, 131 S.W.3d at 35 (holding that the confession of a fifteen-
year-old boy with the reading, spelling, and math abilities of a second or third
grader was voluntary); In re V.M.D., 974 S.W.2d 332, 346 (Tex. App.—San
Antonio 1998, pet. denied) (holding that the confession of a twelve-year-old girl
was voluntary); Peacock, 819 S.W.2d at 235 (holding that the trial court did
not abuse its discretion by finding the confession of an uneducated and illiterate
man voluntary). Additionally, our review of the record demonstrates no
evidence of coercion or threats made by the detective. See Bell, 169 S.W.3d
at 391.
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Perales argues that the detective’s statement that it would benefit Perales
to speak to him was like a promise for a benefit upon his confession. Perales
seems to argue that because shortly after making this statement, the detective
said that Perales could receive the death penalty, the overall assertion was that
Perales would not receive the death penalty if he confessed. This very
attenuated reasoning, requiring us to piece together different parts of what the
detective said at different times during the interrogation, is a far cry from the
affirmative promise for a benefit disallowed by case law. See Creager, 952
S.W.2d at 856; see also Bonham v. State, 680 S.W.2d 815, 821 (Tex. Crim.
App. 1984), cert. denied, 474 U.S. 865 (1985) (holding that a police officer’s
statement to a defendant that if he did not give a statement, the officer would
make sure that he received the death penalty was not an affirmative promise).
Contrary to Perales’s assertions, we have been unable to find in the video
or transcript of the video any affirmative promise made by the detective to
Perales in exchange for his confession. See Bonham, 680 S.W.2d at 820.
Regarding the detective’s other false statements of which Perales complains to
this court, Perales never presented any evidence that Detective Dishko
purposefully made any false statements in an effort to produce an untruthful
confession or otherwise offended due process. See Creager, 952 S.W.2d at
856.
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Viewing the evidence in the light most favorable to the trial court’s ruling,
we cannot say that the trial court committed an abuse of discretion. See
Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at 818. Having considered all
of the above factors together with all other circumstances, we hold that the
trial court did not abuse its discretion by concluding that the State proved by
a preponderance of the evidence that Perales’s statements were voluntary. See
Creager, 952 S.W.2d at 855; Bell, 169 S.W.3d at 391. Accordingly, we
overrule Perales’s first point.
IV. E DITORIAL S TATEMENTS OF INTERROGATING D ETECTIVE
In his second point, Perales complains that the trial court violated rules
of evidence 402 and 403 by allowing the jury to view certain portions of the
videotaped interrogation in which the detective made “editorial comments”
about the crime and punishment. Perales argues that these statements were
irrelevant and highly prejudicial.
A. The Relevant Portions of the Video
Toward the end of the interrogation of Perales, the following exchange
took place:
Dishko: I hope you change your attitude for court. ‘Cause
sitting there acting disgusted isn’t gonna help you any
in court. You need to show remorse and act like you
are—are sorry that this man died for a . . . TV. He
died because of a TV. He lost his life for a . . . TV.
13
Perales: So you think I don’t care?
Dishko: You’re acting like you don’t.
Perales: Hmm, just ‘cause my feelings don’t get expressed
don’t mean I care [sic].
....
Dishko: If you don’t express your feelings. If you don’t express
say what you mean, people don’t understand that.
You’re not acting like you’re scared to go to jail.
You’re not acting like you’re scared about what’s going
on. You’re not acting like you could spend the rest of
your life in prison.
Perales: (unintelligible)
Dishko: That you could be put to death for this.
Perales: You want me to sit here and cry?
Dishko: No, I want you to sit here and at least [say] you’re
sorry—if you are.
....
Dishko: You know what. I talked to the victim’s family. You
don’t have to. You didn’t have to tell those people
that—that he got killed for a TV. I did. I had to watch
his sister ball . . . . For what? . . . For a TV. That’s
cool with me, Julis. If you wanna act hard,
that’s—that’s your decision.
In response to such statements, Perales asked what kind of evidence the
police had against him. After Detective Dishko listed the evidence, Perales said
that he participated in the robbery in the hopes of stealing the TV and selling
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it so that he could buy Christmas presents for his family. The detective noted
how it was “cold blooded” to kill someone who was not resisting and who
could not identify Perales and Birmingham as the robbers because they were
wearing masks.
Later in the interrogation, Perales demonstrated how he saw Birmingham
(the shooter) point the gun at the victim and detailed how he saw the victim
slump over after Birmingham pulled the trigger. The detective asked Perales
what he thought his punishment should be, to which Perales responded that he
did not want the death penalty. Not long after that, the detective concluded
the interrogation. At trial and on appeal, Perales contends that the portions of
the video in which Detective Dishko discussed the nature of the act and
Perales’s reaction to it were irrelevant and more prejudicial than probative.
B. Standard of Review
We review a trial court’s decision to admit evidence under an abuse of
discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the trial court’s
ruling falls within the zone of reasonable disagreement, we will affirm its
decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The
trial court’s decision must be reasonable in view of all the relevant facts.
15
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The mere
fact that a trial court may decide a matter within its discretionary authority in
a different manner than an appellate court would in a similar circumstance does
not demonstrate that an abuse of discretion has occurred. Manning v. State,
114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
C. Rules 401 and 403
Evidence is relevant when it has a tendency to make the existence of any
fact more probable or less probable than it would have been without the
evidence. Tex. R. Evid. 401. Rule 403 allows for the exclusion of otherwise
relevant evidence when its probative value is substantially outweighed by the
danger of unfair prejudice. Tex. R. Evid. 403; Shuffield v. State, 189 S.W.3d
782, 787 (Tex. Crim. App.), cert. denied, 127 S. Ct. 664 (2006). The trial
court is in a superior position to gauge the impact of relevant evidence in
evaluating its determination under rule 403. See Mozon v. State, 991 S.W.2d
841, 847 (Tex. Crim. App. 1999).
D. Admission of Detective’s Statements was Harmless
Even if we assume that the trial court erred by overruling Perales’s
objections to Detective Dishko’s statements, the admission of those statements
was harmless. Texas Rule of Appellate Procedure 44.2(b) provides that a
nonconstitutional error “that does not affect substantial rights must be
16
disregarded.” Tex. R. App. P. 44.2(b). A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s
verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946));
Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort Worth 1998, pet.
ref’d.). In making this determination, we review the record as a whole. See
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Here, the jury watched the videotaped interrogation at trial. The
statements at issue occurred near the end of the interrogation, and the jury had
already witnessed Perales’s conduct during the interrogation and his confession
to Detective Dishko. The jury also witnessed Perales at trial and could draw
their own conclusions about whether Perales appeared remorseful. The
detective’s statements added little, if any, weight to the State’s case. Thus,
in the context of the entire case against Perales, any error in admitting the
detective’s statements did not have a substantial or injurious effect on the
jury’s verdict and did not affect Perales’s substantial rights. See King, 953
S.W.2d at 271. Accordingly, we overrule Perales’s second point.
V. INEFFECTIVE A SSISTANCE OF C OUNSEL
In his third and fourth points, Perales contends that he received
ineffective assistance of counsel. Specifically, Perales posits that he received
17
ineffective assistance when his trial attorney (1) failed to raise hearsay and
Confrontation Clause objections to those statements made by Detective Dishko
at the end of the interrogation that we detailed in section IV above and (2)
failed to object to the prosecutor’s characterization of the offense as “capital
murder.”
A. Determining Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, the appellant must show
by a preponderance of the evidence that his counsel’s representation fell below
the standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
18
reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W .3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In
other words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
19
probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
B. Failure to Object to Admission of Detective Dishko’s Statements on
Hearsay and Confrontation Clause Grounds
We will first address Perales’s contention that he received ineffective
assistance of counsel when his trial attorney failed to raise hearsay and
Confrontation Clause objections to Detective Dishko’s comments detailed in
section IV above.
Hearsay is a “statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Tex. R. Evid. 801(d). The Confrontation Clause of the Sixth
Amendment provides: “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. Even when hearsay offered against a defendant is admissible under
evidentiary rules, that evidence may implicate the Confrontation Clause of the
Sixth Amendment if the defendant is not afforded the opportunity to confront
the out-of-court declarant. Gonzalez v. State, 195 S.W.3d 114, 116 (Tex.
Crim. App.), cert. denied, 127 S. Ct. 564 (2006).
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As we held in section IV above, any error in the admission of the
statements at issue—that the detective hoped Perales changed his attitude for
court, that Perales needed to show remorse, that Perales “could be put to death
for this,” that Perales’s accomplice acted in a “cold blooded” manner, and that
Perales was “acting hard” about the murder—was harmless. See Tex. R. App.
Proc. 44.2(b); King, 953 S.W.2d at 271. Consequently, Perales’s trial counsel
did not ineffectively represent Perales by failing to object to such statements
on hearsay grounds. See Tex. R. Evid. 801(d); Strickland, 466 U.S. at 687,
104 S. Ct. at 2064.
Furthermore, there was no Confrontation Clause objection to be made
because the detective testified at trial—giving Perales a chance to confront him
and eliminating any potential Confrontation Clause claim. See U.S. Const.
amend. VI; Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354,
1369 n.9 (2004). Consequently, Perales’s trial counsel was not ineffective by
failing to object to the admission of the detective’s statements on Confrontation
Clause grounds. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Because Perales’s counsel was not deficient, we overrule Perales’s third point.
See id.
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C. Failure to Object to Characterization of Act as a “Capital Murder”
In his fourth point, Perales contends that he received ineffective
assistance of counsel because his trial attorney failed to object to the
prosecutor’s characterization of the act as a capital murder.
During the prosecutor’s direct examination of Detective Dishko, she asked
the detective, “And then at some point later in the tape, do you see the men
who commit the capital murder of Shekhar Regmi on the tape?” [Emphasis
added.] The detective responded, “Yes, you do.” Later, the following
exchange took place:
[Prosecutor:] The video [of the robbery] starts with
Darryl Quinones and goes through. But
the PowerPoint just starts when the two
people who rob and kill Mr. Regmi come
in; is that right?
[Dishko:] Yes, it is.
[Defense Counsel]: W ell, objection to [the prosecutor]
characterizing this as — that’s invading the
province of the jury with him answering
that question about who is killing whom on
this question, Judge. That’s a jury
question.
The trial court sustained the objection, instructed the jury to disregard the
question and answer, and denied Perales’s motion for a mistrial. At that point,
Perales’s counsel said,
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Along that vein, Judge, I waived that objection, earlier, and I’m
raising ineffective assistance of counsel on myself at this point
because [the prosecutor] asked Detective Dishko, is this tape going
to show Mr. Perales and Mr. Birmingham committing capital
murder, I waived that error. And since I didn’t object timely, I’m
raising ineffective assistance of counsel based on my
misperformance . . . and ask for a ruling on that.
The trial court responded, “Based on your totality of representation thus far,
that objection is overruled.”
Even assuming that the first prong of Strickland is satisfied based on
defense counsel’s concession that he inadvertently failed to object to the
prosecutor’s statement, Perales failed to demonstrate that the failure made the
jury’s verdict unreliable. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Given the volume of evidence against him, including the testimony of Quinones
and Perales’s own videotaped confession, and the isolated nature of this one
failure to object, we cannot say that a single instance of failing to object to a
comment by the prosecutor characterizing the act as a capital murder
constituted ineffective assistance of counsel. See id.; Ingham v. State, 679
S.W.2d 503, 509 (Tex. Crim. App. 1984) (“An isolated failure to object to
certain procedural mistakes or improper evidence does not constitute ineffective
assistance of counsel.”). Accordingly, we overrule Perales’s third and fourth
points.
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VI. F AILURE TO T IMELY A PPOINT T WO A TTORNEYS FOR P ERALES
In his fifth point, Perales complains that the trial court erred by failing to
timely appoint a second attorney to defend him. The State asserts that Perales
failed to preserve this complaint for appeal and, alternatively, that any error is
harmless. We agree.
The trial court appointed defense counsel for Perales in January of 2006.
A grand jury indicted Perales for capital murder one week later. On March 16,
2007—fourteen months after the indictment, the trial court appointed a second
attorney to represent Perales. The court’s order denoted the reason for
appointing a second attorney: “[Perales] charged with Capital Murder. Second
counsel required for assistance.” The State filed written notice of waiver of the
death penalty on June 15, 2007—one month before trial. Both appointed
attorneys represented Perales at trial.
Article 26.052(e) of the Texas Code of Criminal procedure provides:
The presiding judge of the district court in which a capital felony
case is filed shall appoint two attorneys, at least one of whom
must be qualified under this chapter, to represent an indigent
defendant as soon as practicable after charges are filed, unless the
state gives notice in writing that the state will not seek the death
penalty.
Tex. Code Crim. Proc. Ann. art. 26.052(e) (Vernon Supp. 2008) (emphasis
added). Failure to comply with article 26.052 is susceptible to a harmless error
24
analysis under rule of appellate procedure 44.2(b). Hughes v. State, 24 S.W.3d
833, 838 (Tex. Crim. App.), cert. denied, 531 U.S. 980 (2000); Kirk v. State,
199 S.W.3d 467, 473 (Tex. App.—Fort Worth 2006, pet. ref’d).
During the fourteen months between Perales’s indictment and the trial
court’s appointment of a second defense attorney, Perales did not object to the
trial court’s failure to appoint a second attorney for him. Consequently, he did
not preserve this point for appellate review. See Tex. R. App. P. 33.1(a)(1);
Wright v. State, 28 S.W.3d 526, 530 (Tex. Crim. App. 2000), cert. denied,
531 U.S. 1128, 121 S. Ct. 885 (2001); Toluao v. State, No. 02-04-00040-CR,
2005 WL 1994179, at * 2 (Tex. App.—Fort Worth Aug. 18, 2005, pet. ref’d)
(mem. op., not designated for publication). We will, however, address his
complaint in the interest of justice.
Although Perales was represented by only one attorney for fourteen
months after his indictment—during which time the State had not yet waived
the death penalty, Perales cannot show that the error affected his substantial
rights. See Tex. R. App. P. 44.2(b); Hughes, 24 S.W.3d at 838; Kirk, 199
S.W.3d at 473. As we have explained in detail above, Perales does not
establish any specific instances of misconduct or ineffective assistance of
counsel committed by his attorney. See Wright, 28 S.W.3d at 530; Kirk, 199
25
S.W.3d at 473. Additionally, the State waived the death penalty before trial.
Accordingly, we overrule Perales’s fifth point.
VII. C ONCLUSION
Having overruled all of Perales’s five points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 9, 2008
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