Michael R. Lopez v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00179-CR
MICHAEL R. LOPEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In one point, appellant Michael R. Lopez appeals his conviction for
aggravated assault. 2 Appellant argues that his trial counsel provided ineffective
assistance. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
Background Facts
In the summer of 2009, Cornesha Kendrick lived at the Collins Park
Apartments in Arlington. One afternoon while she and her friend were walking
back to her apartment from a convenience store, Cornesha crossed paths with
Payton Williams and Bernard Brooks. The men taunted her, and she called her
brother, Jerome Hardy, to report the incident. Ismael Haros (Izzy), who had
known Cornesha for several years, went to her apartment complex with Jerome
that evening.
When they arrived, Payton, Bernard, and appellant were standing outside. 3
Eventually, Jerome and Izzy began individual fights with Payton and Bernard.
Cornesha testified that ten to twelve people were in the parking lot during the
fights. Izzy won his fight with Bernard, and Bernard backed away in surrender.
At that point, appellant exhorted Bernard to restart the fight. Izzy began
challenging appellant to fight. According to Cornesha, after the two exchanged
words, appellant pulled out a “little pistol.” Izzy turned and began to run away,
and appellant shot Izzy in the back. Izzy testified that he turned his back to
appellant before seeing a gun; he conceded that he did not know who shot him.
After the gunshot, appellant, Payton, and Bernard ran upstairs to
appellant’s apartment. According to Cornesha, as appellant ran up to the
3
In her testimony, Cornesha did not identify appellant by name. Instead, in
open court, she initially pointed at him while describing him as a “tall black dude.”
She later identified appellant as the defendant in the case.
2
apartment, he still had the gun in his hand. Cornesha helped Izzy get into a car
and rode with him to a hospital. Eventually, surgeons removed the bullet from
his body. He survived.
Arlington Police Department Officer Michael Wheatley went to the
apartment complex after Glen Haut had called 911 to report the shooting. When
Officer Wheatley arrived, he spoke with Haut, who directed him to apartment 215
and said that “several suspects” had run in there. By this time, other officers had
joined Officer Wheatley, and the officers announced their presence and knocked
on the door of apartment 215. After they saw movement within the apartment but
received no answer, the officers declared a barricade situation. As a result, as
many officers as possible came to the scene to set up a perimeter around the
complex and to wait for a SWAT team to arrive. Simultaneously, the police
obtained a search warrant to search the apartment for a gun. As the SWAT team
was preparing to enter appellant’s apartment, appellant, Payton, Bernard, Tranda
McKinnley (appellant’s girlfriend), and her children all left the apartment. 4
The police put appellant, Bernard, and Payton in three separate patrol cars
and began to search the apartment. Even though the police conducted a
thorough search aided by a dog trained in firearms detection, they never found a
gun. The next day, Detective Bill Pino went to the scene of the shooting and
4
Tranda lived in apartment 215 with appellant and her four children.
Appellant is the father of two of her children.
3
showed Cornesha a photo lineup of suspects. Cornesha identified appellant as
the man who had shot Izzy.
A grand jury indicted appellant with aggravated assault with a deadly
weapon; the indictment included an allegation that appellant had been previously
convicted of that same offense. The trial court appointed counsel to represent
appellant, and counsel filed several pretrial motions on appellant’s behalf, many
of which the trial court granted. Appellant elected the jury to assess his
punishment in the event of a conviction, and he pled not guilty.
During the opening statement given by appellant’s counsel, he conceded
that appellant was present at the scene of the fight but urged that reasonable
doubt existed to pinpoint appellant as Izzy’s shooter, particularly considering that
the police had not found a gun connecting appellant to the crime. Counsel
conducted cross-examinations of each witness called by the State and lodged
objections during the State’s questioning of those witnesses.
After hearing all of the evidence and arguments from the parties, the jury
found appellant guilty, and after listening to evidence concerning his punishment
(including evidence about prior convictions), the jury assessed seventy-five
years’ confinement. 5 Appellant brought this appeal.
5
Appellant had rejected a plea-bargain offer from the State for a term of
five years’ confinement.
4
Appellant’s Complaints of Ineffective Assistance of Counsel
In his sole point, appellant contends that he received ineffective assistance
of counsel in the trial court. Specifically, appellant claims that his trial counsel
committed numerous “catastrophic blunder[s]” by failing to adequately investigate
the case or request the appointment of an investigator, failing to present an
expert witness, making numerous alleged tactical errors during the guilt phase of
the trial, choosing to have punishment assessed by the jury instead of the trial
court, and failing to produce any compelling mitigating witnesses during the
punishment phase of the trial. Appellant asserts that his trial counsel’s
representation was “so substandard that it [was] ineffective on its face.”
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); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009);
Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). In other
words, for a claim of ineffective assistance of counsel to succeed, the record
must demonstrate both deficient performance by counsel and prejudice suffered
by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.
2012). An ineffective assistance claim must be “firmly founded in the record,”
and “the record must affirmatively demonstrate” the meritorious nature of the
5
claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999)).
In evaluating the effectiveness of counsel under the deficient-performance
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 reviewing court indulges a strong presumption that counsel’s
conduct fell within a wide range of reasonable representation. Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement
is true with regard to the deficient-performance prong of the inquiry when
counsel’s reasons for failing to do something do not appear in the record.
Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 813. 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.” Salinas, 163 S.W.3d at
740 (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate
6
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).
Trial counsel “should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593
(quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial
counsel is not given that opportunity, then the appellate court should not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
The prejudice prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair and reliable trial.
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 probability sufficient to undermine
confidence in the outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding in which the result is being challenged.
Id. at 697, 104 S. Ct. at 2070.
Alleged failure to investigate
Appellant argues that his trial counsel was ineffective because he failed to
adequately investigate the case or to file a motion for the appointment of an
investigator. Counsel for defendants in criminal cases must independently
7
examine facts. See Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).
A claim of ineffective assistance based on trial counsel’s alleged failure to
adequately investigate the case, however, fails unless appellant can show what
the investigation would have revealed that reasonably could have changed the
result of the case. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App.
1994); Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.]
2009, pet. ref’d) (op. on remand). The record is silent as to the extent of trial
counsel’s investigation. Even if we were to assume that trial counsel made a
deficient investigation, appellant has not specified, and the record does not
reveal, how further investigation or appointment of an investigator would have
produced mitigating evidence that could have changed the outcome of the case.
Thus, appellant fails to meet the second prong of Strickland. See Strickland, 466
U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Stokes, 298 S.W.3d at 432; see also
Cedillos v. State, 250 S.W.3d 145, 153–54 (Tex. App.—Eastland 2008, no pet.);
Kirby v. State, No. 01-04-00603-CR, 2005 WL 3494960, at *3–4 (Tex. App.—
Houston [1st Dist.] Dec. 22, 2005, no pet.) (mem. op., not designated for
publication) (holding that an ineffective assistance claim could not be sustained
when the defendant did not establish how trial counsel’s alleged failure to
adequately investigate and failure to obtain an appointed investigator caused
prejudice).
8
Failure to present expert and fact witnesses
Next, Appellant contends that his trial counsel should have called an
expert witness “to rebut the State’s evidence” and should have located and called
fact witnesses who could have testified that Cornesha was biased against
appellant or that someone other than appellant shot Izzy. Trial counsel’s failure
to call witnesses at the guilt and punishment stages cannot justify reversal on an
ineffective assistance claim absent showings that such witnesses were available
and that appellant would have benefitted from their testimony. See King v. State,
649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Garza v. State, 298 S.W.3d 837, 842
(Tex. App.—Amarillo 2009, no pet.). The record is silent regarding trial counsel’s
strategy in not calling an expert witness or the types of fact witnesses now
suggested by appellant. Furthermore, appellant does not specify what evidence
an expert witness could have rebutted, show that an expert witness would have
been available, or demonstrate that other fact witnesses who would have testified
in his favor actually existed. Thus, we would have to speculate to hold that trial
counsel gave deficient assistance by failing to call an expert witness or other fact
witnesses, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994); see also Kaba v. State, No. 02-06-00250-CR, 2007 WL
1776078, at *2 (Tex. App.—Fort Worth June 21, 2007, pet. ref’d) (mem. op., not
designated for publication). Consequently, appellant has failed to rebut the
strong presumption that his trial counsel’s decision to not call an expert witness
9
or other fact witnesses fell within the wide range of reasonable representation.
See Salinas, 163 S.W.3d at 740.
Alleged mistakes during the guilt phase of the trial
Appellant also argues that trial counsel made several tactical errors during
the guilt phase of his trial. First, appellant contends that his trial counsel
provided ineffective assistance because he conceded appellant’s presence at the
scene of the shooting during his opening statement yet later elicited testimony
from Tranda that appellant had remained in the apartment that night. On trial
counsel’s direct examination, Tranda gave the following testimony:
Q. Okay. Let me back up just a little bit. When you went to
sleep, the people you named[6] were in your apartment.
A. Uh-huh.
Q. And when you woke up, were the same people there --
A. Yeah, they were still in there.
....
Q. . . . Okay. And when you woke up after your mom called
you, the same people were in there?
A. Yeah.
Q. And you don’t know whether they left or came back in
during the interim, do you?
A. Nah.
6
Tranda had stated that appellant and three other men were in her living
room when she went to sleep on the night of the shooting.
10
Q. Anytime in between?
A. Nah.
Q. So you don’t know if they stayed there the whole time?
A. I’m pretty sure they stayed there. They never was outside.
Although Tranda testified that she was “pretty sure” appellant never left the
apartment, trial counsel’s question may have merely attempted to establish the
fact that Tranda did not know whether appellant went outside while she slept.
Furthermore, trial counsel never argued to the jury that appellant had been inside
and not at the scene of the fight. Instead, in closing argument, he focused on
alleged weaknesses in Cornesha’s testimony, suggested that someone else at
the scene might have shot Izzy, and highlighted Tranda’s testimony that she did
not allow guns in her house.
It appears, from our review of the record (and particularly the parts of trial
counsel’s closing argument that highlighted Tranda’s testimony), that trial
counsel called Tranda primarily to produce evidence that the police never found
the assault weapon and that she had never seen a gun in the apartment, not to
offer an alibi. 7 Thus, we conclude that trial counsel executed a reasonable trial
strategy when he conceded during his opening statement that appellant had
been in the parking lot because he never subsequently argued that appellant had
7
Even if trial counsel had intended to call Tranda as an alibi witness, we
note that Texas authority entitles defendants to present conflicting defensive
theories. See Booth v. State, 679 S.W.2d 498, 501 (Tex. Crim. App. 1984);
Whipple v. State, 281 S.W.3d 482, 497 (Tex. App.—El Paso 2008, pet. ref’d).
11
been in his apartment during the shooting. See Labonte v. State, 99 S.W.3d
801, 803 (Tex. App.—Beaumont, pet. ref’d) (holding that there was nothing
inappropriate about an attorney’s concession in an opening statement that the
defendant was a drug dealer because the concession may have been part of a
strategy to be honest with the jury and to mitigate the effects of harmful
evidence), cert. denied, 540 U.S. 927 (2003); Thompson v. State, 915 S.W.2d
897, 904 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (op. on reh’g) (“It is
plausible that counsel, after reviewing the evidence to be presented, decided that
the best strategy would be to appear open and honest to the jury . . . .”); see also
Kennedy v. State, 402 S.W.3d 796, 798–99 (Tex. App.—Fort Worth 2013, no
pet.) (mem. op.) (holding that defense counsel’s decision to play a potentially
damaging video “frame by frame” was a reasonable trial strategy because it
allowed him to argue that a collision between the defendant and a Wal-Mart
employee was an accident).
Appellant next contends that trial counsel provided ineffective assistance
when he failed to object to the following alleged “triple hearsay” testimony offered
by Tranda upon cross-examination by the State:
Q. And would it be possible that either CPS or Alliance for
Children --
A. CPS, yeah.
Q. They might have talked to your children?
A. They talked to my momma. They wouldn’t talk to my kids.
12
Q. Would it be possible that [one of Tranda’s children] might
have talked to someone with Alliance for Children?
A. Nah.
Q. Or talked to someone with CPS?
A. Not about anything that got nothing to do with this.
Q. Did you ever tell [the child] that you threw the gun away?
A. Why would I tell my daughter that? No.
Q. And so you never told her that you threw it in the green
trash can outside?
A. Nah. That’s crazy, like -- they’re kids.
To prove ineffective assistance of counsel for the failure to object to the
admission of evidence during trial, appellant must show that the trial court would
have committed error by overruling the objection. See Ex parte White, 160
S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566
(Tex. Crim. App. 1996). In his brief, appellant does not cite a single rule of
evidence or case to show that the trial judge would have erred by overruling an
objection to these questions or answers. 8 Thus, because appellant has not
adequately briefed this ground for alleged ineffectiveness and because trial
counsel’s reasons for not objecting do not appear in the record, we conclude that
trial counsel did not render ineffective assistance by failing to object. See Tex. R.
App. P. 38.1(i) (requiring a brief to contain “appropriate citations to authorities”);
8
The State contends that its questions to Tranda in the trial court were
permissible because the purpose of them was to impeach her testimony that she
did not see appellant with a gun.
13
Lucio v. State, 353 S.W.3d 873, 877–78 (Tex. Crim. App. 2011) (concluding that
a court of appeals properly declined to address the merits of an issue that was
not properly briefed); Schwarzer v. State, No. 02-07-00192-CR, 2008 WL
2404231, at *3 (Tex. App.—Fort Worth June 12, 2008, no pet.) (mem. op., not
designated for publication) (“With regard to his bolstering claim, [the
appellant] . . . offers no argument or citation to any authority whatsoever. . . . We
therefore overrule Appellant’s third point for inadequate briefing.”); Nolan v.
State, 102 S.W.3d 231, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)
(“Conclusory statements which cite no authority present nothing for appellate
review.”); see also Hernandez v. State, No. 02-05-00243-CR, 2006 WL 563247,
at *2 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op., not designated for
publication) (holding that a failure to object to alleged hearsay was not ineffective
assistance because the record did not provide any evidence to rebut the
presumption in favor of effective assistance). 9
Next, appellant contends that trial counsel “demonstrated ineptitude” while
cross-examining Cornesha. As part of that complaint, appellant appears to argue
that for the first time on his cross-examination of Cornesha, trial counsel asked
questions that particularly identified appellant as Izzy’s shooter. We cannot
agree. On the State’s initial direct examination, Cornesha testified in part,
9
We also note that generally, an isolated failure to object to “improper
evidence does not constitute ineffective assistance of counsel.” Rasmussen v.
State, 822 S.W.2d 707, 713 (Tex. App.—Fort Worth 1991, pet. ref’d).
14
Well, after him and Izzy have their word, Izzy said, [“]If you want it,
you can get it too.[”] He take off his shirt and takes two steps toward
the defendant, and the defendant pulls out a gun. Izzy turns around
to run and the defendant shoots. And so I get stuck because I can’t
believe what just happened, I’m just staring.
Appellant characterizes this testimony as “quite vague” with regard to identifying
him as the shooter. However, it would not have been “quite vague” to the jury
because Cornesha had already identified appellant as the defendant in open
court. Thus, to the extent that appellant argues that his trial counsel connected
him to the shooting before the State did or in a more specific way than the State
did, we overrule that argument.
Appellant also asserts that his trial counsel provided ineffective assistance
by eliciting the following testimony from Cornesha on cross-examination:
Q. So the fight was over with, you testified that you saw Mr.
Lopez here pull out a gun and [shoot] Izzy.
A. Yes, sir.
Q. Let’s break this down a little bit. What was Mr. Lopez
wearing that night?
A. I don’t remember what he was wearing.
Q. Do you remember where he pulled the gun from?
A. From his left pocket.
Q. His left pocket?
A. Yes, sir.
Appellant argues that this exchange harmed him because the State had not
elicited the detail that appellant had pulled the gun out of his left pocket on direct
15
examination and because trial counsel did not achieve the alleged “logical goal”
of such questioning because he did not later elicit evidence that appellant is right-
handed. 10 Although trial counsel elicited new information about the pocket from
which appellant pulled the gun, we cannot conclude that counsel rendered
ineffective assistance because the record is unclear as to his reasons for eliciting
the complained-of testimony (and not eliciting subsequent testimony) and
because although eliciting the detail of which pocket the gun came from may not
have helped appellant, we cannot discern how it harmed him. See Strickland,
466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Menefield, 363 S.W.3d at 592–
93; Mata, 226 S.W.3d at 432; Thompson, 9 S.W.3d at 813.
Alleged failures with respect to the punishment phase
Appellant further contends that he received ineffective assistance because
his trial counsel allegedly failed to have punishment assessed by the trial court
instead of the jury. However, because the election as to punishment belongs to
defendants, and not to their counsel, any ineffective assistance would lie only in
not providing appellant with sufficient information to make an informed choice or
in failing to properly execute appellant’s election. See Tex. Code Crim. Proc.
Ann. art. 37.07, § 2(b) (West Supp. 2012); Redmond v. State, 30 S.W.3d 692,
698 (Tex. App.—Beaumont 2000, pet. ref’d); see also Hernandez v. State, No.
10
We note that Cornesha’s testimony that appellant pulled the gun out of
his left pocket did not necessarily indicate that he was left-handed and was not
necessarily inconsistent with possible evidence that appellant is right-handed.
16
02-06-00363-CR, 2008 WL 344578, at *7 (Tex. App.—Fort Worth Feb. 7, 2008,
pet. ref’d) (mem. op., not designated for publication). Here, appellant signed a
motion to have punishment assessed by the jury, and the record is silent as to
the advice trial counsel gave appellant in making that election. We will not
speculate that trial counsel gave appellant insufficient advice. See Jackson, 877
S.W.2d at 771. Thus, we conclude once again that appellant has not overcome
the presumption that trial counsel provided reasonable representation. See
Salinas, 163 S.W.3d at 740.
Next, appellant contends that his trial counsel demonstrated a lack of
understanding of hearsay rules in the punishment phase of the trial by attempting
to admit a written statement from appellant’s previous aggravated assault case.
Appellant does not explain, however, how he was harmed by his trial counsel’s
unsuccessful attempt to introduce evidence that would have apparently benefited
appellant 11 but that appellant now states was inadmissible. Thus, we hold that
appellant cannot satisfy the prejudice requirement of Strickland, and we overrule
that part of appellant’s point. See 466 U.S. at 687, 694, 104 S. Ct. at 2064,
2068.
Finally, appellant argues that trial counsel gave ineffective assistance
because he failed to produce any compelling mitigating witnesses at the
11
From the context of the questions surrounding trial counsel’s offer of the
written statement into evidence, it appears that counsel was attempting to show
that appellant had taken responsibility for his previous offense and was
remorseful for it.
17
punishment phase. Trial counsel called appellant’s mother and two aunts during
the punishment phase. In a conclusory fashion, appellant’s counsel dismisses
“sympathetic family members” as incapable of being “compelling mitigating
witnesses.” However, appellant’s counsel does not demonstrate, nor does the
record reveal, that more compelling witnesses would have been available or what
facts such witnesses would have testified to that could have helped appellant.
Therefore, appellant has failed to show that trial counsel’s decision to call three
family members as mitigating witnesses was ineffective assistance. See
Ex parte McFarland, 163 S.W.3d 743, 757–58 (Tex. Crim. App. 2005) (holding
that an appellant failed to show ineffective assistance where he did not name any
specific witnesses his attorneys should have called or show that unnamed
witnesses would have been available to testify in a manner beneficial to him).
Appellant has failed to sustain his ineffective assistance claim
For all of these reasons, we hold that appellant has failed to establish the
prongs of his ineffective assistance claim by a preponderance of the evidence,
and we overrule his only point. See Strickland, 466 U.S. at 687, 104 S. Ct. at
2064; Davis, 278 S.W.3d at 352.
18
Conclusion
Having overruled appellant’s sole point, we affirm the judgment of the trial
court.
PER CURIAM
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 19, 2013
19