Marco A. Cruz v. State ( 2012 )

Opinion issued May 17, 2012

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-11-00150-CR

———————————

MARCO A. CRUZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1217901

MEMORANDUM OPINION

          A jury found appellant, Marco A. Cruz, guilty of the offense of aggravated robbery, as charged in the indictment.[1]  The jury assessed his punishment at 45 years in prison.  Because the indictment alleged that appellant used a deadly weapon, namely, a firearm, in the commission of the offense, the trial court included an affirmative deadly-weapon finding in the judgment of conviction. 

          Appellant raises one issue on appeal.  He contends that he was denied effective assistance of counsel at trial.  Because we hold that appellant has failed to meet his burden to show that he received ineffective assistance of counsel, we affirm.

Background Summary

          On the morning of Wednesday, May 27, 2009, the complainant, J. Downing, went to work at Ace Pawn & Jewelry, a pawnshop owned and operated by his family.  Around 9 a.m., six men came into the store.  Downing was behind the counter when he was approached by two of the men.  They told him that they had two pieces of jewelry to pawn.  When Downing turned to get his jewelry testing equipment, one of the men went behind the counter and pointed a gun at him.  Downing grabbed his gun from under the counter.  The two men stood staring at one another with each pointing his gun at the other.  Downing did not want to have a shootout and decided to put his gun down.  The robbers tied up Downing, the other employees, and the store’s customers.  The men stole approximately $50,000 in cash and over $500,000 in merchandise from the store and a Rolex watch from Downing. 

          Later that day, narcotics officers with the Houston Police Department were working drug interdiction at a local bus station.  The officers noticed three cars stop in the middle of the parking lot.  The cars’ occupants, several men and a woman, got out and began talking with each other. This struck the officers as unusual. One of the men took a suitcase from one of the cars.  He and another man walked away from the group and toward one of the buses.  The first man had the suitcase but, as they walked toward the bus, he gave it to the other man. 

          The officers found the circumstances and the men’s behavior to be suspicious.  The officers approached the two men to speak with them.  When the officers identified themselves, the men acted nervous.  After speaking with the officers for a short time, the first man ran but was apprehended.  The other man with the suitcase attempted to flee and struggled with one of the officers.  The first man was appellant; the other man was David Coss.

          The officers opened the suitcase.  In it, they found cash and merchandise taken from the pawnshop during the robbery earlier that day. 

          The police showed Downing a photo array, including appellant’s picture. Downing identified appellant as the man who had pointed the gun at him during the robbery and taken his Rolex watch.  One of the store’s customers also identified appellant in a photo array as one of the robbers.  Another store customer identified Coss as one of the men who had robbed the store. 

          Appellant and Coss were each indicted for the offense of aggravated robbery.  The cases proceeded together, to be tried jointly. 

          Coss’s counsel filed a motion to suppress, which appellant’s defense counsel expressly adopted at the hearing on the motion.  Coss and appellant sought to suppress the identifications made by Downing and by the two customers on the ground that the photo spreads were suggestive.  The motion to suppress was denied.

          The cases proceeded together to trial.  Voir dire began in the morning.  During the lunch recess, Coss pleaded guilty.  When the venire returned from lunch, the trial court orally instructed the venire as follows:

Over the lunch hour, Mr. Coss’s case was resolved; and how that was resolved is irrelevant to any issue before the jury.  So, at this time, the jury will only be hearing Mr. Cruz’s case.  So, that should greatly simplify the trial; and we might move [sic] a little earlier than we would have otherwise.

          Voir dire then proceeded. The defense asked the venire regarding whether it could find someone guilty based on “reasonable and trustworthy information that a particular person has committed a particular crime.” Venire member number 57 responded, “They got this far.  They already have one foot on the guilty step. . . .  Especially if he has a partner who has already left us, you know, left this room.”

          At the bench, defense counsel expressed concern that the venire member’s statement might bias or prejudice the jury.  The trial court then instructed the venire as follows:

Let me just take up one matter with you.  The fact that the codefendant is no longer here should not be used for any purpose whatsoever.  It’s irrelevant to any decision that you need to make in this case, and you should not speculate about it.  It’s impossible to know what happened with that case.  It may be that the State decided they did not have enough evidence to proceed.  It may be that he entered a plea bargain for a number of years.  But for you to speculate about it or guess about it would be improper, and that should not come into your consideration at all if you’re on the jury in this case.  So, I’m going to instruct you in that regard.  But if there is anybody who feels that it would influence them, we need to know that.  So, would you raise your hand, please, for [defense counsel], if that will influence anybody in any way?

          Eight venire members responded affirmatively, without giving or being asked for an explanation.  Of those eight, only one was seated on the jury. 

          At trial, the State presented the testimony of the store owner, Downing, who positively identified appellant in court as the person who had held him at gunpoint and robbed the pawnshop.  In addition, the store customer that had picked appellant out of the photo array also positively identified him in court.  The State also presented the testimony of the investigating police officers and of one of the officers who had been working drug interdiction at the bus station when he encountered appellant and Coss.  The officer testified that appellant had acted nervous and fled the scene after the officers identified themselves. 

          The defense presented the testimony of appellant’s sister. She testified that appellant had been with her at her apartment at the time of the robbery.  

          Appellant also testified.  He stated that he was with his sister on the morning of the robbery. Appellant further testified that he had met Coss and several other men at a club on the Sunday before the robbery.  One of the men asked appellant if he could give them a ride to the bus station on Wednesday. Appellant testified that he went to the men’s hotel on Wednesday, May 27, 2009, to pick them up to take them to the bus station.  One of the men he drove to the bus station was David Coss. Once at the station, appellant helped Coss with his suitcase. 

          Appellant testified regarding the encounter with the police at the bus station.  Appellant stated that, at the time, he was on probation for driving while intoxicated. According to appellant, he ran from the police when he saw Coss struggling with one of the officers.  Appellant stated that he thought, if he were caught in that situation, it may affect his probation. 

          Appellant testified that he had never been to Ace Pawnshop & Jewelry.  He denied participating in the robbery.

          The jury charge allowed appellant to be convicted as a principal or under the law of parties.  The jury found appellant guilty of the offense of aggravated robbery and assessed his punishment at 45 years in prison.  Appellant did not file a motion for new trial.  This appeal followed.

          Appellant presents one issue on appeal.  He contends that he was denied effective assistance of counsel at trial violating his federal and state constitutional rights.

Applicable Legal Principles

To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (1) counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s errors, the result would have been different.  See Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).  Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.  See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101. 

          Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Id.  There is a presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and counsel’s performance will be found deficient only if the conduct is so outrageous that no competent attorney would have engaged in it.  Andrews, 159 S.W.3d at 101. 

The Court of Criminal Appeals recently stated that “[i]n making an assessment of effective assistance of counsel, an appellate court must review the totality of the representation and the circumstances of each case without the benefit of hindsight.”  Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).  The court further stated that demonstrating ineffective assistance of counsel on direct appeal is “a difficult hurdle to overcome.” Id.  The court instructed, “[T]he record must demonstrate that counsel’s performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel’s acts or omissions, regardless of his or her subjective reasoning.”  Id. 

Analysis

          Appellant frames his ineffective assistance of counsel issue as follows: “Although he contends that the entire scope of trial counsel’s representation was defective, Appellant specifically lists one instance where his trial counsel’s deficient performance prejudiced him at trial. Appellant argues that his trial counsel was ineffective for failing to seek a pretrial severance from his co-defendant, Mr. Coss.”

          It is significant that appellant did not file a motion for new trial to permit trial counsel to testify regarding his trial strategy.  Without his testimony, we are left to speculate what counsel’s trial strategy was regarding the complaint appellant raises against him.  Because the record does not offer an explanation for his actions, we presume that trial counsel made all significant decisions in the exercise of reasonable professional judgment.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  Without testimony from trial counsel, we cannot meaningfully address trial counsel’s strategic reasons for the actions that appellant alleges constitute ineffective assistance.  See Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d)).  In short, we do not know why defense counsel did not seek to sever appellant’s trial from that of Coss.

          Article 36.09 of the Code of Criminal Procedure provides that a court is to sever the trial of two co-defendants if there is prejudice to one of them from the joinder or if there is a “previous admissible conviction against one defendant.” Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 2006); see also Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006).  We have previously held that the decision not to seek severance, even if the trial court would have been obligated to grant the motion, is a purely tactical decision.  See Woods v. State, 998 S.W.2d 633, 635 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). 

          In Woods, we used as an example a defendant who might find it “advantageous to be tried along with a co-defendant with a criminal record because the contrast in culpability or involvement between the two defendants favors a strategy of allowing the jury to focus on the co-defendant, rather than the alternative of being tried alone.”  Id. at 636.  Thus, even though an appellant may argue ineffective assistance of counsel, that argument alone does not overcome the presumption that counsel’s failure to request a severance was sound trial strategy.  See id.

          Here, appellant points out that his primary defense at trial was witness misidentification.  Concomitantly, appellant claimed that he had no involvement or knowledge of the robbery.  He testified that he barely knew Coss.  He claimed that he was only helping Coss by giving him a ride to the bus station. 

          Appellant contends that trial counsel’s failure to request a pretrial severance undermined this defense.  Even if we give credence to appellant’s assertion, the record does not reveal what counsel’s strategy was pretrial, when appellant contends counsel should have moved to sever his case.  Coss may have had a criminal record—as discussed in Woods—that counsel planned to exploit; however, because no motion for new trial was filed, the record is silent on this point.  

          Counsel’s strategy may have changed once Coss pleaded guilty and was no longer attending trial.  Given the silent record, we presume that counsel had a tactical reason for not seeking a pretrial severance.  State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there is a record sufficient to demonstrate that counsel’s conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel’s performance was constitutionally adequate . . . .”).  Regarding the lack of a motion to sever, appellant has not met his burden to demonstrate ineffective assistance of counsel by a preponderance of the evidence because he has not shown that his trial counsel’s performance fell below an objective standard of reasonableness.  See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02.

          Appellant also asserts trial counsel was ineffective because he did not move for a mistrial after Coss pleaded guilty during voir dire.  Appellant contends that counsel’s failure to do so resulted in prejudice to him because the jury was permitted to associate Coss’s guilt with appellant.  Appellant points to the comments of venire member 57 as proof that he was harmed by counsel’s failure to act.  However, counsel raised a concern with the trial court regarding venire member 57’s comments.  As a result, the trial court reiterated to the venire not to speculate why Coss was no longer present and not to consider his absence in reaching a decision, should a venire member be seated on the jury.

          Only one venire member who was seated on the jury indicated that Coss’s absence may influence his decision. However, the record is silent regarding how the juror was influenced.  Thus, no showing was made that a reasonable probability exists that, but for his counsel’s alleged deficient performance, the outcome of the proceeding would have been different.  See Andrews, 159 S.W.3d at 102.  

          Moreover, trial counsel may have strategized that appellant would benefit if the jury believed Coss had pleaded guilty. Counsel may have theorized that this would highlight Coss’s culpability while simultaneously minimizing that of appellant.  He may have thought this would make the jury more likely to believe appellant’s story that he was an innocent bystander who had been wrongly accused as a result of helping someone.  In any event, when the record is silent regarding his motivations, we presume that trial counsel’s actions and decisions were reasonable and motivated by sound trial strategy.[2]  See Jackson, 877 S.W.2d at 771.  Thus, with respect to the lack of a motion for mistrial, appellant has not met his burden to demonstrate ineffective assistance of counsel by a preponderance of the evidence because he has not shown that his trial counsel’s performance fell below an objective standard of reasonableness.  See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02.

          We hold that appellant has failed to show, by a preponderance of the evidence, that he received ineffective assistance of counsel at trial.  See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068.  Accordingly, we overrule appellant’s sole issue. 

Conclusion

          We affirm the judgment of the trial court. 

                                                                      Laura Carter Higley

                                                                      Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Do not publish.  Tex. R. App. P. 47.2(b).

---

[1]         See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2011).

[2]         Appellant also asserts, without developing the argument, that trial counsel’s performance was deficient because he did not object to “the presence of [Coss’s] name on the jury charge.”  The only portion of the jury charge containing Coss’s name is the application paragraph regarding law of the parties.  However, appellant has not shown that an objection to the charge would have been successful; that is, he has not shown that law of the parties did not apply.  Counsel is not ineffective for failing to undertake futile actions.  See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel need not perform a useless or futile act[.]”).  Also without developing the argument, appellant asserts that counsel was ineffective for his failure “to challenge the probable cause for the officer to even approach the Appellant,” presumably by moving to suppress the evidence resulting from appellant’s encounter with the police.  To satisfy his burden under Strickland, appellant is required to prove that a motion to suppress would have been granted.  See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Roberson v. State, 852 S.W.2d 508, 510–12 (Tex. Crim. App. 1993) (stating that, unless there is a showing that a pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion).  Appellant has not made such showing.