Jose Rodriguez v. State , 553 S.W.3d 733 ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00280-CR
________________________
JOSE RODRIGUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2015-408,048; Honorable Jim Bob Darnell, Presiding
July 2, 2018
OPINION
Before CAMPBELL, PIRTLE and PARKER, JJ.
Appellant, Jose Rodriguez, was convicted following a jury trial of assault for
causing bodily injury to Delia Salazar, a person with whom he had a dating relationship
or who was a member of his household.1 During the punishment phase of his trial,
1 See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2017). Prior to the submission of his guilt
or innocence to the jury, Appellant stipulated as true the additional allegation that he had previously been
convicted of assault against a person with whom his relationship to or association with was described by
sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code, making the offense a third degree felony.
See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2017). See also TEX. FAM. CODE ANN. §§
71.0021(b), 71.003, 71.005 (West 2014 & West Supp. 2017).
Appellant plead “true” to two prior felony convictions and he was sentenced by the trial
court to confinement for seventy-five years.2
Appellant raises ten issues on appeal. He asserts the trial court erred by (1)
granting an amendment to the indictment without requiring that the State give him the
applicable statutory notice, (2) admitting unduly prejudicial testimony that Appellant
pushed his mother during the incident, (3) admitting extraneous offenses related to
another woman, (4) permitting the State to introduce evidence of extraneous offenses
without proper notice, and (5) permitting the State to offer evidence without the statutory
acknowledgment required by article 39.14(j) of the Texas Code of Criminal Procedure.
See TEXAS CODE CRIM. PROC. ANN. art. 39.14(j) (West 2018). He also asserts that his
counsel was ineffective (6) during the cross-examinations of two witnesses, (7) by failing
to preserve error regarding jurors challenged for cause, and (8) by failing to investigate
State witnesses or alternative sources for Salazar’s injuries. He further asserts (9) the
trial court erred by failing to instruct the jury on the lesser included offense of
misdemeanor assault and that (10) cumulative error warrants reversal. We affirm.
BACKGROUND
In 2015, an indictment issued alleging that on or before June 7, 2014, Appellant
intentionally, knowingly, or recklessly caused bodily injury to Salazar, a person with whom
Appellant was in a dating relationship or a member of his household (as described by
sections 71.0021(b) and 71.005 of the Texas Family Code) by striking her with his hand
2 See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017). The two felony enhancements made
the offense punishable by imprisonment for life, or for any term of not more than 99 years or less than 25
years.
2
or with a hard object.3 On June 16, 2016, four days before trial, the State amended its
notice of extraneous offenses to include any and all matters regarding an assault against
another woman, Sylvia Cruz, that occurred on or about May 31, 2016, and an assault/theft
against Cruz that occurred on or about February 7, 2016.
GUILT/INNOCENCE PHASE
The State’s evidence at trial4 established that on June 7, 2014, Appellant and his
girlfriend, Salazar, were living with his mother, Josefa Rodriguez. Salazar had been living
there since April or May. She shared a bedroom with Appellant, slept with him, and did
household chores such as laundry, cleaning, and dishes. They cooked meals together
and she believed they were in a dating relationship.
On June 7, 2014, Appellant became angry when Salazar left the dinner table and
rinsed her dishes without picking up his mother’s plate. Appellant punched her in the
face, flipping her chair backwards. She fell and hit her head against the wall. Josefa
attempted to intervene, but Appellant hit Salazar in the face again. Salazar got up from
the floor and started running but Appellant grabbed her by the hair, pulled her down, and
resumed his attack. She was crying and dizzy from being hit. When his mother came
between them to stop the assault, Appellant again pushed her away. His mother then
ran to a neighbor’s house as Appellant continued beating Salazar. Appellant
3 The indictment also alleged Appellant had been finally convicted of two prior felonies for
aggravated assault on June 22, 1990, and aggravated assault with a deadly weapon on July 14, 1999.
Prior to trial, the State amended the indictment to allege that the conviction for aggravated assault with a
deadly weapon occurred July 1, 1999.
4 Voir dire was held June 20, 2016, with the guilt/innocence phase beginning and closing on June
21. The punishment phase began June 21 and continued through June 22.
3
subsequently told her to take a shower. When she came out of the shower, she was
dizzy and felt weak. Appellant told her to sit down on the sofa and to be calm.
In the meantime, Josefa arrived at her neighbor’s house upset and asked her to
call the police. Officer Glen Osborn responded. In his report, he described Appellant as
arrogant while Salazar was cowering on the sofa. Officer Cecil Garcia took a statement
from Josefa who told him that her son was in her house assaulting his girlfriend. After
meeting Appellant, the officers became concerned for their own safety because Appellant
was standoffish and aggressive.
Officer Garcia photographed Salazar’s injuries and described her as having a black
eye with swelling around her left eye and cheekbone, multiple bruising to areas of her
face, and a lump on the top of her forehead above her right eye about the size of a quarter.
Salazar was taken to a hospital and Appellant was placed under arrest. Salazar feared
that when Appellant was released from custody, he would come back and hurt her. A
physician assistant at the hospital testified that in addition to the injuries described by
Officer Garcia, Salazar had a broken nose.
Based on the evidence presented, including Appellant’s stipulation regarding his
prior conviction for assault against a person with whom his relationship to or association
with was described by sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code,
the jury returned a verdict of guilty. The issue of punishment was, however, decided by
the court.
PUNISHMENT PHASE
During the punishment phase of trial, the State’s evidence focused on testimony
from Salazar and two past victims of Appellant’s abuse and assaultive behavior. In
4
addition to the facial injuries Salazar suffered in the assault in question, she also suffered
wounds to her legs from a beating by Appellant with a belt buckle only a few days before.
Sylvia Cruz additionally testified that she had previously dated Appellant off and on for
ten years and that he had beaten her about the face and head and the back of her thighs
and legs with a shoe. Finally, Mary Helen Rodriguez, Appellant’s former wife, described
a beating she suffered at Appellant’s hands in the late 1990s that resulted in his
imprisonment.
Specifically, Cruz described three beatings in early to mid-2016 where (1)
Appellant threw her around an apartment, (2) beat her in a car until she had bruises on
her back and front, and (3) repeatedly hit her face and back in a car causing bodily
bruising and two black eyes and requiring her to miss three days of work.5 Regarding
this third beating, Officer Jared Dalton of the Lubbock Police Department described
finding Cruz in the middle of the road with cuts and bruising to her face and a large goose
egg above her left eye. The trial court also admitted Officer Dalton’s photographs of
Cruz’s injuries from this third beating.
Appellant’s evidence during the punishment phase focused on mitigation. The
defense presented four family members—Appellant’s mother, sister, and two brothers.
Their testimony centered primarily on Appellant’s early childhood and home life. During
this time, his father abused and assaulted Josefa. Alcohol was a problem in the home
5 Evidence concerning Cruz’s testimony was turned over by the State to Appellant on the evening
of Friday, June 17, 2016, shortly after the State learned of its existence. At a pretrial hearing on June 20,
Appellant objected to admission of the evidence in the guilt/innocence and punishment phases because
the State violated the trial court’s pretrial discovery order and he would not have the opportunity to prepare
a defense against this newly disclosed evidence. The trial court denied the admission of this testimony as
to the guilt/innocence phase but admitted the evidence for use in the punishment phase.
5
and his father would become violent after drinking heavily. The violence and drinking
occurred in the presence of Appellant and his family members.
ISSUE ONE—AMENDMENT OF ENHANCEMENT ALLEGATION
On June 13, 2016, the State filed its motion to amend the second enhancement
paragraph in the indictment by changing the date of conviction of the offense of
aggravated assault with a deadly weapon from “July 14, 1999” to “July 1, 1999.” The
State’s motion was heard on June 14. During the hearing, Appellant requested a ten-day
continuance pursuant to article 28.10(a). See TEX. CODE CRIM. PROC. ANN. art. 28.10(a)
(West 2006). Aside from requesting the ten-day period, Appellant made no showing of
necessity or prejudice. The trial court denied Appellant’s request and orally granted the
State’s motion to amend.6 The trial court issued a written order on June 21.
Appellant asserts the trial court erred by granting the State’s motion to amend the
indictment the day before guilt/innocence proceeding commenced and denying his motion
for a continuance to allow him ten days to respond to the amendment. See art. 28.10(a).7
We disagree.
“The granting or denying of a motion for continuance is within the sound discretion
of the trial court.” Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006).
Accordingly, we review a trial court’s ruling on a motion for continuance based upon an
abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007),
cert. denied, 553 U.S. 1080, 128 S. Ct. 2872, 171 L. Ed. 2d 813 (2008). A trial court does
6 Appellant subsequently plead “true” to the enhancement as amended.
7 Article 28.10(a) states that although an indictment may be amended at any time before trial on
the merits commences, a defendant shall, upon request, have a period of at least ten days to respond to
the amended indictment or information. Hereinafter, this article will be referred to simply as “article
28.10(a).”
6
not abuse its discretion so long as its decision is within the zone of reasonable
disagreement and is correct under any theory of law applicable to the case. Winegarner
v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Further, “[a] bare assertion that
counsel [does] not have adequate time to interview the State’s potential witness does not
alone establish prejudice.” Gallo, 239 S.W.3d at 764 (citing Heiselbetz v. State, 906
S.W.2d 500, 512 (Tex. Crim. App. 1995)).
Here, the trial court committed no error by denying Appellant’s request for a ten-
day continuance pursuant to article 28.10(a). While prior convictions used for
enhancement purposes must be plead in some form, they need not be plead in the
indictment. Johnson v. State, 214 S.W.3d 157, 158 (Tex. App.—Amarillo 2007, no pet.)
(citing Villescas v. State, 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006)). “Since
enhancement paragraphs need not be pled in the indictment, it logically follows that they
are unessential to the validity of the indictment and comparable to surplusage for
purposes of article 28.10.” Id. As a result, modifying the date in the enhancement
paragraph here did not implicate article 28.10, and therefore, the trial court did not abuse
its discretion by denying Appellant’s motion for a continuance. Id. at 158-59. See also
Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). Accordingly, Appellant’s
first issue is overruled.
ISSUE TWO—EXTRANEOUS OFFENSE PRESENTED DURING GUILT/INNOCENCE PHASE
By his second issue, Appellant asserts the trial court erred by allowing Salazar to
testify, during the State’s guilt/innocence case-in-chief, that he also assaulted his mother
while she was attempting to stop him from assaulting Salazar. We disagree.
Generally, to prevent an accused from being prosecuted for some collateral crime
or misconduct, the State may not introduce evidence of bad acts similar to the offense
7
charged. Roberts v. State, 29 S.W.3d 596, 600-01 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d). Texas Rule of Evidence 404(b) provides that evidence of “other crimes,
wrongs, or acts” is not admissible to prove a defendant’s character to show action in
conformity therewith. TEX. R. EVID. 404(b).8 Nevertheless, such evidence may “be
admissible for other purposes, such as motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. In addition, a “party may
introduce evidence of other crimes, wrongs, or acts if such evidence logically serves to
make more or less probable an elemental fact, an evidentiary fact that inferentially leads
to an elemental fact, or defensive evidence that undermines an elemental fact.” Martinez
v. State, 304 S.W.3d 642, 657 (Tex. App.—Amarillo 2010, pet. ref’d) (quoting Martin v.
State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005)).
Evidence of another crime, wrong, or act may also be admissible as same-
transaction contextual evidence where “several crimes are intermixed, or blended with
one another, or connected so that they form an indivisible criminal transaction, and full
proof . . . of any one of [the crimes] cannot be given without showing the others.” Wyatt
v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Rogers v. State, 853 S.W.2d
29, 33 (Tex. Crim. App. 1993)). As such, a jury is entitled to know all relevant surrounding
facts and circumstances of the charged offense. Id.Whether extraneous offense evidence has relevance apart from character
conformity, as required by Rule 404(b), is a question for the trial court. Moses v. State,
105 S.W.3d 622, 627 (Tex. Crim. App. 2003). So, too, is a ruling on the balance between
probative value and the countervailing factors set out in Rule 403 of the Texas Rules of
Evidence, although that balance is always slanted toward admission of otherwise relevant
8 Hereinafter, we will cite Rule 404(b) of the Texas Rules of Evidence simply as “Rule 404(b).”
8
evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). See TEX.
R. EVID. 403. Thus, we review a trial court’s decision to admit extraneous offense
evidence under an abuse-of-discretion standard. Prible v. State, 175 S.W.3d 724, 731
(Tex. Crim. App. 2005). A trial court does not abuse its discretion so long as its decision
is within the zone of reasonable disagreement and is correct under any theory of law
applicable to the case. Winegarner, 235 S.W.3d at 790.
Here, the State was required to prove that on or before June 7, 2014, Appellant
intentionally, knowingly, or recklessly caused bodily injury to Salazar, a person with whom
Appellant was in a dating relationship or a member of his household, as described by
sections 71.0021(b) and 71.005 of the Texas Family Code, by striking her with his hand
or with a hard object. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2017).
As such, the State was tasked with proving Appellant caused bodily harm to Salazar and
that her relationship to him was one described by the relevant sections of the Texas
Family Code. Id.
In that regard, the extraneous offense evidence was relevant to establish
Appellant’s intent to assault Salazar; that is, he interrupted himself long enough to push
Josefa out of the way and then resumed beating Salazar. See Martinez, 304 S.W.3d at
658. Moreover, the testimony that Appellant pushed his mother away also has relevance
as same-transaction contextual evidence. The evidence at trial established that the
extraneous offense, the pushing of his mother, was part of a continuous violent episode
that ultimately resulted in Josefa running to a neighbor’s house for assistance. See Devoe
v. State, 354 S.W.3d 457, 469-70 (Tex. Crim. App. 2011). Further, any prejudicial effect
of admitting the extraneous offense evidence was outweighed by its probative value
regarding intent and contextual evidence. Id. Given the facts of this case, we cannot say
9
that evidence of Appellant’s pushing Josefa during the episode was so prejudicial that the
trial court abused its discretion by admitting her testimony. Accordingly, Appellant’s
second issue is overruled.
ISSUE THREE—EXTRANEOUS OFFENSES PRESENTED DURING PUNISHMENT PHASE
Appellant next asserts the trial court erred by permitting the State to admit
testimonial evidence, during the punishment phase of his trial, of three extraneous
offenses that occurred in 2016. During that phase, Cruz described three beatings she
received from Appellant in early to mid-2016 where (1) Appellant threw her around an
apartment, (2) beat her in a car until she had bruises on her back and front, and (3)
repeatedly beat her in the face and back in a car causing bodily bruising and two black
eyes. Regarding this third beating, Officer Dalton responded to a call and described
finding Cruz in the middle of the road with cuts and bruising to her face and a large goose
egg above her left eye. The trial court admitted the officer’s photographs of Cruz’s injuries
from the third beating. Appellant asserts that because evidence of these extraneous
offenses was unduly prejudicial, the trial court abused its discretion by admitting the
evidence. We disagree.
At the pretrial hearing on June 20, Appellant objected to the admission of this
evidence because the State’s production was untimely under the trial court’s pretrial
discovery order. While the trial court sustained the objection as to the introduction of that
evidence during the guilt/innocence phase of the trial, it admitted the evidence for use in
the punishment phase only. During that phase, Appellant again objected to the
introduction of Officer Dalton’s photographs and Cruz’s testimony because the defense
did not receive timely notice under the pretrial order. No objection was made, however,
to Officer Dalton’s testimony. Prior to Cruz’s testifying, Appellant asked for and received
10
a running Bill of Exception to her testimony. Appellant’s counsel did not cross-examine
Cruz and did not assert any defense against the evidence.
On appeal, Appellant now asserts that the trial court abused its discretion by
admitting the extraneous offense evidence under Rule 404(b) because the photographs
and Cruz’s testimony were unduly prejudicial. In other words, he contends its prejudicial
nature substantially outweighed it probative value. As such, Appellant’s present assertion
does not comport with the objection made at trial; see Clark v. State, 365 S.W.3d 333,
339-40 (Tex. Crim. App. 2012), and there is nothing in the record to indicate that either
the judge or prosecutor understood Appellant’s evidentiary objections to be a complaint
concerning Rule 404(b), rather than an alleged violation of the trial court’s discovery
order. Id. See TEX. R. APP. P. 33.1(a)(1)(A) (an objection to the admissibility of evidence
must be made “with sufficient specificity to make the court aware of the complaint, unless
the specific grounds were apparent from the context”).9 As a result, this ground for appeal
was waived by Appellant. See Clark, 365 S.W.3d at 339-40.
Even if a Rule 404(b) objection had been preserved, we cannot say the trial court
abused its discretion in finding the evidence relevant and admissible for sentencing
purposes. “The sentencing process consists of weighing mitigating and aggravating
factors, and making adjustments in the severity of the sentence consistent with this
calculus.” Tucker v. State, 456 S.W.3d 194, 210 (Tex. App.—San Antonio 2014, pet.
ref’d). Article 37.07, section 3(a)(1) allows for admission of any evidence the trial court
“deems relevant to sentencing.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West
9 An objection to the trial court’s pretrial order was not an objection to the admissibility of the
evidence but merely the procedure governing its disclosure. Further, Appellant’s objection was addressed
solely to the timeliness of the disclosure and there was no showing of prejudice beyond Appellant’s
assertion that he needed more time to prepare a defense. The order stated in pertinent part, that “[t]en
days before trial, the State of Texas shall supplement all discovery and any reports regarding all
unadjudicated 404(b) information to counsel for the defendant.”
11
Supp. 2017). “The Legislature has expressly provided that ‘relevant’ punishment
evidence includes, but is not limited to, both character evidence in the form of opinion
testimony as well as extraneous-offense evidence.” Sims v. State, 273 S.W.3d 291, 295
(Tex. Crim. App. 2008). “When the jury assesses punishment, it must be able to tailor
the sentence to the particular defendant, and relevance is simply ‘a question of what is
helpful to the jury in determining the appropriate sentence for a particular defendant in a
particular case.’” Id. (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App.
2006).
Moreover, we cannot conclude on this record that Appellant was harmed by the
admission of this evidence. A violation of evidentiary rules that results in the erroneous
admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266,
271 (Tex. Crim. App. 1997). Non-constitutional error that does not affect a defendant’s
substantial rights must be disregarded. See TEX. R. APP. R. 44.2(b). Substantial rights
are not affected by the erroneous admission of evidence if the appellate court, after
examining the record as a whole, has fair assurance that the error did not influence the
jury or had but a slight effect. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002). “In assessing the likelihood that the jury’s decision was adversely affected by the
error, the appellate court should consider everything in the record, including any
testimony or physical evidence admitted for the jury’s consideration, the nature of the
evidence supporting the verdict, the character of the alleged error and how it might be
considered in connection with other evidence in the case.” Id. at 355. Given the severity
of Appellant’s offense proven at trial and the multiple witnesses testifying to Appellant’s
past behavior at the punishment hearing, along with Officer Dalton’s unobjected-to
testimony concerning Cruz’s injuries, we find little about her testimony that would lead us
to conclude Appellant’s sentence was enhanced based upon that testimony alone. The
12
evidence, even without Cruz’s testimony, was more than sufficient to justify the sentence.
Accordingly, on this record, we cannot conclude the trial court abused its discretion in
admitting Cruz’s testimony and the photographs of her injuries. Appellant’s third issue is
overruled.
ISSUE FOUR—ARTICLE 37.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
By his fourth issue, Appellant asserts that the State’s intent to introduce Cruz’s
testimony violated article 37.07, section 3(g) of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (West Supp. 2017).10 As discussed
in issue three, Appellant objected to the State’s untimely request under the trial court’s
discovery order—not Rule 404(b). Again, because Appellant’s assertion regarding article
37.07, section 3(g) does not comport with the objection made at trial; see Clark, 365
S.W.3d 339-40, and there is nothing in the record to indicate that either the judge or
prosecutor understood Appellant’s evidentiary objections to be complaints concerning an
alleged article 37.07, section 3(g) violation. Accordingly, this basis for appeal was also
waived. Id.Moreover, in our discussion of Appellant’s third issue, we found that given the
severity of Appellant’s offense proven at trial and the multiple witnesses testifying to
10 Article 37.07, section 3(g) states as follows:
On timely request of the defendant, notice of intent to introduce evidence under this article
shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If
the attorney representing the state intends to introduce an extraneous crime or bad act that
has not resulted in a final conviction in a court of record or a probated or suspended
sentence, notice of that intent is reasonable only if the notice includes the date on which
and the county in which the alleged crime or bad act occurred and the name of the alleged
victim of the crime or bad act. The requirement under this subsection that the attorney
representing the state give notice applies only if the defendant makes a timely request to
the attorney representing the state for the notice.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (West Supp. 2017). Hereinafter, this article will be simply
cited as “article 37.07, § 3(g).”
13
Appellant’s past behavior at the punishment hearing along with Officer Dalton’s testimony,
an error, if any, would not affect Appellant’s substantial rights.11 We have found that there
was nothing in Cruz’s testimony indicating the degree to which Appellant’s sentence was
enhanced based upon her testimony alone and that even without her testimony, the
evidence was more than sufficient to justify the sentence. Accordingly, on this record, we
cannot conclude the trial court committed reversible error by admitting Cruz’s testimony.
Appellant’s fourth issue is overruled.
ISSUE FIVE—ARTICLE 39.14(j) OF THE TEXAS CODE OF CRIMINAL PROCEDURE
Appellant’s fifth issue asserts the record affirmatively demonstrates that the State
did not abide by article 39.14(j) of the Texas Code of Criminal Procedure12 before trial
because the Discovery Compliance Acknowledgement filed by the State following its
disclosure of Cruz’s testimony and Officer Dalton’s photographs was signed by the State,
but not by Appellant—thereby violating the requirement that each party shall acknowledge
documents provided to the defense. As a result, Appellant asserts the trial court erred by
admitting Officer Dalton’s photographs and Cruz’s testimony during the punishment
phase. Again, we disagree.
Appellant correctly avers that his signature does not appear on the Discovery
Compliance Acknowledgement filed by the State after it disclosed its intention to use
11 For a discussion of the applicable legal standards regarding a “harm” analysis, refer to the
discussion under issue three.
12 Article 39.14(j) states as follows:
Before accepting a plea of guilty or nolo contendere, or before trial, each party
shall acknowledge in writing or on the record in open court the disclosure, receipt,
and list of all documents, items, and information provided to the defendant under
this article.
TEX. CODE CRIM. PROC. ANN. art. 39.14(j) (West 2018) (emphasis added).
Hereinafter, this article will be cited simply as “article 39.4(j).”
14
Cruz’s testimony and Officer Dalton’s photographs during the punishment phase. What
Appellant fails to acknowledge, however, is that disclosure and receipt of this information
was discussed “on the record in open court” during the pretrial hearing held on June 20.
Accordingly, Appellant has failed to demonstrate a failure to comply with article 39.14(j).
Furthermore, as discussed in prior issues, Appellant only objected to the State’s
untimely request to submit Cruz’s testimony and Officer Dalton’s photographs during the
punishment phase based upon an alleged violation of the pretrial discovery order.
Because the statutory rights created by article 39.14(j) are neither systemic or
fundamental, they are subject to waiver by failing to properly object to their alleged
violation. Glover v. State, 496 S.W.3d 812, 816 (Tex. App.—Houston [14th Dist.] 2016,
pet. ref’d). Here, Appellant did not make an objection based on article 39.14(j) prior to
admission of the photographs and testimony, and accordingly, he waived any error based
on the mandatory language contained in that statute. See Clark, 365 S.W.3d at 339-40.
As such, Appellant’s fifth issue is overruled.
ISSUES SIX, SEVEN, AND EIGHT—INEFFECTIVE ASSISTANCE OF COUNSEL
In three separate issues, Appellant asserts his counsel was ineffective because he
failed to adequately prepare for and cross-examine Officer Dalton and Cruz during the
punishment phase (issue six), preserve error as to the jurors he challenged for cause
during voir dire (issue seven), and investigate state witnesses or alternative sources for
Salazar’s injuries (issue eight). While issues six and seven were not the subject of
Appellant’s motion for a new trial or the hearing that followed its filing, whereas, issue
eight was. Accordingly, the standards of review differ for issues six and seven (claims
first asserted on direct appeal under the Strickland standard)13 and issue eight (claims
13 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
15
asserted via a motion for new trial under an abuse of discretion standard)14 as discussed
below. Thus, we will address issues six and seven separately from issue eight after a
summation of the law regarding ineffective assistance of counsel.
STANDARD OF REVIEW
The Sixth Amendment guarantees the right to reasonably effective assistance of
counsel in state criminal prosecutions. McMann v. Richardson, 397 U.S. 759, 771 n.14,
90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). We examine ineffective assistance of counsel
claims by the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by Texas in Hernandez v. State, 726
S.W.2d 53, 56-57 (Tex. Crim. App. 1986). This standard applies to both the
guilt/innocence and punishment phases of criminal proceedings. Hernandez v. State,
988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Under this standard, Appellant has the burden to show by a preponderance of
evidence that (1) trial counsel’s performance was deficient, i.e., fell below the prevailing
professional norms and (2) the deficiency prejudiced the defendant, i.e., but for the
deficiency, there is a reasonable probability that the result of the proceeding would have
been different. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A failure to make a
showing under either prong defeats a claim for ineffective assistance. Lampkin v. State,
470 S.W.3d 876, 897 (Tex. App.—Texarkana 2015, pet. ref’d) (citing Rylander v. State,
101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003)).
14 See Shamim v. State, 443 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
(citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).
16
To overcome the strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance and presumption that the challenged action
might be considered valid trial strategy; Strickland, 466 U.S. at 689, “any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 814. Further, judicial
review must be highly deferential to trial counsel and avoid the deleterious effects of
hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Application of
the Strickland test “of necessity requires a case-by-case examination of the evidence.”
Williams v. Taylor, 529 U.S. 362, 382, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
In the usual case in which an ineffective assistance claim is made, “the record on
direct appeal will not be sufficient to show that counsel’s representation was so deficient
and so lacking in tactical or strategic decision-making as to overcome the presumption
that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002). This is generally the case because a silent record provides
no explanation for counsel’s actions and therefore will not ordinarily overcome the strong
presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 (Tex.
Crim. App. 2003).
ISSUES SIX AND SEVEN
Regarding Appellant’s contentions that counsel failed to adequately prepare for
and cross-examine Officer Dalton and Cruz and preserve error as to the jurors he
challenged for cause during voir dire, these issues demonstrate “the inadequacies
inherent in evaluating ineffective assistance claims on direct appeal.” Patterson v. State,
46 S.W.3d 294, 306 (Tex. App.—Fort Worth 2001, pet. ref’d). Like Patterson, Appellant’s
motion for a new trial did not claim ineffective assistance regarding these issues, and at
17
the hearing, there was no evidence whether Appellant’s complaints of ineffective
assistance involved actions that may or may not be grounded in trial strategy. As such,
the record does not reflect counsel’s reasons for doing or failing to do the things of which
Appellant complains. Furthermore, to the extent these purported omissions were part of
counsel’s mitigation strategy, we cannot say that counsel’s conduct was “so outrageous
that no competent attorney” would have chosen not to cross-examine Officer Dalton or
Cruz during the punishment phase or preserve error as to the jurors he challenged for
cause during voir dire. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). See also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)
(recognizing as a valid trial strategy counsel’s decision to not move to quash a jury panel
and not object to certain testimony where action would have been futile).
In addition, we note that Appellant also asserts that he was prejudiced because
his counsel did not cross-examine Officer Dalton and Cruz in the punishment phase. As
discussed in issues three and four, we found that the admission of Cruz’s testimony and
Officer Dalton’s photographs during the punishment phase, even if error was assumed,
did not affect Appellant’s substantial rights.15 Accordingly, Appellant’s sixth and seventh
issues are overruled.
ISSUE EIGHT
Appellant further contends counsel was ineffective in his investigation, or lack
thereof, of (1) Salazar for impeachment purposes, (2) Appellant’s alternative theories of
how Salazar was injured, and (3) Officer Osborn for impeachment purposes. We
disagree.
15 For a discussion of the applicable legal standards regarding a “harm” analysis, refer to the
discussion under issue three.
18
HEARING ON MOTION FOR NEW TRIAL
At the hearing on Appellant’s motion for new trial, Appellant testified that Mike
Brown, his attorney, failed to investigate possible, alternative sources for Salazar’s
injuries. Appellant contended that scrapes on Salazar’s legs may have been caused by
a second boyfriend and the remainder of her injuries were caused by a fall from her
bicycle, i.e., she hit her face and head on the concrete. He also testified that Brown
should have investigated Salazar and Officer Osborn to develop impeaching evidence
and aggressively cross-examined them.
Brown testified that Appellant’s case was a difficult one. They had no favorable
fact witnesses and no factual defense to the indictment’s allegations or enhancements.
The sole witness that could shed a promising light on the defense’s view of what
happened during the incident was Appellant and he adamantly maintained he would not
take the stand. Approximately six months prior to trial, Brown held a meeting at the
Lubbock Private Defender’s Office with a panel of attorneys and a mitigation specialist.
They reviewed every aspect of Appellant’s case and the consensus at the meeting was
that it should be tried as a mitigation of sentence case. The case was going to trial
because Appellant maintained he was innocent throughout the proceedings and turned
down the State’s offer of a plea bargain.
Brown testified that after the meeting, he retained a mitigation specialist and
focused on witnesses that would help with the mitigation strategy by either cross-
examination in the guilt/innocence phase and direct examination in the punishment
phase. He cross-examined two witnesses at trial. In examining Salazar, he was careful
to avoid putting her character in issue because he thought it would inflame or, at the least,
have an unfavorable impact on the judge and jury having heard Salazar’s testimony and
19
viewed photographs of her severe injuries. He also cross-examined Officer Garcia who
took a statement from Appellant’s mother. He did not cross-examine Appellant’s mother
because she had witnessed the assault and Appellant had pushed her during the incident.
He decided not to cross-examine Officer Osborn, the first officer to arrive on the scene of
the incident, because he had had prior dealings with Appellant and due to his experience
and the tenor of his report, he did not believe he would gain any ground by attempting to
discredit Officer Osborn. During the punishment phase, he put on four of Appellant’s
family members that testified Appellant’s father engaged in substance abuse and physical
abuse of Appellant’s mother in his presence at an early age.
STANDARD OF REVIEW
Given that this ineffective counsel issue was raised in Appellant’s motion for new
trial and evidence was heard at the hearing, we analyze this issue on appeal as a
challenge to the trial court’s denial of his motion for a new trial and review it under an
abuse of discretion standard. Shamim v. State, 443 S.W.3d at 321. Thus, we reverse
only if the trial court’s decision to deny the motion for a new trial was arbitrary or
unreasonable viewing the evidence in the light most favorable to the trial court’s ruling.
Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).
A trial court abuses its discretion in denying a motion for new trial only when no
reasonable view of the record could support the trial court’s ruling. Shamim, 443 S.W.3d
at 321 (citing Riley, 378 S.W.3d at 457-58). Further, when as here, the trial court makes
no findings of fact regarding the denial of the motion for a new trial, we ascribe to the
court “implicit factual findings that support that trial judge’s ultimate ruling on that motion
when such implicit factual findings are both reasonable and supported by the record.” Id.
(citing Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005)).
20
ANALYSIS
After a meeting with a panel of attorneys and a mitigation specialist at the Lubbock
Private Defender’s Office, counsel agreed with the consensus at the meeting that the
case should be tried as a mitigation sentence case. He believed that the factual evidence
of Appellant’s guilt was quite substantial, and he had no defense to the offense itself. In
addition, Salazar’s injuries were quite extensive and there were vivid photographs
documenting the severe nature of those injuries. Counsel testified at the hearing that he
did not develop evidence with which to impeach Salazar’s credibility, if it existed, because
he believed it would inflame the jury and turn its opinion against his client. Under these
facts, we cannot say that the trial court’s implicit findings that counsel’s strategy was
reasonable was arbitrary or unreasonable. In addition, Appellant did not establish in the
trial court or on appeal that such an interview would have yielded favorable information
for Appellant. See Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.]
2009, pet. denied) (finding that a claim for ineffective assistance based on trial counsel’s
failure to interview a witness cannot succeed absent a showing of what the interview
would have revealed that reasonably could have changed the result of the case).
Regarding Appellant’s alternative theories of how Salazar was injured, Appellant
provided counsel with no information capable of being investigated regarding Salazar’s
purported second boyfriend who might have caused her injuries. Moreover, given the
State’s evidence at trial, the nature of Salazar’s injuries, and their extent depicted in the
photographs, he believed that to advance theories that her injuries were caused by a
second boyfriend or a bicycle accident would have resulted in inflaming the judge and
jury, resulting in the loss of all credibility with the fact finders. Again, we cannot say that
the trial court abused its discretion by implicitly finding counsel’s trial strategy was not
unreasonable.
21
As to a cross-examination of Officer Osborn, Brown testified that he did not attempt
to impeach his credibility because he was an experienced witness who, judging from his
report, had a jaundiced view of Appellant, i.e., describing Appellant as a “boisterous bully”
in his report. In addition, Appellant had prior contacts with Officer Osborn and counsel
did not believe he would gain any advantage by antagonizing him. Trial counsel may
make strategic decisions as to whether and how to cross-examine witnesses. See Coble
v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973) (opining that “[o]ften, the decision
to not cross-examine a witness is the result of wisdom acquired by experience in the
combat of trial”); Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d) (acknowledging circumstances in which it would be “entirely reasonable
or forseeable that a defense attorney would limit his cross-examination out of fear of
alienating a jury or coming across as too aggressive”). Under these circumstances, we
cannot say that the trial court abused its discretion by implicitly finding counsel’s decision
not to cross-examine or impeach Officer Osborn was not unreasonable. Accordingly, we
overrule Appellant’s eighth issue.
ISSUE NINE—LESSER INCLUDED OFFENSE
By his ninth issue, Appellant asserts the trial court erred when it denied his request
that the jury be allowed to consider whether he committed the lesser included offense of
misdemeanor assault. During the charge conference, Appellant argued that evidence
supported instructing the jury on the offense of misdemeanor assault. In support, he
22
pointed to testimony by Josefa that he and Salazar were not living in the same household
regularly, and that they were not, therefore, in a dating relationship.16 We disagree.
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required
to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest suffices
to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise
included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).17
We use a two-pronged test to determine whether a defendant is entitled to an
instruction on a lesser included offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.
Crim. App. 2012) (citing Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007));
Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). The first step is a question
of law, in which the court compares the elements alleged in the indictment with the
elements of the lesser offense to determine if the proof necessary to establish the charged
offense also includes the lesser offense. Cavazos, 382 S.W.3d at 382. The second step
of the lesser included offense analysis is to determine if there is some evidence from
16The indictment alleges that Salazar had both a dating relationship with Appellant and was a
member of his household. Per the jury instructions and the Texas Family Code, a “‘[h]ousehold’ means a
unit composed of persons living together in the same dwelling, without regard to whether they are related
to one another,” and a “‘[d]ating relationship’ means a relationship between individuals who have or have
had a continuing relationship of a romantic or intimate nature.” See TEX. FAM. CODE ANN. §§ 71.005,
71.0021(b) (West 2014).
17 Hereinafter, this article will be simply cited as “article 37.09.”
23
which a rational jury could acquit the defendant of the greater offense while convicting
him of the lesser included offense. Sweed, 351 S.W.3d at 67-68. Because this fact
question depends on the evidence presented at trial, we review the entire record in
making this determination on appeal. Id.Anything more than a scintilla of evidence may be sufficient to entitle a defendant
to a jury instruction on a lesser included offense. Hall, 225 S.W.3d at 536. “Although this
threshold showing is low, ‘it is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense, but rather, there must be some evidence directly
germane to the lesser-included offense for the finder of fact to consider before an
instruction on a lesser-included offense is warranted.’” Sweed, 351 S.W.3d at 68 (quoting
Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). “[T]he standard may be
satisfied if some evidence refutes or negates other evidence establishing the greater
offense or if the evidence presented is subject to different interpretations.” Sweed, 351
S.W.3d at 68.
The indictment in this case alleges that Appellant “intentionally, knowingly, or
recklessly caused bodily injury to Delia Salazar, a person with whom Appellant has or has
had a dating relationship or is a member of defendant’s household, as described by
Sections 71.0021(b) or 71.005, Family Code . . . .” A person commits the offense of
misdemeanor assault if he “intentionally, knowingly, or recklessly causes bodily injury to
another, including the person’s spouse.” TEX. PENAL CODE ANN. § 22.01(a)(1) (West
Supp. 2017). Because this offense is “established by proof of the same or less than all
the facts” necessary to prove the charged offense; see art. 37.09(1), and “the proof
necessary to establish the charged offense also includes the lesser offense; Cavazos,
382 S.W.3d at 382, we conclude that misdemeanor assault is a lesser included offense
24
of felony assault of a family member. Compare TEX. PENAL CODE ANN. § 22.01(a)(1)
(West Supp. 2017) (misdemeanor assault), with § 22.01(b)(2)(A) (felony assault of a
family member). Accordingly, the first step as to whether a jury instruction was warranted
is satisfied.
We next consider whether there is more than a scintilla of evidence that Appellant
is guilty, if at all, of only misdemeanor assault. Appellant contends that there is evidence
in the record that Appellant and Salazar did not have a dating relationship and she was
not a member of his household based on the testimony of his mother, in pertinent part,
as follows:
STATE: Okay. On June 7th, 2014, you mentioned you lived there [her
residence]?
JOSEFA: Yes.
STATE: Who else lived in the house at that time?
JOSEFA: I lived alone at that house, but when I came back I was living with
my daughter. I saw that there was someone in there. It was a lady. I didn’t
know who the lady was.
STATE: So, who all lived at the house?
JOSEFA: My son [Appellant].
STATE: Did the woman live there too?
JOSEFA: No, no. She was not living there when I was there. No, she was
not living there. But when I went back she was there.
STATE: So, on June 7th, 2014, the woman was living there with your son?
JOSEFA: Yes. Yes.
STATE: In the late evening hours of June 7th, 2014, did y’all eat dinner
together?
JOSEFA: Yes.
STATE: In that house? In your house?
25
JOSEFA: At that house. At my house.
STATE: Did something happen at the dinner table?
JOSEFA: Well, we were having dinner. I don’t know what happened. She
got up – they both got up. She got up and then he – I don’t know what
happened.
* * *
JOSEFA: Well, I thought to myself they’re mad at each other, and I was
scared, right, because – well, I didn’t know what was happening.
* * *
JOSEFA: I ran. I ran to get someone so that they could call the law. That’s
what I did.
Other direct evidence at trial showed that Salazar moved into the residence
occupied by Josefa and Appellant in April or May of 2014, and she was living there on
June 7, 2014. She shared a bedroom with Appellant at the residence, slept with him, and
did household chores such as laundry, cleaning, and dishes. She believed they were in
a “relationship.” Josefa’s testimony does not contradict or refute this direct evidence.
Although she does not name the woman in her testimony as Salazar, the context of the
facts she testified to as well as the other evidence at trial clearly indicated Salazar was
the “woman” Josefa was referring to in her testimony. Thus, the jury could reasonably
find from Josefa’s testimony that Salazar was living in her house and she was living there
on June 7, 2014, when Appellant assaulted her. Having examined the entire record, we
find that Appellant has not come forward with more than a scintilla of evidence that he
and Salazar were not in a dating relationship or members of the same household on the
day of the assault. Accordingly, the trial court did not commit error by denying Appellant’s
request for a lesser-included offense instruction and his ninth issue is overruled.
26
ISSUE TEN—CUMULATIVE ERROR
Finally, Appellant asserts the sum of the purported errors he identified from his trial
and punishment proceedings warrant a finding that reversible error occurred and he was
denied a fair trial. We disagree.
Multiple errors may be found to be harmful in their cumulative effect, even if each
error considered separately, would be harmless. Chamberlain v. State, 998 S.W.2d 230,
238 (Tex. Crim. App. 1999). The mere existence of multiple errors, however, does not
warrant reversal unless they operated in concert to undermine the fundamental fairness
of the proceedings. Estrada v. Smith, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).
Moreover, if an appellant’s individual claims of error lack merit, then there is no possibility
of cumulative error. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009).
Here, we have determined that Appellant’s purported errors lack merit and there is
no possibility of cumulative error. Id. Accordingly, Appellant’s tenth issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Publish.
27