Opinion
No. 2-04-330-CR
Delivered: March 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 396th District Court of Tarrant County.
Panel A: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. Introduction
Appellant Yonas Telde Abraha appeals his conviction and life sentence for murder. In eighteen points, appellant complains that the prosecutor improperly commented on his failure to testify, that his right to remain silent was violated when his trial counsel called him to testify at punishment, that the trial court erred by admitting evidence obtained from a search of his home and car, and that he was denied effective assistance of counsel during the guilt-innocence and punishment phases at trial. We affirm.II. Background Facts
On May 10, 1999, Janice Perkins was found dead in her locked apartment. Appellant and Perkins were in a relationship for two to three years, but at the time Perkins was killed, they were no longer together. DNA evidence taken from underneath Perkins' fingernails established that appellant could not be excluded as the possible donor and that 99.99% of the population had been excluded. The Fort Worth Police Department obtained an arrest warrant for appellant, arrested him, and a grand jury indicted him for murder. Appellant was later released on bond, but he was expected to appear at his court hearings. However, on May 30, 2001, an arrest warrant was issued for appellant after he failed to appear for court on May 24, 2001. On September 19, 2003, the police arrested appellant at Newark International Airport in Newark, New Jersey under the May 30, 2001 arrest warrant and extradited him back to Texas where he stood trial. On July 16, 2004, a jury found appellant guilty of murder and on July 19, assessed his punishment at a life sentence in the Institutional Division of the Texas Department of Criminal Justice.III. Points Presented
In appellant's points one through five, he generally complains that during closing argument at the guilt-innocence phase, the prosecutor improperly commented on his failure to testify and that his attorney failed to object to the comment. In points six through ten, appellant asserts that he was denied effective assistance of counsel and his right to remain silent when he was called to testify during the punishment phase and was forced to state that he did not wish to testify in front of the jury. In points eleven through sixteen, appellant contends that the trial court erred when it admitted evidence obtained through searches of his car and home in violation of the Vienna Convention and that he was denied effective assistance of counsel when his attorney failed to object to the admission of the evidence. In appellant's points seventeen and eighteen, he complains that he was denied effective assistance of counsel due to the cumulative effect of his attorney's errors during trial.IV. Prosecutor's Comment A. Failure to Testify
In points one through three, appellant generally complains that the prosecutor improperly commented on his failure to testify in violation of the United States and Texas Constitutions and the code of criminal procedure. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 2005). During closing argument at guilt-innocence, the prosecutor stated,You know, I don't know specifically how he did it. I mean, I think the medical examiner even told you he doesn't know. You know, maybe he had her in a head lock and she's panicking and clawing like this and causes some scratches, and in the process she pulls out some of her own hair or hair extensions, I don't know. But somehow or other he did it, only he knows. He knows what he did. [Emphasis added.]However, appellant failed to object to the comment at trial. A complaint regarding an improper comment on the defendant's failure to testify is forfeited if not raised in the trial court. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004); Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004). We conclude that appellant has failed to preserve error for our review because he did not object to the prosecutor's comment at trial. Thus, we overrule appellant's points one through three.
B. Ineffective Assistance of Counsel
In points four and five, appellant argues that he was denied effective assistance of counsel in violation of the United States and Texas Constitutions because his attorney failed to object to the State's comment during closing argument on his failure to testify.1. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). 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, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d at 813).B. Analysis
Appellant complains that his attorney's failure to object to the prosecutor's comment above constitutes ineffective assistance of counsel. We apply a strong presumption that trial counsel was competent. See Thompson, 9 S.W.3d at 813. On appeal, we presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Here, we are unable to determine from the record if appellant's counsel's failure to object to the prosecutor's comment was the result of trial strategy. Therefore, we overrule appellant's points four and five.V. Right to Remain Silent
In appellant's points six through ten, he generally contends that he was denied effective assistance of counsel and his right to remain silent under the United States and Texas Constitutions and the code of criminal procedure when his attorney called him to the stand to testify during the punishment phase when he did not wish to. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08.A. Applicable Law
The Fifth Amendment of the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. CONST amend. V. Article one, section ten of the Texas Constitution states that a defendant, "shall not be compelled to give evidence against himself." TEX. CONST. art. I, § 10. Article 38.08 of the code of criminal procedure directs that a defendant may testify on his own behalf, but if he chooses not to, that fact shall not be "alluded to or commented on by counsel in the case." TEX. CODE CRIM. PROC. ANN. art. 38.08.B. Applicable Facts
During the guilt-innocence phase, outside the presence of the jury, appellant's attorney explained to appellant that he would recommend that appellant not testify. Appellant's attorney then asked appellant if he wanted to testify, and appellant stated that he did not wish to testify. During the punishment phase, appellant's attorney called appellant's sister, Birikiti Abraha, to testify. Before Birikiti could answer a question asked by the prosecutor during cross-examination, appellant interrupted and began telling the jury that he was not allowed to testify during the trial.[APPELLANT]: I'd like the jury to know that I told this man right here [his attorney] that I wanted to testify and they threatened me not to testify in this case right now. I'd like you to let the jury know that right now. Nobody allowed me to talk.
[BIRIKITI]: Yonas, sit down.
[APPELLANT]: I asked him to testify in this case and he didn't allow me to do that. And I asked Detective Carroll for a lie detector test and Detective Carroll didn't allow me to take a lie detector test for this case here.
[BIRIKITI]: Yonas.
[APPELLANT]: Detective Carroll himself said that
[BIRIKITI]: Yonas.
[APPELLANT]: — he was investigating somebody from this house and they did not come and try to investigate that person. Detective Carroll himself said that and that person left town
THE COURT: Jury will go to the jury room.
[APPELLANT]: I'd like the jury to know that.After the jury left the courtroom, the trial judge stated, "Mr. Abraha, it is your right to be present in the court during your trial. But you have to follow certain rules. And if you cannot follow those rules, then I will remove you from the courtroom. There are to be no other outbursts." The trial judge then asked appellant if he was going to remain silent, and appellant said, "They didn't allow me to testify and let me say anything that's gone on in this case." The trial judge again asked appellant if he was going to remain silent during the testimony, and appellant said that he would. However, after Birikiti finished testifying, appellant's attorney called appellant to the stand to testify in front of the jury. While appellant was still in his chair at counsel table, the trial judge asked appellant, "Mr. Abraha, do you wish to testify?" Appellant stated, "In the first part of the case, sir." Appellant's attorney then said, "No, judge. I apologize. I was out of order. I call Tekle Hagos [appellant's father]." After Hagos testified and outside the presence of the jury, appellant's attorney again asked appellant questions regarding his right to testify.
[DEFENSE COUNSEL]: Of course, you understand we've gone through the first phase of trial and you had the right to testify at that phase of trial. You made your decision. Now, you and I have discussed in great detail your right to testify in this phase of the trial. Of course, I've told you the good and the bad thing about testifying. And back there a few minutes ago you told me you do not want to testify in this phase of the trial. Is that still your position?
[APPELLANT]: It serves no purpose to testify at this part of the trial.
[DEFENSE COUNSEL]: So you don't want to testify?
[APPELLANT]: I wanted to testify in the first part of the trial.
[DEFENSE COUNSEL]: That's what you're telling the Court now?
C. Analysis
Appellant complains that his right to remain silent under the United States Constitution, Texas Constitution, and section 38.08 of the code of criminal procedure was violated when he was called to testify by his own counsel. Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. Salinas, 163 S.W.3d at 741; see Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 645 (1971); see also Maddox v. State, 613 S.W.2d 275, 280 (Tex.Crim.App. 1980) (recognizing that attorney has duty to protect client's right to testify). The Supreme Court has held that this right arises from the Fifth and Sixth Amendments, that it is personal to defendants, and that it cannot be waived by counsel. Johnson v. State, 120 S.W.3d 10, 15 (Tex.App.-Amarillo 2003), aff'd, 169 S.W.3d 223 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 1355 (2006); accord Rock v. Arkansas, 483 U.S. 44, 49-52, 107 S. Ct. 2704, 2707-09 (1987). Here, appellant interrupted during Birikiti's cross-examination and stated in the presence of the jury that he wanted to testify. Therefore, his attorney had a duty to call him to the stand and allow him to testify on his own behalf. See Maddox, 613 S.W.2d at 280 (stating that an attorney has a duty to protect his client's right to testify). It was only after appellant's attorney called him to testify that appellant informed the trial court and his counsel that he did not want to testify during the punishment phase, but had wanted to testify only during guilt-innocence. We hold that because appellant indicated that he wanted to testify and his attorney had a duty to allow him an opportunity to testify, his right to remain silent under the federal and state constitutions and the code of criminal procedure was not violated. Therefore, we overrule appellant's points eight through ten. In a case considering the issue of ineffective assistance of counsel, we must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771; Matthews v. State, 152 S.W.3d 723, 732 (Tex.App.-Tyler 2004, no pet.). Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. Matthews, 152 S.W.3d at 732. Here, the record is silent as to the reasons why appellant's attorney called him to testify. The last thing the jury heard before going to the jury room was that appellant wanted to testify, but his attorney would not allow him to. It would not seem illogical that appellant's attorney would call him to the stand to ease the confusion of the jurors about whether appellant wished to testify. As a result, appellant cannot overcome the strong presumption that his counsel performed effectively. See Matthews, 152 S.W.3d at 732. We overrule points six and seven.VI. Admission of Evidence
In points eleven through sixteen, appellant generally complains that the trial court erred in admitting DNA evidence and evidence obtained from searches of his car and house and that he was denied effective assistance of counsel when his attorney failed to object to the admission of the evidence in violation of his rights under the Sixth Amendment, Vienna Convention on Consular Relations, and article 1, section 10 of the Texas Constitution.A. Applicable Law
Article VI of the United States Constitution provides,This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.U.S. Const. art. VI. Article 38.23 of the code of criminal procedure governs what type of evidence cannot be used at trial. TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). The article provides,
(a) No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.Id. § 38.23(a).