Opinion
No. 05-18-00547-CR
05-28-2019
DOMINGO C. ARREDONDO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-80313-2017
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Whitehill, and Justice Partida-Kipness
Opinion by Justice Whitehill
A jury convicted appellant Domingo C. Arredondo of three counts of sexual assault of a child and one count of indecency with a child by sexual contact. Appellant raises one issue on appeal: ineffective assistance of counsel. We conclude that the undeveloped record is insufficient to support his claim and accordingly affirm.
I. BACKGROUND
The evidence at trial supported the following facts.
All four counts for which appellant was convicted arose from a single encounter between him and a fifteen-year-old complainant. On the day in question, the complainant had had an argument with her mother, and that evening she went out walking around with a friend. While they were walking, the complainant and her friend encountered appellant. Appellant gave them beer, and all three went back to his mobile home. The complainant's friend eventually left, but the complainant stayed. After that, appellant engaged in oral, anal, and vaginal sex with the complainant. Then she walked home.
The complainant was very upset when she arrived home, and her mother took her to a hospital. The complainant's report triggered a police investigation and this prosecution.
II. ANALYSIS
Appellant's sole appellate issue argues that he received ineffective assistance of counsel at trial. Specifically, he contends that his trial lawyer erred by failing to object when the State offered evidence of appellant's prior criminal history on three occasions during detective Helen Taylor's testimony. As the State points out, the second and third occasions that appellant complains of occurred during cross-examination by appellant's counsel.
To prevail on an ineffective assistance of counsel claim, an appellant must show two elements: deficient performance and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Strickland v. Washington, 466 U.S. 668 (1984). The claim must be firmly founded in the record. Goodspeed, 187 S.W.3d at 392. As a result, direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. This is particularly true with respect to the deficient performance element because (i) we review counsel's conduct with great deference, without hindsight's distorting effects, and (ii) counsel's reasons for failing to do something often do not appear in the record. See id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Id. Absent such an opportunity, an appellate court should not find deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id. Consequently, an application for writ of habeas corpus is generally the more appropriate vehicle to raise ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Here, there was no factual development of appellant's ineffective assistance of counsel claim in the trial court. Although appellant filed a new trial motion, that motion did not raise ineffective assistance as a ground, and it was overruled by operation of law.
The first specific matter about which appellant complains is Detective Taylor's testimony on direct examination about the photo line-up used in this case:
Q. And as far as the photos that are selected, who selects the photos that are going to be used [in a photo line-up]?(Emphasis added.) Appellant had not yet been arrested when the photo line-up was used, so appellant argues that Taylor's testimony informed the jury that appellant had a prior book-in photo and, thus, some prior criminal activity. But the record is silent as to counsel's reasons for not objecting to Taylor's testimony, and we will not speculate as to those reasons. See Jones v. State, No. 05-06-00443-CR, 2007 WL 2052129, at *2 (Tex. App.—Dallas July 19, 2007, no pet.) (mem. op., not designated for publication). And we cannot say that the failure to object was so outrageous that no competent lawyer would have done the same. See id.; see also Mathis v. State, 650 S.W.2d 532, 534 (Tex. App.—Dallas 1983, pet. ref'd) (holding that similar evidence was admissible because it was not evidence of prior criminal conduct).
A. I did select the photos with the help of Sergeant Driver with the Collin County Sheriff's Office. He has access to the Collin County Sheriff Office's book-in photos. They all wear a white towel so they all look very similar. So we used those photos.
The other two pieces of Taylor's testimony that appellant complains about are as follows:
Q. What's the source of the confusion [about appellant's date of birth]?
A. Our records management system is just a data entry that police officers do. Domingo Arredondo was already in our records management system from previous contacts. And whoever entered his information in entered his date of birth in wrong.
Q. What did you do to clarify the date of birth? Did you look at a birth certificate or a driver's license? What did you do?(Emphases added.) Appellant complains that his lawyer should have objected without addressing the fact that his lawyer asked the very questions that elicited the testimony. Appellant does not complain about the questioning itself. In any event, the record is silent as to counsel's reasons for not objecting to Taylor's testimony, and we cannot say that the failure to object was so outrageous that no competent lawyer would have done the same. See Goodspeed, 187 S.W.3d at 392.
A. I ran his criminal history.
III. CONCLUSION
We resolve appellant's sole issue against him and affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180547F.U05
JUDGMENT
On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-80313-2017.
Opinion delivered by Justice Whitehill. Chief Justice Burns and Justice Partida-Kipness participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 28, 2019