Nos. 05-05-00516-CR, 05-05-00699-CR
February 27, 2007. DO NOT PUBLISH.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F99-21709-MW and F05-00009-IW.
Before Justices BRIDGES, FITZGERALD, and RICHTER. Opinion By Justice RICHTER.
MARTIN RICHTER, JUSTICE.
These appeals stem from Joe Trampas Benavides's repeatedly, over a period of four months beginning in May 2004, calling Anita Soto, threatening to kill her and her family, following her, and breaking into her apartment. A jury convicted Benavides, who at the time was on probation for delivery of cocaine, of stalking and assessed punishment at nine years confinement and a $1000 fine (appellate cause number 05-05-00699-CR). Following this conviction, the trial court revoked Benavides's probation for delivery of cocaine and assessed a ten year sentence (appellate cause number 05-05-00516-CR). In five issues, Benavides asserts the stalking conviction must be reversed because (a) he received ineffective assistance of counsel and (b) the court erred in (i) failing to grant a mistrial and (ii) admitting evidence of "prior bad acts" and a cassette tape of a conversation between Benavides and Soto. In two additional issues, Benavides asserts the court failed to properly credit him for time served in the delivery of cocaine case and his counsel was ineffective in failing to ensure he received the credit. Finding no reversible error in either case, we affirm.
The Stalking ConvictionMistrial
In his first issue, Benavides complains of the trial court's failure to grant his motions for mistrial when Soto, his ex-girlfriend and mother of his son, and Tania Loenneker, a witness from the District Attorney's Family Violence Division, testified during the guilt-innocence phase that Benavides had previously been in jail. Loenneker's reference to Benavides's prior incarceration came as she explained that Soto had sought a protective order in May 2004 but did not qualify for one because the requirement that family violence have occurred within the last ninety days could not be satisfied as Benavides "had just gotten out of jail." Soto's reference to Benavides's prior incarceration came as she identified a poem Benavides wrote for her that the prosecutor was seeking to introduce into evidence as "a poem he wrote while in jail." Although in each instance the trial judge promptly instructed the jury to disregard the testimony, Benavides maintains the instructions were insufficient and a mistrial should have been granted because this testimony "certainly affected his credibility" and "made any effort to discredit Soto's testimony of little effect." We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial halts trial proceedings when error has occurred and the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. Because a defendant may not be tried for collateral consequences or transactions, testimony that the defendant was previously incarcerated is generally inadmissible. Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App. 1992). However, a prompt instruction to disregard will generally cure the prejudicial effect of a reference to a defendant's prior incarceration. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Fuller, 827 S.W.2d at 926. Only in extreme cases where the evidence is clearly calculated to inflame the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the jurors' minds, will an instruction to disregard not cure error and mistrial be proper. Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005), cert. denied, 126 SCt. 2982 (2006); Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). We do not have such a case here. Our review of the record reveals the complained-of testimony was non-responsive to the question asked, was vague, and did not refer to any particular offense. The record also reflects that the complained-of testimony was not embellished in any manner or subsequently referred to. Although the testimony informed the jury that Benavides had previously been incarcerated, we cannot, given the record before us, conclude that it was "clearly calculated to inflame the jury" and was "of such character" that the instructions to disregard were insufficient and a mistrial should have been granted. Benavides's argument to the contrary is without merit. We resolve Benavides's first issue against him. Admission of "Prior Bad Acts"
In his second issue, Benavides complains the court erred in overruling his objection to the admission of evidence of "prior bad acts." These "prior bad acts," which occurred between 2000 and 2002, included locking Soto in their apartment, refusing to drive her to the hospital when she was in labor, "engaging in an ongoing course of physical abuse," pulling a gun on a parking valet, and striking two dogs with a hammer. Arguing the State had provided him inadequate notice of its intent to introduce this evidence, Benavides sought to exclude this evidence at trial under Texas Rule of Evidence 404(b) which requires the State, upon timely request by the accused, to provide reasonable notice of its intent to introduce such evidence in its case-in-chief. See Tex. R. Evid. 404(b). Benavides's complaint on appeal, however, does not comport with his complaint at trial. On appeal, Benavides argues the evidence should have been excluded because under rule 404(b) evidence of other crimes, wrongs, or acts offered "to show action in conformity therewith" is prohibited. See id. A complaint on appeal that does not comport with the complaint at trial is not preserved for our review. Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003); Tovar v. State, 2006 WL 2042473, *2 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Because Benavides's complaint on appeal differs from his complaint at trial, no error is preserved. Guevara. 97 S.W.3d at 583; Tovar, 2006 WL 2042473, *2. We resolve Benavides's second issue against him. Admission of Tape-Recorded Conversation
In his third issue, Benavides complains of the admission into evidence of a "duplicate tape" of a telephone call Benavides made to Soto. This tape was admitted during the State's examination of Soto and was a "re-recording" of the call. Benavides maintains this tape was improperly admitted because Soto could not properly "authenticate" the tape. Our review of the record, however, reveals this complaint was not preserved. Although Benavides timely objected to the complained-of tape, he failed to object to the admission of a second tape that "ha[d] the exact same phone call recorded." To have preserved error, Benavides had to object to the second tape. Massey v. State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996) (when defendant objects to admission of certain evidence but same evidence is subsequently introduced without objection, earlier objection is waived.); Jones v. State, 111 S.W.3d 600, 606 (Tex.App.-Dallas 2003, pet. ref'd) (same). His failure to do so resulted in waiver of any error. We resolve his third issue against him. Ineffective Assistance of Counsel
In his fourth and fifth issues, Benavides asserts his counsel was ineffective. Specifically, in his fourth issue, Benavides asserts his counsel was ineffective in denying him his right to testify at guilt-innocence. In his fifth issue, Benavides asserts his counsel was ineffective in "laboring under a conflict of interest." To prevail on his claim that counsel was ineffective in denying him his right to testify, Benavides had to prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Johnson v. State, 169 S.W.3d 223, 225 (Tex.Crim.App. 2005), cert. denied, 126 S.Ct. 1355 (2006). To establish deficient performance, Benavides had to show counsel's actions did not result from strategic design and fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). To establish prejudice, Benavides had to show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Id., 30 S.W.3d at 391. To prevail on his claim that counsel was ineffective because of a conflict in interest, Benavides had to show that (1) counsel was actively representing conflicting interests and (2) the conflict had an adverse effect on specific instances of counsel's performance. Ex parte MacFarland, 163 S.W.3d 743, 759 n. 52 (Tex.Crim.App. 2005); Ex parte Morrow, 952 S.W.2d 530, 538 (Tex.Crim.App. 1997). In support of his claim that counsel was ineffective in denying him his right to testify, Benavides relies on an exchange that occurred among him, counsel, and the trial judge during sentencing and outside the jury's presence. During that exchange, in which the trial judge confirmed that Benavides did not wish to testify at sentencing, Benavides stated he had wanted to testify during the guilt-innocence phase but counsel "stopped me." Benavides maintains this statement shows counsel was deficient. And, had counsel not denied him his right to testify, he would have rebutted the State's argument that he was "maniacally stalking Soto" by "expanding" on the nature of his relationship with Soto and showing that much of his behavior was the direct result of Soto not granting him access to their young son. We need not determine whether counsel denied Benavides his right to testify because even assuming he did, Benavides has failed to show he was prejudiced. Although he asserts he would have "expanded" on the nature of his relationship with Soto and his testimony would have showed his behavior was the result of Soto denying him access to their son, he fails to state what his testimony would have been and how his testimony would have undermined the State's evidence that he stalked Soto. Moreover, the record reflects that the jury actually heard testimony from more than one witness that Benavides wanted to visit with their son more than Soto was allowing and that he was upset as a result. Lastly, we note that had Benavides testified, he could have been impeached with several prior convictions. Although Benavides may believe his testimony would have influenced the jury's outcome, we cannot agree, given the record before us, that a reasonable probability exists that the outcome of the trial would have been different. Benavides's complaint that his counsel was ineffective in denying him his right to testify is without merit. We also find no merit to Benavides's complaint that counsel was ineffective because of a conflict of interest. In arguing this issue, Benavides states that counsel had "previously represented [Soto] in an action against [him] regarding physical abuse,"and because the stalking case involved "alleged abuse against Soto," counsel could not give "his undivided loyalty" to him. However, Benavides did not object at trial that his counsel had a conflict, does not point to any supporting evidence in the record, and did not otherwise develop a record establishing that counsel had actually represented Soto previously. Benavides also fails to state how counsel's representation of Soto prevented counsel from giving Benavides "his undivided loyalty." Because Benavides has failed to show counsel was actively representing conflicting interests, his claim that counsel was ineffective must fail. We resolve Benavides's fourth and fifth issues against him. Revocation of Probation for Delivery of Cocaine
Benavides's complaints concerning the revocation of his probation in the delivery of cocaine case stem from the credit he received for time served prior to the revocation. See Tex. Code. Crim. Proc. art. 42.03, § 2(a) (Vernon Supp. Pamph. 2006) (regarding credit for time served). In his original brief on appeal, Benavides asserted in his sixth and seventh issues that the trial court failed to give him credit for 197 days spent incarcerated two and a half years prior to the revocation of his probation and his counsel was ineffective in failing to ensure he received this credit. Specifically, Benavides complained he was owed credit for time served November 1, 2002 through May 16, 2003. The State responded in its brief that the judgment correctly reflects the trial court credited Benavides for the time served during that period, and in a reply brief, Benavides withdraws his complaints "conditioned on the State being correct." We have reviewed the record and agree with the State that the judgement properly reflects credit for the period at issue. Accordingly, no error is presented. We affirm the trial court's judgments.