Opinion
01-21-00377-CR
12-29-2022
JOSUE LEAL, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas Trial Court Case No. 1666800
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
Sarah Beth Landau Justice
Josue Leal, Appellant, was charged with capital murder. Leal went to trial and was convicted by a jury. His punishment was assessed at life in prison without the possibility of parole. Leal raises two issues on appeal, (1) that the trial court erred by denying his request for a jury instruction on the lesser-included offense of murder, and (2) that he received ineffective assistance of counsel. Because Leal has not shown that he was entitled to that jury instruction or that his trial counsel was ineffective, we affirm.
I. Background
K. Bartelt, the decedent, lived in Harris County, Texas. Bartelt opened his home to various people to give them a safe place to stay.
In December 2015, Bartelt had several people living in his home: T. Hawley; Hawley's husband, M. Duron; Hawley's daughter, C. Owens; and Owens's boyfriend, Leal. Bartelt did not tolerate guests who brought drugs or alcohol to the home or who were constantly arguing or fighting. Bartelt found Owens and Leal arguing and fighting. As the fighting escalated, Leal damaged Bartelt's home by slamming the door into the wall, creating a hole. Bartelt saw the damage and told Owens and Leal they had to leave. While Bartelt was removing Owens's and Leal's things from the house, Leal told Owens "I'm going to murk him." Leal attacked Bartelt, bruising and lacerating Bartelt's face and breaking Bartelt's neck. While Bartelt was lying on the floor, Leal took his car keys and wallet. Leal and Owens left in Bartelt's vehicle. Later, when Hawley and Duron returned to Bartelt's home, they found him dead. Bartelt's neighbor called the police.
That same day, Leal used Bartelt's wallet to make multiple purchases: he bought food at a Whataburger, tried to buy video gaming systems at a Walmart, bought video gaming systems at a GameStop, and bought gas and cigarettes at a Shell gas station. Law enforcement were eventually able to track down Bartelt's vehicle and found Leal and Owens.
A jury convicted Leal of capital murder. His punishment was assessed at life in prison without the possibility of parole. Leal appealed the trial court's judgment.
II. Jury Instruction
Leal's first issue is that the trial court erred by denying his request for a jury instruction on the lesser-included offense of murder.
A. Standard of Review
We review a trial court's denial of a request to include a lesser-included offense instruction in its charge to the jury for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004); Steele v. State, 490 S.W.3d 117, 126 (Tex. App.-Houston [1st Dist.] 2016, no pet.).
B. Law
Determining whether a defendant is entitled to an instruction on a lesser-included offense involves a two-part test. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). First, we must decide whether the offense is a lesser-included offense of the offense charged, as defined in Texas Code of Criminal Procedure article 37.09. See TEX. CODE. CRIM. PROC. ART. 37.09; Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998) ("The first step is to apply the relevant definition to the offense charged and the offense in question."). Second, there must be some evidence in the record establishing that, if the defendant is guilty, he is guilty of only the lesser offense. Hall, 225 S.W.3d. at 536. In other words, the evidence must establish that the lesser-included offense provides the jury with "a valid, rational alternative to the charged offense." Id. (citing Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999).
Article 37.09 lists four circumstances in which an offense is a lesser-included offense. The instant case involves only the possibility described by Article 37.09(1). TEX. CODE. CRIM. PROC. ART. 37.09.
If there is more than a scintilla of evidence that raises the issue that the defendant was guilty only of the lesser offense-and there is a scintilla of evidence that the lesser-included offense provides a valid, rational alternative to the greater offense-then the defendant is entitled to an instruction on the lesser offense. Wade v. State, - S.W.3d -, 2022 WL 1021056, at *3-4 (Tex. Crim. App. April 6, 2022). We consider all admitted evidence, not only the evidence the defendant presented. Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018). "When determining whether a defendant is entitled to an instruction on a lesser-included offense, we view the facts in the light most favorable toward submitting the instruction, not in a light most favorable to the verdict." Wade, 2022 WL 1021056, We evaluate the evidence in the context of the entire record, but do not consider whether it is credible, controverted, or in conflict with other evidence. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005).
C. Analysis
When conducting the first step of the analysis, we "compare the elements of the greater offense as pled to the statutory elements of the potential lesser-included offense in the abstract." See Ex parte Castillo, 469 S.W.3d 165, 169 (Tex. Crim. App. 2015). "Murder is a lesser-included offense of capital murder." Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). Thus, the first step of the test is satisfied.
The second step of the test requires that the record contain more than a scintilla of evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Hall, 225 S.W.3d at 536.
As alleged here, capital murder is an intentional murder "in the course of committing or attempting to commit" a robbery. Tex. Penal Code § 19.03(a)(2). "A person commits [robbery] if, in the course of committing theft . . . and with [the] intent to obtain or maintain control of the property, [the person] intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Penal Code § 29.02(a)(1). A person commits theft if the person, without the owner's effective consent, "appropriates property with [the] intent to deprive the owner of [the] property." Tex. Penal Code § 31.03(a), (b)(1).
The phrase "in the course of committing" has the same meaning for purposes of capital murder and robbery. Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). The phrase means "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission." TEX. Penal Code § 29.01(1); see Ibanez, 749 S.W.2d at 807. This "robbery nexus" is "sufficiently proven if the State proves that the theft occurred immediately after the assault." Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App. 2002).
When a defendant requests an instruction on the lesser-included offense of murder based on a dispute about the offense that aggravates the murder to capital murder, the record must show "some evidence which negates the aggravating element[.]" Wolfe v. State, 917 S.W.2d 270, 278 (Tex. Crim. App. 1996) (quoting Robertson v. State, 871 S.W.2d 701, 706-07 (Tex. Crim. App. 1993)). Or the record must show that "the evidence of such aggravating element is so weak that a rational jury might interpret it in such a way as to give it no probative value." Wolfe, 917 S.W.2d at 278.
Leal has identified no evidence from the trial that would negate the element of robbery. Leal points to Owens's testimony that when Leal told her "I'm going to murk [Bartelt]," she understood that to mean that Leal was going to kill and rob him. Leal highlights on appeal that Owens did not explain why her understanding of the term "murk" changed from her initial testimony that she did not know what "murk" meant, besides the fact that it was a bad thing. For a jury to rationally find Leal guilty of murder but not capital murder, they would have to disregard the evidence of such intent-that Owens testified that "murk" meant to kill and rob, that Leal stole various items from Bartelt after killing him, including the vehicle in which he fled the scene, and that Leal immediately used the items he stole from Bartelt. Whatever "murk" means, Owens's testimony alone does not negate the evidence of the aggravating element. Instead, Leal points to evidence not admitted at trial. Because our analysis requires us to make our determination based on the evidence admitted at trial and in the context of the record, Leal's argument fails. See Ritcherson, 568 S.W.3d at 671; Hall, 158 S.W.3d at 473.
Leal also contends that, in the alternative, the evidence to support the aggravating element of robbery is so weak that a rational jury might give it no probative value. We disagree. The jury was presented with evidence that Leal was having money issues the day of Bartelt's death, he took Bartelt's vehicle, and used Bartelt's credit and debit cards to buy food, gas, and an Xbox gaming console the night Bartelt was killed. There is also the unchallenged testimony from Owens that when Leal told her "I'm going to murk [Bartelt]" she understood that to mean that Leal was going to kill and rob him. This evidence cannot be described as "so weak" that a rational jury would give it no probative value when considering whether the element of robbery was satisfied. Leal does not explain how the evidence presented satisfies the requirement that it be "so weak" and offers no more than a conclusory statement in support of his position. Based on the record we overrule Leal's first issue.
III. Ineffective Assistance of Counsel
In Leal's second point of error, he claims that he received ineffective assistance from his trial counsel. Specifically, that trial counsel should have objected to a statement by the trial prosecutor that revealed the trial prosecutor's beliefs about Leal's recorded statement.
A. Standard of Review
Review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). We will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
B. Law
To establish an ineffective-assistance claim, an appellant must show by a preponderance of the evidence that (1) his counsel's performance was deficient, and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel's deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. An appellant's failure to satisfy either prong defeats the ineffective-assistance claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). It is not necessary to analyze the prongs in order and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697.
Our review is highly deferential to trial counsel, and ineffectiveness must "be firmly founded in the record." Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To prevail, an appellant must provide a record that shows that counsel's performance was not based on sound strategy. See Thompson, 9 S.W.3d at 813. A sound trial strategy may be executed imperfectly, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We "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).
C. Analysis
Leal contends that his trial counsel was ineffective for failing to object to a statement made by the State during voir dire. The following exchange occurred between the State and the venirepersons:
State: Prior witness statements. I want to talk about [prior witness statements] for a second. Sometimes people give reported statements to the police, written statements to the police. Generally, those are not coming in. They're not evidence. They are hearsay.
...
The defendant's statement is a little bit different. So long as certain conditions are met, the State can introduce a defendant's statement if he gives one to the police. And sometimes we do that and sometimes we don't do that. Anybody have any ideas why the State might not introduce a defendant's statement? Anybody got any ideas?
Venireperson 51: It's not going to help the case.
State: All right. [Venireperson 51]. Way over here. If it's not going to help the case. All right. And what do you mean by that?
Venireperson 51: In other words, if the defendant's saying he is not guilty or that it wasn't him or her.
State: Okay. And that's not really helpful to the case, right? Because essentially, by virtue of being here, we already know that the defendant has said not guilty. Right? All right. As an officer of the court, I'm also bound by a rule that I cannot do what's called suborning perjury, which means I cannot knowingly present to y'all false testimony or testimony that I believe to be false. So that might also play into sometimes why a defendant's statement doesn't get played. Is there anyone who feels like there should be some sort of absolute right that the defendant's statement, if he gave one to the police, should always get played, and if it doesn't get played you can't participate in the process? Anybody who feels that way? No? We're all good.
It was later revealed to the jury that Leal provided a recorded statement. But the statement was never played to the jury. Leal contends that had trial counsel objected, the trial court would have been required to sustain the objection and instruct the jury to disregard the statement alluding to the State's beliefs about Leal's recorded statement. See Williams v. State, 417 S.W.3d 162, 172-73 (Tex. App.- Houston [1st Dist.] 2013, pet. ref'd) (prompt instruction to venire to disregard prosecutor's personal opinion cures any resulting harm).
There is no affidavit or testimony from trial counsel, nor does the record explain trial counsel's strategy on this issue. When the record is silent as to counsel's strategy, "finding counsel ineffective would call for speculation by the appellate court." See Stults v. State, 23 S.W.3d 198, 208 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.)). Trial counsel should ordinarily be given an opportunity to explain their actions before they are found ineffective. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). If no such opportunity is given, a reviewing court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
When trial counsel's reasons for his actions are not in the record and there is the possibility that the decisions could have been strategic, we defer to trial counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Trial counsel may have wanted not to draw attention to the State's comment. See Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (holding that counsel "may have . . . decided to withhold objections to avoid drawing unwanted attention to a particular issue ...."). This proposed reason is speculative, but as discussed above, that is an inherent problem with trying to evaluate an ineffective-assistance claim where trial counsel has not been allowed to respond, and why such claims are usually rejected. See Goodspeed, 187 S.W.3d at 394. We cannot conclude that no competent attorney would have withheld objection because there may have been strategic reasons for doing so. See Nicholson v. State, 577 S.W.3d 559, 569-70 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd). Accordingly, we overrule Leal's remaining issue.
Conclusion
We affirm the trial court's judgment.