Opinion
13-22-00228-CR
07-20-2023
BRANDON PORTILLO, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
On appeal from the 94th District Court of Nueces County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
GINA M. BENAVIDES Justice
Appellant Brandon Portillo was convicted of intoxication manslaughter of a peace officer and two counts of intoxication assault of a peace officer causing serious bodily injury, all first-degree felonies. See TEX. PENAL CODE ANN. §§ 49.07, 49.08(b), 49.09(b-1)(2), (b-2). He was sentenced to life imprisonment for intoxication manslaughter and ninety years' imprisonment for each count of intoxication assault, with the sentences to run concurrently. See id. § 12.32. By a single issue with multiple subparts, Portillo contends that his trial counsel rendered ineffective assistance. We affirm.
I. Background
On the evening of January 31, 2020, Officers Alan McCollum, Michael Love, and Kiyomi Muniz of the Corpus Christi Police Department (CCPD) conducted a traffic stop on South Padre Island Drive. While conducting this stop, a black truck approached and then struck the officers. As a result, Officer Alan McCollum was propelled over the barrier wall of the highway, landed on the street below, and eventually perished from his injuries. Additionally, Officers Love and Muniz sustained non-fatal injuries. Portillo was arrested that evening and subsequently indicted for the above-described offenses.
Trial commenced on April 14, 2022. Lauren Perez, a bartender at Wonders Bar & Grill, testified that she and two other bartenders served Portillo "eight beers and seven shots" over the course of "[t]hree hours" on the evening of January 31, 2020. Perez also testified that she reviewed surveillance video from the bar and that everything in the video was true and correct "except the time," which was off by "[a]n hour." After the State asked several questions about the video, trial counsel for Portillo conducted a voir dire examination of Perez. During this examination, Perez acknowledged that her testimony was from "[her] personal knowledge and the video as well," which prompted trial counsel to object on the grounds that the video was not in evidence. The trial court overruled this objection.
Agent Byron Smith from the Texas Alcoholic Beverage Commission also testified about the contents of the video from Wonders Bar & Grill. Agent Smith testified that he "requested a copy of video surveillance . . . from th[e] day of the accident or the evening of that accident." According to Agent Smith, the video that he received in response to this request depicted "a total of ten beers and eight shots of distilled spirits that were served to [Portillo]." Agent Smith testified that the time shown on the video "may not be synchronized with the actual time," and it seemed like the time shown on the video was off by "approximately two and a half to three hours." Trial counsel for Portillo obtained a running objection to Agent Smith's testimony on the basis that he was "testifying to facts outside of the record and assum[ing] facts not in evidence."
Juan Garcia, a manager at Wonders Bar & Grill, testified that he was not working the evening of January 31, 2020, and that he was "[c]ompletely" unfamiliar with the bar's video surveillance system, but that the general manager "walked [him] through" the process of retrieving the specific video requested by law enforcement. Garcia later testified that he watched the surveillance footage from Wonders Bar & Grill from the evening of January 31, 2020, that the footage appeared to have been recorded properly, and that it fairly and accurately represented the inside of Wonders Bar & Grill on that evening. The video was then admitted into evidence.
Enrique Cantu Roman III, an investigator with CCPD testified that he had obtained the court order for the retrieval of the video from Wonders Bar & Grill. He testified that he watched the video in its entirety, and that the video depicted Portillo consuming "ten beers and . . . eight shots." Trial counsel did not object to this testimony.
James Smith, a crime analyst with the CCPD, testified that he obtained and analyzed location information from Portillo's cell phone from the evening of January 31, 2020. According to Smith, during a three-to-four-hour window, Portillo's cell phone "was pinging pretty consistently every couple of seconds" near the area of Wonders Bar & Grill. Robert Richey, a detective with the CCPD, testified that the location information also indicated that Portillo subsequently drove away from the bar, taking South Padre Island Drive as part of his route.
Javier Colmenero, a witness to the accident, testified that while he was driving on South Padre Island Drive, he observed "[e]mergency police or emergency EMS" lights ahead of him on the right side of the road. He and other vehicles began to slow down. He observed a vehicle in the far left lane speeding and moving into his lane. The vehicle cut in front of him and then moved from his lane into the right two lanes before making impact with the officers. Officer Love identified Portillo as the driver of the vehicle in question.
Ray Fernandez, M.D., a semi-retired Nueces County Medical Examiner, testified about the injuries sustained by Officer McCollum and the cause of his death. Dr. Fernandez observed abrasions to the head, contusions on the lungs, a laceration of the liver, and rib fractures. Dr. Fernandez stated that the cause of death was blunt force trauma to the chest consistent with McCollum's fall from the overpass. Autopsy photographs were admitted during Dr. Fernandez's testimony without objection.
During closing argument, the State made the following comments, to which Portillo's counsel did not object:
[Portillo] ruined so many people's lives with one decision . . . .
Every day those people are there to protect and serve. When bullets are coming after them, they're going at them. That's hard.
On January 31st, 2020, that became the reality for the family of Officer Alan McCollum, for Officer Michael Love and his family, and for Officer Kiyomi Muniz and her family.
At the end of the day, we can't fix this. If we could, then Officer Alan McCollum would be sitting there on the front row next to his daughter in uniform ready to go to SWAT training. . . .
There are certain things as I told you, that could only be carried, carried like the casket of Officer Alan McCollum, carried like the grief in the hearts of those who loved and respected him. . . . It's carried in the words of Officers Tanner, Hernandez, and Ghezzi as they knelt over Officer Alan McCollum's body.
The State just says, rest easy Officer McCollum, Officer Muniz, and Officer Love, the jury has it from here.
After deliberations, the jury found Portillo guilty of intoxication manslaughter of a peace officer and two counts of intoxication assault of a peace officer causing serious bodily injury. The jury sentenced him to life imprisonment for intoxication manslaughter and ninety-years' confinement for each count of intoxication assault, and the sentences were ordered to run concurrently. This appeal followed.
II. Ineffective Assistance of Counsel
Portillo contends that his trial counsel rendered ineffective assistance for multiple reasons. Specifically, Portillo complains by four sub-issues that his trial counsel failed to: (1) "make a timely or proper objection to testimony that a videotape recording depicted Portillo consuming beer and alcohol"; (2) object "to the subsequent admission of that recording"; (3) "object to the admission of highly prejudicial autopsy photographs"; and (4) "object to numerous instances of improper comments during the [S]tate's final argument." Portillo further contends that "but for trial counsel's errors, the result of [his] trial would have been different."
A. Standard of Review & Applicable Law
We evaluate claims of ineffective assistance of counsel using the two-pronged test from Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland). Under that test, an appellant is required to show both: (1) "that counsel's performance was deficient"; and (2) that "the deficient performance prejudiced" appellant. Strickland, 466 U.S. at 687. "Failure to satisfy either prong of the Strickland test is fatal." Morrison v. State, 575 S.W.3d 1, 24 (Tex. App.-Texarkana 2019, no pet.).
"In order to satisfy the first prong, appellant must prove, by a preponderance of the evidence, that trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Such a showing "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We indulge "a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. "In the face of an undeveloped record, counsel should be found ineffective only if his conduct was 'so outrageous that no competent attorney would have engaged in it.'" Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). "Trial counsel should generally be given an opportunity to explain his actions before being found ineffective." Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). "Counsel gets the benefit of the doubt from a silent record, and courts must assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined." Johnson, 624 S.W.3d at 586.
Yet, even if the deficient performance prong is met, an error does not warrant setting aside the judgment if there has been no prejudicial effect on the outcome. United States v. Morrison, 449 U.S. 361, 364-65 (1981). "Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect." Strickland, 466 U.S. at 695- 96. "Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. The test for prejudice requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Therefore, the court should consider whether the factfinder would have had reasonable doubt in respect to guilt, absent counsel's error. Id. at 695. In considering this question, a court adjudicating an ineffectiveness claim must consider the totality of the evidence. Id.
B. Analysis
1. Failure to Object to Wonders Bar & Grill Video
First, we address Portillo's contention that counsel was ineffective by failing to object to the surveillance video from Wonders Bar & Grill. To establish that a failure to object amounted to ineffective assistance, an "appellant must show that the trial judge would have committed error in overruling such an objection." Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).
To authenticate an item of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." TEX. R. EVID. 901(a). In performing its evidentiary gate-keeping function, "the trial court itself need not be persuaded that the proffered evidence is authentic." Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Rather, "[t]he preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic." Id. We review the preliminary question of the admissibility of evidence for an abuse of discretion. Id. "If the trial court's ruling that a jury could reasonably find proffered evidence authentic is at least 'within the zone of reasonable disagreement,' a reviewing court should not interfere." Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018)
The court of criminal appeals has held that "it is possible" to authenticate a video "without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device." Id. Evidence can be authenticated if the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" demonstrate that the item is what its proponent claims. TEX. R. EVID. 901(b)(4); see Fowler, 544 S.W.3d at 849.
Garcia, a manager at Wonders Bar & Grill testified that he was not working on January 31, 2020. He also testified that he was unfamiliar with the recording process of the surveillance cameras. The surveillance video from Wonders Bar & Grill was then admitted into evidence. After watching the video from that evening, Garcia agreed that the video fairly and accurately depicted the interior of Wonders Bar & Grill on the night of January 31, 2020. Smith testified that Portillo's cell phone "was pinging pretty consistently every couple of seconds" near the area of Wonders Bar & Grill for a three-to-four-hour period that evening. Additionally, Perez, who was at the bar on the night in question, testified that she reviewed the video and that it appeared accurate "except the time," which was off by "[a]n hour." See Fowler, 544 S.W.3d at 849 ("Video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue."); see also Rios v. State, No. 13-19-00235-CR, 2021 WL 2371525, at *7 (Tex. App.-Corpus Christi-Edinburg June 10, 2021, pet. ref'd) (mem. op., not designated for publication) (concluding that testimony of two witnesses was sufficient to authenticate video, even though both witnesses testified that the time on the video was "off").
We conclude that this is sufficient to authenticate the video from Wonders Bar & Grill. See Fowler, 544 S.W.3d at 549-50. Consequently, Portillo has not shown that the trial court would have committed error in overruling an authenticity objection to the video. See Vaughn, 931 S.W.2d at 566. And to that end, counsel was not ineffective for failing to object to the authenticity of the video. See Hollis v. State, 219 S.W.3d 446, 463 (Tex. App.-Austin 2007, no pet.).
2. Failure to Object to Testimony Based on Video
Portillo also contends that his trial counsel should have objected to Perez's, Agent Smith's, and Investigator Roman's testimony that relied on the video from Wonder's Bar & Grill on the basis that this testimony violated the best evidence rule. See TEX. R. EVID. 1002. We note that trial counsel did object to Perez's and Agent Smith's testimony as discussed above. Nonetheless, Portillo argues that these objections were not timely or specific enough. See TEX. R. APP. P. 33.1(a).
The video from Wonders Bar & Grill was already admitted into evidence at the time Investigator Roman testified.
However, "[e]vidence prematurely admitted in error may become admissible or be rendered harmless by subsequent evidence." James v. State, 102 S.W.3d 162, 175 (Tex. App.-Fort Worth 2003, pet. ref'd); see Romo v. State, 700 S.W.2d 633, 634 (Tex. App.- Houston [14th Dist.] 1985, no pet.) ("A conviction will not be reversed for error in receiving evidence that was not admissible when received but which became admissible at a subsequent stage."). Even if counsel should have objected to Perez's, Agent Smith's, and Investigator Roman's testimony regarding the contents of the video, any potential misjudgment in allowing that testimony to proceed was rendered harmless by the admission of the video itself. See James, 102 S.W.3d at 175; see also Johnson v. State, 169 S.W.3d 223, 229-30 (Tex. Crim. App. 2005) ("[I]f the misconduct in question does not amount to the complete denial of counsel, then some standard of harm, variously phrased as 'prejudice' or 'materiality,' is required to establish a constitutional violation leading to reversal of the conviction."); Jenkins v. State, 870 S.W.2d 626, 630 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) ("Regardless [of] whether the results of a field test are admissible, any possible error brought about by a failure to object to such testimony was rendered harmless upon the testimony of the police department's chemist."). We conclude that Portillo has not adequately shown that he was prejudiced by his trial counsel's inaction. See Strickland, 466 U.S. at 696.
3. Failure to Object to Autopsy Photographs
Portillo also contends that "trial counsel erred by failing to object to the admission of the autopsy photographs on the grounds that they were overly prejudicial under [Rule] 403" of the Texas Rules of Evidence. He further argues that "[t]he probability of at least a hung jury increases" when the photographs "are removed from consideration."
Rule 403 allows courts to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Tex. R. Evid. 403. "It must be remembered, however, that virtually all evidence proffered by a party to a lawsuit will be prejudicial to the opposing party." Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). "Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself." Rojas v. State, 966 S.W.2d 241, 249 (Tex. Crim. App. 1998).
Dr. Fernandez, the sponsoring witness for the ten autopsy photographs at issue, testified that the exhibits "are photographs from the outside of the body and some of the injuries on the body, and some of the medical treatment on the body." Portillo contends that some of the photographs "are particularly gruesome and inflammatory," and that others "are rank depictions of mutilations caused by the autopsy." We will assume without deciding that the photographs were inadmissible.
But even so, "[a] silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance." Johnson, 624 S.W.3d at 586. It is entirely possible that, given the court of criminal appeals' broad holding that "[a]utopsy photographs are generally admissible," Rojas, 966 S.W.2d at 249, trial counsel believed the evidence in question was admissible. If it is possible that counsel believed the evidence was admissible at the time it was admitted, we should not label his performance as ineffective. See Thompson, 9 S.W.3d at 814 ("It is possible . . . appellant's counsel at that moment may have reasonably decided that the testimony was not inadmissible and an objection was not appropriate."); see Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007) ("It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record."). We conclude that the record is insufficient to label counsel's failure to object to the autopsy photographs as ineffective.
4. Failure to Object to State's Closing Argument
Lastly, Portillo argues that his trial counsel was ineffective for failing to object to "inflammatory and improper" statements made by the State in its closing remarks. However, again, the record in this case is silent as to why Portillo's trial counsel failed to object to the State's comments during closing. See Mata v. State, 226 S.W.3d at 432.
"Closing arguments involve inherently tactical decisions that must be tailored to the strategy of the defense based on events that transpired during the trial." Ex parte Scott, 541 S.W.3d 104, 119 (Tex. Crim. App. 2017). "Accordingly, deference to counsel's strategic decisions during closing arguments is particularly important because of the wealth of legitimate strategies that can be employed, and those decisions will be second-guessed only if there is no plausible basis for the attorney's actions." Id. Here, instead of objecting to the State's comments during closing, trial counsel chose to emphasize in his own closing that the pathos of the case should not supplant the State's obligation to prove the elements of the charged offenses beyond a reasonable doubt. It could be that trial counsel reasonably believed an objection to the State's comments was unnecessary, as he had already addressed the underlying sentiment of those comments in his own closing. See id. Or trial counsel may have reasonably feared that objecting to the comments may have drawn additional attention to the State's comments, as the State would have had the opportunity to respond to his objection. See Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.-Austin 2013, pet. ref'd). On a silent record, it is not possible to determine why counsel failed to object to these comments.
"Therefore, [Portillo] has failed to rebut the presumption this was a reasonable decision." See Thompson, 9 S.W.3d at 814; see also Mata, 226 S.W.3d at 431 ("Although the Court of Appeals found there to be no conceivable reason for trial counsel to have failed to object to the State's improper argument, the fact remains that the appellate record is still silent as to why trial counsel failed to so object. Therefore, the appellant has failed to rebut the presumption that trial counsel's decision was in some way-be it conceivable or not-reasonable."). We overrule Portillo's sole issue on appeal.
III. Conclusion
We affirm the trial court's judgment.