No. 14-06-00877-CR
Opinion filed February 12, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 23rd District Court Brazoria County, Texas, Trial Court Cause No. 46,066.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
ADELE HEDGES, Chief Justice.
Appellant, Antonio Salazar, appeals from his conviction on three counts of indecency with a child by contact. A jury found him guilty and assessed punishment at five years imprisonment for the first count, ten years for the second count, and twenty years for the third count. On appeal, appellant contends that he received ineffective assistance of counsel at trial because counsel (1) failed to discover the existence of a videotape used to impeach appellant's credibility, (2) elicited testimony from complainant suggesting that appellant had committed an extraneous offense, and (3) made remarks during trial and closing argument that were damaging to appellant's case. We affirm.
I. Background
Complainant, B.C., who was fourteen years old at the time of trial, testified that in 1999, when she was six years old, appellant was dating her mother. She said that during that period of time, he molested her on two separate occasions. The first occurred at a New Year's Eve party at appellant's home. Complainant testified that appellant took her to a bedroom, removed her pants, and started touching her vagina through her underwear. He did this for about seven minutes then told her not to tell anybody, and she went back out to the others. About a month later, complainant went with her mother and sister to appellant's house after school. Appellant told complainant to go into the same room that he had taken her in before. Once in the room, appellant pulled her pants and underwear down and touched her vagina with his fingers. Appellant then pulled his own pants off and made complainant touch his penis. After about three minutes, appellant told complainant not to tell anyone what had happened or he would kill her. Complainant said that she acted like nothing happened after each episode because she was afraid and didn't want to die. Several years later, complainant revealed the assaults to two school counselors. Complainant testified generally that her family went to appellant's house on a regular basis while complainant's mother and appellant were dating. During cross examination, defense counsel questioned complainant about the fact that her mother had dated various men and moved the family around quite frequently. When counsel asked why the family had moved from one particular location, the following exchange occurred: A. Because my mom was scared.
Q. . . . What was she scared of?
A. Tony.
. . . .
Q. Tony Salazar?
A. Yes.
Q. Why is that?
A. She said that he raped her.
Further questioning revealed that complainant's mother had told her about this incident a few years previously but that complainant did not inform the police officers investigating the molestation charges, and no official action was ever taken regarding the alleged rape. During his testimony, appellant admitted that he had consensual intercourse with complainant's mother when she had brought beer to his house on his birthday. He asserted, however, that they did not "date" and that he never met complainant. When defense counsel specifically asked appellant whether he had raped complainant's mother, the following exchange occurred: A. No, sir. Why rape her if she came with beer to my house?
Q. Huh?
A. Why rape her if she came with beer to my house?
Q. Yeah, that's what I'm thinking.
Later, after both sides closed, the State revealed that complainant's mother claimed to have a videotape showing appellant and complainant together at a holiday gathering. The prosecutor stated that he had only very recently learned about the videotape. He further said that before appellant testified, he (the prosecutor) did not know that appellant was going to deny having been around complainant. Defense counsel responded that for three years, he had described appellant's insistence he had never been around complainant. The trial judge then instructed the prosecutor to have his investigator go to complainant's mother's house to view the videotape, see if it indeed showed what complainant's mother represented it as showing, and if it did, bring it back to court. Ultimately, the court permitted the tape to be played for the jury as rebuttal evidence. Appellant then testified that he did not remember the events shown on the videotape and reaffirmed that he generally had no contact with appellant. During closing argument, while discussing the inability of people to remember everything that happens to them, counsel began: "I'm going to tell you, you know, really when I went home last night after this, you know, I had read the case on the Jon Benet Ramsey slaying, you know. And I — ." The prosecutor then interrupted with an objection that the remark was outside the record, and the trial court sustained the objection. Defense counsel then stated: "You know, I told myself, I said, you know, '[g]ive the State two more days and Tony will be charged with some other crime,' you know." II. Discussion
In a single issue, appellant contends that he received ineffective assistance of counsel because his counsel (1) failed to discover the impeaching videotape, (2) elicited testimony suggesting an extraneous offense, and (3) made remarks damaging to appellant's case. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). In reviewing an ineffective assistance claim, an appellate court "must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland v. Washington, 466 U.S. 668, 689 (1984). Under the two-pronged Strickland test, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). This is particularly true when the alleged deficiencies are matters of omission and not of commission revealed in the record. Id. A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The case before us is not a habeas corpus proceeding, and appellant did not file a motion for new trial. A. The Videotape
Appellant first argues that he received ineffective assistance of counsel because his counsel failed to adequately investigate the case and prepare for trial. He bases this argument primarily on counsel's failure to discover the existence of the holiday videotape used to impeach appellant's testimony at trial. As stated above, the State offered the videotape at the close of trial as rebuttal evidence, asserting that complainant's mother revealed the existence of the tape immediately prior to trial. Appellant contends that defense counsel could have prevented admission of the videotape if he had requested discovery from the State and secured enforcement rulings from the court. Because no record regarding this rather irregular episode was developed in either a motion for new trial or mandamus hearing, we are left in a virtual information vacuum regarding exactly what occurred. During argument before the bench, the prosecutor claimed to have no idea that appellant was going to testify about never having even met complainant. Meanwhile, defense counsel represented to the court that he had repeatedly informed prosecutors about appellant's assertion. Furthermore, as mentioned above, the prosecutor told the court that he learned of the videotape's existence only on the previous Tuesday, but it is unclear whether he meant the day before the statement was made on a Wednesday or an entire week before. Additionally, in the absence of any evidence (developed in a mandamus or motion for new trial hearing) regarding exactly what counsel did to investigate the case and prepare for trial, it would be very difficult to say that such investigation and preparation was insufficient. See Jackson, 973 S.W.2d at 957; Jensen, 66 S.W.3d at 542. Under such circumstances, we are to indulge a strong presumption that counsel's conduct lies within the wide boundaries of sound trial strategy. See Strickland, 466 U.S. at 689. Accordingly, appellant has failed to demonstrate that his trial counsel was deficient in his pretrial investigation or preparation. B. Extraneous Offense
According to appellant's next contention, his counsel was ineffective because he elicited from complainant testimony that appellant had raped complainant's mother. Appellant contends that evidence of this alleged offense would not have been admissible if offered by the State and no reasonable trial strategy supports counsel's introduction of this evidence. In support of his arguments, appellant relies primarily upon Robertson v. State, 187 S.W.3d 475 (Tex.Crim.App. 2006), and Stone v. State, 17 S.W.3d 348 (Tex.App.-Corpus Christi 2000, pet. ref'd). In each case, the respective courts held defense counsel's performance to have been ineffective because counsel purposefully elicited testimony that the defendant was previously convicted of another offense. Robertson, 187 S.W.3d at 484-86 (prior conviction was for same type of offense); Stone, 17 S.W.3d at 353 (prior conviction was for different offense). Also, in both cases, the testimony would not have been admissible if offered by the State. Robertson, 187 S.W.3d at 483-84; Stone, 17 S.W.3d at 352. The courts each concluded that the performance at issue was deficient because admission of the evidence in question could have served no strategic end. Robertson, 187 S.W.3d at 484; Stone, 17 S.W.3d at 353. The circumstances of the present case, however, are distinguishable from those in Robertson and Stone. Appellant here does not argue or suggest that counsel knew or even should have known that complainant was going to answer his question by accusing appellant of having raped complainant's mother. The line of questioning leading up to this response appeared aimed at demonstrating that complainant's mother had a series of troublesome relationships with men, resulting in frequent family moves. There is nothing in the record to indicate that counsel was other than surprised by this testimony. There is certainly no indication that the testimony was part of an unreasonable trial strategy as hypothesized by appellant. Accordingly, we find no merit in appellant's arguments and do not find counsel's performance ineffective for eliciting this testimony under the circumstances of this case. C. Damaging Remarks
Lastly, appellant contends that his counsel was ineffective because he made several remarks during trial and during closing argument theoretically damaging to appellant's case. Specifically, appellant complains of comments (1) concerning the highly-publicized Jon Benet Ramsey murder case, (2) agreeing with appellant's position that he had no reason to rape complainant's mother because she had consented to sex with him, and (3) suggesting that the State may have been able to charge appellant with additional crimes but did not. We will discuss each set of remarks in turn. 1. Ramsey Case
During closing argument, while discussing the inability of people to remember everything that happens to them, counsel began: "I'm going to tell you, you know, really when I went home last night after this, you know, I had read the case on the Jon Benet Ramsey slaying, you know. And I — ." The prosecutor then interrupted to object to the comment as being outside the record, and the trial court sustained the objection. Appellant now contends that the very mention of the Ramsey matter "interjected an inflammatory and irrelevant element into the case" because it associated appellant's case with the Ramsey crime. In support of this position, appellant again cites primarily to Stone, wherein the court found ineffective assistance of counsel because defense counsel elicited testimony regarding a prior murder conviction that the prosecution could not have raised under the circumstances. 17 S.W.3d at 352-53. It is impossible to tell from the record before us, however, exactly what point counsel intended to make in raising the Ramsey case. To begin with, the remark was not completed because of the prosecutor's objection and the trial court's sustaining of that objection. Additionally, as mentioned, this is a direct appeal, and appellant did not file a motion for new trial; thus, we do not have the benefit of hearing the strategy or purpose for which counsel raised this highly-publicized murder case. See Jackson, 973 S.W.2d at 957; Jensen, 66 S.W.3d at 542. As also mentioned above, under such circumstances, we are to indulge a strong presumption that counsel's conduct lies within the wide boundaries of sound trial strategy. See Strickland, 466 U.S. at 689. Additionally, the Stone case is distinguishable from the present circumstances. In effect, the court in Stone held that introducing the defendant's prior murder conviction was so damaging to appellant's case, it could not have been a part of any sound trial strategy. 17 S.W.3d at 352-53. Merely mentioning a different, unrelated case certainly does not equate to the damaging type of conduct in Stone. In the face of a record silent as to counsel's strategy, the mentioning of the Ramsey case does not aid appellant's case for ineffective assistance of counsel. 2. Consensual Intercourse Remark
Appellant next complains that when appellant denied having raped complainant's mother — stating "Why rape her if she came with beer to my house?" — defense counsel stated "Yeah, that's what I'm thinking." Appellant specifically argues that counsel's remark was inflammatory and insensitive, while serving to validate appellant's "possible violent disposition." Again, the record is silent as to why counsel made the remark. However, it should be pointed out that counsel was faced with his client's having made the particular remark that he did. Counsel's options at that point were rather limited. Inherent in appellant's critique of counsel's response is the notion that counsel should have upbraided or chastised his client for the remark. Instead, counsel appears to have decided to basically make light of the remark by light-heartedly agreeing with it, perhaps thereby muting its impact on the jury. We fail to see how counsel's response was so obviously bad strategy as to render his representation ineffective. 3. Extraneous Offenses
Lastly, appellant complains that counsel stated, immediately after the court sustained the objection to the Ramsey case comment: "You know, I told myself, I said, you know, '[g]ive the State two more days and Tony will be charged with some other crime,' you know." Appellant argues, again referencing Stone, that counsel's statement suggests that appellant had committed other uncharged offenses. The more likely intent on counsel's part, however, was to suggest that the State was reaching when it charged appellant with the three separate offenses included in the jury charge. Because the record is also silent on counsel's strategy behind this remark, we default to the strong presumption that the conduct lies within the wide boundaries of sound trial strategy. Based on the record before us and the parameters of our review, we are unable to say that appellant received ineffective assistance of counsel. Accordingly, we overrule his sole issue. We affirm the trial court's judgment.