Opinion
No. 13-09-00163-CR
Delivered and filed April 22, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b)
On appeal from the 139th District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices BENAVIDES and VELA.
MEMORANDUM OPINION
A jury found appellant, Dimas Daniel Gonzalez Zamora, guilty of attempted capital murder, a first-degree felony, and capital murder. See TEX. PENAL CODE ANN. § 15.01 (Vernon 2003), § 19.03(a)(7), (8) (Vernon Supp. 2009). The jury assessed punishment at fifty-five years' imprisonment for the offense of attempted capital murder, and because the State did not seek the death penalty, the trial court assessed punishment for the offense of capital murder at life imprisonment without the possibility of parole. See id. §§ 12.31(a)(2), 12.32 (Vernon Supp. 2009). By six issues, Zamora contends that: (1) he received ineffective assistance of counsel; (2) the trial court erred in denying his request for a manslaughter instruction; and (3) the trial court erred in failing to instruct the jury that it must reach a unanimous verdict. We affirm.
I. BACKGROUND
Shortly after 10:00 p.m., on Tuesday, July 29, 2008, Maria Vargas, drove home from a soccer match in Pharr, Texas with her common-law husband, Amador Garibay, their three-year old daughter, Yaritza Garibay, and two friends, Christina Meza and Emiliano Alcazar. After driving a short distance, Vargas turned her yellow Volkswagen north onto Sugar Road off of Owassa Road. A white Ford Taurus that Vargas had noticed following her since leaving the soccer field passed and pulled in front of her Volkswagen and stopped. Two individuals exited the Taurus, fired repeatedly at Vargas's vehicle, re-entered the Taurus and drove away. Eighteen bullet casings and one bullet were later found at the scene. After the shooting ceased, the occupants of the Volkswagen realized that Meza was injured and that three-year-old Yaritza had been shot in the head. Yaritza was subsequently pronounced dead at Edinburg Children's Hospital. After conducting an investigation, Hidalgo County Sheriff's officers named Zamora as a suspect. On August 4, 2008, Investigator Fernando Tanguma spoke to Zamora's wife to determine Zamora's whereabouts. Investigator Tanguma testified that during their conversation, Zamora's wife received a call from Zamora on her cellular telephone. Zamora's wife asked him where he was and asked him to call Investigator Tanguma. Zamora's wife told Investigator Tanguma that the telephone number that Zamora called from appeared to originate in Monterrey, Mexico. Ten to fifteen minutes later, Zamora phoned Investigator Tanguma. Investigator Tanguma explained to Zamora that he was conducting an investigation and wanted to speak to him. Zamora denied having anything to do with the shooting and refused to tell Investigator Tanguma where he was. Over the next several days, Investigator Tanguma spoke to Zamora over the phone, and on August 7, 2008, Zamora informed Investigator Tanguma that he was on his way back from Mexico and that he was "going to turn himself into [sic] [Investigator Tanguma]." That afternoon, Investigator Tanguma received a call advising him that Zamora was detained at the port of entry in Hidalgo, Texas. Zamora was later released to Investigator Tanguma and transported to the Hidalgo County Sheriff's office. Zamora gave a statement to Tanguma that was admitted and read into evidence, without objection, during trial. Zamora's statement provides, in pertinent part, as follows:On Tuesday[,] July 29, 2008[,] . . . [a]t about 9:30 p.m. Favio [later identified as Juan Favio Chipres Torres, herein referred to as "Favio"] told me to take him to the soccer field because he wanted to see his girlfriend. We left with Liz and Jorge. I was driving the 1999 white Taurus[.] Favio was in the front passenger seat. Liz was sitting on the rear passenger seat and Jorge was sitting in the rear sear behind me. . . . Favio called someone on the phone when we were driving to the soccer field. We arrived at the soccer field and I parked on the west side of the parking lot. Favio told me that he was going to talk to his girlfriend and stepped out of the car. I saw Favio enter the indoor soccer field. Several minutes later[,] I decided to use the restroom. As I was getting out of the car I saw Favio walking back to the car. I asked Favio if he spoke to his girlfriend and he said he did. I walked into the restroom and then returned to the car. I remember that I saw a yellow Volkswagen parked in the parking lot of the soccer field. The car caught my attention because of the color. I got back into the car and Favio told me to leave. As I was driving out of the parking lot I noticed several other cars also leaving. I turned west on Owassa Road towards Expressway 281. As I got to the intersection of Expressway 281 and Owassa Road[,] I was about to turn south when Favio told me to continue west on Owassa Road. I remember several cars were in front of me. I got to the intersection of Owassa Road and Sugar Road[;] Favio told me to turn north on Sugar Road. Favio then told me to overtake the yellow Volkswagen. At the same time[,] I felt that Jorge placed a gun to my head because I felt the pressure of the barrel against my head. Favio yelled at me to stop in front of the Volkswagen and block it. I noticed that Favio was also pointing a gun at me. Favio said that they would kill me if I didn't do what they said. It was the [.]38 [S]uper with the engraving on it. I stopped in front of the Volkswagen and they stopped behind me. Favio and Liz got out of the car and started to shoot at the Volkswagon. Favio and Liz both returned back to the Taurus and tried to get into the front seat. They ran into each other and then Favio got into the front passenger seat, Liz got into the back seat. Favio yelled at me to drive off. Jorge kept the gun to my head. Favio and Jorge threatened me with the guns and said that they would kill me and my family if I didn't drive where they said. . . . I drove [n]orth on Sugar[,] then Favio made me turn left on Alberta Road. As I was driving west[,] Favio made me turn onto several streets. Jorge continued to threaten me with the gun pressing against my head. I remember that we almost were out of gas and the car started to stall so we went to the Stripes on Business 83 and 10th [S]treet. Favio gave me $20.00 to go inside and pay for gas. I returned and filled the car with $20.00 of gas. I then drove south on 10th Street to the Expressway. . . . Favio continued to threaten me and my family. . . . I then exited onto Shary Road . . . and drove into the Wal-Mart parking lot. I parked in the parking lot and Favio, Jorge, and Liz got out and walked over to McDonald[']s. After around twenty minutes, I called my wife[,] Monica[,] to come for me. Monica came and got me and we started to leave. Favio called me and told me to hold on. Favio, Jorge and Liz came back and got into my wife's Jeep. We then went back to our house.
On Wednesday[,] July 30th, in the morning[,] me and Favio went back to the Wal-Mart and picked up the 1999 Taurus. Favio said that it needed to be cleaned. That afternoon me and Monica took the two [.]38 Super pistols and a shotgun that belonged to Favio to my friend[']s house. Favio had wrapped the pistols in a white t[-]shirt and clear tape. Favio told me to take the guns over to Gilberto's house. Favio told me that he knew Gilberto could be trusted. Favio told me that I had to leave my [stepson] . . . at the house and indicated that harm would come to my step son if I did not deliver the guns to my friend. On that same date[,] my wife and I drove to Gilberto's house to leave the guns. . . . We arrived at Gilberto's house[,] and I told him that I was leaving out of town and asked him to take care of the guns. I was told by Gilberto that he would place the guns in the attic so his wife would not find them. . . . I then went back home and Favio told me to give Jorge and Liz a ride to the bus station and to not ask any questions. Jorge and Liz packed their bags[,] and I took my wife's Jeep and went to the [b]us station in McAllen to drop them off.
On Thursday, July 31, 2008[,] Favio told me we needed to leave to Mexico. My wife took me and Favio to the bus station in McAllen. We left to Monterrey[,] Nuevo Leon.On cross-examination, Investigator Tanguma testified that he had collected no evidence that Zamora fired shots at Vargas's Volkswagen on July 29, 2008. Vargas testified that sometime before the July 29, 2008 shooting, her friend, Jose Silva, was involved in a shooting at a "cock fight." Belsario Mendoza, a member of Zamora's brother-in-law's family, believed that Silva had shot at him during the fight. Vargas testified that Silva had been arrested and that she and Garibay bailed him out and helped him find an attorney. Vargas stated that on the Thursday evening before the shooting, Mendoza approached her at the soccer field and asked if she had a "problem" with him. Vargas replied that she did not. Vargas testified that Mendoza placed a telephone call to someone, though she was not sure to whom, after their encounter. Later that evening, Vargas noticed a man sitting alone in a truck in the parking lot of the soccer field "watching" her. Vargas testified that she did not recognize the man, but that she later saw a picture of Zamora on television and identified him as the man who had watched her in the parking lot. Vargas testified that she did not know Zamora but that she had been acquainted with his friend, Favio. According to Vargas, she had not spoken to Favio in nine or ten years, but she thought that she recognized him as one of the individuals who shot at her Volkswagen on July 29, 2008. On cross-examination, Vargas stated that she gave two affidavits to investigators and that the second affidavit does not identify Favio as a gunman or mention her encounter with Mendoza. The State presented the testimony of eleven additional witnesses. No witnesses were presented by the defense. After deliberation, the jury found Zamora guilty of attempted capital murder and capital murder. This appeal ensued.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In issues one through four, Zamora contends that he received ineffective assistance of counsel during the guilt-innocence stage of trial.A. Standard of Review
Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). To prove ineffective assistance of counsel, Zamora must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's error, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.). A failure to make a showing under either prong of the Strickland standard defeats a claim of ineffective assistance of counsel. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Zamora must prove his claim of ineffective assistance of counsel by a preponderance of the evidence. See Stafford v. State, 813 S.W.2d 503, 506 n. 1 (Tex. Crim. App. 1991). "In assessing a claim of ineffective assistance, an appellate court 'must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance; that is, the [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Williams, 301 S.W.3d at 687 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Whether the Strickland test has been met is to be judged on appeal by the totality of the circumstances, not by any isolated acts or omissions. Jaynes, 216 S.W.3d at 851. Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000) (noting that "only in rare cases will the record on direct appeal be sufficient for an appellate court to fairly evaluate the claim"). Trial counsel should ordinarily be afforded an opportunity to explain his or her actions before being denounced as ineffective. Goodspeed, 187 S.W.3d at 392. To warrant reversal without affording counsel an opportunity to explain his actions, "the challenged conduct must be 'so outrageous that no competent attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed, 187 S.W.3d at 392).B. Failure to Seek Duress Instruction
In his first issue, Zamora contends that he received ineffective assistance of counsel by trial counsel's failure to request a jury instruction on the affirmative defense of duress. Zamora argues that because trial counsel did not urge a motion to suppress or challenge the admission of Zamora's statement, "trial counsel's trial strategy must have been to adduce these facts in order to entitle Appellant to a jury instruction on duress." Zamora also argues that trial counsel's subsequent failure to seek an instruction on duress was not acceptable trial strategy. By asserting that counsel allowed Zamora's statement to be admitted in order to present the evidence necessary to support a duress instruction, Zamora encourages us to speculate as to the reasons counsel opted not to contest Zamora's statement. He then asks us to assume, based on the previous speculation, that he was entitled to an instruction on duress and that trial counsel was ineffective for failing to ask for a duress instruction. We will not engage in such speculation. See Bone v. State, 77 S.W.3d 828, 835-36 (Tex. Crim. App. 2002). Because Zamora did not file a motion for new trial and did not elicit any testimony regarding trial counsel's reasons for taking the complained-of actions, there is no evidence in the record that the actions of Zamora's trial counsel were not the result of sound and reasonable trial strategy. See Jaynes, 216 S.W.3d at 855. Without this specific evidence of trial counsel's decision-making process and strategy, we cannot conclude that Zamora has overcome the strong presumption that his trial counsel provided professional, objectively reasonable assistance. See Thompson, 9 S.W.3d at 813. Because Zamora did not establish that his trial counsel's performance fell below an objectively reasonable standard, he has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855. Zamora's first issue is overruled.C. Failure to Question Juror Number 3 Regarding Unauthorized Communication
In his second issue, Zamora asserts that he received ineffective assistance by trial counsel's failure to throughly investigate an unauthorized communication's affect on Juror Number 3. During the lunch break on the first day of testimony, a member of Zamora's family asked Juror Number 2 if she could borrow Juror Number 2's cell phone. A hearing was conducted to determine the communication's affect on Juror Number 2. At the hearing, Juror Number 2 stated that she was with Juror Number 3 during a break when a female asked to use her phone. Not realizing that the female was a member of Zamora's family, Juror Number 2 complied; however, upon realizing that she had spoken to a member of Zamora's family, Juror Number 2 notified the court. Juror Number 2 informed the trial court that because a call had been placed from her phone she felt "nervous." She also asked to be removed from the jury because she "really [didn't] want to be identified, or have anybody be able to connect [her] with a serious case like this one." Trial counsel requested that the trial court disable Juror Number 2, the State agreed, and the trial court replaced her with an alternate juror. The trial court then called Juror Number 3 and questioned her as follows:The Court: Did you have any type of problems during lunch? You foresee any problems during lunch?
Juror [Number 3]: Not really. Just somebody came up to me and talked to me about my hair. That it was real nice and —
The Court: But that's not going to influence you in any way?
Juror [Number 3]: No.
The Court: You don't know who it is?
Juror [Number 3]: No.
The Court: You don't have any connection about anybody?
Juror [Number 3]: No.The State and trial counsel informed the trial court that they did not have any questions for Juror Number 3, and no one requested that she be disabled. On appeal, Zamora argues that trial counsel was ineffective for failing to question Juror Number 3 to determine whether she was affected by the unauthorized communication. According to Zamora, trial counsel's "failure to investigate" Juror Number 3 allowed her "to taint the rest of the jury by the same fear and bias that disabled [J]uror [N]umber 2." The record reflects that Juror Number 3 told the trial court that she had not seen any problems during lunch and gave no indication that she shared, or was aware of, Juror Number 2's fear or bias. The record is silent regarding trial counsel's reason for not questioning Juror Number 3, and Zamora has failed to overcome the strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Zamora's second issue is overruled.
D. Extraneous Offense
In his third and fourth issues, Zamora contends that he received ineffective assistance of trial counsel because counsel "opened the door" to the State's inquiry about a previous attempted murder conviction and failed to seek an "adequate" limiting instruction.1. Pertinent Facts
During its case-in-chief, the State called Veronica Sanchez, who testified that sometime after July 29, 2008, she gave consent to police to search her home for guns believed to have been used in the shooting. During cross-examination, trial counsel asked Sanchez if she knew Zamora to be a violent person. On re-direct examination, the State asked Sanchez whether she was aware that Zamora had been convicted of attempted murder. Trial counsel immediately objected, and the State responded that trial counsel had "opened the door" to this line of questioning. The trial court discussed the objection with counsel outside the jury's presence, and, at the State's request, the trial court agreed to withdraw the question, strike it from the record, and instruct the jury to disregard it. Trial counsel responded that an instruction to disregard would not remedy the problem and requested a mistrial. Trial counsel's request was denied. The trial court then instructed the jury:Ladies and gentlemen of the jury, we took a break. There was an issue that already — that was for me to determine, and basically, what I'm going to tell you right now is the questions are not evidence. I don't know if I mentioned that to you before. Questions can never be evidence, okay?
Last question was [sic] asked is not evidence. You cannot — I'm going to instruct you you cannot infer anything about it. You cannot speculate or guess anything about it. Okay. So get that question out of your mind. There was no answer anyway.2. Analysis Zamora contends that "opening the door" does not constitute reasonable trial strategy, and that trial counsel was ineffective for failing to "demand a sufficient limiting instruction." The State agrees that trial counsel opened the door to the admission of evidence of Zamora's prior conviction by asking Sanchez if she had ever known Zamora to be violent. However, the State argues that the trial court's instruction to disregard cured any error made by trial counsel. Zamora did not file a post-judgment motion for new trial; therefore, the record is silent on trial counsel's reasons for asking Sanchez whether she was aware of Zamora's criminal history. Assuming, without deciding, that trial counsel opened the door to the State's questioning of Sanchez and that trial counsel's action constituted deficient performance, Zamora has not shown by a preponderance of the evidence that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687. The trial court instructed the jury to disregard the question after the State questioned Sanchez about her knowledge of Zamora's alleged prior conviction. We generally presume that an instruction to disregard cures any harm flowing from the error. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000). To refute this presumption, the appellant must point to evidence in the record that demonstrates that the jury failed to follow the trial court's instructions. Thrift, 176 S.W.3d at 224; see Phillips v. State, 130 S.W.3d 343, 356 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (holding that when the record shows no evidence to the contrary, an appellate court assumes the jury followed the trial court's instruction to disregard). Zamora points us to nothing in the record to suggest that the jury was in any way persuaded or affected by the State's question. Therefore, we see no evidence that but for trial counsel's opening the door to the State's question and alleged failure in requesting an "adequate" limiting instruction, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687. Zamora's third and fourth issues are overruled.