Opinion
04-21-00260-CR
04-26-2023
Norberto ADAME, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2019CRB000094D2 Honorable Monica Z. Notzon, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
LORI I. VALENZUELA, JUSTICE
A jury convicted Norberto Adame of murder and aggravated assault with a deadly weapon. The jury assessed punishment at twenty years and ten years confinement, and the trial court ordered the sentences to run concurrently. On appeal, Adame asserts four issues: (1) the trial court violated Adame's due process by denying his ex parte motion for funds to retain a medical expert; (2) the trial court erred in limiting his medical expert's testimony on the insanity defense and, as a result, the jury was never instructed on the insanity defense; (3) ineffective assistance of counsel; and (4) Adame was denied a fair trial after a juror withheld information at voir dire. We affirm.
Background
Adame was with friends at a night club in Laredo, Texas. Around 2 a.m. on November 2, 2018, a fight broke out in the club's parking lot. During the fight, Adame was beaten by a group of men. One of Adame's alleged assailants was the deceased, Jose Jesus Martinez. As police arrived on the scene, the fight broke up and participants fled in vehicles. Police saw a maroon Dodge Charger and a white Lincoln MKZ leaving the scene.
Fifteen minutes later, a 911 dispatcher received a call reporting a shooting. Police arrived to find a black Chrysler 300 littered with twenty-four bullet holes stretching from the front of the vehicle to the rear. Covered in blood, Martinez took his last breath in the presence of a responding officer. The driver of the Chrysler 300, Lesther Julian Castro, was also shot in the wrist and was found bleeding with his hand dangling from his arm.
Police collected surveillance video from local businesses, including one from a Stripes corner store near the location of the shooting. The Stripes video captured all three of the vehicles- the white MKZ, maroon Charger, and black Chrysler 300-seconds before the shooting. The video shows the black Chrysler 300 hastily turning right at a red light; seconds later, the white MKZ and maroon Charger stop side-by-side at the light. A person in the maroon Charger is seen handing an AR-15 long rifle through the window to a person in the white MKZ. The two cars then turn right, and less than ten seconds later, at least twenty-eight shots are heard off-camera.
Castro, the driver of the black Chrysler 300, testified at trial. According to Castro, he went to the night club around midnight with two female friends and stayed until around 2 a.m. After walking his friends to their cars, he noticed a fight had broken out after he left and recognized one of the participants as Martinez. Castro drove to the front of the club to check on Martinez, and when the police arrived, Castro offered Martinez a ride. According to Castro, the two decided to attend an after party. When they reached an intersection, a maroon Charger pulled up next to them.
Martinez warned Castro that the occupants of the maroon Charger were "the guys" from the fight. The driver of the maroon Charger lowered the windows and began "talking smack" to Castro. When the light turned green, Castro continued driving. The maroon Charger ended up in front of Castro, and Castro passed the car after it slowed down.
Moments later, Castro noticed the car was smoking. While he could not hear gunfire over the loud music in his car, he realized he had been shot. He took a panicked right turn and pulled to the side of the road to call 911. From the front of the car, Castro called for Martinez, who responded in "gurgling" noises "like whenever you have water in your mouth."
At trial, the State called expert witnesses to corroborate Castro's testimony. Chrystina Vachon, a forensic scientist out of Bexar County, determined that there was gunshot residue present in the Charger but not the Chrysler 300. Ballistic analyst Sean Daniel matched the bullet casings and slugs to the rifle. Former Webb County Medical Examiner Dr. Corrine Stern confirmed that Martinez died from the gunshot wounds he sustained. She also found blood in the chest cavity, explaining Martinez's aspiration and the resulting "gurgling" noise.
During his case-in-chief, Adame took the stand in his own defense. He testified that prior to the day of the incident, Martinez and others had threatened him on Facebook and Snapchat. According to his testimony, on the night of the incident, Martinez stared at him in the club, which he took as a threat. As Adame exited the club, he noticed "a lot of people" coming towards him, and the group of men eventually began hitting him. Adame recalled little of what happened between the fight and being in the backseat of the car. He recalled seeing weapons in Martinez's car, which made him feel threatened. He testified that he fired the weapon that appeared between his legs, but he only "wanted to scare them." Adame did not remember much of what happened after the shooting.
Adame also called an expert witness, Dr. Javier Cantu, on his behalf. Cantu testified that he had reviewed Adame's medical records, but "significant deficits" in the emergency room doctors' evaluation made it impossible to diagnose Adame for traumatic brain injury. Specifically, Cantu identified a plethora of exams used to identify or diagnose traumatic brain injury and stated, based on his review of Adame's medical records, that they were not performed. Adame also sought to have Cantu testify "why" the tests were not performed; however, the trial court excluded that testimony as irrelevant and speculative.
The jury found Adame guilty on both counts, and assessed punishment at twenty years and ten years, which the trial court ordered to run concurrently. This appeal followed.
Denial of Motion for Funds to Retain Medical Expert
In his first issue, Adame contends the trial court erred by denying his motion to approve expenses for a testifying expert witness, violating his right to due process.
Applicable Law
We review the trial court's ruling for abuse of discretion. Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998); see also Cameron v. State, 630 S.W.3d 579, 597 (Tex. App.-San Antonio 2021, no pet.). The State must provide a defendant with the "basic tools" to present a defense, but it is not required to purchase for an indigent defendant all the assistance that their "wealthier counterparts might buy." Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App. 1995) (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). In determining whether an expert witness should be considered a basic part of a defense in a given case and should therefore be appointed and approved for expenses, we examine three factors: (1) the private interest that will be affected by the action of the State; (2) the State's interest that will be affected if the safeguard is provided; and (3) the probable value of the additional procedural safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Id. (citing Ake, 470 U.S. at 77). With respect to the private interest, a defendant's interest in the accuracy of a proceeding where their life or liberty is at stake weighs heavily in the analysis. Id. The second factor addresses the State's concern for judicial economy, but it is not as substantial as the State's interest in an accurate outcome at trial. Id.
The third factor, which is the weightiest, places the burden on the defendant to show how the expert at issue would assist in his defense before being entitled to the appointment of the expert. Griffith, 983 S.W.2d at 286-87. In order to make this showing, the defendant must provide the trial court with information about what evidence will be presented against the defendant and how the expert will assist the defendant in rebutting such evidence. Rey, 897 S.W.2d at 341; see Cameron, 630 S.W.3d at 597. The defendant must offer more than vague, conclusory, or undeveloped assertions that the requested assistance would be beneficial. Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997); see Cameron, 630 S.W.3d at 597. The central question is whether the defendant can show the failure to appoint the requested expert would create a high risk of an incorrect verdict. Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999). In general, courts have concluded a defendant did not make such a showing if the defendant failed to (1) support their motion with affidavits or other evidence in support of their defensive theory, (2) explain the theory or why expert assistance would be helpful in establishing it, or (3) show there was a reason to question the State's expert and proof. Rey, 897 S.W.2d at 341; Cameron, 630 S.W.3d at 597.
Analysis
We find the third factor-the probable value of the expert assistance sought and the risk of error in the proceeding if such assistance is not offered-dispositive here. Regarding the substance of the Ake motion, Adame provided the following explanation for why expert assistance would be helpful:
Factual Matters which May Raise Insanity and Mental Illness as Mitigating Punishment Evidence.
On the date of the alleged offense, Defendant in this case was brutally assaulted by a group of men who intended to cause severe bodily injury. The attack was unprovoked and resulted in severe head injuries and brain trauma to Defendant. The assault, which is caught on video and substantiated by eye-witnesses, included the audible firing of a weapon and direct death threats made to Defendant. This assault ceased on the scene only because police units arrived to disperse the attackers. Nevertheless, the evidence will show that Defendant and the other victims of the assault were pursued by the deceased and, arguably, several other individuals seeking to continue the assault and/or carry out their death threats. This continuous threat to the life and safety of Defendant, coupled with the severe brain trauma he had just suffered, makes the basis of Defendant's defenses - self-defense and temporary insanity. [Footnote:] It will be shown at trial that due to the severe brain trauma, defendant lacked the requisite mental state to establish the offense of Murder. Furthermore, Defendant will show that it was his subjective belief, whether real or delusional due to the brain trauma, that his life was in imminent danger, such that he was justified in defending himself.
Need for Expert Assistance: Potential Insanity Defense
Without psychological expert assistance, counsel cannot know whether a person with the Defendant's mental health problems would be legally insane under the circumstances of this case. Furthermore, only an expert can convey the mitigating quality of the Defendant's mental illness or explain what the Defendant was likely experiencing at the time of the offense.
Notably, the motion was not supported by affidavits or evidence of the defensive theory other than a verification by defense counsel the "foregoing was true and correct."
Although Adame sought funds to employ an expert on traumatic brain injury in support of his defensive theories, Adame secured at least three experts without state-provided funds. The first expert Adame retained was a consulting expert whose identity was not (and need not be) disclosed. In an affidavit attached to Adame's November 8, 2019 motion for continuance-filed prior to the March 13, 2020 Ake motion-defense counsel requested a continuance on the basis that Adame required a testifying expert "able to work with Defendant's consulting expert to prepare for expert medical testimony" constituting Adame's defensive theories because "the anticipated testifying expert has notified the defense that he/she will be unavailable to testify in this case." For either logistical or strategic reasons, Adame chose not to designate his consulting expert to testify at trial. However, due process under Ake does not require the provision of funds to secure additional experts because Adame decided not to designate his consulting expert as a testifying expert. See Busby, 990 S.W.2d at 271 (concluding trial court could have reasonably found appointment of additional expert unnecessary where existing expert could adequately assist appellant on an issue).
Less than a month later, Adame retained an undesignated and undisclosed testifying expert. In his December 6, 2019 second motion for continuance, Adame stated, "An expert physician that Defendant sought has been retained but has yet to be designated or disclosed" (emphasis added). It is unclear from the record why Adame's designated expert was not designated, although the State suggests Adame was impermissibly shopping for an expert. See Ex parte Jimenez, 364 S.W.3d 866, 877 (Tex. Crim. App. 2012) ("Nor is a defendant entitled to choose an expert of his own personal liking or one who will agree with his defense theory. A defendant does not have a due-process right to shop for experts-at government expense-until he unearths a person who supports his theory of the case.") (internal quotations omitted).
Over a year later at a January 28, 2021 pretrial hearing, Adame's counsel stated:
I know that we might -- we had motions, and there had been some issues with retaining of the expert, and I have finally found one that I think will stick. The retainer amount is almost fully collected. So, I think that I'm going to be designated [sic] a medical expert very soon, probably early next week. So, I just need to make sure that that is on the record because I know that we had requested it on an ex parte basis. We had previously tried to retain an expert and to no avail. It was too expensive. My client doesn't have that much money, but thank God because of this delay due to the pandemic my client has able to save up some money and now we can.
One week later, Adame designated Cantu as an expert, and later, Adame called Cantu to testify at trial. Given Adame's retention of two experts that could have been designated and one expert that testified at trial on the subject of the Ake motion, we hold there was no probable value in securing an additional expert to testify on the same subject matter. See Jimenez, 364 S.W.3d at 876-77. Coupled with Adame's failure to carry his burden to demonstrate a need for the expert under the third Ake factor, we cannot conclude the trial court abused its discretion in denying Adame's request for funds under Ake. See Cameron v. State, 630 S.W.3d at 597-98. We overrule Adame's first issue.
Exclusion of Expert Testimony
In his second issue, Adame contends the trial court erred by limiting Cantu's testimony, thereby preventing Adame from establishing his insanity defense. By limiting that testimony, Adame argues he was unable to include an insanity defense instruction in the jury charge.
Adame's appellate briefing focuses on Cantu's qualifications and the reliability of his expert opinion. However, the trial court did not exclude testimony on those grounds; rather, the trial court specifically excluded certain testimony as irrelevant and speculative. Nevertheless, construing Adame's briefing as addressing relevance, Adame argues:
Dr. Cantu was to testify as to whether based on [Adame's] medical records he would be able to identify a traumatic brain injury, testimony which [Adame] was to rely on so as to establish his defense. Dr. Cantu was also to testify as to what particular exams were not performed on [Adame] which would have identified and diagnosed a traumatic brain injury. And because these exams were not done, there was no way to determine whether [Adame] was suffering from traumatic brain injury and whether that brain injury caused [Adame] to lack the requisite mental state to commit the offense of murder because it was [Adame's] subjective belief, whether real or delusional, that his life was in imminent danger
which would have justified him defending himself. [Emphasis added.]
The trial court overruled the State's objection to this testimony, and Cantu testified to the jury that Adame's medical records did not reflect the requisite testing to identify and diagnose traumatic brain injury.
In apparent contradiction of Adame's statement that there was no way to determine whether he suffered from traumatic brain injury, Adame then argues in the following paragraph, "[S]aid testimony would have demonstrated that [Adame] was suffering from a traumatic brain injury or had a traumatic brain injury that went undiagnosed which would have gone to Appellant's defense" (emphasis added). But by Cantu's own testimony and admission, Adame's medical records did not and could not support a determination that he suffered from traumatic brain injury, and Cantu's testimony was exclusively reliant on Adame's medical records because Cantu did not interview or assess Adame. We cannot say the trial court erred in excluding this testimony as irrelevant and speculative. Consequently, the trial court did not err in excluding from the charge the insanity defense instruction predicated on the medical expert's testimony. See Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) ("[W]e review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal."). We overrule Adame's second issue.
Ineffective Assistance of Counsel
In his third issue, Adame asserts a violation of his constitutional right to effective assistance of counsel because trial counsel failed to act as a reasonably competent attorney in light of the trial court's denial of Adame's Ake motion.
Applicable Law
A defendant is entitled to effective assistance of counsel under the United States Constitution and the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10. To establish ineffective assistance of counsel, the appellant must show: (1) that trial counsel's assistance fell below an objective professional standard of reasonableness and (2) that counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Concisely outlined by this court, a defendant must demonstrate deficient performance and prejudice. Vega v. State, 610 S.W.3d 79, 82 (Tex. App.-San Antonio 2020, no pet.). An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. (quotation marks omitted).
"To establish deficient performance, an appellant must show counsel's assistance fell below an objective standard of reasonableness." Id. (quotation marks omitted). "An appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. (quotation marks omitted). "[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quotation marks omitted). "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quotation marks omitted). "If no reasonable trial strategy can justify counsel's choices or conduct, performance necessarily falls below an objective standard of reasonableness." Id. "However, few cases demonstrate such deficiency on direct appeal because the record is unlikely to include any explanation by trial counsel, and we can [frequently] conceive potential reasonable trial strategies that counsel could have been pursuing." Id. at 82-83 (quotation marks omitted).
In Ex Parte Briggs, the Court of Criminal Appeals identified several options a reasonably competent attorney could undertake when a defendant cannot pay the remainder of an expert fee or additional money for medical experts:
1. Subpoena all of the doctors who had treated [the deceased] to testify at trial [about how the deceased had died]. Introduce the medical records through the treating doctors and elicit their expert opinions;
2. If counsel was convinced that [defendant] could not pay for experts to assist him in preparation for trial or to provide expert testimony, withdraw from the case, explaining to the court that applicant was now indigent, prove that indigency (as was done in the writ proceeding), and request appointment of new counsel;
3.Remain as counsel with the payment of a reduced fee, but request investigatory and expert witness fees from the trial court for a now-indigent client pursuant to Ake v. Oklahoma.187 S.W.3d 458, 468 (Tex. Crim. App. 2005).
Analysis
According to Adame, trial counsel was deficient because he did not undertake one of the three Briggs courses of action. We disagree. We first note the three options identified in Briggs are not the exclusive options for an attorney where a defendant cannot afford to pay the remainder of an expert fee or obtain additional money for medical experts. See id. And the facts in Briggs are immediately distinguishable from those here.
In Briggs, the court stated, "[Defendant's] trial counsel's financial decision to do nothing about the obvious need to develop evidence concerning [the deceased's] medical history did not reflect reasonable professional judgment. This was not a 'strategic' decision made after a full investigation of the facts and law." Id. at 469. But here, the record reflects trial counsel's decisions were strategic rather than financial. Trial counsel retained a consulting expert and undertook "a full investigation of the facts." See id. Indeed, Adame's first motion for continuance recited that he sought a testifying expert to work cooperatively with his consulting expert to develop Adame's defense for trial presentation. As discussed above, Adame retained at least three experts, and designated one, Cantu, to testify at trial. One week before Cantu's designation, Adame's counsel represented on the record that the delay caused by the pandemic allowed Adame "to save up some money" to retain an expert.
Thus, unlike in Briggs, Adame's retained trial counsel's decision not to withdraw or reduce his fee does not reflect a "financial" decision by trial counsel to do nothing about an obvious need to develop evidence. Adame's trial counsel thoroughly investigated his defensive strategy; filed an Ake motion in support of funds; and, after saving up enough money due to the delay caused by the pandemic, retained a testifying expert who testified that the tests performed on Adame at the emergency room were insufficient to determine whether he suffered from a traumatic brain injury.
Adame also argues trial counsel should have subpoenaed all of Adame's treating doctors to testify at trial and introduce their expert opinions. This argument misperceives Briggs, which stated reasonably competent counsel under the facts of that case could have subpoenaed doctors who treated the deceased because "[t]he sole issue in this case was: How did [the deceased] die? Was his death a homicide or was it the result of natural causes, exacerbated by improper medical treatment?" Id. at 468.
On this record, Adame cannot overcome the strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance. See Vega, 610 S.W.3d at 82. Absent such a showing of deficient performance, Adame cannot establish trial counsel's ineffectiveness. We overrule Adame's third issue.
Juror Bias
In his fourth issue, Adame contends the trial court violated his constitutional right to an impartial jury and fair trial by overruling his objection to a juror's continued service after it was determined the juror knew information pertaining to the investigation.
Applicable Law
A defendant is entitled to a trial before an impartial jury. U.S. Const. amend. VI; Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004). Where a juror withholds material information during the voir dire process, the parties are denied an opportunity to exercise peremptory challenges and challenges for cause, thus hampering their selection of a disinterested and impartial jury. Id. (citing Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978)). Material information is information of a type that had "any potential for bias or prejudice." See Decker v. State, 717 S.W.2d 903, 907 (Tex. Crim. App. 1983); see also Tex. Code Crim. Proc. art. 35.16(a)(9) (authorizing challenge for cause for jurors with bias or prejudice in favor of or against the defendant). To determine materiality, we evaluate whether the withheld information would likely reveal the juror harbored a bias or prejudice to such a degree that the juror should have been excused from jury service. Anderson v. State, 633 S.W.2d 851, 853-54 (Tex. Crim. App. 1982).
Analysis
During voir dire, the prosecutor first asked the juror, "[B]ased on your experience as an officer, if it's a complicated case are there going to be a lot of police detectives and officers involved." The juror responded, "Yes, sir." Throughout the remainder of the voir dire, the prosecutor asked the juror questions relying on his experience as a law enforcement officer to relate the burden of proof in criminal matters and police training on use of deadly force.
On the third day of trial, Adame raised the issue of juror bias or prejudice with the trial court: "[T]here is an officer on the jury, and it has come to our attention that he has inside-personal material information about this case, and those are facts that I think he learned whether in doing his job or by way of his friends . . ." After discussing the parameters of meeting with the juror, the trial court brought lead counsel from each side into chambers to question the juror.
The trial court asked the juror whether he was privy to any information about this case as part of his job. The juror responded, "No, Judge. I'm assigned to the Traffic Division." In substance, the juror explained he was familiar with the type of street diagram that was discussed by a witness the previous day, but not "the actual case." He explained that his division creates diagrams of streets "after everything"-that a team goes to the location and takes measurements so that the office can create a diagram or map. The State asked, "Did you have any participation or did you create the diagram in this case at all?" The juror responded, "No, but that's certainly the types of diagram that we do." Defense counsel asked, "What diagram are you talking about then?" The juror responded, "The last one that Sergeant Monica Casarez talked about, you know, we do it through laser and satellite." Defense counsel followed up, "You helped with that one?" The juror responded, "No. Not this case. We, basically have a team of 16 officers. The first three or four officers that get called are going to work on that." The juror confirmed to the trial court that he was not involved in this case in any way and that he could still be a fair and impartial juror. Defense counsel then asked whether he heard any specifics about this case from coworkers. The juror responded that he just heard general information "like 'yesterday somebody got shot over here or over there.'" In response to the court's questioning, the juror confirmed he had not heard any information that would not be available to the general public in the news.
On appeal, Adame asserts the juror did not disclose his knowledge of the case in response to the prosecutor's question of whether any jurors knew any of the individuals at the tables. According to Adame, the juror should have disclosed "that he knew [Adame] or was familiarized with him or the investigation of his case from having worked on or heard of his case from work before trial." But the record does not support Adame's contention that the juror knew Adame or was familiar with either him or the investigation. We cannot say the information revealed in the juror's answers in chambers revealed the juror harbored a bias or prejudice to such a degree that he should have been excused from jury service. See Anderson, 633 S.W.2d at 853-54; see also State v. Morales, 253 S.W.3d 686, 693 (Tex. Crim. App. 2008) (trial court not required to grant for-cause challenge against a prospective juror who is an assistant district attorney in the same office that is prosecuting the defendant, but who has no personal involvement in that prosecution).
We accordingly hold the juror did not withhold material information. We overrule Adame's fourth issue.
Additionally, the record reflects the parties knew the juror was a member of law enforcement, but defense counsel did not inquire about the juror's potential knowledge or involvement during voir dire. See Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex. Crim. App. 1999) (error requires selection of prejudice or biased juror without fault or lack of diligence on the part of defense counsel).
Conclusion
Having overruled Adame's issues, the judgment of the trial court is affirmed.