Opinion
NO. 14-19-00342-CR
03-02-2021
LUIS JOEL AGUILAR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Cause No. 1544393
MEMORANDUM OPINION
Appellant Luis Joel Aguilar appeals his conviction for robbery. After appellant pleaded not guilty, a jury found appellant guilty, and the trial court assessed punishment at twenty-five years in prison. In his sole issue on appeal, appellant contends that he received ineffective assistance of counsel from his trial counsel during both the guilt-innocence and punishment phases of trial. We affirm.
Background
Complainant testified that on the morning of March 14, 2017, she was sitting in her car in the parking lot of her place of employment talking on her phone when appellant opened the passenger door of her car and grabbed her purse, which was sitting in the passenger seat. Appellant was moving quickly, said, "I have a gun," and told complainant to give him her phone. Complainant then got out of the vehicle and started screaming. Appellant got into a dark-colored Jeep with paper license plates that was parked next to complainant's car and drove away. Complainant said that her wallet, credit cards, and a bracelet were in the purse at the time. A few days later, a police officer showed complainant a photographic lineup, and she specified the person whom she believed had robbed her. The photograph she chose was a picture of appellant. Complainant also identified appellant in the courtroom as the person who had robbed her, and she identified items in a photograph as her items that the police had recovered.
Deputy Harris County Constable Gonzalez testified that on March 15, 2017, he was responding to a report of a stranded motorist that became a request for assistance on a report of a stolen vehicle. At the scene, he saw appellant changing a tire on a dark-colored Jeep in the middle of the road. Inside the Jeep, officers found several credit cards and identification cards on the floorboards that did not belong to appellant.
Sergeant Coleman with the Harris County Sheriff's Office testified that he obtained a photograph of appellant and placed it in a photographic lineup "along with five other photographs of males [of] similar facial characteristics and age." Coleman noted that appellant had a tattoo on the right side of his face. To compensate for this, Coleman took a pencil and shaded the area of the tattoo on the photograph of appellant, and he made a similar marking on each of the other photographs in the lineup. When shown the lineup on March 16, 2017, complainant identified the photograph of appellant as being of the person who robbed her.
Deputy Abeid of the Harris County Sheriff's Office testified that he interviewed complainant at the scene of the alleged robbery and received a description of the assailant from her. He also obtained surveillance video for the parking lot from the time of the robbery. The video was played for the jury, and Abeid testified that it showed a Jeep vehicle moving around the parking lot and backing in beside the complainant's car. However, the robbery occurred too far from the camera to be captured on the video. During cross-examination, Abeid confirmed that complainant was quite upset in the aftermath of the robbery.
During the punishment phase, the State introduced evidence that appellant had committed several extraneous offenses, including using complainant's credit cards after the robbery, as well as committing other robberies. The State also established appellant had been convicted of prior offenses. The trial court assessed appellant's punishment at 25 years in prison.
Standards of Review
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). Claims of ineffective assistance of counsel are evaluated under the two-pronged Strickland test that requires a showing that counsel's performance was deficient and the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 689 (1984); see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Essentially, appellant must show his counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 693; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In most 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). A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing. DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
Judicial scrutiny of counsel's performance must be highly deferential, and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel's actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is appellant's burden to rebut this presumption by a preponderance of the evidence, through evidence illustrating why trial counsel did what he did. Id.
A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). It is not sufficient for the appellant to show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Rather, to establish that the attorney's acts or omissions were outside the range of professionally competent assistance, appellant "must show that counsel's errors were so serious that he was not functioning as counsel." Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995). We may not assume a lack of sound trial strategy on the part of trial counsel merely because we are unable to discern any particular strategic or tactical purpose in counsel's trial presentation. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent . . . . [A] defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.").
If appellant proves his counsel's representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Analysis
Appellant makes several arguments about his attorney's performance in both the guilt-innocence and punishment phases of trial. In the guilt-innocence phase, appellant contends that his counsel's performance was deficient in that counsel failed to challenge an out-of-court identification of appellant by complainant despite the photographic lineup being suggestive and counsel asked limited questions to certain witnesses, failed to object to the admission of a video into evidence, and failed to point out that the robber's face could not be seen in the video. In the punishment phase, appellant complains that his counsel failed to challenge the evidence of extraneous offenses the State presented and did not attempt to "map out" the locations where the offenses allegedly occurred to confirm whether it was possible that appellant could have committed all the offenses. Appellant further complains that his counsel asked the judge during the punishment phase to confirm the range of punishment under consideration. We find no merit in any of these contentions.
The identification. As stated, appellant first asserts that his counsel's performance was deficient because he failed to challenge complainant's out-of-court identification of appellant from a photo lineup either by objecting during trial or filing a pretrial motion to suppress. Appellant asserts that the photo lineup was impermissibly suggestive and that it tainted complainant's in-court identification of appellant as the person who robbed her.
When an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show, as part of his claim, that the evidence was, in fact, inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). A pretrial identification procedure may be so suggestive and conducive to mistaken identification that using the identification at trial would deny the accused due process of law. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Fisher v. State, 525 S.W.3d 759, 762 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). When determining the admissibility of a pretrial identification, we apply a two-step analysis, first asking whether the pretrial procedure was impermissibly suggestive and, if so, then asking whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification. Fisher, 525 S.W.3d at 762. The analysis under these steps requires an examination of the totality of the circumstances surrounding the particular case. Conner, 67 S.W.3d at 200. We review de novo whether an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification, but we review historical issues of fact in the light most favorable to the trial court's ruling. Loserth v. State, 963 S.W.2d 770, 773-74 (Tex. Crim. App. 1998).
In the first step in the analysis, it is the defendant's burden to establish by clear and convincing evidence that the pretrial procedure was impermissibly suggestive. Balderas v. State, 517 S.W.3d 756, 791-92 (Tex. Crim. App. 2016). Suggestiveness may result from the manner in which a pre-trial identification procedure is conducted; the content of the line-up itself, as when the suspect is the only individual closely resembling the pre-procedure description; or the cumulative effect of the procedures and photographs used. See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Every photo lineup must generally contain photographs of individuals who roughly fit the description of the suspect. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). However, neither due process nor common sense requires exactitude. Id.
Appellant asserts that the photo lineup in this case was impermissibly suggestive for two reasons: (1) Officer Coleman used a marker to obscure appellant's facial tattoo and made similar marks on the other photographs, and (2) the other individuals whose photos appeared in the lineup did not resemble appellant in terms of "coloring, race, ethnicity" or any other relevant factor. Appellant, however, does not offer any specific analysis as to how the markings on the photographs or the physical appearances of the other individuals were suggestive. The photo lineup is, of course, in the appellate record. Each of the other six photos in the lineup has shading on the right cheek of the subject, as in appellant's photo. Each of the other subjects has a similar hair color and hair style to appellant's; each appears to have a small amount of facial hair, as does appellant; and most of them appear to have similar skin coloring to appellant. There is nothing obviously suggestive about the photo lineup. Because appellant has not met his burden of demonstrating that the pretrial procedure was impermissibly suggestive, he also has not demonstrated that his trial counsel performed deficiently in not objecting to the admission of the lineup into evidence. See Balderas, 517 S.W.3d at 791-92; Ortiz, 93 S.W.3d at 93. Likewise, appellant has not demonstrated that complainant's in-court identification was tainted by the out-of-court identification procedures.
Questioning witnesses. Appellant next charges that his counsel failed to adequately cross-examine witnesses during trial. Whether, and to what extent, to question witnesses is generally a matter of defensive trial strategy that courts are reluctant to second-guess, particularly in the face of a silent record. See, e.g., Ex parte McFarland, 163 S.W.3d 743, 755-56 (Tex. Crim. App. 2005); Jones v. State, 500 S.W.3d 106, 115 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). In this case, defense counsel cross-examined witnesses. The record, however, does not reveal why counsel chose not to ask more questions or what information further questioning would have elicited. Accordingly, we cannot say that counsel was deficient in this case for failing to ask more questions.
The video. Appellant argues that his trial counsel was deficient in failing to object to the video that was shown to the jury of the parking lot where the robbery allegedly occurred. Appellant also notes counsel asked limited questions to Deputy Abeid who authenticated the video and counsel failed to point out to the jury that the robber's face could not be seen in the video. Appellant, however, does not make any argument that the video was inadmissible. See Ortiz, 93 S.W.3d at 93 (explaining that when an ineffective assistance claim alleges deficiency for failing to object to evidence, the defendant must show the evidence was inadmissible). Moreover, appellant does not suggest what other questions counsel should have asked about the video, what information may have been gleaned by further questioning, or why counsel needed to point out what the video already showed.
Punishment phase. Appellant also complains that his trial counsel did not do enough to challenge the evidence concerning several extraneous offenses that the State presented during the punishment phase of trial. The only specific suggestion appellant makes is that counsel should have attempted to "map out" the locations where the offenses allegedly occurred to confirm whether it was possible appellant could have committed all the offenses. Appellant does not cite to any evidence suggesting either that his counsel did not undertake this analysis prior to trial or that any such analysis would have benefitted appellant's defense. In the face of a silent record, we will not speculate either that counsel failed to consider this course of action or that had he done so, it would have benefitted appellant. See Darkins v. State, 430 S.W.3d 559, 571 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (refusing to speculate regarding alleged deficient performance in face of silent record).
The only other criticism appellant offers regarding the punishment proceedings is to note that his trial counsel confirmed the range of punishment with the trial judge at the beginning of the punishment phase. Appellant states, "It seems remarkable that a trial lawyer would not even know, on day 3 of trial, what his client was risking by taking the case to a jury." The fact that counsel confirmed the information with the judge, however, does not necessarily indicate counsel was not aware of the range. Regardless, appellant does not suggest how such confirmation prejudiced his defense. See generally Strickland, 466 U.S. at 693.
Conclusion
Because appellant has not met his burden to show ineffective assistance, we overrule his sole issue and affirm the conviction.
/s/ Frances Bourliot
Justice Panel consists of Justices Bourliot, Hassan, and Poissant. Do Not Publish — TEX. R. APP. P. 47.2(b).