Opinion
No. 05-04-00699-CR
Opinion Filed September 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the Criminal Judicial District Court No. 4, Dallas County, Texas, Trial Court Cause No. F01-16437-TK. Affirmed.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Anastasio Pacheco Caldera appeals his conviction for the aggravated assault of Carlos Segura. After a trial to the court, Caldera was convicted of aggravated assault and sentenced to ten years' imprisonment. Caldera did not file a notice of appeal following his conviction, but later filed petition for writ of habeas corpus and was eventually granted an out-of-time appeal by the court of criminal appeals. In five issues, Caldera argues the evidence was legally and factually insufficient to support his conviction and that his trial counsel rendered ineffective assistance of counsel. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. We address the legal and factual sufficiency issues first. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004-05). A firearm is a deadly weapon. Id. § 1.07(a)(17). There is evidence in the record that Segura and Caldera had a history of altercations. On the evening in question, Segura greeted the driver of a truck in which Caldera was riding in the rear passenger seat. Later, Segura saw the driver walking and offered him a ride. The driver told Segura that Caldera was after him and was going to kill him. After dropping the driver off, Segura drove to his apartment complex. As Segura was walking to his apartment, a truck pulled up and Caldera got out and started threatening Segura. The men argued, and Caldera pushed a steel object against Segura's ribs and held his hands. Segura demonstrated the action for the trial judge. Segura then saw that Caldera had a semi-automatic pistol. Segura was afraid for his life. When Caldera "racked" the slide on the pistol, Segura grabbed his hands and another person intervened to calm the men down. Segura then escaped by crawling under the parked cars and called the police. Police later stopped the vehicle in which Caldera was riding as a passenger and recovered a loaded semi-automatic pistol from the seat pocket in front of where Caldera was seated. At trial, Segura identified the pistol as the one Caldera used during the assault. Caldera argues the evidence failed to establish that he threatened Segura with a firearm. Caldera testified that he was riding with some other men in a truck and Segura parked next to them at the apartments. Both Segura and Caldera got out of the trucks and Caldera saw that Segura had a baseball bat in his hands. Caldera was afraid and ran to his house to get his gun. He loaded the gun and took it back to the truck, but said he never took it out or threatened Segura with it. Having considered all of the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Caldera intentionally or knowingly threatened Segura with imminent bodily injury while using or exhibiting a deadly weapon. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We need not further detail the relevant evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We resolve Caldera's fourth and fifth issues against him. Before addressing the ineffective assistance of counsel issues, we consider the State's argument that the record of the habeas proceedings in the trial court should be stricken from the appellate record. The trial court conducted a hearing on Caldera's habeas petition and the record of that hearing and the clerk's record of the post-conviction proceedings were filed as part of the appellate record in this case. The State argues the post-conviction record is not part of the appellate record and may not be considered in deciding this out-of-time appeal. We disagree. The records from these proceedings have been filed in this Court and for purposes of deciding Caldera's ineffective assistance issues we will consider the record of the habeas proceedings. See Hall v. State, 160 S.W.3d 24, 37-38 (Tex.Crim.App. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2962 (June 27, 2005); Winn v. State, 871 S.W.2d 756, 759-60 (Tex.App.-Corpus Christi 1993, no pet.). Although in Winn the parties stipulated that the record of the habeas proceeding could be used on appeal if the court of criminal appeals granted an out-of-time appeal, principles of judicial economy support the use of the post-conviction record in the out-of-time appeal on issues, such as ineffective assistance, that would normally be raised by a motion for new trial. The State does not present a convincing argument why the record should be stricken in this case, despite the absence of a stipulation as in Winn. We deny the State's request to strike the habeas record from this appeal. Caldera's first three points of error assert his trial counsel was ineffective at the guilt/innocence phase and at punishment phase of trial, and that the totality of the representation was ineffective. Specifically, Caldera argues his counsel: (1) failed to subpoena two witnesses who would have supported his self defense claim; (2) failed to inform him that the judge could not grant probation in an aggravated assault case; (3) unnecessarily emphasized at punishment a related offense for possession of cocaine; (4) allegedly arranged his deportation in an attempt to obtain deferred probation; (5) failed to adequately prepare and investigate the case and vigorously present the self-defense argument; and (6) failed to request a qualified interpreter instead of using counsel's assistant as a translator. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. Appellate review of counsel's representation is highly deferential, and there is a strong presumption that counsel's actions fell within a wide range of reasonable and professional assistance. Id. That another attorney might have pursued a different course of action does not necessarily indicate ineffective assistance. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983). In reviewing an ineffective assistance complaint, we examine the totality of counsel's representation to determine whether appellant received effective assistance of counsel. Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986). The record of the habeas proceeding indicates that two witnesses favorable to Caldera were not subpoenaed for trial and did not appear. The witnesses would have testified that earlier on the evening of the incident, Segura had threatened Caldera with a baseball bat. They also said they did not see Caldera with a gun. One witness appeared at the punishment hearing at the request of Caldera's sister-in-law. He said no one contacted him about attending the trial. Counsel testified that he had a written statement from one of the witnesses taken by his legal assistant and believed the witnesses were Caldera's friends and would appear at trial without a subpoena. He testified that he told Caldera's family about the trial setting and relied on them to keep in contact with the witnesses because they spoke Spanish. Caldera's brother testified that counsel never told him about any trial dates. Counsel stated in an affidavit that he spoke with Caldera the night before trial and Caldera said he would bring his witnesses to court. Counsel also testified he was concerned that both witnesses said Caldera did not have a gun, contrary to Caldera's expected testimony that he had a gun and that the gun recovered from the vehicle was his. Counsel was concerned this contradiction would hurt the case and that the testimony about Segura having a baseball bat would merely bolster Caldera's testimony. Regarding the trial judge's inability to grant probation, the record does not support Caldera's argument that he was unaware the trial judge could not grant probation or that counsel failed to inform him of this fact. The record reflects that the prosecutor, in Caldera's presence and after the translator was sworn, asked the trial court to admonish Caldera that if found guilty the court could only assess prison time. The trial court admonished Caldera on the range of punishment and did not mention the possibility of probation. Caldera presents no evidence or argument that he would not have waived his right to a jury had he been informed of the limitation on judge ordered probation. The record indicates that before the punishment hearing, counsel informed the trial court that Caldera would plead guilty to the charge of possession of cocaine, which was found in his shirt pocket on the night of the offense. The record does not disclose counsel's specific strategy other than his desire to have the sentencing done at the same time on both charges. Evidence was introduced at the trial that Caldera had a small amount of cocaine in his pocket when he was arrested and the trial court had a pre-sentence investigation report prepared for the punishment hearing. Caldera does not explain how this alleged error prejudiced the outcome of the punishment hearing on the aggravated assault charge or that no competent counsel would have engaged in such conduct. The record indicates that the trial court would have been aware of the related offense regardless of counsel's conduct. Caldera also complains that his trial counsel allegedly arranged for his deportation in a misguided effort to get deferred adjudication for Caldera. The record indicates that during the punishment hearing, a recess was called in an attempt to bring someone from INS to court. Counsel explained that he was trying to work with INS to get a hold on Caldera's deportation, believing that if he did so, the trial court would grant deferred probation. Again, Caldera does not present evidence or argument as to how this conduct fell below reasonable standards of professional conduct or prejudiced the outcome of the punishment proceeding. Caldera had been found guilty and was not eligible for deferred adjudication. He also was not eligible for judge ordered probation because of the deadly weapon finding on the aggravated assault charge. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. Pamph. 2004-05). Caldera also asserts his trial counsel failed to prepare and investigate the case and did not vigorously present and prove self defense. For example, Caldera points to counsel closing argument stating that Caldera was obviously afraid of Segura and "this may be a case of self-defense." (emphasis by Caldera). The record indicates that counsel investigated the case and believed he was prepared for trial. Caldera points to no evidence other than the two witnesses who were subpoenaed for trial that counsel failed to present. Counsel's Spanish-speaking legal assistant visited the crime scene and took a statement from one of the witnesses. Counsel interviewed witnesses, family members, and Caldera. Counsel elicited testimony from Caldera supporting self defense. Caldera testified that he and Segura had been involved in a fight in the past in which Segura shot at him; on the night of the offense, Segura threatened him with a baseball bat; Caldera feared for his life; and this fear was based on the violent history with Segura. Caldera admitted he armed himself because of his fear, but denied threatening Segura with the gun. The record reflects that at the beginning of the guilt/innocence phase, the trial court asked whether Caldera spoke English and counsel told the court he did not and offered to have his assistant translate. Counsel stated that the assistant had interpreted many cases in the past. Both the State and Caldera agreed to the use of the assistant as an interpreter and the assistant was sworn as an interpreter. Caldera claims in general terms that counsel did not protect his rights by requesting a qualified interpreter. However, he makes no argument and presented no evidence that the assistant was not qualified to interpret. Nor has Caldera shown how the interpretation provided was inadequate or prejudiced him. After reviewing the totality of the representation and the alleged unprofessional errors of counsel, we conclude Caldera has failed to prove by a preponderance of the evidence that counsel's representation fell below an objective standard of reasonableness and that, but for those alleged errors, the outcome of the proceedings would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We overrule points of error one, two, and three. We affirm the judgment of the trial court.