No. 04-02-00346-CR.
Delivered and Filed March 12, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the 49th Judicial District Court, Zapata County, Texas, Trial Court No. 1195. AFFIRMED.
Before Chief Justice LÓPEZ and Justices STONE and DUNCAN.
Opinion By CATHERINE STONE, Justice.
Appellant Corando Chapa, Jr. appeals his conviction for murder and life sentence. Chapa asserts two issues on appeal: (1) that the trial court erred in failing to instruct the jury on extraneous offenses as provided under section 3(a)(1) of article 37.07 of Texas Code of Criminal Procedure; and (2) that his trial counsel rendered ineffective assistance of counsel. We overrule these issues and affirm the judgment of the trial court.
Factual and Procedural Background
On May 25, 1998, Servando Chapa, an infant, was found in his crib by his mother, Melva Longoria, unable to breathe, unresponsive, and blue in color. Servando was taken to the hospital where he later died. A few days later, Chapa, Servando's father, was indicted for the murder of his son. The evidence at trial reflected that Servando died as a result of suffering severe blunt trauma to the head and ribs. Chapa filed various pre-trial motions, including a motion to suppress any oral statements and a motion in limine seeking to limit extraneous offenses. The State subsequently filed its notice of intent to use prior bad acts. The record reflects that Chapa waived a hearing on his motion to suppress and chose to have the jury determine the voluntariness of his statement. During the guilt-innocence phase of trial, the jury heard testimony that Chapa was previously arrested by police and investigated by Child Protective Services for injuring Servando on May 14, 1998 while arguing with Longoria. The record reflects that this evidence was first elicited by the State from Val Verde County Sheriff Department Investigator Jesus Chapa without objection from defense counsel. The trial court sua sponte instructed the jury to disregard the evidence and "not consider any reference to any arrests prior to the incident in question. . . ." Notwithstanding this instruction, the jury heard additional testimony regarding Chapa's arrest. Chapa testified in his defense. He admitted that he was arrested on May 14, 1998 for injuring Servando and offered his version of the events that led to Servando being injured on that day. Chapa also admitted to using drugs. The jury ultimately found Chapa guilty. In opening arguments during punishment, the State informed the jury they could consider all the evidence introduced during the guilt-innocence phase of trial. The State elected not to call any witnesses during the punishment phase. Chapa's mother, Bertha Chapa, testified in his defense. She stated that she did not have any problems with her son until he met Longoria. However, she testified Chapa had previously been on probation as a juvenile on a drug possession charge. Chapa admitted this prior adjudication. The jury ultimately sentenced Chapa to a life sentence. Extraneous Offenses
In Huizar v. State, the Court of Criminal Appeals held that in the punishment phase of a jury trial, a trial court is required to instruct the jury that it may consider extraneous offenses only if proved beyond a reasonable doubt. 12 S.W.3d 479, 483-84 (Tex.Crim.App. 2000). The instruction is required even if the defendant does not request the instruction. Id. Here, Chapa complains that the trial court erred in failing to provide a reasonable doubt instruction pursuant to article 37.07, section 3(a)(1) of Texas Code of Criminal Procedure both at guilt-innocence and punishment. He contends that the harm which he suffered as a result of this error was the jury's assessment of a life sentence. We assume that Huizar applies to extraneous offenses offered at both stages of trial. See Allen v. State, 47 S.W.3d 47, 50-1 (Tex.App.-Fort Worth 2001, pet. ref'd). Where extraneous offense or bad acts evidence is before the jury, regardless of whether such evidence was introduced at the guilt-innocence or punishment phase, article 37.07, section 3(a) requires that the jurors be instructed not to consider such extraneous offenses or bad acts in assessing the defendant's punishment unless they find the defendant culpable for such offenses or acts under the statutorily prescribed reasonable-doubt standard. Therefore, we agree with Chapa that the trial court erred in failing to instruct the jury as to reasonable doubt at the punishment phase. However, the failure of the trial court to provide such an instruction does not warrant automatic reversal. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981) (providing that judgment of trial court shall be reversed only where error was calculated to injure the rights of the defendant or unless it appears he did not have a fair and impartial trial). Therefore, we determine whether Chapa suffered egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Egregious harm consists of errors affecting the case's foundation, errors denying the defendant a valuable right significantly affecting a defensive theory, or making the case for guilt clearly and substantially more compelling. Id. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information from the record. Id. Here, the record reflects that the State emphasized Chapa's prior arrest and drug use in its case in chief and in closing argument during the guilt-innocence phase. This evidence was useful for the State in establishing Chapa's violent nature. In the punishment phase of trial, the State emphasized Chapa's prior juvenile adjudication by focusing on the fact that he had prior opportunities to stop using drugs and reform himself. Thus, the record reflects the State's heavy use of Chapa's extraneous offenses. However, we also consider that the record reflects Chapa's defense theory that Longoria was a drug user and could have contributed to Servando's death. In order to show this, Chapa admitted to using drugs with Longoria. Additionally, during the guilt-innocence phase, Chapa admitted to being arrested on May 14, 1998 for the injuries sustained by Servando. In the punishment phase, Chapa also admitted to being placed on probation for drug possession as a juvenile. Thus, the record reflects there were no contested issues regarding Chapa's prior criminal record or bad acts. Therefore, Chapa did not suffer egregious harm from the trial court's failure to provide a reasonable doubt instruction. We overrule Chapa's first issue. Ineffective Assistance
In his second issue, Chapa contends that his trial counsel rendered ineffective assistance of counsel. Specifically, Chapa alleges six instances to show that trial counsel was ineffective in violation of his Sixth and Fourteenth Amendments rights under the United States Constitution by: (1) failing to file a motion to suppress any written statements and waiving a hearing on his motion to suppress oral statements; (2) failing to reurge a motion in limine which addressed extraneous offenses; (3) failing to pursue a line of questioning of particular jury members at voir dire; (4) failing to object to hearsay evidence and extraneous offense evidence; (5) failing to request an instruction on extraneous offense; and (6) eliciting Chapa's prior juvenile adjudication at punishment. It is well-established that in order to prove that his attorney rendered ineffective assistance of counsel, Chapa must overcome the well-known two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1964); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Mares v. State, 52 S.W.3d 886, 890 (Tex.App.-San Antonio 2001, pet. ref'd). Under this test, we review the totality of the representation in light of facts of a particular case to determine an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In order to prove ineffective assistance of counsel, Chapa must establish by a preponderance of the evidence that his counsel's performance fell outside the wide range of reasonable professional assistance. Generally, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical and strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. Where the record contains no evidence of reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. Any allegations of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Failure to File a Motion to Suppress Statements Chapa specifically complains of trial counsel's failure to file a motion to suppress written statements based upon the voluntariness of his statement. See Jackson v. Denno, 378 U.S. 368 (1964). At the onset, we note that the failure to file pre-trial motions is not categorically deemed ineffective assistance because trial counsel may decide not to file pre-trial motions as part of his trial strategy. Mares v. State, 68 S.W.3d at 891. In the instant matter, while trial counsel failed to file a motion to suppress written statements, he did file a motion to suppress any oral statements made by Chapa. Accordingly, if requested and granted by the trial court, Chapa would have received the same type of hearing on his motion to suppress written statements as he would have on his motion to suppress oral statements. For this reason, we cannot say trial counsel was deficient for failing to file such a motion. As a related matter, Chapa also complains of trial counsel's waiver of a pre-trial hearing on his motion to suppress his oral statements. We cannot hold that a decision by trial counsel to waive a hearing on the motion to suppress is ineffective since a trial court has discretion not to grant such a hearing and hear evidence on the matter at trial. See Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App. 1984). Additionally, because the record fails to provide evidence as to trial counsel's reasoning for waiving such a hearing, we would be forced to speculate as to his decision. See Thompson, 9 S.W.3d at 813-14. Chapa also complains of trial counsel's failure to object once his written statement was introduced and move to suppress it. An appellant claiming ineffective assistance for failure to file a motion to suppress is required to prove that the motion would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim. App. 1998); LaFleur v. State, 79 S.W.3d 129, 137 (Tex.App.-Texarkana 2002, no pet.). Chapa makes no attempt to show that the motion to suppress would have been granted. The record in the guilt-innocence phase reflects that trial counsel elicited from Chapa that he felt pressured and was "so scared" when he gave his statement. Trial counsel also elicited from investigative officers that Chapa appeared nervous, depressed, and quiet when speaking with him. Investigative officers, however, also testified that Chapa was not under arrest and voluntarily spoke with them. The record also reflects that Chapa was read his Miranda rights, and provided with a written copy of his rights, and that he initialed those rights. Chapa admitted to signing the confession. Thus, Chapa was made aware of his rights. Based on this evidence, we cannot conclude that an objection by counsel would have been sustained and the written statement suppressed. See LaFleur, 79 S.W.3d at 137. Accordingly, Chapa has failed to establish that counsel's performance was deficient. Failure to Reurge Motion in Limine Chapa next complains that trial counsel was ineffective for failing to reurge a motion in limine regarding extraneous offenses. The State filed its notice of intent to use extraneous offenses or prior bad acts. Therefore, trial counsel was aware of the State's intended use of prior bad acts. The record reflects one defense strategy was to show that Chapa's drug use was a result of his association with Longoria, who he testified was a drug user. The implication to the jury was that Longoria's drug use could have contributed to Servando's death. Under this theory, trial counsel could have decided that reurging the motion in limine was not necessary. Given this fact, trial counsel may have decided that to reurge a motion in limine would have been futile. We do not have a record regarding trial counsel's decision to not re-urge this motion. With a cold record on counsel's tactical decision, we cannot conclude that counsel's performance was deficient. Additionally, given our determination that admissions of extraneous offenses did not harm Chapa, we cannot say counsel was deficient for failing to re-urge the motion in limine. See Mares, 52 S.W.3d at 891. Failure to Request Limiting Instruction on Extraneous Offenses and Failure to Object to Extraneous Offense Evidence Because this matter was not advanced as a basis in a motion for new trial, Chapa must rely on the record to support his contention that counsel was ineffective. The record is silent as to why counsel failed to request a limiting instruction when the evidence was introduced. Therefore, the record is insufficient to overcome the presumption that counsel's actions were part of a strategic plan. See Thompson, 9 S.W.3d at 814; Abbott v. State, 726 S.W.2d 644, 649 (Tex.App.-Amarillo, pet. ref'd). Failure to Object to Hearsay Evidence Chapa next contends that trial counsel was ineffective for failing to object on hearsay grounds to testimony elicited from one of the investigative officers on the case, Jesus G. Chapa. Jesus Chapa testified about the conversations he had with hospital nurses regarding the extent of Servando's injuries when he arrived at the hospital. Chapa also cites to the testimony of Dr. Sarah Campos who testified about her conversation with Longoria and the circumstances in which she found Servando. While trial counsel could have objected to the complained-of testimony as being hearsay, we cannot rule out the possibility that counsel purposefully did not object so as not to call attention to damaging evidence that was otherwise admissible or merely cumulative. The jury also heard testimony from three different doctors who treated Servando. Each testified as to his condition. In particular, each testified that Servando had suffered massive head injuries. Additionally, the jury heard testimony from Longoria regarding the circumstances in which she found her son. Under these circumstances, we cannot say that trial counsel was deficient in failing to object to the complained-of hearsay evidence. Failure to Pursue Questioning of Prospective Jurors Chapa also contends that trial counsel was ineffective for failing to pursue a line of questioning of one particular venire panel member who would ultimately serve as a juror. At jury voir dire, Nelly Garcia admitted she knew Investigator Jesus Chapa. Chapa specifically contends counsel was ineffective for failing to question Garcia on whether she would be fair and impartial or whether she had a bias because of her relationship with Chapa. The record reflects that Garcia admitted she knew Investigator Chapa because he provided security at school but "that was as far as she [knew] him." Based upon the record, we cannot say it was not trial strategy for counsel not to pursue a line a questioning given Garcia's response that her knowledge of Investigator Chapa was minimal at most. Because we cannot use conjecture in evaluating counsel's strategy, the ineffective assistance claim with respect to voir dire must be denied. Eliciting Prior Juvenile Adjudication Lastly, Chapa complains that counsel was ineffective for eliciting his prior juvenile adjudication during the punishment phase of trial. Chapa admitted to a prior juvenile adjudication for drug possession, a misdemeanor offense, when he was sixteen years old. Chapa further testified that he was placed on probation for six months and "terminated" probation. We assume this means he successfully completed probation. Chapa contends this prior juvenile adjudication would have been inadmissible under the Rules of Evidence; therefore, trial counsel was ineffective for introducing it at punishment. Rule 609 of the Texas Rules of Evidence provides that a witness may not be impeached by a prior juvenile adjudication. Tex. R. Evid. 609(d). Notwithstanding this provision, however, section 3(i) of article 37.07 of Texas Code Criminal Procedure allows for evidence of an adjudication of conduct that is a misdemeanor punishable by jail if the conduct on which the adjudication was based upon occurred before January 1, 1996. Tex. Code Crim. Proc. Ann. § 37.07, § 3(i) (Vernon Supp. 2003). The record reflects that Chapa's prior adjudication would have been inadmissible even under section 3(i) of article 37.07 of Texas Code of Criminal Procedure. Trial in this case took place in August 1999, at which time Chapa was twenty-years old. His juvenile adjudication, which occurred when he was sixteen, would have occurred before January 1, 1996. Under these facts, counsel's decision to elicit testimony regarding Chapa's prior adjudication cannot be considered reasonable trial strategy. The record affirmatively demonstrates that counsel undertook some action in defending his client that no reasonably competent attorney could have believed constituted sound trial strategy. Accordingly, trial counsel's performance of eliciting such testimony constituted deficient representation. See Stone v. State, 17 S.W.3d 348, 355 (Tex.App.-Corpus Christi 2000, pet. ref'd). The second prong of the Strickland tests requires that we determine whether Chapa has shown a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. See Thompson, 9 S.W.3d at 812; McFarland, 928 S.W.2d at 500. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Thompson, 9 S.W.3d at 812. Chapa complains he was harmed because he was given the maximum punishment of a life sentence. Chapa fails to affirmatively show that the jury's consideration of a juvenile drug possession charge led the jury to assess the maximum punishment in the instant matter. Chapa was indicted and found guilty for the offense of murder a felony of first degree. See Tex. Pen. Code Ann. § 19.02(c) (Vernon 1994). Chapa received a sentence within the appropriate range of punishment. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 1994). Because Chapa cannot establish that he was prejudiced, we cannot hold that trial counsel's conduct so undermined the adversarial process that the trial cannot be relied on has having produced a reliable result. We overrule Chapa's second issue. Conclusion
For the reasons stated above, we overrule Chapa's two issues, and affirm the judgment of the trial court.