Opinion
No. 04-17-00522-CR
07-11-2018
Alberto DELATORRE, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR4247A
The Honorable Laura Parker, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Alberto Delatorre was convicted by a jury of murder and sentenced to fifty-two years' imprisonment. In a single issue, Delatorre contends trial counsel rendered ineffective assistance of counsel by failing to request a sudden passion instruction during the punishment phase of trial. We affirm the trial court's judgment.
BACKGROUND
Delatorre was indicted for the murder of Matthew Winkelman and proceeded to a jury trial on July 10, 2017. Delatorre's defense was that he was defending himself when he fired at Winkelman. The testimony concerning what happened the day Winkelman was shot is summarized below.
Carl Matthews, Winkelman's neighbor at the apartment complex, testified that on February 12, 2015, he observed Winkelman and Delatorre having an argument outside near the parking lot. According to Matthews, Winkelman was yelling obscenities at Delatorre and threatening him to fight. Delatorre was "talking" back to Winkelman. As Matthews walked past the two guys, Delatorre showed him a gun and told Matthews to keep walking, which he did. Minutes later, Matthews heard three gunshots. He then saw Winkelman on the ground with multiple gunshot wounds. Matthews testified that during the argument he never saw Winkelman touch Delatorre or reach for a weapon.
Leslie Arriaga also testified at trial. She stated that, at the time, she and Delatorre had been in a romantic relationship for about one year. On the day of the shooting, they were visiting some individuals at the apartment complex where Winkelman lived. As Arriaga was walking down the apartment complex stairs, Winkelman attempted to grab her arm and pull her into his apartment. Arriaga testified that Winkelman was drunk and, in her opinion, it seemed like Winkelman thought she was someone he knew. Winkelman let Arriaga go after she called out for Delatorre's help. After escorting Arriaga back to the car, Delatorre and another individual, Rodney Walker, walked toward where Winkelman was standing. Sometime later, Arriaga heard gunshots. Although she did not see the shooting, Arriaga testified that she believed Delatorre was the one who shot Winkelman. Arriaga knew Delatorre had a gun with him. On cross examination, Arriaga testified that Winkelman did not follow them to the car following the grabbing incident and that all three of them could have safely driven away without anybody getting shot.
Rodney Walker testified that he was at a house across the street from the apartment complex when he heard Arriaga call for help. Walker crossed the street and met Arriaga and Delatorre at his car, which was parked at Winkelman's apartment complex. Walker estimated that Winkelman was standing about four or five parking spaces away and was yelling obscenities at them. Walker stated that Delatorre pulled out a gun, walked toward Winkelman, and shot him multiple times.
At the conclusion of the evidence, the jury received a self-defense instruction, but rejected it and found Delatorre guilty of murder as charged in the indictment. Delatorre testified during the punishment phase. Delatorre stated that Winkelman was yelling at him and coming toward him when he saw Winkelman "crouching down with his hand behind his back." Delatorre testified that he felt scared because he thought Winkelman was reaching for a gun behind his back, so Delatorre pulled out his gun and shot Winkelman. Delatorre stated he did not remember the grabbing incident between Winkelman and Arriaga. The trial court's punishment charge was prepared and read to the jury without objection. Upon the jury's recommendation, the trial court sentenced Delatorre to fifty-years' imprisonment.
INEFFECTIVE ASSISTANCE OF COUNSEL
In a single issue, Delatorre claims his trial counsel rendered ineffective assistance of counsel by failing to request a jury instruction on sudden passion during the punishment phase of trial.
To succeed on a claim of ineffective assistance of counsel, the appellant must show: (1) his counsel's performance was deficient, i.e., the attorney's performance fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, "the [appellant] must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). Failure to make the required showing of either deficient performance or prejudice defeats an appellant's ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
When evaluating a claim of ineffective assistance, we apply a strong presumption that counsel's conduct was within the range of reasonable professional assistance and was motivated by sound trial strategy. Strickland, 466 U.S. at 689; Johnson v. State, 233 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). To rebut this presumption, "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 814. A record that is silent as to the reasoning behind counsel's actions will not overcome the presumption because "a finding that counsel was ineffective would require impermissible speculation by the appellate court." Johnson, 233 S.W.3d at 116. "In the absence of evidence of counsel's reasons for the challenged conduct, an appellate court ... will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Here, because Delatorre did not file a motion for new trial complaining of counsel's alleged deficiency, there was no corresponding hearing at which counsel's strategy or lack of strategy could be developed; thus, the record is silent regarding the reason counsel did not request a sudden passion instruction during the punishment phase of trial. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ("[T]he record on direct appeal will not be sufficient to show that counsel's representation was so deficient . . . as to overcome the presumption that counsel's conduct was reasonable and professional."). Therefore, we will presume the challenged conduct fell within the range of reasonable professional assistance and was not deficient, unless after reviewing the record, we determine that counsel's "conduct was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440.
As noted, the jury rejected Delatorre's self-defense claim during the guilt-innocence phase of trial. Although sudden passion and self-defense are not mutually exclusive, "when the State's evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the absence of sudden passion," except in rare circumstances. Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.—San Antonio 1999, pet. ref'd) (internal quotation marks omitted). Given the jury's rejection of Delatorre's self-defense claim based on the evidence before it, we cannot reasonably conclude that counsel's failure to request a sudden passion instruction at punishment was so outrageous that no competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440; see also Wooten v. State, 400 S.W.3d 601, 609 (Tex. Crim. App. 2013) ("It is highly unlikely that a jury that had already rejected the appellant's claim [of self-defense] . . . would nevertheless find in his favor on the issue of sudden passion."). By failing to rebut the presumption that his counsel's conduct was motivated by sound trial strategy and fell within the range of reasonable professional performance, Delatorre has failed to prove deficient performance under the first Strickland prong. See Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Johnson, 233 S.W.3d at 116.
CONCLUSION
Based on the foregoing reasons, we overrule Delatorre's sole issue on appeal and affirm the trial court's judgment.
Rebeca C. Martinez, Justice DO NOT PUBLISH