Opinion
No. 05-03-01796-CR
Opinion Filed August 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-54420-J. Affirm.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
A jury convicted Adam Diaz of the capital murder of Carlos Camacho. The trial court imposed a mandatory life sentence. Diaz appeals. In two points of error, Diaz asserts the evidence is factually insufficient to support the finding of guilt, and 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. Diaz was convicted of capital murder. A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 Supp. 2004-05). In his first point of error, Diaz challenges the factual sufficiency of the evidence to support his conviction. We apply the appropriate standard of review for factual sufficiency. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. 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). There is evidence in the record that Diaz and Camacho had worked together for two weeks before Camacho's murder. On the night of his death, Camacho was carrying a large amount of cash, approximately $3700. He and Diaz went out for the evening along with Diaz's nephew, Bruce. At approximately 2:30 a.m., Diaz and Bruce arrived at the home of Mary Zamora. Zamora testified that when Diaz arrived, he had blood on his face and shoes. Zamora then drove the two to a gas station, where Diaz gave Bruce money and instructed him to purchase gasoline to fill two jugs. They returned to an area near Zamora's home; Diaz and Bruce exited the vehicle, carrying the jugs of gasoline. Zamora testified she heard an explosion and saw flames. Diaz and Bruce then returned to the vehicle without the jugs; Bruce was suffering from burns. Zamora then drove Diaz and Bruce to their home. Later, when an ambulance was called for Bruce, Diaz left. Neighbors called firefighters and police after they heard an explosion. Firefighters found Camacho beaten and burned to death in his automobile. Detectives found Camacho's wallet, which contained Mexican currency but no American dollars. The medical examiner testified death was caused by blunt-force head injuries plus severe burns and smoke inhalation. A witness testified Diaz was flashing large sums of money following Camacho's death. And Bruce's mother, Rosalinda Garcia, testified Diaz told her he killed Camacho for the money. Diaz questions Garcia's testimony because of her relationship with Bruce. Diaz also asserts there are inconsistencies between witnesses' testimony and his own written statement about whether Camacho was beaten on the head or throat and whether it was Diaz or Bruce who stole Camacho's money. However, resolving conflicting evidence and judging the credibility of witnesses is the exclusive province of the jury. Having considered the evidence in a neutral light, we conclude the jury was rationally justified in finding Diaz's guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We overrule Diaz's first point of error. In his second point of error, Diaz complains of ineffective assistance of counsel. 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. Further,
[d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it."Id. (footnotes and citations omitted). Diaz makes two complaints concerning trial counsel's performance. The first involves counsel's actions when Zamora testified in passing that Diaz "had barely gotten out of prison." Counsel did not immediately object; however, several questions obtained a conference outside the jury's presence and made an objection. The trial court noted the untimeliness of counsel's objection, but stated: "If you want an instruction at some point in time, we'll address it then." The trial court then ordered Zamora to make no further reference to whether Diaz had been in the penitentiary or had prior felony convictions. Counsel stated: "Your Honor, it's our position that, however unintentionally, the damage has been done, we would move for a mistrial." The trial court denied the motion. After Zamora finished testifying, and after a break, the trial court held a further conference outside jury's presence. The court reiterated that it was willing to instruct the jury with respect to information that Diaz had been in the penitentiary, and offered again to instruct the jury concerning that testimony. Counsel declined the offer, noting it would call further attention to the statement and cause further damage. The trial court also indicated it would, if requested, include such an instruction in the court's charge. Later, Garcia testified that Diaz asked her to get Bruce (who was a juvenile at the time Camacho was killed) to take the blame. When asked why he did this, she testified:
A: Because he was afraid to get charged for the crime and he didn't want to go back to prison.
Q: Okay. Did he say anything about getting the needle?
A: Yeah, because he didn't want to-there was a chance that he could get life or a lethal injection.
Counsel did not object to this reference to Diaz having been imprisoned previously. The record is silent as to counsel's failure to timely object to the statements made about Diaz's past time in prison. This Court will not speculate as to what counsel's trial strategy might have been with regard to the failure to timely object. Moreover, we cannot say that counsel's failure to object to the witness testimony is "so outrageous that no competent attorney would have engaged in it." See Goodspeed, 2005 WL 766996, at *2. Therefore, on this record Diaz has failed to rebut the strong presumption in favor of effectiveness of counsel.The record also fails to support the second prong of the Strickland test with respect to the attorney's actions. The two statements were brief and did not specify the extraneous offense. The evidence of guilt is sufficient and the record demonstrates the failure to timely object did not affect the outcome of the trial. Diaz has failed to show a reasonable probability the jury verdict would have been different absent the alleged errors of trial counsel. We overrule Diaz's second point of error. We affirm the judgment of the trial court.