Opinion
NO. 03-15-00439-CR
04-21-2016
John Gabriel Esquivel, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-14-301500 , HONORABLE KAREN SAGE, JUDGE PRESIDING MEMORANDUM OPINION
John Gabriel Esquivel was charged with felony assault family violence, and the indictment also alleged that Esquivel had previously been convicted on two occasions of assault family violence. See Tex. Penal Code § 22.01(a) (setting out elements of offense of assault), (b)(2)(A) (specifying that assault is third-degree felony if offense is committed against person whose relationship is described by Family Code and if defendant had previously been convicted of assaulting similarly described victim). In a second count, the indictment also charged Esquivel with aggravated assault family violence causing serious bodily injury and with the lesser-included offense of aggravated assault family violence. See id. § 22.02(a) (providing that assault is aggravated assault if person causes serious bodily injury or uses or exhibits deadly weapon), (b)(1) (elevating offense from second-degree felony to first-degree felony if defendant caused serious bodily injury to someone whose relationship is governed by Family Code and if defendant used deadly weapon during assault). The alleged victim was Esquivel's girlfriend, Christina Garcia. In addition to the charged offenses, the indictment also contained enhancement paragraphs alleging that Esquivel had previously been convicted of the following four felony offenses: two convictions for burglary of a habitation, one conviction for attempted sexual assault of a child, and one conviction for possession of a firearm by a felon. See id. § 12.42(d) (enhancing punishment range for repeat felony offenders). At the end of the guilt-or-innocence phase of the trial, the jury found Esquivel guilty of the offense alleged in count one and of the greater offense in the second count. Esquivel elected to have the district court assess his punishment and entered pleas of true to the four enhancement allegations. At the end of the punishment phase, the district court imposed a sentence of 20 years' imprisonment for the count-one offense and 30 years' imprisonment for the count-two offense and ordered the sentences to be served concurrently. In three issues on appeal, Esquivel asserts that his trial counsel did not provide him with effective assistance of counsel. We will affirm the district court's judgments of conviction.
GOVERNING LAW
To succeed on an ineffectiveness claim, a defendant must overcome the strong presumption that his trial "counsel's conduct falls within the wide range of reasonable professional assistance" and must show that the attorney's "representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). "[A]n appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Evaluations of effectiveness are based on "the totality of the representation," Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref'd) (providing that assessment should consider cumulative effect of counsel's deficiencies), and allegations of ineffectiveness must be firmly established by the record, Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Furthermore, even though a defendant is not entitled to representation that is error-free, a single error can render the representation ineffective if it "was egregious and had a seriously deleterious impact on the balance of the representation." Frangias, 450 S.W.3d at 136.
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett, 65 S.W.3d at 63 (stating that in majority of cases, record in direct appeal is undeveloped and "cannot adequately reflect the motives behind trial counsel's actions"). "This is true with regard to the question of deficient performance . . . where counsel's reasons for failing to do something do not appear in the record." Goodspeed, 187 S.W.3d at 392 (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Id. If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440. For ineffectiveness claims based on the assertion that a trial attorney failed to make an objection, the defendant must show that if an objection had been made, the trial court would have committed error by not sustaining the objection. See Ex parte Parra, 420 S.W.3d 821, 824 (Tex. Crim. App. 2013); Brown v. State, 6 S.W.3d 571, 575 (Tex. App.—Tyler 1999, pet. ref'd).
DISCUSSION
Ineffective Assistance of Counsel
Self-Defense Theory
In his first issue on appeal, Esquivel asserts that his trial counsel was ineffective because he pursued a defensive strategy that was not supported by the facts. Specifically, Esquivel notes that his testimony related that he and Garcia had an argument, that they got in his car, that Garcia pulled out a knife and held it to her throat, that he grabbed the knife and threw it out of his window, that Garcia started hitting him in the face, and that Garcia continued to hit him until he started hitting her back. Accordingly, Esquivel argues that Garcia "did not place [Esquivel] or anyone else (other than herself) in imminent danger" because she did not attempt to use or threaten to use the knife against Esquivel or that, if she did, the danger ceased to exist when the knife was thrown out the window. Moreover, although Esquivel acknowledges that he testified that Garcia started hitting him in the face after he threw the knife out the window, he urges that this testimony could not support a claim of self-defense because he "would only have been justified in using force when and to the degree [he] reasonably believed the force was immediately necessary to protect himself" but that the evidence showed that the force Esquivel used went beyond what was immediately necessary because the evidence revealed that Garcia was seriously injured (e.g., ruptured eardrum, broken nose, and broken occipital bone), that Esquivel did not sustain any visible injuries, and that Esquivel admitted that he did not feel any pain when Garcia hit him. See Tex. Penal Code § 9.31(a) (providing that "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force"). Finally, Esquivel argues that his attorney should have focused on inconsistencies in Garcia's story and should have criticized the allegedly inadequate investigation performed by the police instead of pursuing the ineffective trial strategy.
As a preliminary matter, we note that the record does not contain any information regarding why Esquivel's attorney elected to pursue a self-defense strategy, whether his attorney discussed the potential problems with pursuing a self-defense theory in this case, or whether Esquivel instructed his attorney to pursue that defense. See Moore v. Johnson, 194 F.3d 586, 605-06 (5th Cir. 1999) (explaining in appeal of habeas case asserting ineffective assistance of counsel that defendant "is presumed to be the master of his own defense"). Furthermore, although we need not speculate on Esquivel's attorney's strategy when the record is silent on the issue, see Mallett, 65 S.W.3d at 64-65, we do note that his attorney might have reasonably believed that pursuing a self-defense theory was sound trial strategy given that uncontradicted evidence was admitted at trial establishing that Esquivel was in a physical altercation with Garcia. Specifically, Garcia testified that Esquivel started yelling at her while they were out one evening at a bar, that they left the bar and got in his car, that he refused to let her get out of the car, that they went to a parking lot, that he started hitting her in the face, that she begged him to stop, that she raised her arms to defend herself, that she had trouble breathing because she was choking on her own blood, that he "just kept hitting" her over and over again, and that he later dropped her off at the hospital and drove away. In addition, one of the responding officers, Officer Brian Preusse, testified that when he went to the hospital to ask Garcia what happened, Garcia said that Esquivel physically assaulted her. Similarly, one of the nurses who treated Garcia, Katie Puryear, explained at trial that Garcia told the medical staff that "her boyfriend had assaulted her over the course of several hours in a vehicle." Further, surveillance photos from the hospital's security camera were admitted into evidence and showed a car matching the one belonging to Esquivel stop and let someone out of the car. In addition, Esquivel's car was impounded a few hours after the incident, and photos taken of the inside of the car were admitted into evidence and showed what appeared to be a large amount of blood and hair in the front passenger area.
Although the nurse and the author of this opinion share the same last name, the author is unaware of any relationship with the witness that would warrant a recusal in this case. See Tex. R. Civ. P. 18b.
Moreover, although there may have been some inconsistencies in Garcia's testimony regarding some of the specifics on the night in question, her testimony that Esquivel repeatedly assaulted her was consistent with the account that she gave to Officer Preusee and to Puryear. Accordingly, Esquivel's attorney may have reasonably concluded that focusing on small inconsistencies would not have been an effective trial strategy. Cf. Damian v. State, 881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (explaining that fact that alternative trial strategy could have been used does not establish that counsel was ineffective). Furthermore, although Esquivel contends on appeal that his attorney did not thoroughly criticize the investigation performed by the police in this case, the record in this case shows that Esquivel's attorney repeatedly asserted that the police rushed to judgment in this case without performing an adequate investigation. During voir dire, Esquivel's attorney suggested that the police may not have had enough time or resources to adequately investigate the crime at issue. Similarly, during the first phase of the trial, Esquivel's attorney cross-examined one of the State's witnesses, Detective Joshua Dozier, about how the State failed to present any evidence establishing that Garcia's fingerprints were found in Esquivel's car or establishing that the red substance found in the car was Garcia's blood even though the State impounded the car and had the ability to perform those tests. Further, during his closing arguments, Esquivel's attorney emphasized again that the police did not thoroughly investigate the case.
For all of these reasons, we must conclude that the record is not sufficiently developed to evaluate whether Esquivel's attorney's decision to pursue a self-defense theory was part of reasonable trial strategy because his attorney has not "been given an opportunity to respond to" the claims, see Goodspeed, 187 S.W.3d at 392, 394, that Esquivel has failed to overcome the presumption of reasonably professional assistance, and that Esquivel has not demonstrated that his trial attorney's alleged mistake in pursuing that theory was so outrageous that no competent attorney would have made that mistake.
Allowing Esquivel to Testify and Allowing the State to Impeach him
In his second issue on appeal, Esquivel presents a related claim and asserts that his trial attorney erred "by allowing him to testify" when his testimony would not support a claim of self-defense. Specifically, Esquivel contends that his attorney should have realized that his testimony that Garcia initiated the conflict, repeatedly hit him in the face, and continued to hit him in the face until he hit back and defended himself would not be effective when there was no evidence of any injury that he sustained and where he would have to admit in his testimony that he did not feel any pain when Garcia hit him. Moreover, Esquivel insists that his trial attorney should have counseled him against taking the stand or at least informed him that it was unlikely that his testimony would help him. Furthermore, Esquivel contends that he was denied effective assistance of counsel when his trial attorney failed to object after the State sought to impeach his testimony through questions regarding his two prior misdemeanor convictions for assault family violence, his prior conviction for attempted assault family violence, his two prior felony convictions for burglary of a habitation, his prior felony conviction for possession of a firearm by a felon, and his prior conviction for attempted sexual assault of a child.
Regarding the decision to allow Esquivel to testify, the record is insufficient to allow this Court to review that issue and is generally silent regarding the process leading to Esquivel taking the stand and testifying. See Mallett, 65 S.W.3d at 63 (noting that error must be firmly founded in record). However, the portion of the record pertaining to that issue indicates that it was Esquivel's decision to testify. See Hubbard v. State, 770 S.W.2d 31, 43 (Tex. App.—Dallas 1989, pet. ref'd) (explaining that ultimate decision regarding whether to testify belongs to defendant and that defendant who rejects his attorney's advice on matter may not complain of ineffective assistance of counsel). Specifically, the district court asked Esquivel's attorney if Esquivel had decided whether he wanted to testify, and his attorney informed the court that Esquivel wanted to testify. Next, the district court reminded Esquivel that he had the right to testify or not to testify and that the decision about whether to testify was his to make. In addition, the district court warned Esquivel that if he did testify, "every felony conviction you have, every misdemeanor assault family violence and theft conviction you have will be before the jury" and that the State will be allowed to cross-examine him about those prior offenses. After listening to the district court's warnings, Esquivel personally explained that he wanted to testify.
For these reasons, we must conclude that Esquivel failed to meet his burden of establishing that his trial counsel was ineffective for allowing him to testify.
Turning to Esquivel's claims regarding his prior offenses, Esquivel asserts that his attorney's failure to object was unreasonable and that the admission of evidence of prior offenses is inherently prejudicial, but he does not clearly set out the basis on which his trial counsel should have objected to the admission of the prior offenses. However, Rule of Evidence 609 governs the impeachment of witnesses with prior convictions, and we will assume for the sake of argument that Esquivel is asserting that his attorney should have objected to the admission of evidence under Rule 609. See Tex. R. Evid. 609.
Rule of Evidence 609 provides that "[e]vidence of a criminal conviction offered to attack a witness's character for truthfulness must be admitted if" "the crime was a felony or involved moral turpitude," if "the probative value of the evidence outweighs its prejudicial effect," and if the evidence "is elicited from the witness or established by public record." Id. R. 609(a). Moreover, Rule 609 also specifies that "if more than 10 years have passed since the witness's conviction or release from confinement, whichever is later," evidence of his "conviction is admissible only if its probative value, supported by specific acts and circumstances, substantially outweighs its prejudicial effect." Id. R. 609(b). "In deciding whether . . . the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction." Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015).
As a preliminary matter, we note that the record does not appear to be adequately developed to easily evaluate this issue. For example, the record from the trial shows that when the State sought to impeach Esquivel, Esquivel admitted that he was convicted of two felony offenses for burglary in 2000, that he was convicted of the felony offense of possession of a firearm after he was placed on community supervision for the burglary offenses, that his community supervision was revoked, and that he also committed the felony offense of attempted sexual assault of a child. However, the record before the district court at the time of the ruling did not demonstrate when Esquivel was released from confinement. Accordingly, the record did not clearly establish whether those convictions were remote for purposes of Rule 609 when Esquivel was questioned about those offenses during the trial held in 2015. See Burns v. State, No. 10-14-00053-CR, 2015 Tex. App. LEXIS 9041, at *11-12 (Tex. App.—Waco Aug. 27, 2015, pet. ref'd) (mem. op., not designated for publication) (overruling effectiveness challenge asserting trial counsel improperly elicited evidence regarding defendant's prior convictions under Rule 609 because record did not establish "the date of Burns' conviction or subsequent release" and because record was "insufficient for us to be able to determine whether the trial court would have erred by admitting the evidence of the prior convictions pursuant to any of the limitations set forth in rule 609").
During the punishment phase, the State introduced an exhibit showing that Esquivel was placed on community supervision for ten years in 1999 for the two burglary offenses and for the attempted-sexual-assault offense, that the State moved to revoke his community supervision a few months later after learning that Esquivel had committed the additional offense of possession of a firearm, that the district court revoked his probation in March 2000 and sentenced him to five years' imprisonment for those offenses, and that the district court sentenced Esquivel to five years' imprisonment in January 2000 for the unlawful-possession-of-a-firearm offense.
In any event, we do not believe that Esquivel has met his burden of showing that if an objection had been made, the district court would have erred by overruling it. Appellate courts review a decision to admit impeachment evidence of prior convictions under Rule 609 for an abuse of discretion. See Vasquez v. State, 417 S.W.3d 728, 733 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). When assessing the probative value of the evidence against the potential prejudicial effect, courts consider the following: "(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue." Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see Leyba v. State, 416 S.W.3d 563, 571-72 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (applying Theus factors for analysis under Rule 609(b)).
Concerning the two prior misdemeanor convictions for assault family violence, we note that the State had previously introduced into evidence as exhibits the judgments from those misdemeanor offenses and that those prior convictions were alleged as elements of one of the offenses at issue in this case to enhance the offense level. Regardless, we do not believe that the Theus factors compel a determination that the district court would have abused its discretion by allowing the State to impeach Esquivel with evidence of the two misdemeanor assault-family-violence convictions or with evidence of his subsequent offense of attempted assault family violence. All three convictions involved allegations of assault family violence, and courts have held that assault family violence in the circumstances present here is an offense that involves moral turpitude. See Hardeman v. State, 868 S.W.2d 404, 407 (Tex. App.—Austin 1993, pet. dism'd) (holding that conviction for misdemeanor assault "by a man against a woman is a crime involving moral turpitude and therefore is admissible as impeaching evidence under [R]ule 609"); see also Campos v. State, 458 S.W.3d 120, 149 (Tex. App.—Houston [1st Dist.] 2015) (determining that conviction for misdemeanor assault on minor family member constitutes crime of moral turpitude and may be used for impeachment purposes if other requirements are met), vacated on other grounds, 466 S.W.3d 181, 182 (Tex. Crim. App. 2015). Moreover, the convictions for assault family violence occurred in 2008 and 2010, and the conviction for attempted assault family violence occurred in 2011. Accordingly, all three convictions occurred within 10 years of the trial in this case, which means that the evidence "must be admitted if . . . the probative value . . . outweighs its prejudicial effect." See Tex. R. Evid. 609(a).
Although the State did not specify the offense level for Esquivel's conviction for attempted assault family violence during the guilt-or-innocence phase, we note that the State admitted as an exhibit during the punishment phase the judgment of conviction for that offense, which showed that the offense was a state-jail felony. See Baldez v. State, No. 13-14-00257-CR, 2015 Tex. App. LEXIS 4043, at *4 n.1 (Tex. App.—Corpus Christi Apr. 23, 2015, no pet.) (mem. op., not designated for publication) (stating that state-jail felonies qualify as felonies for purposes of Rule 609).
Turning to the factors in Theus, we note that the impeachment value of a crime involving deception is higher than for a crime involving violence. 845 S.W.2d at 881. Accordingly, the first factor weighs against admitting evidence concerning Esquivel's prior conviction for assault family violence and for attempted assault family violence because those are crimes of violence. See Dale v. State, 90 S.W.3d 826, 830 (Tex. App.—San Antonio 2002, pet. ref'd) (explaining that assault does not involve deception).
The second factor weighs in favor of admitting evidence regarding a prior offense when the evidence shows that the prior crime was recent and when the evidence shows that the defendant "has demonstrated a propensity for running afoul of the law." Theus, 845 S.W.2d at 881. The record before the district court showed that the offense at issue was alleged to have occurred in 2014; that within the six years before that offense, Esquivel had been convicted of three other offenses; and that the most recent conviction occurred in 2011. Moreover, as will be more thoroughly discussed later, the record also showed that Esquivel had been convicted of several other crimes in the more distant past. Accordingly, the second factor weighs in favor of admission of the evidence because it shows Esquivel's propensity for breaking the law within a few years of the offense at issue.
The third factor weighs against the admission of evidence of a prior offense if the prior offense is similar to the one at issue because the evidence might allow the jury to improperly convict based on a perceived pattern of past conduct instead of on the facts of the case. Id. In this case, the factor weighs against admitting the evidence pertaining to his convictions for assault family violence and for attempted assault family violence because those crimes are similar to the one at issue.
The fourth and fifth factors are related and depend on the nature of the theory of the defense and on the means available to prove the defense. Id. If the defendant can call other witnesses, his credibility may not be a critical issue, and he may not need to testify because other witnesses could give testimony regarding his defense. Id. If the case only involves the testimony of the State's witnesses and the defendant, the importance of his testimony and his credibility increases. Id. When the importance of the defendant's credibility increases, the State's need to have an opportunity to impeach his credibility also increases. Id. In this case, the only people present at the time of the alleged offense were Garcia and Esquivel, and therefore, there were no other witnesses that could have testified regarding his self-defense theory. Accordingly, the fourth and fifth factors weigh in favor of admission because it was important for the State to be able to impeach the defendant when he testified and to refute his claims.
Given that three of the five factors weigh in favor of allowing the State to impeach Esquivel regarding his prior convictions for assault family violence and for attempted assault family violence, we would be unable to conclude that the district court would have abused its discretion by determining that the probative value outweighed the prejudicial effect and by overruling an objection under Rule 609 had one been made.
Regarding the prior convictions for attempted sexual assault, burglary of a habitation, and unlawful possession of a firearm, all of the those offenses were felony offenses for admission purposes under Rule 609. See Tex. R. Evid. 609 (requiring admission of evidence of prior felony convictions if requirements are met); Tex. Penal Code §§ 15.01(d) (providing that offense of attempt "is one category lower than the offense attempted"), 22.011(f) (explaining that sexual assault of child is second-degree felony), 30.02(c), (d) (stating that burglary of habitation is second-degree felony or first-degree felony), 46.04(e) (specifying that possession of firearm by convicted felon is third-degree felony). Moreover, as discussed above, the record is not clear regarding whether those offenses were remote for purposes of Rule 609. For the sake of argument, we will assume that the offenses are remote and that the evidence pertaining to those offenses was "admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." See Tex. R. Evid. 609(b).
Concerning the first factor, it weighs against admitting evidence pertaining to Esquivel's prior conviction for attempted sexual assault of a child because assaults are generally crimes of violence, and nothing in the record indicates that the prior offense involved deception. See Mitchell v. State, No. 04-09-00824-CR, 2011 WL 192650, at *3 (Tex. App.—San Antonio Jan. 12, 2011, no pet.) (mem. op., not designated for publication) (stating that "sexual assault is a crime involving violence, not deception"); Dale, 90 S.W.3d at 830. The first factor does not weigh in favor of or against the admission of evidence for Esquivel's prior conviction for possession of a firearm because unlawful possession is not a crime involving violence or deception, and nothing in the record indicates that the offense involved deception. Regarding the burglary convictions, we conclude that the factor likely weighs in favor of admission of the evidence in this case. Although the record in this case does not provide the specific allegations for the prior burglary offenses, burglary is a "crime[] of deception." See LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
Regarding the second factor, as set out above, Esquivel was convicted of the prior felony offenses in 2000. Although the record before the district court at the time of its ruling did not establish when Esquivel was released, Esquivel testified that he "signed for five years TDC" for one or more of the offenses, possibly indicating that he was either sentenced to five years' imprisonment, served five years, or both. Accordingly, the record before the district court likely indicated that Esquivel had been released from custody many years before the offense in question. However, as set out above, the record also showed that Esquivel was subsequently convicted of assault family violence on two occasions in 2008 and 2010 and of attempted assault family violence in 2011. Accordingly, the second factor weighs in favor of admission of the evidence because it shows Esquivel's long-term propensity for breaking the law. See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989) (explaining that remote conviction may be admissible where defendant has been convicted of felony or crime of moral turpitude in time between remote conviction and trial of offense at issue).
The third factor weighs in favor of admitting the evidence concerning his prior convictions for burglary, possession of a firearm, and attempted sexual assault because, as noted previously, admission is favored when the prior offenses are all dissimilar from the crime at issue.
Similarly, the fourth and fifth factors weigh in favor of admission of the impeachment evidence because, as set out above, the only witnesses were Garcia and Esquivel, because Esquivel's credibility was key to his defense, and because it was important for the State to be able to impeach Esquivel when he testified and to refute his claims.
Given that four factors weigh in favor of allowing the State to impeach Esquivel with his prior felony convictions, we would be unable to conclude that the district court would have abused its discretion by concluding that the probative value substantially outweighed the prejudicial effect and by overruling an objection under Rule 609 had one been made.
For the reasons previously given, we must conclude that Esquivel failed to meet his burden of establishing that his trial counsel was ineffective for allowing him to testify, that the record is insufficient to evaluate Esquivel's claims regarding his attorney's failure to object to the admission of evidence regarding his prior offenses, and that Esquivel failed to meet his burden of establishing that the district court would have abused its discretion by admitting the evidence if his trial counsel had objected.
Failure to Object to Legal Conclusions and to Lack of Personal Knowledge
In his final issue on appeal, Esquivel asserts that his trial counsel was ineffective for failing to object during the State's cross-examination of him when the State asked him whether Garcia's injuries constituted serious bodily injury. Specifically, the State asked Esquivel if a shattered orbital bone and if a broken nose were serious bodily injuries and if he caused Garcia's injuries with his hand, and Esquivel answered, "Yes, ma'am," to each question. On appeal, Esquivel contends that the questions were improperly "soliciting opinion testimony from a lay witness" because he had no medical training, no direct knowledge of Garcia's injuries, and no legal training and, therefore, that "a reasonable trial lawyer would have objected to the above questions under Texas Rule of Evidence 701." See Tex. R. Evid. 701. Similarly, Esquivel argues that a reasonable trial attorney would have objected under Rule of Evidence 602 because Esquivel "lacked personal knowledge as to the injuries sustained by" Garcia. See id. R. 602.
Under Rule 602, a witness "may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Id. "Personal knowledge will often come directly from the witness's senses . . . [or] . . . experience." Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Although Esquivel might not have known the full medical extent of Garcia's injuries before she was examined by a doctor, evidence was introduced during the trial through the testimony of Garcia and Esquivel and through the various photos taken of Garcia when she was treated at the hospital that Esquivel had personal knowledge of the serious nature of the injuries that Garcia sustained and that he caused the injuries by hitting her with his hand. See Moreno v. State, No. 08-11-00122-CR, 2012 Tex. App. LEXIS 6018, at *12-13 (Tex. App.—El Paso July 25, 2012, no pet.) (not designated for publication) (concluding that it was proper for victim's husband to testify regarding defendant's attempt to hit victim with his car because there was evidence that husband had personal knowledge of incident); Lewis v. State, No. 08-12-00151-CR, 2014 Tex. App. LEXIS 1837, at *21-22 (Tex. App.—El Paso Feb. 19, 2014, no pet.) (not designated for publication) (determining that trial court properly admitted testimony from victim that defendant was acting like he was on drugs because she had personal knowledge of matter from her senses and from her experience).
For these reasons, we cannot conclude that Esquivel carried his burden of showing that if his trial counsel would have objected to his testimony under Rule 602, the district court would have abused its discretion by overruling that objection. See Arizmendis v. State, Nos. 05-03-01420-CR, -01421-CR, 2004 Tex. App. LEXIS 10567, at *23 (Tex. App.—Dallas Nov. 22, 2004, no pet.) (mem. op., not designated for publication) (reviewing trial court's ruling under Rule 602 for abuse of discretion).
Under Rule 701, if a witness is not an expert, the witness can testify in the form of an opinion if the opinion is "rationally based on the witness's perception" and is "helpful to clearly understanding the witness's testimony or to determining a fact in issue." Tex. R. Evid. 701. "'Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted).'" Davis v. State, 313 S.W.3d 317, 349 (Tex. Crim. App. 2010) (quoting Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002)). "As a general rule, observations that do not require significant expertise to interpret and which are not based on scientific theory can be admitted as lay opinions." Id.
As set out above, Esquivel's testimony was based on his personal observations and behavior during the incident. See id. (determining that trial court did not abuse its discretion by allowing officer to testify as lay person regarding his first-hand observation of stab wounds to victim and her cat). Moreover, the testimony was helpful to determining the extent of Garcia's injuries and to establishing elements of the charged offenses. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (explaining that testimony from witness that defendant intentionally ran over victim with his truck was admissible under Rule 701 because witness's testimony was based on his own perception and was helpful in determining fact in issue); Barnett v. State, 344 S.W.3d 6, 20-21 (Tex. App.—Texarkana 2011, pet. ref'd) (overruling ineffectiveness claim that counsel should have objected under Rule 701 to testimony from victim because he was testifying based on his perception where victim testified that he thought defendant shoved him to prevent him from getting cell phone out of his pocket and that he thought defendant would cut him); Chatham v. State, No. 14-03-00859-CR, 2004 Tex. App. LEXIS 8327, at *13-14 (Tex. App.—Houston [14th Dist.] Sept. 16, 2004, no pet.) (mem. op., not designated for publication) (concluding that testimony from store manager that collision was not accident was rationally based on his observations of defendant being told that he would have to replace tire, of defendant's heated exchange with other drivers, and of not hearing any braking when defendant's truck drove into store at high rate of speed).
For these reasons, we cannot conclude that Esquivel carried his burden of showing that if his trial counsel would have objected to his testimony under Rule 701, the district court would have abused its discretion by overruling that objection. See Davis, 313 S.W.3d at 349 (explaining that "admissibility" of opinion testimony under Rule 701 "is within the discretion of the trial court and will not be reversed absent an abuse of discretion"); Britt v. State, No. 14-06-00131-CR, 2007 Tex. App. LEXIS 3148, at *15-16 (Tex. App.—Houston [14th Dist.] Apr. 26, 2007, pet. ref'd) (mem. op., not designated for publication) (providing that rulings on admissibility of lay opinion testimony under Rule 701 are within discretion of trial court). Moreover, Esquivel's attorney may have made the strategic decision to not object in order to avoid calling attention to the testimony and risk having his objection overruled. See Britt, 2007 Tex. App. LEXIS 3148, at *16; see also Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007) (overruling issue asserting that trial counsel was ineffective for failing to make hearsay objection because record was not sufficiently developed and because attorney's "conduct could have been part of a reasonable trial strategy"); Lee v. State, 874 S.W.2d 220, 225 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (concluding that defense attorney's "failure to object to the prosecutor's comments was reasonable strategy").
Even assuming for the sake of argument that Esquivel's attorney should have objected to the testimony discussed above, we would be unable to conclude that Esquivel was prejudiced by those errors. Before Esquivel testified during the trial, the State introduced evidence regarding the seriousness of Garcia's injuries through the admission of graphic photos of the injuries. Further, Garcia testified regarding the injuries that she sustained and regarding the lingering effects of those injuries. In addition, the officers who arrived at the hospital described her condition. For example, Officer Preusse testified as follows:
At the time I walked in, she was behind a little curtain. I walked in and I thought, my God, this is a pretty bad assault. I had never seen somebody this bad in 14 years. Her face was black and blue, bruises all over her arms. She had a difficult time talking. I was trying to understand what she was saying because she was—had been assaulted so bad it was kind of hard for her to talk to us.Further, the officer described her demeanor as "[e]xtremely fearful, crying, upset, kind of would go in and out of consciousness, like she was about to lose consciousness at the time, so we kind of constantly talked to her to try to keep her awake." Similarly, Officer David Hughes testified that Garcia had "visibly very bad injuries, very traumatic injuries. Just immediately kind of took me off-guard at first because they were worse than what I had seen very often at all" and stated that "[s]he was talking, but she was having difficulty. She had had a lot of blood that was still coming from her—drained from her nose into her throat and she was having difficulty breathing a couple of times." Finally, testimony establishing that "a blowout orbital fracture," "a broken nose," and "a ruptured eardrum" were serious bodily injuries was admitted through Puryear, who, as described above, treated Garcia at the hospital.
Having determined that Esquivel has not shown that his trial attorney provided ineffective assistance of counsel on the grounds alleged above, we need not further address the matter, but we do emphasize that ineffectiveness challenges are considered in light of "the totality of the representation" provided by the attorney. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Moreover, we note that during voir dire Esquivel's attorney effectively questioned the prospective panelists regarding any biases that they might have, mentioned the State's burden of proof and the presumption of innocence, discussed the scope of the law pertaining to self-defense, moved to exclude several panelists for cause, and exercised peremptory challenges. During the trial, Esquivel's attorney cross-examined the State's witnesses. When Esquivel's attorney cross-examined Officer Preusse about a statement that he made in his testimony indicating that Garcia had defensive wounds on her arms, Officer Preusse admitted that he could not conclusively state that the bruises on Garcia's arm were defensive in nature. When cross-examining Garcia about her recollection of the events in question, Esquivel's attorney asked her why she did not call for help, questioned her about her drug use on that evening, and inquired whether she carried a knife in her purse. During his cross-examination by Esquivel's attorney, as discussed previously, Detective Dozier admitted that he was unaware of any fingerprint testing being performed on Esquivel's car and that he was not given any test results demonstrating that the substance in Esquivel's car was blood or matching the substance to Esquivel or Garcia. During the jury-charge conference, Esquivel's attorney objected to some allegedly improper language in the charge. In his closing arguments during the guilt-or-innocence phase, Esquivel's attorney urged that the police rushed to judgment without thoroughly investigating the case, that there were no witnesses to the incident other than Garcia and Esquivel, that their stories did not match up, and that the evidence was consistent with Esquivel's testimony that Garcia attacked him first because her injuries on the right side of her face indicated that she turned towards Esquivel in the car. During the punishment phase, Esquivel's attorney called Esquivel's mother, Dolores Esquivel, to the stand to discuss how he helped take care of her, what Esquivel was like as a child, and how she will support him when he gets out of prison in any way that she can. Finally, in his closing argument during the punishment phase, Esquivel's attorney acknowledged that Esquivel had several prior convictions but argued that those occurred years before and asked for the minimum sentence.
For all of these reasons, we overrule Esquivel's three issues on appeal.
CONCLUSION
Having overruled all of Esquivel's issues on appeal, we affirm the district court's judgments of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: April 21, 2016 Do Not Publish