Opinion
Nos. 05-09-01109-CR, 05-09-01110-CR
Opinion Filed April 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-81881-08, 199-81882-08.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
OPINION
In two cases consolidated for trial, appellant Marcos Noe Fernandez was convicted by a jury for the aggravated assault of Sergio DeLeon and the murder of Osbelio DeLeon. On appeal, appellant raises two issues arguing that he received ineffective assistance of counsel and that the trial court abused its discretion when it overruled his hearsay objections. We resolve appellant's issues against him and affirm the trial court's judgments.
Background
Sergio testified that on the night of the offense he was hanging out with his cousin Osbelio. They drove to an apartment complex around midnight to visit a woman named Evelyn, who was married to one of Osbelio's relatives. They knocked twice on her apartment door, but no one answered. They heard loud voices coming from the apartment above Evelyn's. They left and were walking back towards their car when appellant came out of the apartment upstairs and stabbed Sergio. Sergio ran and appellant chased him and stabbed him again in the back of his shoulder. According to Sergio, he and Osbelio were not armed, did not know any of the people in the upstairs apartment, and did not provoke the attack. Sergio and Osbelio were both taken to the hospital. Sergio was treated for multiple stab wounds. Osbelio was stabbed in the chest and died at the hospital as a result of his wound. During his videotaped police interview, which was admitted into evidence and played for the jury, appellant confessed to stabbing the two men. He also told police that before he stabbed them, the men came to the upstairs apartment looking for someone who was not there, started a fight, and tried to run appellant over with a car.Appellant's First Issue
In his first issue appellant argues that he received ineffective assistance of counsel during the guilt/innocence phase of trial due to his trial counsel's "repeated errors and omissions throughout the course of the trial." More specifically, appellant argues that his trial counsel was ineffective because he (1) failed to object when Sergio identified appellant as the person who stabbed him; (2) failed to object pursuant to Crawford v. Washington, 541 U.S. 36 (2004), to the admission of testimonial statements made to police by other people who were in the upstairs apartment with appellant; (3) failed to make an opening statement; and (4) failed to ensure that the trial court's review of appellant's competency to stand trial "took place in a timely manner and included all relevant documents." In response, the State argues that the record does not demonstrate appellant's trial counsel performed in an objectively deficient manner. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To obtain reversal based on ineffective assistance of counsel, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010); Andrews, 159 S.W.3d at 101. An appellate court's review of counsel's performance is highly deferential and begins with the assumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Because a silent record provides no explanation for counsel's actions, the record on direct appeal is usually not sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, the Texas Court of Criminal Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more appropriate vehicle to raise claims of ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110. Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion. Consequently, the record is silent as to the reasons for counsel's actions. Based on the totality of this record, we cannot conclude that appellant has established that his trial counsel's performance fell below an objective standard of reasonableness. As a result, we cannot conclude that appellant has satisfied the first prong of Strickland. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."). Although there are rare cases in which a record on direct appeal is sufficient for an appellate court to make a decision on the merits, we cannot conclude this is one of those rare cases. See Cannon, 252 S.W.3d at 349-50. Moreover, in light of the undisputed evidence in this case, including appellant's confession, we cannot conclude that, but for the alleged deficiencies in counsel's performance, there is a reasonable probability that the result of the proceeding would have been different. As a result, we cannot conclude that appellant has satisfied the second prong of Strickland. We resolve appellant's first issue against him.Appellant's Second Issue
In his second issue appellant argues that the trial court erred when it overruled certain hearsay objections during the guilt/innocence phase of trial. We review rulings on the admissibility of evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will not overturn the trial court's ruling as long as it is within the zone of reasonable disagreement. Id. If the ruling is reasonably supported by the record and is correct under any applicable theory of law, we must uphold it. See Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd).Relevant Facts
Appellant's complaint arises from the testimony of Detective Cathy Stamm, who investigated the aggravated assault and murder. On direct examination by the State, Detective Stamm testified that after talking to Sergio at the hospital, she went inside the apartment above Evelyn's and talked to four men-Samuel Chacon, Edgar Castaneda, Lionel Rivera, and Gustavo Rivera. Chacon gave Detective Stamm two photographs of appellant, which she used to locate and arrest him. She also testified that after the indictment in this case, she has not been able to locate any of those four men. During cross examination, appellant's counsel referred to those men as "very crucial witnesses," "very important witnesses," and "material witnesses," and asked Detective Stamm why police did not detain the men "on behalf of Customs." In response, Detective Stamm explained that all of the men were undocumented immigrants from Guatemala who told her that they did not have any photo identification. She also explained that the policy of her police department is "not to take custody of persons-to detain them because we believe their status is illegal in this country; solely on that." On redirect examination, Detective Stamm testified that after the initial investigation, only Sergio kept in touch with her. She also testified that each of the men she talked to in the upstairs apartment told her that he did not witness the stabbings. During this testimony, appellant's counsel made five general "hearsay" objections. In response, the State essentially explained that it was asking these questions only to rebut the suggestion from appellant's counsel that the men were material witnesses and to "establish who saw what, who didn't, and who we tried to-who we tried to actually bring here if we thought that they did actually see something." The trial court overruled the hearsay objections and instructed the jury as follows: Folks, there hasn't been a request for a limiting instruction, but I want you to understand what we're talking about. For this line of questioning, it really doesn't matter if these statements are true or not. We're looking at these and admitting them only for the purpose of showing what this officer did and why. Her reaction to the statements is all we're considering; not whether the statements are true or not. Everybody understand that? Okay. Appellant did not object to the trial court's instruction.Analysis
On appeal, appellant quotes Perez v. State, 678 S.W.2d 85, 87 (Tex. Crim. App. 1984), and argues that the trial court erred when it overruled his hearsay objections because "'hearsay related to probable cause to arrest is not admissible before the jury when the issue of probable cause is not raised.'" Without citing any supporting authority, appellant also argues that (1) "[h]earsay is not admissible to show that witnesses are material or immaterial or to speak to the quality of a police investigation," and (2) the statements made by the men in the apartment "are also inadmissible under the Rule of Optional Completeness." In response, the State argues that the trial court properly overruled appellant's hearsay objections, and alternatively, if the trial court erred in overruling appellant's hearsay objections, the trial court's limiting instruction was sufficient to cure any harm. We conclude that the trial court did not abuse its discretion when it overruled appellant's hearsay objections because the statements at issue are not hearsay. A statement is hearsay only if it is offered to prove the truth of the matter asserted. See Tex. R. Evid. 801(d). Conversely, a statement is not hearsay if it is not offered to prove the truth of the matter asserted. Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999). For example, if a statement is offered to show the effect on the listener, rather than for the truth of the matter asserted, then the statement is not hearsay. See Young v. State, 10 S.W.3d 705, 712 (Tex. App.-Texarkana 1999, pet. ref'd) (concluding complainant's alleged out-of-court statements "were admissible as evidence of their effect on the listener, rather than of the truth of the matter asserted"); see generally In re Bexar Cnty. Criminal Dist. Attorney's Office, 224 S.W.3d 182, 189 (Tex. 2007) (orig. proceeding) (noting out-of-court statements are not hearsay "if offered for their effect on the listener rather than for the truth of the matter asserted"). In this case, the statements were offered to explain their effect on Detective Stamm-they were not offered for the purpose of proving that the men did not witness the stabbings. We resolve appellant's second issue against him.Conclusion
We resolve appellant's issues against him and affirm the trial court's judgments. Appellant also states that "at the conclusion of the trial, [appellant's] counsel requested that a new attorney be appointed for the appeal, so that an assertion of 'incompetence of counsel' could be made." The record demonstrates, however, that appellant's counsel actually stated, in relevant part, as follows:
My client had expressed to me a desire to file for an appeal. I additionally told him that, subsequent to me being taken off the case, that I would request the Court assign an appellate attorney so that he can have-consider full remedies, including a[n] assertion of incompetence of counsel, or whatever he may deem fit.