No. 05-08-00800-CR
Opinion filed February 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F08-00023-WL.
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MOSELEY.
Juan Delacruz Gomez was indicted for the murder of Eduardo Galicia by shooting him with a gun and committing the offense as a member of a criminal street gang. After appellant waived a jury trial, the trial court convicted him of the first degree felony offense of engaging in organized crime and sentenced him to life imprisonment. See Tex. Penal Code Ann. § 71.02(a), (c) (Vernon Supp. 2008). Appellant brings two issues asserting ineffective assistance of counsel and a third issue complaining of "impermissibly suggestive" examination by the State. 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.
BACKGROUND
On March 20, 2005, Dallas police responded to a report of a shooting. At the trial, three years after the offense, Marisol Garay testified through an interpreter that she was standing about ten to twelve feet from Galicia when he was shot in the head by a man wearing a hood. Marisol could see the shooter's face only "[f]rom his eyes all the way down." Elizabeth Garay was about twenty feet from Galicia and the shooter. She testified she saw the shooter, whom she identified in court as appellant. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first two issues, appellant asserts he received ineffective assistance of counsel in regards to the admission of a photograph of the decedent and the failure to request admission of a photograph that purported to be that of the shooter. A. Applicable Law and Standard of Review
To prevail on his claim, appellant must show counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's unprofessional errors. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999) ( Strickland is controlling authority for all claims of ineffective assistance of counsel). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). 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. Id. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). 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." Goodspeed, 187 S.W.3d at 392 (citation omitted). B. Discussion
Appellant's first issue relates to State's Exhibit 2, an autopsy photograph. In response to a question from the prosecutor, the decedent's uncle was unable to identify the decedent from the exhibit. Appellant's counsel then stipulated that the photograph showed the decedent. In his first issue, appellant contends his counsel rendered ineffective assistance when he "stipulated to an essential element of the State's case." In his second issue, appellant directs our attention to Defense Exhibit 1, a photograph marked but not introduced and not included in the record on appeal. Counsel showed the exhibit to Marisol and asked her if it "look[ed] at all like the shooter." Marisol replied she did not know. When counsel stated he wanted to admit it into evidence, the trial court asked, "For what purpose? The witness can't identify it. So what value does it have?" Counsel withdrew the exhibit. Appellant argues counsel was ineffective for failing to introduce Defense Exhibit 1 for record purposes to preserve for the record a photograph "supposedly" of appellant that an eyewitness could not identify as being the shooter. We conclude under the record before us that appellant has not met his burden with respect to either prong of Strickland. With respect to the first prong, we cannot conclude that counsel's actions were "so outrageous that no competent attorney would have engaged in [them]" Id. And absent an explanation for counsel's actions, we decline to hold that appellant has met his burden of showing that those actions fell below an objective standard of reasonableness. See Moore, 694 S.W.2d at 531. With respect to the second prong of Strickland, the medical examiner later testified without objection that State's Exhibit 2 was a photograph of the decedent taken during the autopsy. We also do not see how failing to introduce Defendant's Exhibit 1 "for record purposes" might have affected the outcome of this bench trial. Marisol testified, and thus the judge was aware, that she did not know if it looked like the shooter. Thus, we conclude appellant has not shown there is a reasonable probability that the results of the proceeding would have been different in the absence of counsel's alleged unprofessional errors. See Strickland, 466 U.S. at 687-88. We resolve appellant's first and second issues against him. IMPERMISSIBLY SUGGESTIVE EXAMINATION
The State asked Marisol twice if she could recognize the shooter again, and she replied that she did not know. When the State then asked if she would look around the courtroom to see if anyone looked like the shooter, appellant's counsel objected: "That's suggestive. She already said twice she couldn't identify the person." The trial court allowed the question. The State again asked Marisol if she recognized anyone in the courtroom, and Marisol replied in the negative. The State then elicited testimony that, two months after the offense, a detective had shown Marisol six photographs and asked if she recognized the shooter. At that time, Marisol picked a photograph as being that of the shooter, and she signed and dated the back of that photograph. It was admitted as State's Exhibit 29. When shown that photograph at trial, Marisol testified she no longer remembered, but she acknowledged the signature was hers. In his third issue, appellant argues the State became impermissibly suggestive by "cajoling the witness to testify she could remember the description of the shooter by simply getting her to acknowledge that her signature was on the back of a photograph." However, the record shows that Elizabeth was also shown the photo array. She also chose State's Exhibit 29 as the shooter and signed and dated the back of that photograph. Elizabeth also identified appellant in court as the shooter. The police officer who presented the photo array to Marisol and to Elizabeth testified that State's Exhibit 29 was a photograph of appellant, whom he identified in court. In addition, the driver of the getaway car testified he witnessed the shooting and identified appellant in court as the shooter. Assuming without deciding appellant's challenge here is the same one urged in the trial court, we conclude any error did not have a substantial and injurious effect or influence in the trial court's verdict. See Tex. R. App. P. 44.2(b) (non-constitutional error "that does not affect substantial rights must be disregarded"); Taylor v. State, 268 S.W.3d 571, 592 (Tex.Crim.App. 2008). We resolve appellant's third issue against him. CONCLUSION
Having resolved appellant's three issues against him, we affirm the trial court's judgment.