Opinion
No. 05-05-01542-CR.
Opinion Filed January 2, 2007. DO NOT PUBLISH.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-74252-T.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
MEMORANDUM OPINION.
A jury convicted Jesus Manuel Gonzalez of murder and assessed punishment at ninety-nine years in prison. In three issues, appellant asserts he was denied effective assistance of counsel and the trial court erred in overruling his objections to evidence. We affirm. Hugo Carmona was shot and killed after leaving a Dallas nightclub. Carmona and his cousin, Javier Ochoa, had exited the club's parking lot and were stopped in traffic on the service road when Ochoa saw appellant and his twin brother, Manuel, approach the vehicle. The Gonzalez brothers each had a gun. Ochoa said he and Carmona tried to exit the vehicle but were too late. He saw appellant shoot Carmona multiple times, and Ochoa was shot five times. In his first issue, appellant complains he was denied effective assistance of counsel when his attorney failed to object to the State calling his brother as a witness knowing he would refuse to testify. The State granted Manuel immunity for his testimony, but Manuel refused to testify and was held in contempt. Appellant argues that since both he and his brother were implicated in the offense, the jury could have construed his brother's refusal to testify "as significant testimony that both [he and his brother] had been perpetrators of the crime." We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To obtain reversal on ineffective assistance of counsel grounds, an appellant must show that (1) trial counsel performance was deficient in that it fell below the prevailing norms and (2) the deficiency prejudiced appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005). Here, the record shows that Manuel had been convicted of murder and aggravated assault in connection with the shootings. The record also reveals that the State granted Manuel use immunity. When a person who does not have a valid basis for refusing to testify, such as when the person has been granted immunity, it is not error to call him to the stand and allow the jury to see him invoke the Fifth Amendment. See Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim.App. 1990); Perez v. State, 41 S.W.3d 712, 718-19 (Tex.App.-Corpus Christi 2001, no pet.). Because Manuel was given use immunity, he had no valid basis for refusing to testify. Accordingly, there was no legal basis for objection and appellant cannot show trial counsel's failure to object was deficient performance. Furthermore, even if we assumed an objection would have been appropriate, the record is silent as to defense counsel's strategy. Because the record provides no explanation for counsel's action, and because we can "imagine" a strategic motive in counsel's failure to object, we conclude appellant has failed to overcome the strong presumption of reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). We therefore resolve this issue against him. In his second issue, appellant complains the trial court erred in overruling his objection to evidence about a confrontation between Carmona and appellant and several other people six months before the shooting. During the incident, appellant was hit. Appellant argues the evidence was inadmissible because the State did not prove beyond a reasonable doubt that he committed the prior offense. Appellant's complaint on appeal must comport with the specific objection at trial to be preserved for review. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). At trial, appellant objected that the witness did not have personal knowledge as to who started the fight. Because his complaint on appeal does not comport with his objection below, we conclude it is waived. See Wilson, 71 S.W.3d at 349. We resolve the second issue against appellant. In his third issue, appellant complains the trial court erred in allowing Detective Chuck Young to testify, over his objection, that appellant left the country immediately after the shooting. Even if we assumed that it was error to allow Young's testimony, we would not reverse. A trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998). Only moments before the complained-of testimony, Detective Young testified without objection that after the shooting, he attempted to locate appellant to speak with him about the incident and learned that appellant was in Mexico. This is essentially the same evidence as that complained of on appeal. We resolve the third issue against appellant. We affirm the trial court's judgment.