Opinion
NO. 01-16-00404-CR
08-22-2017
JOSE VALENTINE NORIEGA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1435731
MEMORANDUM OPINION
A jury found appellant, Jose Valentine Noriega, guilty of the offense of murder and assessed his punishment at confinement for life. In his sole issue, appellant contends that his trial counsel provided him with ineffective assistance.
See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
We affirm.
Background
N.M., a niece of the complainant, Rocio Montoya, testified that in April 2013, she learned that the complainant and appellant were in a dating relationship. In January 2014, the complainant and appellant had a son, K.M. On July 20, 2014, the complainant and N.M. went to visit N.M.'s grandmother at her house on Crestford Lane in Pasadena. At approximately 11:00 p.m., appellant called the complainant on her cellular telephone, which she had "on speaker for a little bit." N.M. overheard a portion of the conversation, and she recognized the caller's voice as that of appellant. At approximately 1:00 a.m., appellant called again. The complainant told N.M. that she was going to go outside and talk with him, would be gone for about thirty minutes, and asked her to watch K.M. The complainant then "put[] on her shoes," "put her hair down," and told N.M. to look out the window and watch for appellant. N.M. saw that appellant, who was driving a red Suburban, "was already there." She noted, however, that he was parked up the street, some distance from the house. When the complainant left the house, N.M. saw her walk toward the red Suburban and meet with appellant. Appellant then grabbed the complainant by the arm, and they walked "around the truck," entered it, and left. N.M. and her sister, T.M., waited up until 4:00 a.m., however, the complainant did not return.
At approximately 5:00 a.m., N.M. told her grandmother that the complainant had gone to meet with appellant "to go talk in the woods" and had not returned. At 8:00 a.m., after her grandparents had left for work, N.M. tried to call the complainant, but her cellular telephone was "just off." N.M., T.M., and the complainant's two children then walked around the neighborhood looking for her. N.M. explained that she thought that the complainant and appellant might have parked the Suburban nearby and fallen asleep. However, when N.M. discovered that an adjacent street, Olson Lane, was closed and there were "cops and white vans" in the area, she filed a missing-person report with the Pasadena Police Department ("PPD").
T.M. testified that on July 20, 2014, she and N.M. went to dinner with the complainant and then to their grandmother's house. At around 11:00 p.m., appellant called the complainant on her cellular telephone, which she had on "speaker" for awhile. T.M. recognized the caller's voice as that of appellant, whom she knew. He and the complainant had worked together, "lived together for awhile," and "had a baby together." During the call, appellant, who "sounded kind of angry," talked about the complainant's ex-boyfriend, "Adrian"; asked her why she had not been calling him; and accused her of "cheating on him with Adrian." At approximately 1:00 a.m., appellant called back and "wanted to see the baby," K.M. The complainant refused, but agreed to meet with him and talk. Shortly thereafter, T.M. looked out the window, recognized appellant's red Suburban, and saw the complainant walk toward appellant, who was walking toward her. Appellant "grabbed" the complainant and led her to the passenger side of the Suburban, where she entered. When T.M. awoke at 6:00 a.m., she walked around the neighborhood with N.M. looking for the complainant, and they "walked to where [the complainant] had told [them] she was going to talk with [appellant]." After they saw the "news" and that law enforcement officers were "where [the complainant] had told [them] she was going to go talk to [appellant]," she and N.M. became frightened and went home and to call their grandmother.
Roxanna Gonzalez testified that she and appellant had lived together for nineteen years and have five children together. In November 2013, the complainant began making telephone calls to appellant, asking for money. He told Gonzalez that he had previously worked with the complainant and she blamed him for terminating her employment. On one occasion, Gonzalez "grabbed the phone from him" and spoke with the complainant, who told her that "she just wanted to let [appellant] know that she was pregnant and having his baby and by the way it's a boy." When Gonzalez told appellant that she was going to leave him, he "g[ot] mad and . . . slap[ped] [her] and grab[bed] [her] arm and pull[ed] over and sa[id], oh, you never have my back. She's lying. She always lies. She was accusing somebody else that he's the father."
Gonzalez further testified that in July 2014, after a constable had served appellant with a suit to establish his paternity of K.M. and obtain child support, she told him that their relationship was "done" and moved into a separate bedroom. At approximately 7:30 p.m. on July 20, 2014, she and appellant got into an argument, during which she told him to move out. When he refused, she and their children left the house to go stay overnight at the house of appellant's brother. However, at around 4:00 a.m., after the air conditioning had malfunctioned, they returned home. When they arrived home at 4:45 a.m., appellant's red Suburban was not there.
Serafin DeLaRosa, who lives on Crestford Lane, testified that at 4:30 a.m. on July 21, 2014, he was outside his house smoking a cigarette when he saw, parked across the street, a "red Chevy truck," which "had a camper shell cover on the back" or was a sport-utility vehicle. He noted that street lights illuminated the area. When DeLaRosa began walking toward the truck to get a license plate number, the driver "started it up" and, without turning on the truck's headlights, began to slowly drive away. The driver did not accelerate, but "just idled around the corner and out of view."
Robert Oates testified that he lives near Crestford Lane and left to go to work at approximately 5:00 a.m. on July 21, 2014. As he was driving out of the subdivision, he saw a small fire burning at the end of a dead-end street, Olson Lane, in an area near a retention pond, and he called for emergency assistance.
Pasadena Fire Marshal's Office ("PFMO") Investigator R. Coven testified that at 5:47 a.m. on July 21, 2014, he was dispatched to investigate a "burning body" discovered near the intersection of Crestford Lane and Olson Lane in Pasadena. He noted that the initial report of the fire was received at 5:18 a.m. and firefighters had arrived at 5:20 a.m. At the scene, Coven noted a "strong smell of ignitable liquid consistent with gasoline." Once the fire was extinguished, he saw that the complainant was severely burned and had a "large jagged, gaping wound on the left side of her face," "consistent with some type of blunt force trauma." He also noted "quite a bit of blood spatter" on the surrounding grass.
PFMO Investigator C. Shannahan testified that just before 6:00 a.m. on July 21, 2014, after firefighters had discovered the "body of a female that was on fire" in a field near a retention pond on Olson Lane, he was dispatched to investigate. While at the scene, he was notified of a report received by the PPD of a person missing from a house on Crestford Lane, which was a "block, block and a half away" and just "north of the intersection of Olson Lane and Crestford Lane." After the medical examiner arrived, it was discovered that remaining remnants of clothing, along with a shoe and piece of jewelry, matched the description of items worn by the missing person. Shannahan noted that there were "small droplets" of blood on the grass surrounding the complainant that would not have been caused by the fire alone. And the "shape of the burn on the grass" and intact clothing on the complainant's back indicated that the fire had been set while the complainant was lying on the grass.
PFMO Deputy L. Suniga testified that during his investigation, he spoke with Cynthia Krueger, who lives in close proximity to the area where firefighters found the complainant's body. She told Suniga that between 4:00 and 4:15 a.m. on July 21, 2014, she heard people arguing, a scream, and a "loud truck drive by."
PFMO Deputy J. Allen testified that on July 23, 2014, when he arrested appellant, appellant was driving a red Chevrolet Suburban with silver trim.
Houston Police Department ("HPD") Officer J. Vigil testified that he is assigned to HPD's criminal intelligence unit and examined the cellular telephone records of appellant and the complainant. He noted that on July 20, 2014, appellant's cellular service was "hot lined," meaning that his service had been suspended and he was unable to make outgoing calls. The complainant's cellular telephone records indicate that at 10:45 p.m., she made a call that lasted for 21 minutes to a pay telephone at an apartment complex located near Crestford Lane. At 12:12 a.m., appellant attempted to make an outgoing call from his cellular telephone. Although the call could not connect because his service had been suspended, network data generated by the attempt placed his cellular telephone in the area of Bissonnet Street and Fondren Road on the southwest side of Houston. At 1:09 a.m., the complainant received a telephone call from the pay telephone at the apartment complex near Crestford Lane. Between 12:12 a.m. and 7:59 a.m. on July 21, 2014, appellant's cellular telephone was not used and, thus, no cellular-tower data was generated from which to determine his location.
Mary Anzalone, an assistant medical examiner with the Harris County Institute of Forensic Sciences ("HCIFS"), testified that based on the autopsy that she performed on the complainant's body, she determined that the complainant had been strangled and had suffered "extensive blunt force trauma" to her face. She noted that several of the bones in the complainant's face, and a bone in her neck, had been fractured. Anzalone opined that the complainant's body had been burned after her death. And she classified the cause of the complainant's death as "strangulation with blunt force trauma of the head" and the manner of death as homicide.
Christy Smejkal, a DNA analyst with the HCIFS, testified that her examination of DNA swabs taken from the complainant's lower right leg and foot revealed that appellant "could not be excluded" as a contributor. Smejkal noted, however, that her testing equipment was not able to distinguish between DNA contributed by appellant and that contributed by his son, K.M.
Dr. Mark Perlin, the chief scientific officer and chief executive officer of Cybergenetics and the State's expert on DNA analysis and interpretation, testified that he has a medical degree from the University of Chicago, a doctoral degree in mathematics from City University of New York, and a doctoral degree in computer science from Carnegie Mellon University. He is a member of the American Academy of Forensic Sciences; has authored published works on DNA evidence in scientific journals; lectures two or three times per month about methods of interpreting evidence by computer; and has testified as an expert on DNA analysis and interpretation "around 30 times" in state and federal courts in the United States, in the United States Marine Court, and in courts in the United Kingdom and Australia. Perlin explained that TrueAllele, a software product developed by Cybergenetics, is able to differentiate among the contributors to a DNA sample. He noted that the program has been subjected to over thirty validation studies, seven of them published in scientific journals after an independent peer-review process, and is in use at five crime laboratories in the United States.
The Harris County Forensic Genetics Laboratory asked Dr. Perlin to examine samples taken from the complainant's "left forearm, hand, and ring" and her "back lower right leg and foot," as well as blood droplets taken from the grass surrounding her at the crime scene, to determine the extent to which the four references, i.e., the complainant, appellant, appellant's friend Miguel Zamora, and K.M., were contributors to the DNA found and to provide statistical weight as to their being present or absent from the sample.
Based on his testing, Dr. Perlin opined that Zamora was "excluded" as a contributor in all samples. The match between appellant and the DNA recovered from the complainant's left forearm, hand, and ring was "8.36 million times more probable than a coincidental match to an unrelated Hispanic person." Perlin explained that this describes the "strength of the matched statistic or the weight of evidence for his having contributed the DNA to this evidence." The match between appellant and the DNA recovered from the complainant's "back lower right leg and foot" was "28.9 billion times more probable than a coincidence relative to the Hispanic population." And, the match between appellant and the DNA recovered from the droplets of blood on the grass surrounding the complainant was "8.45 million times more probable than a coincidental match to an unrelated Hispanic person." The probabilities that any of these samples matched appellant, rather than an unrelated Caucasian or African-American person, were exponentially higher.
Dr. Perlin further opined that there was only a "slight association" between the DNA evidence and K.M. He explained that because of "genetic relatedness[,] you can get a shadowing of a higher matched statistic in a relative like a child or sibling." Thus, he performed "additional computer runs to separate that out and essentially determined that what [he was] seeing with [K.M. was] most likely just shadowing from the parents, and that he [was] not actually in there." During cross-examination, Perlin admitted that it was "possible" that the match between K.M. and the DNA samples constituted more than a "shadowing match." He opined, however, that it was "highly improbable" and "about 10,000 times more likely that [such a] hypothesis [was] incorrect."
Standard of Review
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) 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, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). "An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). "[T]rial counsel should ordinarily be afforded an opportunity to explain his action before being denounced as ineffective." Id. "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. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable." Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Id. In the rare case in which trial counsel's ineffectiveness is apparent from the record, an appellate court should address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law and that no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of counsel's subjective reasoning. Id.
Ineffective Assistance of Counsel
In his sole issue, appellant argues that his trial counsel did not provide him with effective assistance because he failed "to investigate and to obtain DNA expert assistance to aid in preparation for trial and cross-examination of the State's expert." He asserts that the "primary link" between him and the murder was DNA evidence found on the complainant and expert assistance "could have helped" in "putting forth the [d]efense theory" that the DNA found on the complainant's body was that of appellant's child.
The United States Supreme Court has explained that "[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S. Ct. 2527, 2535 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066)). In other words, trial counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Id.; Wright v. State, 223 S.W.3d 36, 42 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). A decision by trial counsel not to investigate "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to [trial] counsel's judgments." McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066).
Further, the decision of whether to present witnesses is largely a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd). When challenging trial counsel's decision not to call an expert witness, the defendant must show that an expert was available and would have testified in a manner beneficial to him. See Jones v. State, 500 S.W.3d 106, 116-17 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref'd); see also Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007).
Appellant first notes that his trial counsel did "present[] evidence" that "at the time he was claimed to be in the area" of Crestford Lane in Pasadena, he was "at his mother's home." He asserts that the cellular telephone records in evidence "confirm [his] location at 1:00 a.m." on the night of the murder to be the "Bissonnet/Fondren area of Houston," and not in Pasadena. Our review of the record reveals that Officer Vigil testified that between 12:12 a.m. and 7:59 a.m. on July 21, 2014, appellant's cellular telephone was not used and, thus, there was no cellular tower data generated from which to determine his location.
In regard to appellant's complaint that his trial counsel did not investigate Dr. Perlin's methodology or retain DNA-expert assistance to aid in preparation for trial and cross-examination of Perlin, the record is silent as to counsel's reasons for not doing so. See Goodspeed, 187 S.W.3d at 392. Although appellant filed a motion for new trial, there is no evidence in the record that he actually presented the motion to the trial court. See TEX. R. APP. P. 21.6; Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). There is no ruling on the motion, no signature or notation on the motion or any proposed order, and no hearing date noted on the docket sheet or on any other form. See Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998) (record must establish that new-trial motion delivered to trial court or otherwise brought to its attention). Thus, there was not a hearing held on appellant's motion, and the record is not developed as to the reasons why his trial counsel did not present a DNA expert witness.
Appellant asserts that he, in his affidavit in support of his motion for new trial, "alleged that trial counsel's decision not obtain expert assistance was, as in [Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)], a financial and not a tactical one." In his affidavit, attached to his motion for new trial, appellant asserted that:
[Trial counsel's] decision to proceed to trial without the assistance of expert opinion(s) was based on the fact that he recognized the need for such assistance with regard to DNA evidence, but . . . neither my family [n]or I [were] able to pay an additional $2,000.00[, which] he claimed was needed to obtain such assistance.An affidavit attached to a motion for new trial is merely "a pleading that authorizes the introduction of supporting evidence" and does not constitute evidence itself. See Briggs v. State, No. 01-01-00248-CR, 2002 WL 287530, at *2 (Tex. App.—Houston [1st Dist.] Feb. 28, 2002, no pet.) (not designated for publication); see also Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973). To constitute evidence, an affidavit must be introduced as evidence at a hearing on the motion for new trial. Briggs, 2002 WL 287530, at *2. Because there was not a hearing held on appellant's motion, his affidavit did not become "evidence." Id.
Moreover, in Ex parte Briggs, the Texas Court of Criminal Appeals held that the decision of the trial counsel in that case not to consult with medical experts constituted ineffective assistance because trial counsel's affidavit demonstrated that the decision not to do so was an economic one. Ex parte Briggs, 187 S.W.3d at 467. The court explained that when faced with a client unable to pay for medical experts, a reasonably competent attorney would have pursued other options, including subpoenaing treating doctors and eliciting their expert opinions, withdrawing from the case while explaining that the accused was indigent and requesting appointed counsel, or remaining as counsel while seeking fees from the trial court for his now-indigent client. Id. at 468. The court held that counsel's decision to do nothing in the face of economic limitations did not reflect reasonable professional judgment. Id. at 469.
We note that an indigent defendant is entitled to the appointment of an expert upon a preliminary showing, made in a motion requesting such appointment or for expert-witness funds, that the matters the expert will address will likely be significant issues at trial. Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995); see also TEX. CODE CRIM. PROC. ANN. art. 26.05(d) (Vernon Supp. 2016) (providing reimbursement to appointed defense counsel in non-capital cases for necessary expenses, including retaining experts); Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
Here, in contrast with the record in Ex parte Briggs, there is no affirmative evidence that the decision of appellant's trial counsel not to call a DNA expert to testify at trial was based on financial considerations. See Jones, 500 S.W.3d at 116 (trial counsel not ineffective where no evidence of strategy in record, distinguishing Ex parte Briggs). It is "possible that trial counsel had a valid strategic reason for not presenting expert testimony wholly unrelated to the financial considerations explored in [Ex parte] Briggs." See id. Counsel may have believed that additional DNA testimony would have simply confirmed the conclusions of the State's DNA expert. See Hale v. State, 220 S.W.3d 180, 183 (Tex. App.—Eastland 2007, no pet.); Mincey v. State, 112 S.W.3d 748, 752-53 (Tex. App.—Beaumont 2003, no pet.); see also Skinner v. State, 293 S.W.3d 196, 202-03 (Tex. Crim. App. 2009) (trial counsel not ineffective for not hiring expert to perform additional DNA testing where counsel explained "he was afraid the DNA would turn out to be [the defendant's]" and "would also have deprived the defense of its primary argument at trial that the government conducted a shoddy investigation"). Thus, the record does not establish that the decision of appellant's trial counsel not to present a DNA expert witness was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392.
We note that appellant's trial counsel vigorously cross-examined the State's expert witness, Dr. Perlin, and effectively utilized him to make the point that it was "possible" that the DNA evidence found on the complainant was that of K.M., and not of appellant. See In re Napper, 322 S.W.3d 202, 248 (Tex. Crim. App. 2010) ("Cross-examination may render unnecessary the presentation of one's own expert . . . .").
Further, appellant has not established that an expert witness was willing to testify or could have offered beneficial testimony. See Jones, 500 S.W.3d at 116 (although defendant suggested "two categories of expert testimony would have assisted in his defense," he did not establish such experts were available or could have offered beneficial testimony); see also Hawkins v. State, 278 S.W.3d 396, 403 (Tex. App.—Eastland 2008, no pet.) (trial counsel not ineffective for not presenting DNA expert witness where it "ha[d] not been shown to what [the] expert would have testified").
We conclude that the record does not include the evidence necessary to overcome the presumption that trial counsel's actions were reasonable, professional, and motivated by sound trial strategy. See Jones, 500 S.W.3d at 116-17; see also Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"); see, e.g., Nieves v. State, No. 01-14-00294-CR, 2015 WL 4251009, at *8 (Tex. App.—Houston [1st Dist.] July 14, 2015, no pet.) (mem. op., not designated for publication) (trial counsel not ineffective where defendant did not demonstrate decision not to present DNA expert witness at trial objectively unreasonable).
Accordingly, we hold that appellant has not shown that his trial counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at 143-44.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).