Opinion
No. 04-16-00014-CR
08-30-2017
Robert Adrian RENDON, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR11270
Honorable Kevin M. O'Connell, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
A jury convicted appellant Robert Adrian Rendon of two counts of aggravated assault on a public servant, enhanced as a habitual offender, and the trial court sentenced him to imprisonment for life on each count, with the sentences to run concurrently. On appeal, Rendon argues: (1) the trial court violated the Confrontation Clause by admitting into evidence testimonial statements made to a police officer by a witness who did not testify at trial; and (2) his trial counsel was ineffective. We affirm the trial court's judgment.
BACKGROUND
Around 1:45 a.m. on April 19, 2014, Officer Bradley Durst of the Fredericksburg Police Department noticed a red Chevy Impala driving ten miles below the speed limit down Main Street and stopping at the flashing yellow light at each crosswalk. Suspecting the driver might be impaired, Officer Durst initiated a traffic stop. As Officer Durst approached the vehicle, the driver said something inaudible and fired a .40 caliber handgun, hitting Officer Durst in the neck and abdomen. The driver then sped off. Officer Durst radioed dispatch for assistance. A video camera mounted on the dashboard of Officer Durst's patrol vehicle captured the encounter ("the Durst video").
At the time the events underlying this matter took place, Detective Durst was a patrolman. By the time of trial, he had been promoted to detective.
Approximately fifteen minutes later, Kendall County Deputy Jared Moore, who was on patrol, was dispatched to a residence near Sisterdale, Texas. Homeowners of the residence had called 911, stating a distraught woman was banging on their door and crying hysterically. While en route, Deputy Moore activated his dashboard video camera, which captured both audio and video of the following events ("the Moore video").
The relevant portion of the video shows Deputy Moore driving up to the residence and finding a woman, later identified as Rendon's cousin Tanya Flores, sitting on the front porch of the residence talking on her cell phone. When Flores sees the officers, she approaches the police vehicle. Flores appears to be crying hysterically and breathing heavily, taking large gasps of air. Deputy Moore asks Flores what is wrong, and Flores states, "He just shot a cop." Deputy Moore then asks Flores whether she knew which way the shooter went and whether she needed medical assistance. Flores states she does not need medical assistance, and in response to Deputy Moore's other question, she states, "that way," further elaborating, "I think he went around the corner." Flores can also be heard answering questions concerning the identity of the shooter, a description of the vehicle he was driving, and whether she could recall how much time had elapsed since he pulled over to let her out of the vehicle. Flores identifies the driver as Rendon and further informs Deputy Moore that Rendon was armed with a loaded AK-47 automatic rifle "ready to go." Additionally, Flores states Rendon had a parole revocation warrant, also known as a "blue warrant." Throughout this interaction, Flores is crying.
Around this same time, Comal County Deputy Sheriff Chris Roberts saw the red Chevy Impala driving southbound on Highway 281. Deputy Roberts attempted to stop the vehicle, but the driver refused to pull over and continued driving toward San Antonio, Texas. By that time, San Antonio police officers began pursuing the vehicle and a chase ensued. During this police chase, San Antonio Police Officers Billy Ludwig and Jerry Volz exchanged gunfire with the driver of the Impala. The driver of the Impala eventually lost control of the vehicle while attempting to cross a ravine, causing the vehicle to roll over multiple times. The police identified the driver of the vehicle as Rendon, who was arrested. The officers found multiple weapons in the vehicle, including an SKS AK 47 automatic rifle and a .40 caliber handgun.
Rendon was charged with two counts of aggravated assault against a public servant — specifically, Officers Ludwig and Volz — enhanced as a habitual offender. At trial, the jury heard testimony from Deputy Moore, who recounted the statements made to him by Flores. Flores did not testify at trial. Deputy Moore testified Flores told him she saw Rendon "shoot a cop" from his car window during a traffic stop. Deputy Moore also testified Flores stated she did not know where Rendon was, but he was driving with a loaded AK-47 automatic assault rifle. The deputy described Flores as "increasingly upset" and "hysterical." The jury also saw a portion of Deputy Moore's dashboard camera video, which included Flores's statements regarding the shooting of Officer Durst, her identification of the shooter as Rendon, her description of Rendon's vehicle, and her statement that Rendon was driving with a loaded AK-47 automatic assault rifle. Rendon objected to both the admission of the Moore video and Deputy Moore's testimony regarding Flores's statements. Rendon argued the video and the testimony were hearsay and violated the Confrontation Clause of the Sixth Amendment. The trial court overruled Rendon's objections. In addition to Deputy Moore's testimony and the Moore video, the jury also saw the Durst video, which depicted the initial traffic stop and the shooting of Officer Durst in Fredericksburg
After deliberation, the jury found Rendon guilty of both counts of aggravated assault against a public servant, enhanced as a habitual offender. Rendon was sentenced to life in prison on each count, but the sentences were ordered to run concurrently. Rendon then perfected this appeal.
ANALYSIS
Rendon raises two points of error on appeal. In his first point of error, Rendon contends the trial court erred and violated the Confrontation Clause of the Sixth Amendment when it allowed the State to admit the out-of-court statements made by Flores through the Moore video and Deputy Moore's testimony. In his second point of error, Rendon contends his trial counsel rendered ineffective assistance of counsel by failing to object to certain prejudicial evidence admitted by the trial court.
Confrontation Clause
As set out above, Rendon asserts the trial court erred and violated his right to confront and cross-examine Flores — as guaranteed by the Sixth Amendment — when it admitted statements made by Flores through the Moore video and Deputy Moore's testimony. Rendon contends Flores's out-of-court statements were testimonial in nature, and therefore subject to exclusion under the Confrontation Clause, because Deputy Moore's primary purpose in obtaining the statements was to gather evidence and to prove past events potentially relevant to later criminal proceedings. Rendon argues that because the complained of statements were testimonial, they were admissible only if Flores was unavailable to testify and he had a prior opportunity to cross-examine her.
Standard of Review
We review de novo a trial court's ruling on the admission of evidence over a Confrontation Clause objection. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006); Avant v. State, 499 S.W.3d 123, 128 (Tex. App.—San Antonio 2016, no pet.). We conduct a de novo review because whether a statement is testimonial is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant. Wall, 184 S.W.3d at 742-43. With regard to that question, trial courts are no better equipped than appellate courts, "and the ruling itself does not depend upon demeanor, credibility, or other criteria peculiar to personal observations. Id. at 743.
Applicable Law
The Confrontation Clause of the Sixth Amendment, made applicable to the states via the Fourteenth Amendment, guarantees an accused the right to confront and cross-examine adverse witnesses. U.S. CONST. amends. VI, XIV; Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008); Avant, 499 S.W.3d at 128; Clark v. State, 282 S.W.3d 924, 930 (Tex. App.—San Antonio 2009, pet. ref'd). The principal concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Clark, 282 S.W.3d at 930 (citing Maryland v. Craig, 497 U.S. 836, 845 (1990)). Even when a statement offered against a defendant is admissible under evidentiary rules, the statement may implicate the Confrontation Clause of the Sixth Amendment. Id.
The Confrontation Clause bars the admission of out-of-court testimonial statements of a witness unless: (1) the witness is unavailable to testify; and (2) the defendant had a prior opportunity to cross-examine the witness. Id. (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)); Avant, 499 S.W.3d at 128. Thus, the threshold question in any Confrontation Clause analysis is whether the statements at issue are testimonial or nontestimonial in nature. Clark, 282 S.W.3d at 931; Avant, 499 S.W.3d at 128 (citing Vinson, 252 S.W.3d at 338). The United States Supreme Court has defined the distinction between testimonial and nontestimonial statements, holding that:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.Davis v. Washington, 547 U.S. 813, 822 (2006). The Texas Court of Criminal Appeals has further provided that the United States Supreme has set forth the following nonexclusive factors a reviewing court should consider when determining whether a statement is testimonial or nontestimonial:
1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion.Vinson, 252 S.W.3d at 338 (citing Davis, 547 U.S. at 823-24). In addition to these nonexclusive factors, we also consider the totality of the circumstances. Clark, 282 S.W.3d at 931.
Application
To determine whether the statements made by Flores to Deputy Moore were barred by the Confrontation Clause, we must first determine whether Flores's statements are testimonial in nature. See Davis, 547 U.S. at 822; Vinson, 252 S.W.3d at 338; Avant, 499 S.W.3d at 128. After reviewing the evidence in light of the Court's holding in Davis and the factors set out in Vinson, and considering the totality of the circumstances, we conclude Flores's statements — admitted through both the Moore video and Deputy Moore's testimony — are nontestimonial because they were made in the midst of an ongoing emergency. See Davis, 547 U.S. at 822; Vinson, 252 S.W.3d at 338. In other words, the primary purpose of Deputy Moore's questions to Flores was not to establish or prove past events potentially relevant to a subsequent criminal prosecution, but to enable law enforcement to deal with an ongoing emergency. Davis, 547 U.S. at 822; Vinson, 252 S.W.3d at 338.
The evidence shows Deputy Moore was dispatched to a residence in Sisterdale because homeowners had called 911, stating a distressed woman was "banging on their door." The evidence also shows that when Deputy Moore arrived at the residence, he saw Flores, who appeared to be "crying hysterically." The video shows Deputy Moore immediately asked Flores what happened as she approached him. Crying, Flores responded, "He just shot a cop." Deputy Moore's questions then focused on obtaining information regarding whether Flores needed medical treatment and whether Flores knew where Rendon was. During the course of the conversation, Deputy Moore learned Rendon was at large, driving a red colored car, and carrying a loaded AK-47 automatic assault rifle. Deputy Moore specifically testified the primary purpose of his questions were to assess the severity of the situation and to determine what information he needed to convey to dispatch. Deputy Moore explained, "[I needed] to let other officers know if they come in contact with this vehicle that there are multiple weapons inside the vehicle, especially assault rifles, you know, that could do a lot more damage than just a regular handgun." Accordingly, we conclude any statements made by Flores to Deputy Moore were nontestimonial as they were made in the midst of an ongoing emergency — the evidence established that at the time Deputy Moore spoke with Flores, Rendon remained at large and constituted a continuing threat to the public and law enforcement. See Vinson, 252 S.W.3d at 339-40 (holding that emergency was ongoing and continuous because suspect had not been apprehended).
Although Rendon argues Deputy Moore's questions were made with the primary purpose to recount past events, we disagree. Deputy Moore was attempting to assess the reason why Flores was hysterical in order to resolve the present situation. Deputy Moore had just been dispatched to assist a woman who was described as "banging on the door" and "hysterical." When he arrived at the scene, he did not know why Flores was so upset. Deputy Moore testified he was "trying to get her to calm down so I [could] obtain information from her of what happened because of the severity of the circumstances." Although some of Flores's statements to Deputy Moore dealt with past events that had recently occurred, the record reflects Deputy Moore was interested in what was presently happening — particularly, in learning the reason for Flores's hysterical state, whether she needed medical assistance, and whether she knew Rendon's current whereabouts because he was still at large. See Wilson v. State, 296 S.W.3d 140, 146-47 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (holding that although some of witness's statements recounted past events, primary purpose of officers' questions was to assess what was presently happening because suspect was still at large). Accordingly, we conclude Deputy Moore was assessing the situation to determine the severity of the present circumstances that constituted an on-going emergency, not attempting to prove past events for a subsequent criminal prosecution. See Vinson, 252 S.W.3d at 340 (holding out-of-court statement, which identified appellant as boyfriend who committed assault, was nontestimonial because officer was assessing present situation); Clark, 282 S.W.3d at 932 (holding statements made in response to officer asking what happened were nontestimonial because officer was trying to secure potential crime scene); see also Davis, 547 U.S. at 832 (holding that because officers need to know what they are dealing with in order to assess present situation, their initial inquiries often produce nontestimonial statements).
Because we conclude the statements were nontestimonial, we hold their admission did not violate the Confrontation Clause. See Crawford, 541 U.S. at 53-54; Clark, 282 S.W.3d at 931; Avant, 499 S.W.3d at 128. We therefore overrule Rendon's first point of error.
Ineffective Assistance of Counsel
In his second point of error, Rendon contends his trial counsel rendered ineffective assistance. Rendon argues his trial counsel repeatedly failed to object to extremely prejudicial evidence admitted by the trial court, and therefore failed to preserve error for appellate review with regard to the evidence. Specifically, Rendon claims his trial counsel failed to object to the admission of the Durst video on the basis the video contained inadmissible prior bad acts under Texas Rule of Evidence 404(b). See TEX. R. EVID. 404(b). Rendon also complains about trial counsel's failure to object to Deputy Moore's testimony and the Moore video regarding Flores's out-of-court statements on the basis the deputy's testimony constituted double hearsay. See TEX. R. EVID. 802. Finally, Rendon contends his trial counsel failed to object to out-of-court statements contained on another dashboard video camera — a video separate from the Durst and Moore videos. The statements on this video consist of statements made by police officers not involved in the police chase, but who were making observations of the events that occurred that night.
Standard of Review and Applicable Law
The standard of review for an ineffective assistance of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the appellant must prove by a preponderance of the evidence that his counsel's performance was "deficient." Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (citing Strickland, 466 S.W.3d at 688). In other words, counsel's performance must have fallen below the "objective standard of reasonableness." Id. The range of reasonable assistance by counsel is wide and the representation as a whole is measured, with deference given to the likelihood that actions taken were based on strategy. Jimenez, 364 S.W.3d at 883. There is a strong presumption that counsel has in fact rendered adequate assistance and exercised "reasonable professional judgment." Strickland, 466 U.S. at 690. Appellate courts have never interpreted the Strickland standard to mean "'the accused is entitled to errorless or perfect counsel.'" Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio 2008, no pet.) (quoting Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)).
Under Strickland, the appellant must also prove any deficient performance prejudiced his defense in such a way that there is a reasonable probability that "but for counsel's unprofessional errors" the outcome at trial would have been different. Strickland, 466 U.S. at 694; Jimenez, 364 S.W.3d at 883. This reasonable probability must be sufficient to "undermine confidence" in the verdict. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Importantly, claims of ineffective assistance of counsel must be "'firmly founded in the record'" and "'the record must affirmatively demonstrate'" the merits of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson, 9 S.W.3d at 813). Otherwise, the strong presumption that trial counsel did in fact act within the proper range of reasonable and professional assistance and with sound strategy in mind will not be overcome. Badillo, 255 S.W.3d at 129.
Generally, direct appeals are inadequate vehicles for Strickland claims because the record is usually insufficiently developed. Goodspeed, 187 S.W.3d at 392. This is true with regard to claims of deficient performance 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[,]" and absent such an opportunity, a reviewing court "'should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)); see Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Accordingly, "a silent record on the reasoning behind counsel's actions is sufficient to deny relief." Badillo, 255 S.W.3d at 129.
Application
Applying these standards to this case, we hold Rendon failed to prove his ineffective assistance of counsel claim. Although Rendon filed a motion for new trial, no hearing was held on the motion. The record is silent as to counsel's motives during trial. Thus, Rendon's claims that his trial counsel was ineffective are not "firmly founded in the record." Goodspeed, 187 S.W.3d at 392. In absence of a record identifying the reasons for counsel's failure to object on the bases asserted by Rendon, we must presume counsel made decisions deliberately as a part of sound trial strategy. See Badillo, 255 S.W.3d at 129. Furthermore, the record shows trial counsel objected to some of the evidence specified by Rendon, but on different grounds. For example, during a pretrial hearing, trial counsel specifically objected to the Durst video on the basis that its prejudicial effect outweighed in probative value under Texas Rule of Evidence 403. See TEX. R. EVID. 403. As to trial counsel's failure to object to Deputy Moore's testimony and the Moore video concerning Flores's statements based on double hearsay, the record reflects trial counsel objected to both pieces of evidence during a hearing outside the presence of the jury on the basis that the statements constituted hearsay and violated the Confrontation Clause. As indicated above, both objections were overruled. The objections were re-urged during trial when the evidence was admitted in front of the jury. Accordingly, without an explanation from trial counsel regarding her decision to forego certain objections, we cannot conclude trial counsel's actions were "so outrageous that no competent attorney" would have failed to act. Goodspeed, 187 S.E.3d at 392. Because we are unable to conclude trial counsel's performance fell below an objective standard, we conclude Rendon failed to meet the first prong of the Strickland test as to this point of error. Id. Accordingly, we overrule Rendon's second point of error.
CONCLUSION
Based on the foregoing, we overrule Rendon's points of error and affirm the trial court's judgment.
Marialyn Barnard, Justice Do Not Publish