Opinion
NO. 01-15-00983-CR
06-13-2017
RUBEN ZAMORA, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1411149
MEMORANDUM OPINION
A jury found appellant, Ruben Zamora, Jr., guilty of the offense of burglary of a habitation. After he pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses, the trial court assessed his punishment at confinement for twenty-five years. In his sole issue, appellant contends that his trial counsel provided him with ineffective assistance.
See TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (Vernon 2011).
We affirm.
Background
Genaro Davila, the complainant, testified that in the early morning hours of December 10, 2013, he left his home at 1305 South Airhart Drive, Baytown, Texas, to do some work with Mercedes Renteria. The complainant's mother had rented from Renteria the home in which she, the complainant, and his sister lived. When the complainant "jumped in the car [that morning] to take off to work," he saw a man, "Ruben," "walking pretty slow[ly] looking at" and "scoping [out his] house."
The complainant testified that "Ruben" is the "guy that robbed [his] house," but he did not identify Ruben as a person that he saw in the courtroom at trial. He described Ruben as a Hispanic male, about twenty-eight or twenty-nine years old, approximately five feet, nine inches tall, and thin.
The complainant did not return to the house until later that evening. At about 6:00 p.m., when he and Renteria arrived at the house in Renteria's truck, the complainant saw Ruben standing in the driveway of the home and carrying the complainant's television. When Ruben "heard [Renteria's] truck stop," he "went to the sidewalk, . . . dropped the [television,] and started running." The complainant then "jumped out" of the truck and chased after Ruben. When he "caught up" to Ruben, the complainant chased him around another truck that was parked in the street. During the chase around the truck, Ruben said, "Sorry, my bad, I'm hungry," and he "tr[ied] to apologize." (Internal quotations omitted.) The complainant asked Ruben, "What are you going to do about my TV?," and he responded, "Yeah, I'll steal you another one." (Internal quotations omitted.) Renteria then appeared, allowing the complainant to "block" Ruben. The complainant explained that Renteria recognized Ruben immediately, and they allowed Ruben to leave because Renteria "knew his parents and knew everything about him."
In regard to his belongings, the complainant testified that in addition to his television, his "Nintendo Wii," "a few of [his] clothes," and "a few video games and [a] disc," Ruben took forty dollars from his bedroom. The complainant found his video games and the "Nintendo Wii" on the other side of the fence that went around his house. And he saw his sister's television "hanging over the fence."
The complainant further noted that about three hours after the burglary, a law enforcement officer presented him with a photographic array from which he positively identified appellant. The complainant did note at trial that he did not see appellant specifically "break through the door" of his house or "dump anything over the fence." And he did not know who had actually "broke[n] inside [his] home" because he was "gone all . . . day."
Betty Davila ("Davila"), the complainant's mother, testified that on December 10, 2013, during the daylight hours, she saw appellant "casing" her house. Appellant had "walk[ed] up and down the street . . . several times" and appeared to be waiting for Davila to leave the house. At about 4:00 p.m., when Davila took her daughter to a shopping mall, the house was clean and the front door was closed and locked. The front door's "two bolt locks," door-knob lock, and chain, were all secured. Later that evening, as Betty was returning home at about 6:00 or 6:30 p.m., the complainant called her on her cellular telephone and told her that their house had been "broken into." (Internal quotations omitted.)
When Davila arrived home, she saw that the front door to the house had been "kicked in." The door frame and the "lock mechanism" were on the floor, and the door frame was broken. She explained that the television and DVD player that were normally located in her daughter's bedroom were found "on the other side of the [home's] fence." The television, "Game Boy Playstation," and "X-box" that were normally located in the complainant's room were also discovered "on the other side of the fence." And several electronic devices that had also been taken from the home were found in a pile outside the home's fence wrapped in sheets or blankets. Davila noted that she had not given appellant permission to enter the home or permission to take any property.
Renteria testified that at about 7:30 or 8:30 p.m. on December 10, 2013, he drove the complainant home after a day of work. As they approached the complainant's house, Renteria saw appellant carrying a television in his hands, as he walked on the grass between the home's front door and driveway. Renteria had known appellant "all [his] life" and recognized him.
Renteria explained that as they approached the complainant's house, the complainant "jumped out of [Renteria's] truck." As the complainant and appellant ran ahead of Renteria down the street, appellant dropped the television on the sidewalk because he could not run while holding it. When Renteria caught up to the complainant and appellant, the two men were running around another truck. Appellant then apologized and asked Renteria "to get [the complainant] off of him." And Renteria and the complainant let appellant leave. That same night, a law enforcement officer showed Renteria a photographic array, from which he identified appellant as the person that he saw holding the television in the complainant's front yard.
Baytown Police Department ("BPD") Officer C. Zucha testified that on December 11, 2013, he interviewed appellant "[i]n the DWI room of the Baytown jail" about an hour after his arrest. During Zucha's testimony, the trial court admitted into evidence, State's Exhibit 23, a videotaped recording of Zucha's interview with appellant. Zucha noted that the quality of the audio on the videotaped recording was "[v]ery poor" and only a small percentage of the audio could be heard or understood. The trial court did not publish or play State's Exhibit 23 for the jury.
Standard of Review
The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). 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.
We note that, generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case in which trial counsel's ineffectiveness is apparent from the record, an appellate court may 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 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 during the guilt phase of trial because she did not object to the admission of State's Exhibit 23, the videotaped recording of Officer Zucha's interview with appellant, "based on the fact that it contained evidence of extraneous offenses."
Prior to the trial court admitting State's Exhibit 23 into evidence, appellant's trial counsel objected to its admission on the grounds of improper predicate and the poor quality of the recording, noting that it was "awful" and "[w]e can't hear anything." The trial court overruled the objection, concluding that "the predicate ha[d] been laid." However, the trial court did note that the quality of the videotaped recording was "[v]ery poor" and "mostly static." Thus, it prohibited the State from asking Officer Zucha to narrate the videotaped recording, i.e., from asking Zucha to testify as to "what he said" or "what [appellant] said."
On appeal, appellant asserts that his "trial counsel should have requested that [certain] portions [of State's Exhibit 23] be redacted prior to" its admission into evidence. Specifically, appellant complains about the following statements made by Officer Zucha, asserting that "it is clear [that Zucha] is discussing an extraneous theft wherein the stolen property was recovered from [a]ppellant's house" and appellant's "gang membership":
• "We went to your house with your Dad. He said come on in. Look around. What did we find? Items in that house that belonged down the street that were stolen today. Door, windows, all up in the attic. . . . Not trying to put another charge [inaudible]."Appellant argues that because his trial counsel's failed to object to the admission of State's Exhibit 23 and request a limiting instruction regarding the extraneous offenses therein, her representation "clearly fell below the objective standard of reasonableness under prevailing professional norms." (Internal quotations omitted.)
• "We have our stuff. We know where it came from. We know where we found it, and file another charge on you [inaudible] I got some of it but not all of it. If it's at somebody's house. . . ."
• "Does he run with anybody [inaudible] Houstone? [Appellant appears to nod affirmatively.] That's what you run as, don't you? [Appellant appears to nod affirmatively]."
As the parties have noted, the quality of the audio in State's Exhibit 23 is extremely poor. The quoted portions of the videotaped recording are from the transcription made by appellant. We note that the court reporter did not transcribe the audio portion of State's Exhibit 23. For purposes of this opinion, we assume, without deciding, that complained-of statements were inadmissible, as appellant contends. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) ("When an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show, as part of his claim, that the evidence was inadmissible.").
When reviewing a claim of ineffective assistance, we begin with the strong presumption that counsel was competent. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). Here, the record is silent as to trial counsel's strategy, if any, and we may not speculate about why counsel acted as she did. Instead, we must presume that counsel made all significant decisions in the exercise of reasonable professional judgment. Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); Stults, 23 S.W.3d at 208; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet).
Further, we note that it is entirely possible that the decision of appellant's trial counsel not to object may have been part of a reasonable trial strategy. See Heiman v. State, 923 S.W.2d 622, 626-27 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (failure to object to inadmissible-extraneous-offense testimony, in absence of record showing counsel's reasons for not doing so, did not rise to level of ineffective assistance because not objecting could have been part of counsel's sound and plausible trial strategy); Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (failure to object to inadmissible testimony could have been part of trial counsel's plausible trial strategy).
For instance, appellant's trial counsel could have decided that redacting portions of the videotaped recording could have led the jury to conclude that appellant was attempting to hide information or that allowing the jury to view the entire videotaped recording would have demonstrated that appellant had fully cooperated with Officer Zucha. See Lemons v. State, 426 S.W.3d 267, 273 (Tex. App.—Texarkana 2013, pet. ref'd) (counsel's decision not to object to extraneous-offense testimony could have been to "prevent the jury from concluding he was attempting to hide information from them" (internal quotations omitted)); Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("Counsel may have decided to permit the challenged testimony in an effort to make appellant appear more honest and forthright . . . ."); Ahmadi v. State, 864 S.W.2d 776, 783 (Tex. App.—Fort Worth 1993, pet. ref'd) (decision not to object could have been part of strategy to appear open and honest).
Moreover, because the trial court did not publish or play State's Exhibit 23 for the jury and did not allow Zucha to testify as to what he or appellant said on the videotaped recording, which is largely inaudible, trial counsel could have decided not to object to its admission in an effort to not draw any further attention to it. See Cooper v. State, 788 S.W.2d 612, 618 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd) (strategy to withhold objection in order not to focus jury's attention); see also Lemons, 426 S.W.3d at 273 ("[C]ounsel may have decided not to emphasize the evidence by raising an objection on the theory that once a bell has been rung, it cannot be unrung and that the more a jury hears a matter, the more importance [it] may attach to it."); Huerta, 359 S.W.3d at 894 (counsel could have withheld objections to avoid drawing unwanted attention). In other words, there is a possibility in this case that the conduct of appellant's trial counsel may have been grounded in legitimate trial strategy. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."); see also Garcia, 57 S.W.3d at 440 ("[I]n the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined." (internal quotations omitted)).
We cannot conclude that the conduct of appellant's trial counsel was so outrageous that no competent attorney would have engaged in it, nor can we conclude that appellant has rebutted the presumption that the actions of his trial counsel were part of some sound trial strategy. See Mata v. State, 226 S.W.3d 425, 433 (Tex. Crim. App. 2007); Garcia, 57 S.W.3d at 440. Accordingly, we hold that appellant has not satisfied the first prong of Strickland.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).