Opinion issued June 3, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00386-CR
RAYMOND AYALA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 937112
MEMORANDUM OPINION
Appellant, Raymond Ayala, pled not guilty to the offense of murder. A jury found him guilty as charged in the indictment and assessed his punishment at confinement for life. In four points of error, appellant contends that the trial court did not state the reasonable doubt standard correctly during voir dire, that the trial court should have instructed the jury on the meaning of proof beyond a reasonable doubt in the jury charge, and that his trial counsel was ineffective at the guilt-innocence and punishment stages of trial. Appellant also states that he adopts and incorporates by reference any arguments presented by his co-defendant Raul Reyes on appeal that do not conflict with the points of error presented. We affirm.
BACKGROUND
On the morning of February 27, 2002, Hector Subia and Joshua Mares were in a nightclub together. They got into a fight with Raul Reyes and some of his associates. As Subia and Mares drove away, they were followed by a car, which they believed was occupied by Reyes. They heard gunshots and bullets strike their car. They believed that Reyes, or others in his car, fired the shots.
The next day, Mares called Eriberto Suarez and told Suarez that Reyes had shot his car. Suarez met Mares and looked at the bullet holes in Mares’s car. They then drove to Joseph Carrizales’s house, where Mares parked in the driveway and Suarez parked behind him. After spending some time at Carrizales’s house, Suarez pulled his car out of the driveway to allow Mares to leave. While Suarez pulled out, he looked in his rear view mirror and saw a Hispanic man with a white T-shirt wrapped around his face running toward Mares’s car, firing a pistol. Mares got out of his car and started running away from the shooter, but fell down and was shot several times.
Subia heard five or six gunshots from inside the house. After hearing the gunshots, Subia rushed out of a side door in the garage. Subia testified that when he came around in front of the house, he saw appellant running through the front yard with a pistol in his hand. Appellant had a white shirt around his neck that made it look like he was trying to cover his face. Appellant stopped, pointed the gun at Subia, and said, “What’s up, mother fucker,” and then ran away. Suarez testified that appellant ran to a Ford Escort and got into the back seat.Subia saw Mares lying on the sidewalk with bullet wounds to the head, back, and leg. Mares was trying to breathe, but was choking on his own blood. Subia did not see appellant shoot Mares, nor did he see a car leaving the scene or Reyes. Someone called the police and an ambulance. The paramedics attending to Mares gave Subia his necklace, and Subia took Mares’s cellular phone out of his pocket.
Suarez testified that he called Mares’s cellular phone to tell him that he was following the Ford Escort. Suarez saw the faces of both the shooter and the driver of the Escort. At trial, Suarez identified Reyes as the driver of the Escort and appellant as the shooter. Suarez also identified both Reyes and appellant in a photograph lineup. Christopher Caldwell, a friend of Mares who also knew Reyes and appellant, testified that appellant had told him that he had shot Mares in the chest and that appellant had laughed at the television report of the murder and otherwise showed no remorse.
DISCUSSION
Voir Dire
In his first point of error, appellant asserts that the trial court erred by giving an improper definition of reasonable doubt during voir dire. After explaining to the voir dire panel how the reasonable doubt standard is different from “beyond all doubt” or “beyond a shadow of a doubt,” the judge stated:
One of the Supreme Court justices said one time, “It’s kind of like pornography. You don’t know how to define pornography, but you know it when you see it.” And that’s the same way with beyond a reasonable doubt.
Appellant asserts that this statement was an improper standard. He did not object to this statement at the time it was made, but, claims that the trial court’s statement was fundamental error, thus negating any need for a contemporaneous objection. We have reviewed the statements appellant complains of in the context of all of the statements and comments made by the trial judge in his discussion of reasonable doubt. We hold that the trial court did not commit error. We overrule appellant’s first point of error.
Jury Charge
In his second point of error, appellant asserts that the trial court should have given an explanation of the term “reasonable doubt” in the jury charge. Appellant admits that, due to the holding in Paulson v. State, no definition or explanation of the term “reasonable doubt” is required to be in the court’s charge, but argues that Paulson was wrongly decided. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). However, because Paulson is controlling, we overrule appellant’s second point of error.
Ineffective Assistance of Counsel
Appellant, in his third and fourth points of error, asserts that his trial counsel rendered ineffective assistance at both the guilt-innocence and punishment stages of trial.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
Regarding the guilt-innocence phase, appellant contends that his trial counsel was ineffective because he did not object to the trial court’s phrasing of the reasonable doubt standard in voir dire, did not object to the omission of the reasonable doubt standard in the jury charge, and did not object to evidence of witness intimidation.
Regarding the punishment phase, appellant asserts that his trial counsel was ineffective because he did not object to evidence presented about gang affiliation or present evidence that could have called for a lesser sentence.
The record is silent as to why appellant’s trial counsel did not object to the court’s phrasing of the reasonable doubt standard in voir dire, did not object to not including the reasonable doubt standard in the jury charge, did not object to testimony of witness intimidation, did not object to evidence presented about gang affiliation and did not present certain evidence that could have called for a lesser sentence. See Gamble, 916 S.W.2d at 93. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93. We overrule appellant’s third and fourth points of error.
Incorporation by Reference
Appellant, in his fifth point of error, states that, pursuant to Tex. R. App. P. 9.7, he adopts and incorporates by reference any points of error raised by Raul Reyes on appeal that do not conflict with the points raised in his brief. Rule 9.7 states that any party may join in or adopt by reference all or any part of a brief, petition, response, motion, or other document filed in an appellate court by another party in the same case. We have no record of an appeal from Raul Reyes to this court.
We overrule appellant’s fifth point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Jennings, and Keyes.
Do not publish. Tex. R. App. P. 47.2(b).