Opinion issued April 8, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00842-CR
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Jesus Oswal Garcia-Sandoval, Appellant
V.
The State of Texas, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1113176
MEMORANDUM OPINION
Appellant Jesus Oswal Garcia-Sandoval was convicted by a jury of aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003). After the jury returned its guilty verdict, Garcia-Sandoval waived his right to trial on punishment and agreed with the State to a recommended punishment of 19 years’ imprisonment. The trial court assessed punishment at 19 years’ imprisonment, so Garcia-Sandoval has no right to appeal his punishment. See Tex. R. App. P. 25.2(a)(2). In four points of error, Garcia-Sandoval contends he received ineffective assistance of counsel at guilt-innocence. We affirm.
Background
The complainant, Paulie Nobles, testified that she was robbed at gunpoint by Garcia-Sandoval while she and a friend, Wanda Boudreaux, were leaving a restaurant. Garcia-Sandoval was the passenger in a car that drove up next to Nobles, and Garcia-Sandoval pointed a gun at Nobles and told her to give him her purse. Nobles testified that Garcia-Sandoval opened the car door, put the gun to her stomach, and said, “Do you think I’m playing with you?” She threw her purse at Garcia-Sandoval, he fell back into the car, and Garcia-Sandoval and the driver drove away.
Nobles identified Garcia-Sandoval in a police lineup a week after the incident. She testified that she recognized him right away because she paid close attention during the robbery. It was daytime when the robbery occurred.
Boudreaux testified at trial that she saw the car drive up, saw the passenger, and heard him say, “Give me your purse.” She identified Garcia‑Sandoval as the robber and said that he pointed a gun at her and Nobles. Boudreaux further testified on direct- and cross-examination that she got a very good look at Garcia‑Sandoval during the robbery. She was able to immediately recognize him in the police lineup.
Houston Police Detective G. Ebbers testified at trial that he conducted the police lineup for Nobles and Boudreaux. Detective Ebbers said that both Nobles and Boudreaux were positive that Garcia‑Sandoval was the person who committed the robbery. Detective Ebbers also testified that he saw Garcia‑Sandoval using Nobles’s credit card on a Wal‑Mart surveillance tape.
Malcolm Sharples testified at trial concerning an extraneous offense. The trial court allowed the testimony about the extraneous offense in part because Garcia‑Sandoval had placed the issue of identity in question. Sharples said he was robbed in April 2007 by a man in the passenger’s seat of a car who was holding a gun. Sharples identified Garcia‑Sandoval as the man who robbed him.
Garcia‑Sandoval did not file a motion for new trial.
Analysis
In his first three points of error, Garcia‑Sandoval claims his trial counsel was ineffective in failing to properly cross-examine Nobles, Boudreaux, and Detective Ebbers (point one), failing to object to alleged hearsay in Detective Ebbers’s testimony (point two), and failing to make a correct objection to Sharples’s extraneous-offense testimony (point three). In his last point, Garcia‑Sandoval claims that the cumulative effect of these errors requires a new trial.
To be entitled to a new trial based on ineffective assistance, a defendant must show that counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and that there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). The defendant bears the burden to prove ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Allegations of ineffective assistance of counsel must be firmly founded in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The review of trial counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent on the motivations underlying trial counsel’s tactical decisions, the appellant usually cannot overcome the strong presumption that trial counsel’s conduct was reasonable. See Thompson, 9 S.W.3d at 813.
In most cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Because the reasonableness of trial counsel’s choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his actions before a court reviews that record and concludes trial counsel was ineffective. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Without proof from the defendant that there is no plausible professional reason for trial counsel’s act or omission, the reviewing court may not speculate on why counsel acted as he did. See Bone, 77 S.W.3d at 835–36.
I. Specific Allegations of Deficient Performance
On appeal, Garcia‑Sandoval argues that his trial counsel failed the first prong of Strickland—i.e., counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment—because counsel did not properly cross-examine Nobles and Boudreaux, did not object to alleged hearsay in Detective Ebbers’s testimony concerning the Wal-Mart surveillance tape, and did not properly object to Sharples’s extraneous-offense testimony. As discussed below, in making these arguments Garcia‑Sandoval provides no case authority or any other compelling argument for the proposition that there can be no plausible professional reason for trial counsel’s acts or omissions in these specific situations.
Issue 1: Cross-examination
In his first issue, Garcia‑Sandoval claims his trial counsel’s cross‑examination of Nobles was deficient because trial counsel did not ask Nobles what description she gave of the robber, whether her stolen credit cards and cell phone were ever used, how far away the robber was from her, what her state of mind was at the time of the incident, what the gun looked like, and what the driver looked like. Garcia‑Sandoval further claims his trial counsel’s cross-examination of Boudreaux was deficient because trial counsel did not ask Boudreaux for a detailed description of the robber. Finally, Garcia‑Sandoval claims in passing that his trial counsel was deficient in not cross‑examining Detective Ebbers concerning Nobles’s and Boudreaux’s descriptions of the robber and in not demanding copies of the Wal-Mart surveillance tape or the credit-card records.
Trial counsel may make strategic decisions as to whether and how to cross‑examine witnesses. See, e.g., Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973) (“Often, the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial.”); Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (acknowledging circumstance in which it would be “entirely reasonable or foreseeable that a defense attorney would limit his cross-examination out of fear of alienating a jury or coming across as too aggressive”); Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (“Cross‑examination is inherently risky, particularly in criminal cases where pre‑trial discovery is more limited than in civil cases.”). Garcia-Sandoval presents no argument or evidence to demonstrate that trial counsel could not have had any plausible professional reasons for his actions in this regard. See Bone, 77 S.W.3d at 835–36.
Issue 2: Hearsay
In his second issue, Garcia-Sandoval claims his trial counsel’s cross‑examination of Detective Ebbers was deficient because trial counsel allowed Ebbers to testify without objection that Nobles appeared positive of her identification of Garcia‑Sandoval as the robber. Garcia‑Sandoval characterizes this as hearsay testimony, but he does not explain in his appellate brief why Detective Ebbers’s opinion about Nobles’s testimony would be hearsay. Detective Ebbers’s comment about Nobles’s actual identification of Garcia‑Sandoval is not hearsay because of Nobles’s previous identification testimony. See Tex. R. Evid. 801(e)(1)(C); Rodriguez v. State, 975 S.W.2d 667, 682–83 (Tex. App.—Texarkana 1998, pet. ref’d). Garcia‑Sandoval also claims that trial counsel “elicited hearsay from Detective Ebbers” on rebuttal, but does not describe this alleged hearsay in his appellate brief.
Mere identification of instances in which counsel did not make an evidentiary objection, without more, does not establish deficient performance of counsel for the purposes of an ineffective-assistance claim. See, e.g., Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (“Isolated failures to object to certain procedural mistakes or improper evidence or argument do not constitute ineffective assistance of counsel. . . . Failure to object to inadmissible testimony can constitute a sound and plausible trial strategy.” (citing Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)). Garcia-Sandoval failed to offer any authorities or argument to establish that trial counsel could not have had any plausible professional reasons for his failure to object. See Bone, 77 S.W.3d at 835–36.
Issue 3: Extraneous-offense testimony
Garcia‑Sandoval’s third issue concerns his trial counsel’s alleged deficient performance by allegedly improperly objecting to Malcolm Sharples’s testimony concerning an extraneous robbery. On appeal, Garcia-Sandoval does not argue that the Texas Rule of Evidence 404(b) extraneous-offense objection was wrong, but instead argues that trial counsel’s specific statement that “the evidence that’s proposed to be brought forward is evidence of an extraneous, aggravated robbery of the exact same type that happened in this case” is incorrect because there were factual differences between the two incidents. The differences in the two incidents are: (1) one occurred in Midtown and the other in Memorial; (2) one involved a female driver and the other a male driver; (3) one occurred at 4 p.m. and the other at 7 p.m.; (4) Garcia‑Sandoval allegedly first asked for directions in one and immediately demanded property in the other; and (5) the driver said nothing in one and allegedly asked Garcia‑Sandoval to shoot in the other. Although Garcia‑Sandoval argues that his trial counsel’s argument was incorrect and ineffective, he offers no argument or authorities to suggest that it was “so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
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It is the defendant’s burden to prove there is no plausible professional reason for trial counsel’s act or omission. See Bone, 77 S.W.3d at 836. Without an evidentiary motion for new trial, we are not persuaded, based on the existing appellate record and argument, that trial counsel could not have had any plausible professional reasons for his actions. See id. (stating that counsel should ordinarily be accorded opportunity to explain his actions before being condemned as unprofessional and incompetent). We therefore hold that Garcia‑Sandoval has not met his burden under the first prong of Strickland to prove that his trial counsel was deficient. Because failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim, we do not reach Garcia‑Sandoval’s arguments on the second prong of Strickland. See Thompson, 9 S.W.3d at 813. We overrule points of error one, two, and three.
II. Cumulative Effect of Alleged Deficient Performance
In point of error four, Garcia‑Sandoval contends that the errors he describes in point one, two, and three are so great that his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments are violated, as well as his rights under article I, sections 10, 13, and 19 of the Texas Constitution. See U.S. Const. amend. V, VI, XIV; Tex. Const. art. I, §§ 10, 13, 19. Because the appellate record does not demonstrate that his trial counsel was deficient, we overrule point four.
Conclusion
We affirm the trial court’s judgment. The resolution of this appeal in no way affects Garcia-Sandoval’s entitlement to re-urge his claim of ineffective assistance of counsel in a writ of habeas corpus. See Bone, 77 S.W.3d at 837 n.30.
Michael Massengale
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).