In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-05-018 CR ____________________
GREGORIO GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th District Court Angelina County, Texas Trial Cause No. 23,980
MEMORANDUM OPINION
A jury found appellant Gregorio Garza guilty of two counts of aggravated sexual assault of a child and one count of indecency with a child. See Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws 80 (amended 1993, 1995, 1997, 1999, 2001, 2003) (current version at Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (a)(1)(B)(iii) (Vernon Supp. 2005)); Tex. Pen. Code Ann. § 21.11(a)(2) (Vernon 2003). The trial court assessed Garza's punishment at confinement in the Texas Department of Criminal Justice-Institutional Division for a term of forty-five years per count of aggravated sexual assault and twenty years for indecency with a child. Garza raises six issues on appeal. We affirm.
In his first issue, Garza contends the trial court erred by failing to instruct the jury that extraneous acts admitted under article 38.37 of Code of Criminal Procedure could only be considered to show his state of mind or the relationship between him and the complainants. See Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2005). Pursuant to article 38.37, the State offered evidence of extraneous acts committed against the two complainants, W.R. (Garza's stepson) and D.G. (Garza's son). See id. Garza did not seek a limiting instruction upon the admission of the extraneous acts. After the guilt/innocence evidence closed, the trial court administered the following jury instruction:
You have heard evidence of extraneous crimes or bad acts other than the ones charged in the indictment in this case. You cannot consider the testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other acts, if any were committed.
Garza neither objected to the jury charge nor sought to limit the extraneous evidence pursuant to Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2005). (1)
An appellate court's first duty in evaluating a jury charge issue is to determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error is found, the appellate court then analyzes that error for harm. Id. (citing Middleton, 125 S.W.3d at 453). Texas Rule of Evidence 105(a) provides:
(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
Tex. R. Evid. 105(a). The Court of Criminal Appeals has consistently interpreted this rule to require a request for a limiting instruction at the moment the evidence is admitted. See Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996); Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994). Once evidence is admitted without a proper limiting instruction, it becomes admitted for all purposes. Hammock, 46 S.W.3d at 895. When evidence is admitted for all purposes, a limiting instruction on the evidence is not "'within the law applicable to the case,'" and a trial court is not required to include a limiting instruction in the jury charge. Id. (citing Tex. Code Crim. Proc. Ann. art. 36.14).
In this case, Garza did not request a limiting instruction when the evidence of extraneous acts was admitted. Thus, this evidence became admissible for all purposes and a limiting instruction was not required. See Hammock, 46 S.W.3d at 893, 894-95. The trial court committed no error. Issue one is overruled.
In his five remaining issues, Garza maintains he was denied effective assistance of counsel. The legal standard applicable to an ineffective assistance of counsel claim is set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail on his claim, Garza must first prove that trial counsel's representation was deficient. See Strickland, 466 U.S. at 687. In other words, "the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Second, Garza must show that counsel's deficient representation prejudiced his defense. See Strickland, 466 U.S. at 687.
"Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone, 77 S.W.3d at 833. An appellate court will "commonly assume a strategic motive if any can be imagined and will find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citing Bone, 77 S.W.3d at 833 n.15). We assess the "'totality of the representation'" rather than isolated acts or omissions. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 1059, 1255 S. Ct. 872, 160 L. Ed. 2d 785 (2005) (citing Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986)). "The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance." Id. (citing McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992)).
Rarely will a reviewing court be able to fairly evaluate the merits of an ineffective assistance of counsel claim on direct appeal. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999)). "'In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.'" Id. (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)). When faced with a record that does not indicate trial counsel's strategy and tactics, we may not speculate as to why counsel pursued a particular course of action. Flowers v. State, 133 S.W.3d 853, 857 (Tex. App.--Beaumont 2004, no pet.) (citing Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001)). The more appropriate vehicle to raise ineffective assistance of counsel claims is an application for writ of habeas corpus. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (citing Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)).
In Garza's second issue, he complains that trial counsel failed to compel the court to determine for what purpose the evidence of other extraneous acts between Garza and the victims was admitted. See Tex. Code Crim. Proc. Ann. art. 38.37. At trial, when W.R. began to explain how Garza typically initiated the sexual abuse, trial counsel objected, stating the testimony should be limited to the offenses for which Garza was charged. The trial court ruled that the evidence was admissible and overruled counsel's objection. Garza's counsel lodged an objection; therefore, Garza has failed to show that trial counsel's performance was deficient. Issue two is overruled.
In Garza's third and fourth issues, he contends counsel failed to request a limiting instruction when extraneous acts between Garza and the victims were admitted under article 38.37 and failed to lodge a Rule 404(b) objection to the admission of extraneous bad acts that did not fall under article 38.37. See Tex. R. Evid. 404(b); Tex. Code Crim. Proc. Ann. art. 38.37. Specifically, Garza complains of evidence regarding: (1) his verbal and physical abuse of the victims and their mother; (2) a threat to kill the victims' mother; (3) instances when Garza inappropriately touched his daughter's breasts; (4) testimony that D.G. told his friend J.F. that Garza molested him; (5) Garza's failure to divorce the victims' mother or send her money; and (5) rumors that Garza was "known as a homosexual" in Mexico.
We have held that trial counsel is not necessarily deficient for failure to request a limiting instruction on extraneous acts. See Ryan v. State, 937 S.W.2d 93, 104 (Tex. App. -- Beaumont 1996, pet. ref'd) (citing Blevins v. State, 884 S.W.2d 219, 230 (Tex. App.-- Beaumont 1994, no pet.)). When an appellate court is faced with a silent record, the court can conclude that trial counsel's strategy may have been not to draw further attention to the extraneous acts. Id.
The record in this case does not reveal trial counsel's motives for not requesting a limiting instruction or for not objecting when inadmissible extraneous acts were admitted. Although we are not required to speculate as to counsel's motives, counsel's trial strategy may have been not to draw further attention to the extraneous acts between Garza and the victims. See id. Garza has failed to meet the first prong of Strickland because the record has not been adequately developed. Issues three and four are overruled.
In issue five, Garza asserts that counsel failed to object to the State's use of his post-arrest silence. During the State's direct examination of Detective David Cross of the Lufkin Police Department, the following exchange took place:
[PROSECUTOR] Who else did you talk to in reference to this case?
. . . .
[DETECTIVE CROSS] I left a card at Mr. Gregorio's house on the 2nd of June. Did not get a response. Later, when he was arrested, I asked him to do an interview and he refused to do so.
[PROSECUTOR] He did not wish to talk to you?
[DETECTIVE CROSS] No.
[PROSECUTOR] Did you ask him to?
[DETECTIVE CROSS] Yes.
[PROSECUTOR] Did you ask him in English or Spanish?
[DETECTIVE CROSS] English.
[PROSECUTOR] Did he speak to you in English?
[DETECTIVE CROSS] Yes, he did.
[PROSECUTOR] Did he seem to understand you?
[DETECTIVE CROSS] Yes.
. . . .
[PROSECUTOR] And did you talk to the defendant on that date?
[DETECTIVE CROSS] When he was arrested, yes.
[PROSECUTOR] Did you ask him to give you a statement?
. . . .
[PROSECUTOR] Is that the date you asked him to give you a statement?
[DETECTIVE CROSS] Yes.
[PROSECUTOR] Did he wish to do so?
[DETECTIVE CROSS] No.
A comment on a defendant's post-arrest silence violates his rights under the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 2244-45, 49 L. Ed. 2d 91 (1976); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986). Under the U.S. Constitution, after assurances such as Miranda warnings, the State cannot use the defendant's post-arrest silence to impeach an explanation subsequently offered at trial. See Doyle, 426 U.S. at 618. The Texas Court of Criminal Appeals has determined that, in addition to the Doyle prohibition, post-arrest, pre-Miranda silence may not be used against a defendant at trial. See Sanchez, 707 S.W.2d at 582.
We again note that the record is silent as to trial counsel's trial strategy regarding this complaint. Trial counsel may have allowed the detective to testify as to his conversations with Garza to demonstrate that the detective did not communicate using Garza's native language. The record indicates that Garza did not understand English very well and relied on a Spanish-speaking interpreter to translate the trial proceedings.
Trial counsel did object when the State later attempted to cross-examine Garza regarding his reluctance to speak to Detective Cross. The State asked him, "Sir, why didn't you talk to Detective Cross when he came to talk to you at your house?" Trial counsel objected "because he had a perfect right not to." The trial court sustained this objection and instructed the jury to disregard the question and the lack of response. (2) See State v. Lee, 15 S.W.3d 921, 926 n. 7 (Tex. Crim. App. 2000) (quoting Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988)). Garza is critical of this objection and contends it shows that trial counsel knew to object to any attempt to question his client regarding his post-arrest silence. However, as the record is silent as to trial counsel's trial strategy, we presume that the timing of trial counsel's objections was consistent with a possible strategic plan. We do not find trial counsel deficient in this regard. Issue five is overruled.
In issue six, Garza argues trial counsel failed to object to victim impact evidence. W.R. testified that as a result of Garza's sexual abuse, he has become aggressive, homophobic, and performed poorly in school. W.R. further revealed that he felt "bad . . . because [Garza] . . . took my childhood away" and he also felt "mental anguish." W.R. further testified that he received private counseling. D.G. testified that he has taken medication, has received counseling, and was in a special education program at school. D.G. further testified that he hated his father. Garza's wife (the victims' mother) testified that she felt degraded, guilty, and would not be able to forgive herself for not removing the children from Garza's home. She also stated, "I feel like this is my fault, all of it is my fault." Garza also complains of testimony regarding Mrs. Garza's stay at a women's shelter with D.G., her daughter, and her grandchild.
Victim-impact testimony is generally irrelevant during guilt/innocence because it does not tend to make more or less probable the existence of any fact of consequence at trial. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (citing Tex. R. Evid. 401). Again, we are faced with an undeveloped record regarding this issue. A review of the record indicates a conceivable trial strategy to discredit these witnesses on cross-examination. Trial counsel's cross-examination revealed that W.R. considered his relationship with Garza over the years to be "amicable," and D.G. "sort of" cared for Garza and had visited him as recently as July 2004. Trial counsel's cross-examination of Mrs. Garza revealed that D.G. and his friend J.F. were taking the same medication and experienced the same types of problems in school. The record also shows that Mrs. Garza and D.G. remained in Garza's home after the victims told their mother of the sexual abuse and D.G. reported the abuse to his school counselor. Issue six is overruled. We affirm the trial court's judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on January 2, 2006
Opinion Delivered March 15, 2006
Do not publish
Before Gaultney, Kreger, and Horton, JJ.
1. The statute provides:
Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2005).
2.