NUMBER 13-01-649-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
JAVIER MOYA CARRILLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 92nd District Court
of Hidalgo County, Texas.
__________________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Dorsey
Opinion by Justice Rodriguez
Appellant, Javier Carrillo, was tried before a jury and convicted of murder. The jury assessed a sentence of life imprisonment. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). By three issues appellant contends: (1) the trial court committed reversible error in instructing the jury on the definition of reasonable doubt; (2) the trial court erred in failing to conduct a hearing on appellant’s motion for new trial; and (3) appellant was deprived of his Sixth Amendment right to effective assistance of counsel. We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
II. JURY CHARGE
In his first issue, appellant contends the trial court erred in submitting a charge to the jury which included the Geesa instruction defining reasonable doubt. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).
A. Standard of Review
When an appellant alleges jury charge error on appeal, we first must determine whether there is any error in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is jury charge error, we must determine if the error caused sufficient harm to warrant reversal. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). The extent of harm requiring reversal is dictated by whether the error was preserved. See id.; Escobar v. State, 28 S.W.3d 767, 777 (Tex. App.–Corpus Christi 2000, pet. ref’d). If the error in the charge was the subject of a timely objection, then reversal is required if the error is calculated to injure the rights of the defendant. Ovalle, 13 S.W.3d at 786; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Escobar, 28 S.W.3d at 777. Where the defendant failed to object to the error at trial, as in this case, we may reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. See Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171; Escobar, 28 S.W.3d at 777.
B. Reasonable Doubt Definition
In Geesa, the court of criminal appeals adopted a definition of reasonable doubt and required that the definition be submitted to the jury in all criminal cases. Geesa, 820 S.W.2d at 162. However, in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), the court of criminal appeals overruled Geesa to the extent it required trial courts to instruct juries on the definition of reasonable doubt. Id. at 573. The court held that the better practice is to not give a definition of reasonable doubt at all to the jury. Id. The court went on to hold that “if both the State and the defense were to agree to give the Geesa instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to their agreement.” Id.
In this case, the trial court allowed the State and appellant to look over the proposed jury charge and to make any objections, additions, deletions or changes. The State approved the proposed charge. Appellant objected to several paragraphs of the charge, but not to the reasonable doubt definition. The objections were denied and the charge containing the Geesa definition was given to the jury. Appellant now argues on appeal that because there is no affirmative agreement in the record, the inclusion of the reasonable doubt definition is reversible error. We disagree. Because appellant was given the opportunity to object to the inclusion of the reasonable doubt definition and made no objection, we conclude appellant agreed with this portion of the jury charge. Therefore, the trial court did not err in allowing the definition to remain in the charge.
Moreover, even if we assume arguendo, it was error to include the definition, appellant must show that he suffered egregious harm as a result of the error since he did not object to the definition at trial. See Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171; Escobar, 28 S.W.3d at 777. In Paulson, the court found that the Geesa definition of reasonable doubt was repetitious, logically infirm, and if followed would cause a jury never to convict anyone. Paulson, 28 S.W.3d at 572. It is obvious the court believed the definition favored defendants because if the jurors were to properly apply the Geesa definition, they would be less likely to convict. In re C.S., 79 S.W.3d 619, 622 (Tex. App.–Texarkana 2002, no pet.). Therefore, because the definition favored appellant at trial and he has not shown how the definition has harmed him, we conclude appellant has not suffered egregious harm.
Appellant’s first issue is overruled.
III. HEARING ON MOTION FOR NEW TRIAL
In his second issue, appellant contends the trial court erred in failing to conduct a hearing on appellant’s motion for new trial. The State responds in part that appellant was not entitled to a hearing because he did not timely present his motion to the trial court. We agree.
A. Applicable Law
To be timely, a motion for new trial must be filed within thirty days of the date sentence was imposed or suspended in open court, and presented to the trial court within ten days of filing or within seventy-five days if the trial court grants permission. Tex. R. App. P. 21.4, 21.6; Price v. State, 840 S.W.2d 694, 695 (Tex. App.–Corpus Christi 1992, pet. ref’d). Filing of the motion alone is not sufficient to show presentment. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). The record must show the movant actually delivered the motion to the trial court or otherwise brought it to the attention or actual notice of the trial court. Carranza v. State, 960 S.W.2d 76, 80 (Tex. Crim. App. 1998). Timely presentment is required before a trial court can proceed to the hearing and determination of a motion for new trial. See Price, 840 S.W.2d at 697.
B. Presentment of Motion for New Trial
In this case, appellant’s motion for new trial was timely filed on August 30, 2001. The trial court never ruled on the motion and it was thereafter overruled by operation of law. There is nothing in the record to indicate appellant delivered the motion to the trial court or otherwise brought the motion to the court’s attention. Since there is no evidence that appellant presented his motion for new trial within ten days or obtained permission to present it within seventy-five days, it was not properly before the trial court. Price, 840 S.W.2d at 697. Therefore, we find the trial court did not err by failing to conduct a hearing on appellant’s motion for new trial.
Appellant’s second issue is overruled.IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his final issue, appellant contends he was deprived of his sixth amendment right to effective assistance of counsel. The conduct appellant complains of can be grouped into the following eight sub-issues: (1) counsel failed to file a Giglio motion; (2) counsel failed to object to hearsay testimony during trial; (3) counsel failed to object to officer’s opinion testimony; (4) counsel failed to object to and request a limiting instruction as to extraneous offense evidence; (5) counsel failed to preserve error after Diana DeLeon’s outbursts while testifying; (6) counsel failed to object to the State’s improper closing argument; (7) counsel failed to object to testimony during the punishment phase of trial; and (8) counsel failed to object to improper authentication of the pen packet.
A. Standard of Review
The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant’s Sixth Amendment right to counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.–Corpus Christi 2000, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.–Corpus Christi 2000, pet. ref’d). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Munoz, 24 S.W.3d at 434; Stone, 17 S.W.3d at 350. An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel’s alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.–Corpus Christi 1996, no pet.). In assessing a claim of ineffective assistance of counsel, there is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Also, in the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. See id.; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
B. Ineffective Assistance
1. Failure to file Giglio motion
Appellant complains trial counsel was ineffective because he did not file a Giglio motion. However, the record is silent as to the reasons for counsel’s decision not to file such a motion. Therefore, appellant has failed to rebut the presumption that this was a reasonable decision. See Thompson, 9 S.W.3d at 814. Additionally, appellant has not shown that filing a Giglio motion would have impacted the outcome of the trial. See Strickland, 466 U.S. at 687. Appellant has therefore, failed to satisfy the first and second prongs of the Strickland standard and is not entitled to relief on this sub-issue.
2. Failure to object to hearsay testimony
Appellant contends trial counsel was ineffective because he failed to object to the testimony of Investigator Juan Valdez, Investigator Luis Morales, and Officer Roy Edward Estrada as impermissible hearsay. However, even had counsel objected on this basis, the testimony would have been admitted because it was not hearsay. Extrajudicial statements offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). The testimony given by Valdez, Morales, and Estrada was not offered to prove the truth of the matters asserted, but to illustrate the steps of their investigation. See id. It did not matter whether the statements offered were true or not. The testimony was relevant in understanding the steps of the investigation leading to appellant’s arrest for murder. Since the failure of trial counsel to object to admissible evidence does not constitute ineffective assistance of counsel, see Gosch v. State, 829 S.W.2d 775, 784 (Tex. Crim. App. 1991), we conclude appellant did not meet the first prong of the Strickland standard.
Likewise, appellant has not shown how the outcome of the trial would have been different but for trial counsel’s failure to object to the complained of testimony. Strickland, 466 U.S. at 687. The record reveals the complained of testimony came in at trial through other witnesses. Any error in the admission of hearsay testimony would have been harmless in light of other properly admitted evidence proving the same facts. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999). Therefore, appellant has failed to meet the second prong of Strickland.
Appellant also complains that trial counsel was ineffective because he failed to make hearsay objections to testimony given by several other witnesses. In particular, he appears to complain about testimony by Oscar Silva and Consuelo Hernandez. These witnesses testified that several days before the murder, Arturo Mendoza, the victim, told them that “you don’t know the piece of shit you have here. Because of [DeLeon] they are going to shoot at us.” Appellant argues that this statement was hearsay and not admissible to show Mendoza’s state of mind. We disagree.
Rule 803(3) of the Texas Rules of Evidence provides an exception to the hearsay rule for the declarant’s then existing “state of mind”:
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
Tex. R. Evid. 803(3). The statement by Mendoza reflected the anger he felt towards DeLeon and the fear he felt for his family and himself. This anger and fear described his emotional state or mental feeling at the time he made the statements. Dorsey v. State, 117 S.W.3d 332, 341 (Tex. App.–Beaumont 2003, no pet. h.); McDonald v. State, 911 S.W.2d 798, 806 (Tex. App.–San Antonio 1995, pet. dism’d). Therefore, we find the statement complained of by appellant falls within this hearsay exception. Since this statement was admissible, counsel’s failure to object did not constitute ineffective assistance. See Gosch, 829 S.W.2d at 784.
Appellant next appears to complain that trial counsel failed to object to statements made by DeLeon regarding appellant’s alleged vandalism of a car. However, the record contains no evidence to rebut the presumption that the challenged action might be considered sound trial strategy. See Garcia, 57 S.W.3d at 440. The testimony complained of was solicited by appellant’s own trial counsel and we assume there was a strategic motivation behind counsel’s decision not to object. See id. Therefore, appellant has failed to establish by a preponderance of the evidence that counsel’s performance was not reasonable. The first prong of the Strickland standard has not been met.
Finally, appellant complains that trial counsel was ineffective for failing to object on hearsay grounds to Maria Ceballos’s testimony that Argentina Hernandez came outside and warned her that appellant was mad and “had some pistols.” However, the record reveals that evidence regarding appellant’s possession of a gun came in earlier through the testimony of Evangelina Caballos. Because the same evidence was admitted earlier, appellant has not shown how the outcome of the trial would have been different but for trial counsel’s failure to object to this testimony. See Brooks, 990 S.W.2d at 287. Therefore, appellant has failed to meet the second prong of Strickland. Appellant’s second sub-issue is overruled.
3. Failure to object to officer’s opinion that appellant was guilty
Appellant contends that trial counsel was ineffective for failing to object to Investigator Valdez’s statement that “we believe Javier Carrillo did pull the trigger.” Appellant fails to show, however, that an objection to this statement would have resulted in a different outcome at trial. See Strickland, 466 U.S. at 687. In light of the substantial evidence presented incriminating appellant, this one statement would have little impact on the jury’s determination. Therefore, appellant has failed to meet the second prong of Strickland. Appellant’s third sub-issue is overruled.
4. Failure to object to and request a limiting instruction
Appellant next contends that his trial counsel’s failure to object to extraneous offense evidence and failure to request a limiting instruction as to this evidence constituted ineffective assistance of counsel. However, the record is silent as to the reasons for counsel’s decision not to object to the extraneous offense evidence or request an instruction. To find that trial counsel was ineffective based on a record silent as to why trial counsel conducted the trial as he did would call for speculation, which we are not permitted to do. See Jackson, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Lozada-Mendoza v. State, 951 S.W.2d 39, 44 (Tex. App.–Corpus Christi 1997, no pet.). Because of the strong presumptions that trial counsel’s conduct falls within the wide range of reasonable professional assistance and that such conduct might be sound trial strategy, see Garcia, 57 S.W.3d at 440, we find appellant failed to meet his burden of showing that his trial counsel’s assistance was ineffective. Sub-issue four is overruled.5. Failure to preserve error after DeLeon’s outbursts
Appellant contends trial counsel’s failure to preserve error after witness Diana DeLeon’s outburst during trial constitutes ineffective assistance of counsel. Appellant argues that when the initial outburst occurred, counsel objected but failed to ask for a jury instruction to disregard the statement and did not request a mistrial. However, appellant does not demonstrate how the result of his trial would have been different but for trial counsel’s failure to preserve error. See Strickland, 466 U.S. at 687. From our review of the record, the only statement which we can conclusively determine was heard by the jury was DeLeon’s first outburst of “Javi, why?” Considering all the evidence admitted against appellant, we cannot say that but for trial counsel’s failure to request a jury instruction and preserve error, the outcome of this case would have been different. Accordingly, we find appellant has not met his burden of proving the second prong of Strickland. Sub-issue five is overruled.
6. Failure to object to State’s closing argument
Appellant complains that counsel was deficient based on repeated failures to object to the State’s closing argument. Proper jury argument must encompass one of the following: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel’s argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000) (citing McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992)). Specifically, appellant complains of four instances where trial counsel failed to make objections to the jury argument by the State.
First, appellant argues that counsel failed to object when the State waived a subpoena in front of the jury and made reference to Sandra Garcia’s failure to testify. However, a review of the record shows that trial counsel did make an objection as the State began its argument on this point. The objection was overruled and the State continued with its argument. Since counsel did object, appellant has not met the first prong of Strickland.
Appellant next contends trial counsel failed to object when the State argued that appellant “wanted to take San Juana Hernandez or Janie with him by force.” Appellant argues there was no evidence presented at trial to support this statement and it was therefore improper. We find this statement by the State does not fall within one of the permissible areas of argument and was improper. Appellant’s trial counsel should have objected to this argument. However, appellant has failed to show that, but for this error, the outcome would have been different. See Strickland, 466 U.S. at 687. Therefore, the second prong of Strickland was not satisfied.
Third, appellant contends it was improper for the State to make a plea to the jury to “come back with a guilty” and “[b]ring justice to [the victim’s] family.” Appellant is correct in stating that an argument designed to induce the jury to convict based upon a public or community sentiment is improper. However, we find the State’s jury argument here is not in violation of this principle. The jury argument does not make any reference to the demands or expectations of the community or any particular group and is therefore not improper. See Jackson, 17 S.W.3d at 673. Trial counsel was not ineffective for failing to object to a proper jury argument.
In his final argument, appellant contends trial counsel failed to object to the portion of the State’s jury argument which indirectly commented on appellant’s failure to testify. The jury argument complained of reads in relevant part:
Did he pull the trigger? We don’t know. Ask Arturo Mendoza. Did he pull the trigger or did that other person? It doesn’t matter.
* * *
[Defense counsel] wants y’all to assume that he was inside the car the whole time, that he pulled the trigger from there. We don’t know. What if he got out of the car and pulled the trigger? What if that unidentified person got out of the car and pulled the trigger? We don’t know. You know who knows? Arturo Mendoza knows. Arturo Mendoza knows exactly what happened. Arturo Mendoza would be able to tell you why the bullet in his head came down through his shoulder, why the bullet on this side of his neck came out this side of his shoulder going down.
A comment by the prosecutor that refers to an accused’s failure to testify violates the privilege against self-incrimination. Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003) (citing Griffen v. California, 380 U.S. 609 (1965); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)). To violate appellant’s rights, the comment must clearly refer to the accused’s failure to testify, and it is not sufficient if it “might be construed as an implied or indirect allusion.” Id. The comment, when viewed from the jury’s perspective, “must be manifestly intended to be or of such a character that the jury would necessarily and naturally take it as a comment on the accused’s failure to testify.” Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999) (quoting Banks v. State, 643 S.W.2d 129, 134-35 (Tex. Crim. App. 1982)). An indirect or implied reference to an accused’s failure to testify does not violate a defendant’s right to remain silent. See id.
In reviewing the record and the context in which the statements were made, we cannot conclude they were manifestly intended or would necessarily lead the jury to believe that they were comments on appellant’s failure to testify. See id. The comments did not clearly refer to appellant’s failure to testify, but merely suggested that Mendoza may be the only one who knew exactly what happened as there were no other known witnesses to the murder. The State’s comments did not violate appellant’s right to remain silent, and therefore trial counsel was not ineffective. Sub-issue six is overruled.
7. Failure to object to testimony at punishment phase
Appellant contends trial counsel also rendered ineffective assistance during the punishment stage of trial. Appellant argues that counsel failed to object during the victim impact testimony of Mendoza’s brother. However, the record is silent as to the reasons for counsel’s decision not to object. Where the record is silent as to counsel’s reason for failing to object, an appellant fails to rebut the presumption that this was a reasonable decision. Thompson, 9 S.W.3d at 814. Sub-issue seven is overruled.
8. Failure to properly object to introduction of pen packet
Appellant lastly contends trial counsel was ineffective for failing to object to the improper authentication of the pen packet. However, appellant again does not demonstrate how the result of his trial would have been different but for trial counsel’s failure to object. Had trial counsel objected, the State could have presented additional evidence properly authenticating the pen packet. Accordingly, we find appellant has not met his burden of proving the second prong of Strickland. Sub-issue eight is overruled.
Appellant’s final issue is overruled.
V. CONCLUSION
Having overruled appellant’s issues, we affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Retired Justice Dorsey not participating.
Do not publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 8th day of January, 2004.