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NUMBER 13-02-311-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LUCAS SANCHEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Yañez
On March 8, 2002, following a jury trial, appellant, Lucas Sanchez, was found guilty
of murder[1] and sentenced to 80 years= imprisonment in the Texas Department of Criminal JusticeBInstitutional Division. The trial court fined him $7,500.00 and assessed court costs at $3,180.42.[2]
By four issues, appellant claims (1) the evidence is legally insufficient to support his conviction, (2) the evidence is factually insufficient to support his conviction, (3) he was denied a fair jury trial because the State portrayed his trial counsel as a Afertilizer salesman,@ and (4) ineffective assistance of counsel. We affirm.
In his first two issues, appellant argues that the evidence is legally and factually insufficient to support his conviction.
Legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.[3] Such a charge would accurately set out the law, be authorized by the indictment, and would not unnecessarily increase the State=s burden of proof.[4]
A. Legal Sufficiency
Appellant maintains that the State failed to prove all the elements of murder beyond a reasonable doubt because Ano one saw the appellant shoot the deceased.@
When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.[5] We are not fact finders; our position is that of a due process safeguard to ensure only the rationality of the trier of fact=s finding of the essential elements of the offense beyond a reasonable doubt.[6]
In this case, count one, paragraph one of the indictment charged that appellant Aon or about December 21, 1998, in Nueces County, Texas, did then and there intentionally and knowingly cause the death of an individual, Johnny Garcia, by shooting Johnny Garcia with a firearm.@[7] According to count one, paragraph one, the State had the burden of proving beyond a reasonable doubt that appellant intentionally and knowingly caused Johnny=s death by shooting him with a firearm.
Additionally, count one, paragraph two charged that appellant Aon or about December 21, 1998, in Nueces County, Texas, did then and there with the intent to cause serious bodily injury to an individual, Johnny Garcia, do the act of shooting him with a firearm; that this act was clearly dangerous to human life; and that this act caused the death of Johnny Garcia.@[8] Thus, the State had to prove that appellant, with the intent to cause serious bodily injury to Johnny, shot Johnny, causing his death.
Here, the record establishes that Johnny=s death was a homicide that resulted from multiple gun shot wounds, with the fatal wound severing his spinal cord. Although appellant maintains that no one saw him shoot Johnny, in viewing the evidence in the light most favorable to the verdict, ample evidence exists to support the jury=s finding of all of the elements of murder beyond a reasonable doubt.
According to Ida Salinas, Johnny=s girlfriend, on past occasions appellant had said to Johnny, AI don=t fight. I shoot. I kill,@ which in part, made her fearful of appellant. On December 21, 1998, during a barbeque at appellant=s residence, appellant and Johnny were involved in a verbal and physical altercation with one another. During the incident, Ida claims that appellant was visibly angry.
After the altercation, Ida and Johnny left appellant=s residence and returned to Ida=s mother=s home, where she and Johnny lived. Ida=s mother, Anita Salinas, testified that appellant later arrived at her residence. As Anita, Ida, and Johnny were on the front porch of Anita=s residence, appellant approached Anita=s home and taunted Johnny to come forward. In fear for all of their lives, Anita and Ida told Johnny not to leave the porch. Johnny, who was unarmed, then began to walk toward appellant. Ida and Anita went inside the house and called 911. Seconds later, three gun shots were heard.
Shortly thereafter, police arrived and found Johnny laying on the front yard. Police determined that he was dead and had been shot three times. Near Johnny=s body, police recovered an ejector rod[9] and a black-handled knife. Ida told officers that the items belonged to appellant. Ida also provided police with a description of appellant and told police that appellant shot Johnny.
Shortly after the shooting, appellant was arrested at a nearby convenience store. He had fresh blood on his shirt, jeans, and tennis shoes, and was in possession of a blood-stained pocket knife. Officer Richard Garcia testified that on the morning after the shooting, he found a .44 caliber revolver in a nearby neighborhood yard. According to Garcia, the revolver was missing its ejector rod.
At trial, an expert testified that DNA testing of blood found on the revolver positively matched to appellant. The expert also indicated that DNA tests showed that the shirt worn by Johnny at the time of his death contained ADNA consistent with [appellant].@
Additionally, a firearms expert testified that the ejector rod found near Johnny was consistent with the type of rod used in the revolver found by Officer Garcia. According to the firearms expert, tests also showed that a bullet jacket found on the sidewalk at the crime scene and a bullet found in the window sill matched the revolver recovered by Officer Garcia.
In reviewing the evidence, the record supports that (1) appellant was present shortly before the shooting, (2) seconds before the shooting, Johnny left the porch and approached appellant, (3) blood found on the revolver matched appellant=s blood, (4) bullets retrieved from the scene matched the revolver found near the scene, and (5) appellant had a physical altercation with Johnny prior to the shooting. In viewing the evidence in the light most favorable to the verdict, we conclude that a rational juror could have found beyond a reasonable doubt that the State established all of the elements of murder.[10] Appellant=s first issue is overruled.
B. Factual Sufficiency
Appellant claims the evidence is factually insufficient because appellant did not admit to shooting Johnny nor did anyone witness the actual shooting. Appellant therefore claims that Johnny could have been shot by Aany drive-by shooter.@
In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party.[11] In this neutral light, we determine whether the Aproof is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.[12] A clearly wrong and unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@[13] We are authorized to disagree with the fact finder=s verdict even if probative evidence exists that supports the verdict.[14]
Viewed in a neutral light, we conclude that the proof of guilt in this case is not so obviously weak as to undermine confidence in the fact-finder=s determination.[15] The trier of fact is the sole judge of the witnesses= credibility and the weight to be given to their testimony, and it is free to accept or reject all or any part of the testimony of any witness.[16] Accordingly, appellant=s second issue is overruled.
C. Improper Jury Argument
In appellant=s third issue, he claims he was denied a fair jury trial because the State made an improper jury argument. Appellant claims specifically that during closing arguments, the prosecutor called appellant=s trial counsel a Afertilizer salesman.@ Consequently, appellant claims the State=s argument denied him a fair jury trial. In response, the State claims it did not make an improper jury argument. The State contends that it simply provided an answer to appellant=s trial counsel and error, if any, was harmless.
An assertion of improper jury argument requires us to review the record in its entirety to determine whether any erroneous statements were made, and if so, whether they were so prejudicial as to deprive appellant of a fair and impartial trial.[17] There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.[18] An argument which exceeds these bounds is error, but only becomes subject to reversal if, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial.[19] The use of an analogy to emphasize or explain evidence is acceptable.[20] Counsel is allowed wide latitude to draw inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.[21] During closing arguments, appellant=s trial counsel told the jury that the State would say that appellant=s trial counsel was just giving the jury Arabbit trails.@ Appellant=s trial counsel also argued that Ahe was just talking about the evidence@ and later stated, A[t]his isn=t [appellant=s trial counsel] talking about the moon and stars.@ Shortly thereafter, the following exchange ensued:
State: [Appellant=s Trial Counsel] has gotten up there and done a very good job of trying to say his theory to youBactually, multiple theoriesBand, you know, I was listening to it, and his theories kind of remind me of a fertilizer salesman, you know, spreading those samples out there and see what grows from them.
Appellant=s Trial Counsel: Your Honor, I object to that comment of me being a fertilizer salesman. I don=t think that=s a proper summation of the evidence in the case, and it=s trying to get the defendant found guilty based on my failures as a fertilizer salesman.
Court: Sustained.
State: He puts a lot of theories out to see what you=ll bite on.
Appellant=s Trial Counsel: Same objection, your Honor. It=s not myBit is not a proper summation of the evidence in the case to criticize me and to say that something I=ve done is evidence that should be used to convict the defendant.
State: Judge, my comments were not directed at [appellant=s trial counsel]. I said his theories
Court: Overruled. This is closing argument.
After considering the argument and the record as a whole, we cannot say the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. We do not construe the statements as improper. Rather, the argument was in response to an argument made by appellant=s trial counsel.[22] Accordingly, we overrule appellant=s third issue.
D. Ineffective Assistance of Counsel
By appellant=s fourth issue, he claims the trial court abused its discretion in failing to conduct a hearing on his motion for new trial on the basis of ineffective assistance of trial counsel.
As noted, we abated this appeal and ordered the trial court to conduct a hearing regarding appellant=s motion for new trial alleging ineffective assistance of counsel. A hearing was held December 16, 2005. Accordingly, we now consider the merits of appellant=s allegation of ineffective assistance of counsel.
Strickland v. Washington[23] sets forth the standard of review for effectiveness of counsel, and requires a two‑part inquiry.[24] The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness.[25] Second, the defendant must prove there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.[26] A reasonable probability is a probability sufficient to undermine confidence in the outcome.[27]
The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case.[28] An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness.[29]
The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.[30] There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.[31] To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."[32] Generally, the record on direct appeal will be insufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard.[33]
Mere allegations that counsel failed to investigate or discuss the case with appellant are insufficient to raise an ineffectiveness claim.[34] An appellant must show what an investigation would have revealed.[35]
The record shows that appellant=s motion for new trial was timely filed, presented to the trial court, and supported by an attorney=s affidavit. Appellant cited several reasons in support of his ineffectiveness claim. Specifically, appellant argued that his trial counsel (1) filed several inapplicable discovery requests, (2) failed to properly investigate the case prior to trial, (3) failed to timely communicate plea offers, and (4) failed to call witnesses to attest to appellant=s good character.
At the new trial hearing, appellant and his trial counsel testified regarding the allegation of ineffective assistance of counsel. Unsurprisingly, their testimony conflicted on almost every issue.
Appellant testified that his trial counsel utilized a defensive theory at trial that was inconsistent with the facts of his case. Specifically, his trial counsel theorized at trial that the murder may have been committed by a drive-by shooter. According to appellant, he had previously informed his counsel that the shooting occurred in self-defense. Appellant also testified that his trial counsel promised him that he would prevail at trial. However, appellant also stated that he considered his trial counsel Aa good attorney.@ Finally, appellant claimed that his trial counsel untimely informed him of a plea offer. According to appellant, by the time he learned of the offer, the prosecutor had withdrawn the offer.
Appellant=s trial counsel testified that he met with appellant at least five times during the course of his representation. Counsel testified that he never guaranteed or promised any results to appellant. Counsel confirmed that it was his practice to file boilerplate discovery requests to ensure that discovery deadlines are met, issues are preserved, and to guarantee that nothing is missed in cases. Counsel also testified that part of his defensive theory was to suggest that a drive-by shooter may have been responsible for the shooting, which was consistent with the police dispatcher=s log that indicated that the incident was a drive-by shooting. Counsel further testified that he informed appellant of the plea offer the night before trial, and that appellant had one day to consider the State=s plea offer, which he ultimately rejected. Finally, counsel claimed that he elected not to call any character witnesses because he was concerned about opening the door to character attacks on appellant.
Appellant has failed to show what any further investigation by his trial counsel would have revealed.[36] Appellant has also failed to demonstrate that the discovery requests or counsel=s decision not to call character witnesses fell below an objective standard of reasonableness.[37] Additionally, despite counsel=s delayed communication concerning the plea offer, appellant nevertheless considered the offer overnight, and ultimately elected to decline the offer.[38] After reviewing the record, including appellant's motion for new trial, and testimony from appellant and his former trial counsel, we conclude appellant has failed to show that his attorney=s performance fell below an objective standard of reasonableness, and failed to demonstrate the existence of a reasonable probability that, but for his counsel's alleged deficient performance, the result of the proceeding would have been different.[39] Accordingly, appellant=s fourth issue is overruled.
Having overruled all of appellant=s issues, the judgment of the trial court is affirmed.
LINDA REYNA YAÑEZ,
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed
this the 18th day of May, 2006.
[1] See Tex. Pen. Code Ann. _ 19.02 (Vernon 2003).
[2] After his conviction, appellant timely filed a motion for new trial and notice of appeal. On appeal, he argued, inter alia, ineffective assistance of counsel because the court improperly denied him a hearing on his motion for new trial. We issued an order abating the appeal so the trial court could conduct a hearing on the motion, which was held on December 16, 2005. After the trial court considered the arguments presented, it issued a January 25, 2006 order denying appellant=s motion for new trial. On February 14, 2006, the reporter=s record of the hearing was filed with this Court.
[3] See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
[4] See id.
[5] See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
[6] See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1998).
[7] See Tex. Pen. Code Ann. _ 19.02(b)(1) (Vernon 2003).
[8] See Tex. Pen. Code Ann. _ 19.02 (b)(2) (Vernon 2003).
[9] An ejector rod is a component of a revolver.
[10] See Jackson, 443 U.S. at 319; Kutzner, 994 S.W.2d at 184.
[11] See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).
[12] See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
[13] See Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997).
[14] See id. at 164; see also Johnson, 23 S.W.3d at 7.
[15] See Johnson, 23 S.W.3d at 11.
[16] See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
[17] See Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989).
[18] See Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
[19] See Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992).
[20] See Broussard v. State, 910 S.W.2d 952, 959 (Tex. Crim. App. 1995).
[21] Gaddis, 753 S.W.2d at 398.
[22] See Wilson, 938 S.W.2d at 59.
[23] Strickland v. Washington, 466 U.S. 668, 687 (1984).
[24] See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 813.
[31] Id.
[32] McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
[33] Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
[34] See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (en banc).
[35] Id.
[36] Id.
[37] See Thompson, 9 S.W.3d at 812.
[38] Id.
[39] Id.