Affirmed and Opinion filed November 25, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00318-CR
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JESUS P. SALAS, Appellant
V.
THE STATE OF TEXAS, Appellee
______________________________________________
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 864,644
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O P I N I O N
Appellant, Jesus Salas, was convicted by a jury of the felony offense of aggravated sexual assault and sentenced to twenty years’ confinement. In six issues, appellant contends (1) the trial court erred in admitting extraneous offense evidence; (2) his constitutional right to testify during the punishment phase as granted under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution was violated; (3) his right to testify under article I, section 10 of the Texas Constitution and article 38.08 of the Texas Code of Criminal Procedure was violated; and (4) he was denied effective assistance of counsel. We affirm.
class=Section2>I. Factual Background
Z.C. met appellant in July 2000 and went on a first date with him shortly thereafter. Because Z.C. did not know appellant well, she arranged for him to pick her up at a location near her home. Z.C. testified that while driving, appellant informed her that he had gone by the restaurant where she worked to see her and the manager had “run him off.” Appellant then became angry, screaming at Z.C. and grabbing her arm.[1] Subsequently, appellant calmed down and apologized for his behavior. To ease the tension, they changed the subject and discussed appellant’s participation in various car show contests. Appellant told Z.C. he had won many trophies in these competitions and offered to show them to her at his apartment. Z.C. agreed to go.
The events that transpired after Z.C.’s arrival at the apartment are disputed. According to Z.C., appellant offered her alcoholic beverages which she refused. Appellant then became agitated at her for “wasting the drink.” Z.C. told appellant she needed to use the restroom, but as she approached it, appellant started screaming at her, accusing her of “playing with him,” having “hickies” on her neck, and lying to him about having a boyfriend. As Z.C. tried to enter the restroom, appellant attacked her from behind and pointed a gun at her face. Z.C. grabbed on to the gun, pushing it away. Appellant told Z.C. to let go because she was going to shoot her feet, but she held on tightly and walked with appellant as he led her back to the living room. Z.C. testified that during this struggle, appellant told her “nobody messes with him, his family is in the Mafia and they’re very powerful.” When they entered the living room, appellant abruptly grabbed the gun and shoved Z.C.’s chest, forcing her to fall backwards onto a mattress on the floor. Appellant sat on the mattress with Z.C. and, with his hand on the gun, told her to take her clothes off. At first, Z.C. refused, but appellant pointed the gun at her again, and she took off her shirt and jeans. Appellant
class=Section3>forcibly removed her bra and underwear. As Z.C. cried and protested, appellant sexually assaulted her.
After the assault, appellant told Z.C. she was going to be his girlfriend and move in with him. He told her his family “runs Houston,” some of his relatives were police officers and lawyers, and every time he got a ticket it was written off. He also told her he was going to do a “drive-by”[2] with some of his friends at the restaurant where she worked, because, as Z.C. testified, “they had embarrassed him and ran him away.” Z.C. was frightened and wanted to get away from appellant, but realized she did not know the code for the access gates to exit his apartment complex. She convinced appellant to take her to an eatery and then drop her off at a friend’s apartment.[3] She revealed the events to her friend and several hours later, they went to a hospital to preserve physical evidence of the sexual assault. The hospital staff thoroughly examined Z.C. and completed a rape kit. Z.C. testified that for a few days thereafter, appellant called her at work using different identities. Although Houston Police Department Investigator Pedro Moreno contacted Z.C. about the sexual assault, Z.C. did not make a full statement to the police until approximately two months later because she feared appellant would harm her or her family.
II. Discussion
A. Whether the Trial Court Erred in Admitting Extraneous Offense Evidence
In appellant’s first issue, he contends the trial court erred in admitting extraneous misconduct evidence during the guilt/innocence phase of the trial. Specifically, he argues the trial court erred in permitting Z.C. to testify that after the sexual assault occurred appellant told her he planned to do a drive-by shooting at her place of employment. During trial, appellant objected to this evidence as concerning an “extraneous offense,” “not probative of anything in [the] case” and prohibited under Texas Rule of Evidence 404.[4] Without any response by the State, the trial court overruled the objection and admitted the testimony.
Appellant argues the threat has no relevance beyond character conformity because the statement occurred after the alleged sexual assault and did not involve the threat of imminent death or serious bodily injury as charged in the indictment. The State responds that the statement is relevant and admissible to (1) rebut appellant’s theory that the sexual assault was consensual; (2) depict appellant’s intent because the fear of reprisals aimed at Z.C. and others at her work place would make her less likely to report the sexual assault; and (3) provide the jury with a full understanding of the circumstances surrounding the offense so they could properly evaluate the evidence.
1. Standard of Review
We apply an abuse of discretion standard to determine whether a trial court erred in the admission of evidence. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). We will reverse the trial court’s ruling only if the decision falls outside the “zone of reasonable disagreement,” given the law and pertinent circumstances. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).
Under Rule 404(b), evidence of “other crimes, wrongs, or acts,” although relevant, is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b). The evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.; Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh’g). Once an objection to the evidence is made, the proponent of the evidence has the burden to show the “other crime, wrong, or act” has relevance apart from tending to prove the character of the person and conforming action. Montgomery, 810 S.W.2d at 387. If the trial court determines that the evidence has no relevance apart from character conformity, then the evidence is inadmissible and the trial court has no discretion to admit it. Id.
2. Admissibility of the Statement Under Rule 404(b)
We must determine if the trial court abused its discretion in admitting the proffered evidence as relevant for a purpose other than to show character conformity. See id. at 391, 393–94. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. Extraneous offense evidence is relevant if the evidence tends to (1) establish some elemental fact, such as intent; (2) establish an evidentiary fact, such as motive, opportunity, or preparation, that inferentially leads to an elemental fact; or (3) rebut a defensive theory. Montgomery, 810 S.W.2d at 387; see Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002) (stating that extraneous offense evidence is relevant to rebut a defensive theory); Santellan v. State, 939 S.W.2d 155, 168–69 (Tex. Crim. App. 1997) (en banc). A trial court is given wide latitude to admit or exclude evidence of extraneous offenses. Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999); Hudson v. State, 112 S.W.3d 794, 801 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
At trial, appellant sought to prove the intercourse was consensual. He also contended Z.C. delayed reporting the assault because she never intended to press charges, but was subsequently pressured into doing so. The State proffered evidence to refute these contentions through the testimony of Z.C. and Officer Moreno. The State established appellant forcibly raped Z.C. by threatening her at gunpoint. There was also proof that
class=Section4>appellant fostered a continued fear of him by informing Z.C. he was well connected to people in the city’s infrastructure. The testimony also showed that appellant told Z.C. he had a circle of friends that would do anything for him, including assisting him with a drive-by shooting at her place of employment. This evidence supports Z.C.’s testimony that she was afraid appellant would retaliate against her or her family if she reported the crime. It is also relevant to show the context within which the subject offense occurred because the jury has the right to hear what events surrounded the criminal act charged so that they may realistically evaluate the evidence. See Williams v. State, 646 S.W.2d 653, 654 (Tex. App.—Fort Worth 1983, no pet.).
Extraneous offense evidence is also relevant and admissible to explain why a victim may delay in reporting sexual abuse. See Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983) (holding that threats to kill victim’s family was admissible to show a reason for victim’s delayed outcry); Wilson v. State, 90 S.W.3d 391, 394 (Tex. App.—Dallas 2002, no pet.).[5] The State asserts the evidence of the threat was admissible as proof of appellant’s intent to instill in Z.C. the fear of reprisal, making her less likely to report the sexual assault. Z.C. specifically testified that based upon appellant’s threats she was frightened he would use his resources to find her if she reported the sexual assault. Officer Moreno testified he had a difficult time convincing Z.C. to make a statement because she was “very emotional . . . . She was just crying, she could not complete a sentence, she had great difficulty discussing the case.” Moreno contacted her numerous times. During each conversation, Z.C. stated that she was not emotionally ready to discuss what had happened to her. Z.C. testified she was afraid of talking to Moreno because she thought he was friends with appellant. When she finally gave her statement, Moreno testified she “kept shaking, kept putting her hands over her mouth, just crying, had a very hard time [s]ometimes even trying to finish some of the sentences she was telling me.”
class=Section5>The drive-by shooting threat, made immediately after the sexual assault, is relevant and admissible to support the State’s position that Z.C.’s delay in reporting the assault was not because there was consensual intercourse, as appellant contends, but because she feared appellant and was terrified by what he told her he was capable of accomplishing. Accordingly, it was in the zone of reasonable disagreement for the trial court to find the evidence relating to the threat of a drive-by shooting to be relevant and admissible. Therefore, we hold that the trial court did not abuse its discretion in admitting this evidence and overrule appellant’s first issue.
B. Whether the Trial Court Erred in Denying Appellant’s Motion for New Trial
In his second through fifth issues, appellant claims he was denied his constitutional right to testify.[6] Specifically, he contests trial counsel’s alleged refusal to call him as a witness in the punishment phase of the trial. He also contests the subsequent denial of his motion for a new trial where he asserted his right to testify during the punishment phase was violated.
It is well established the trial court has broad discretion to grant or deny a motion for new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (establishing that a trial court’s ruling denying motion for new trial is reviewed under an abuse of discretion standard). We do not substitute our judgment for that of the trial court, but rather determine whether the trial court’s decision was arbitrary or unreasonable. Id. In assessing the evidence presented at the new trial hearing, the trial judge may properly consider the interest and bias of any witness, and is not required to accept as true the testimony of the accused or any defense witness simply because it was uncontradicted. Valle v. State, 963 S.W.2d 904, 908 (Tex. App.—Texarkana 1998, pet. ref’d); Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).
The trial court was in the best position to determine the credibility of appellant’s testimony during the new trial hearing. Although appellant’s trial counsel was not called as a witness to contradict appellant’s testimony, the trial court had the discretion to disregard appellant’s uncontradicted and self-serving testimony. By failing to call appellant’s trial counsel as a witness at the hearing, the trial court could infer the testimony would not have been supportive of appellant’s contentions. Regardless, appellant’s motion for new trial was based solely on violations of appellants right to testify under article 1.05 of the Texas Code of Criminal Procedure; article 1, section 10 of the Texas Constitution; and the Sixth Amendment of the United States Constitution. He did not complain of ineffective assistance of counsel in his motion for a new trial. Restraining a defendant’s testimony might implicate the defendant’s right to effective assistance of counsel, but it does not implicate his right to testify. Hollenbeck v. Estelle, 672 F.2d 451, 453 (5th Cir. 1982). Therefore, the trial court did not abuse its discretion in denying appellant’s motion for a new trial based on the alleged violation of his right to testify.[7]
C. Ineffective Assistance of Counsel
Appellant, in his sixth issue, alleges he was denied effective assistance of counsel in violation of his rights guaranteed by the Sixth Amendment because his trial counsel failed to call him as a witness during the punishment phase of his trial and failed to inform the trial court of his desire to testify. The right to testify can only be waived by a defendant, not his counsel. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1998) (op. on reh’g). Such a waiver must be made by a defendant knowingly and voluntarily. Id.
Whether a defendant received effective assistance of counsel is governed by the Strickland test promulgated by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668 (1984). The two-prong test applies at both the guilt/innocence and punishment phases of the trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (en banc). To prove an ineffective assistance of counsel claim, the defendant must first show that counsel’s performance was deficient to the extent his or her assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, the defendant must affirmatively prove prejudice. Id. Under the second prong, the record must show a reasonable probability that the outcome of the proceeding would have been different, but for counsel’s error. Perez v. State, 960 S.W.2d 84, 88 (Tex. App.—Austin 1997, no pet.). The second prong of Strickland is automatically satisfied in circumstances pertaining to an alleged violation of the right to testify because it is a fundamental constitutional right designed to guarantee a fair trial. Id. (citing Rock v. Arkansas, 483 U.S. 44, 53 n.10 (1987)). Therefore, our analysis focuses on determining whether appellant’s trial counsel provided assistance that fell below the range of professional competence.
Appellant bears the burden to prove by a preponderance of the evidence that his trial counsel was ineffective. Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (en banc). We must look to the totality of the representation and the circumstances in each case to evaluate the effectiveness of counsel. Thompson, 9 S.W.3d at 813. An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.; Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (en banc); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (en banc). We further analyze a claim of ineffective assistance of counsel by considering the reality of the situation facing defense counsel at the time of the acts and not years later. Black v. Cockrell, 314 F.3d 752, 754 (5th Cir. 2002). When the record does not contain a specific explanation for defense counsel’s actions, an appellate court cannot reverse a conviction based upon a claim of ineffective assistance of counsel. Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002).
The record presented for our review is inadequate. There is no evidence for us to consider in determining whether appellant’s trial counsel did not call appellant to the stand because appellant voluntarily and knowingly waived his right to testify during the punishment phase. Because appellant did not raise the issue of ineffective assistance of counsel during his motion for new trial, appellant’s trial counsel was not called as a witness or given the opportunity to testify as to the interactions between them. “[C]ounsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.” Id. at 836. When the trial record is incomplete and does not provide enough evidence on which to base a reversal, we will refrain from speculating as to what exactly happened in the trial court. Id. at 833 n.13, 836; Thompson, 9 S.W.3d at 813–14. Because appellant’s motion for new trial did not pertain to ineffective assistance of counsel, there is no evidence in the record (other than appellant’s testimony, which the trial court apparently did not find credible) as to whether trial counsel and appellant came to an agreement based upon sound trial strategy that appellant should not take the stand during the punishment phase. Appellant has not overcome the strong presumption that counsel performed within reasonable standards.[8] See Bone, 77 S.W.3d at 833. Therefore, we overrule appellant’s sixth issue.
For the foregoing reasons, appellant’s conviction is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Opinion filed November 25, 2003.
Panel consists of Justices Yates, Edelman, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The facts as portrayed by Z.C. were contradicted by appellant’s testimony at trial. Appellant testified that he did not become aggressive in the car or grab her arm.
[2] Appellant, in his brief, clarifies that this is an “alleged threat of a drive-by shooting.”
[3] Z.C. told appellant he was taking her to her sister’s apartment so she could baby-sit, but she actually went to a former boyfriend’s apartment because she did not want appellant to know where she or any member of her family lived.
[4] Although appellant objected at trial under “Rule 404,” he is specifically referring to Rule 404(b) as evidenced by his reference to an extraneous offense at trial and the arguments made in his appellate brief.
[5] See also State v. Bynum, 433 S.E.2d 778, 780–81 (N.C. Ct. App. 1993) (holding that defendant’s threat to kill victim in unrelated incident was relevant to show delay in reporting the sexual offense at issue).
[6] Whether this issue has been preserved for our review is doubtful. During the punishment phase, appellant did not inform the trial court of his desire to testify. Failure to indicate to the trial court appellant’s desire to testify waives any complaint on appeal. See Burks v. State, 792 S.W.2d 835, 838 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). As a general rule, appellate courts will not consider any error, even those of constitutional dimension, not called to the trial court’s attention at a time when it might have been avoided or remedied by that court. See Russell v. State, 665 S.W.2d 771, 777–78 (Tex. Crim. App. 1983).
[7] On appeal, the cases that appellant cites in support of his contention that his right to testify was violated, and therefore he was entitled to a new punishment hearing (and by implication, his motion for new trial should have been granted), involve situations where the trial court was made aware of the defendant’s desire to take the stand and the court flatly refused. See Pady v. State, 908 S.W.2d 65, 66–68 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (holding trial court abused its discretion in refusing to allow appellant to testify during the punishment phase of trial after being informed by appellant’s counsel of his desire to testify); Hebert v. State, 836 S.W.2d 252, 254–55 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (holding trial court abused its discretion in refusing to allow appellant to take the stand after being informed by appellant of her desire to testify). These cases are distinguishable. Here, appellant testified during the hearing on his motion for new trial that he did not inform the trial court of his desire to testify during the punishment phase. Furthermore, the trial court does not have the duty to inform a defendant about his or her right to testify at any phase of the trial. Kan v. State, 4 S.W.3d 38, 44 (Tex. App.—San Antonio 1999, pet. ref’d). Therefore, the trial court neither violated appellant’s right to testify nor erred in denying his motion for new trial. See Hollenbeck v. Estelle, 672 F.2d 451, 452–53 (5th Cir. 1982) (holding that appellant, who had been informed of his right to testify but failed to inform the trial court of his desire to do so did not have his constitutional rights violated).
[8] At the hearing on his motion for new trial, appellant stated that he wanted to testify during the punishment phase about his military service with the United States Navy. In addition to his six military awards and service in the Persian Gulf and Kuwait, appellant wanted to testify about his post-military employment. At the punishment hearing, appellant’s mother testified to essentially the same facts the appellant asserts he would have presented, including his background, education, and work history. Although his account perhaps would have been more detailed, his mother’s testimony may have been preferable because she was not subject to as extensive a cross-examination as appellant would have been. After all, if a defendant exercises his right to testify he is subject to the same rules governing examination and cross-examination as any other witness, whether he testifies at the guilt/innocence stage or at the punishment stage of the trial. Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987) (en banc).