Affirmed and Memorandum Opinion filed April 6, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00182-CR
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JOSE TYRONE MONTEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th Criminal District Court
Harris County, Texas
Trial Court Cause No. 983143
M E M O R A N D U M O P I N I O N
Appellant, Jose Tyrone Montez, was convicted of capital murder and sentenced to life in prison. Appellant contends he is entitled to a new trial because (1) the trial judge overruled his objection to a co-conspirator law of parties jury instruction, (2) the trial judge failed to apply this instruction to the facts in the jury charge, (3) his request to charge the jury on lesser-included offenses was denied, (4) the trial judge gave his own definition of reasonable doubt during voir dire, and (5) he was denied effective assistance of counsel. We affirm.
On April 2, 2004, appellant and two other men, Alexander Gonzalez and Christopher Nicasio, approached Elder Chavez Romero (the complainant) on the street. Appellant and his companions wore Abeanie@ caps or ski masks. Nicasio showed the complainant his gun and said Agive me your keys,@ which Gonzalez promptly grabbed. Because none of the three men knew how to drive a standard transmission, they forced the complainant to teach Gonzalez how to drive the car while Nicasio held a gun on him from the backseat. At some point, Gonzalez switched places with the complainant and began driving the car. Gonzalez then said it was time to Aditch@ the complainant, and that he knew of a place. Appellant told police he thought Ahe was just gonna= go walk him.@
Gonzalez parked near a bayou on a dead-end street. The bayou was overgrown with weeds; appellant described it as a forest. Nicasio told the complainant Acome on let=s walk,@ and instructed appellant to walk with them. Appellant said he followed Nicasio and the complainant down to the Abottom of the ditch@ where Nicasio told appellant to wait while he took the complainant Afurther on down there to the woods.@ Appellant said he subsequently heard a gunshot, but did not know the complainant had been murdered. When he and Nicasio got back to the car, Nicasio put his gun in the glove compartment. Appellant said that he did not want to ask Nicasio what happened, but when Gonzalez asked, Nicasio replied Ait=s taken care of.@
Appellant=s contention that he was a passive observer to the murder was disputed by Mr. Shea Wear, who lived on the street where the complainant was murdered. Wear testified that he saw a car pull up and stop on the side of the street. Three men got out of the car. Two of the men wore ski masks pulled low on their brows, and they flanked the third man who was not wearing a ski mask. They held the third man Avery tight@ until they disappeared from the witness= sight, down the slope into the bayou. Knowing something was wrong, Wear called 9-1-1. While he was still on the telephone, Wear heard a gun shot. He then saw two men run up from the bayou and enter the car. The police subsequently discovered the complainant=s body in the area where Wear had seen the men walk into the wooded bayou.
Appellant and his companions were arrested shortly after the murder. The police found two guns in the glove compartment of the stolen car, each loaded and ready to fire with a bullet in the chamber. Appellant told the police that he never touched a gun, and that Nicasio carried the two guns in his waistband. The police recovered two black ski masks and two gloves in the front seat, and one black ski mask from the floorboard behind the driver=s seat.
At the close of appellant=s jury trial, the State sought to include two party liability theories in the jury charge: One under Texas Penal Code section 7.02(b) (party liability as a conspirator)[1] and th other under section 7.02(a)(2) (party liability for directly aiding the offense).[2] At an Aoff-the-record@ bench conference, defense counsel apparently objected to the 7.02(b) instruction because the trial judge later overruled this objection on the record.[3] The trial judge also denied appellant=s request for a charge on lesser-included offenses.
Section 7.02(b) Jury Instruction
In his first and second points of error, appellant contends the trial court committed reversible error (1) by overruling his objection to a co-conspirator law of parties jury instruction pursuant to Texas Penal Code section 7.02(b), and (2) by failing to apply the abstract law of this instruction to the facts of the case.
Notwithstanding the requirement that an actor charged with capital murder must have specifically intended to cause the death of another, section 7.02(b) of the Penal Code provides that a party may still be criminally responsible for the acts of another even though the party did not intend for the act to occur as a result of his conduct. Wood v. State, 4 S.W.3d 85, 89 (Tex. App.CFort Worth 1999, pet. ref=d). Under section, 7.02(b), all the conspirators intending to commit one felony may be convicted for any other felony actually committed in furtherance of the intended felony if such felony was one that should have been anticipated in the attempt to carry out the intended felony. Tex. Pen. Code Ann. ' 7.02(b).
Here, the testimony of a witness who observed the complainant being forcibly escorted to the site of his subsequent murder, the presence of three masks in the stolen vehicle, and portions of appellant=s confession certainly authorized submission of a jury instruction regarding appellant=s guilt as a co-conspirator under section 7.02(b). However, a properly constructed jury charge consists of a combination of abstract provisions and application paragraphs. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The abstract portion Aserve[s] as a kind of glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge.@ Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). The application paragraph applies the law to the facts, and asks an ultimate question of the jury about whether the defendant is guilty. Id. at 302B03; Doyle v. State, 631 S.W.2d 732, 736B37 (Tex. Crim. App. 1982). Thus, the relationship between the two is that definitions (and instructions) in the abstract portion are like words in a dictionary; their true and correct meaning is not shown until they are properly used in a sentence, i.e., in the application paragraph. Doyle, 631 S.W.2d at 737; Degrate v. State, 86 S.W.3d 751, 752 (Tex. App.CWaco 2002, pet. ref=d).
We find the trial court=s failure to apply the abstract instruction to the facts of the case was error. See Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995) (holding Ait is error for a trial judge to refer to the law of parties in the abstract portion of the jury charge and not to apply that law or to refer to that law in the application paragraph of the jury charge@); see also Longoria v. State, 154 S.W.3d 747, 759B60 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (holding that Awhen a defendant is tried under a vicarious criminal responsibility theory, the application paragraph must either (1)specify all conditions that must be met for conviction on that basis or (2) refer to instruction in the abstract portion pertaining to criminal responsibility for another=s conduct@). The review of jury charge error is a two-step process. We first determine whether error occurred, and then determine whether there is sufficient harm to warrant reversal. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). If this error is timely objected to at trial, reversal is required if there is Asome harm@ to the accused, namely, if the error is not harmless. Almanza, 686 S.W.2d at 171. We will not reverse if the jury charge error was not properly objected to unless the error is fundamental. In other words, we will reverse for charge error even without an objection if the error was so egregious and created such harm that the accused could not have had a fair and impartial trial. Id. Whether the error was properly objected to or not, we determine the actual degree of harm Ain light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@ Id. at 171.
Here, our record contains no specific objection to the charge by appellant=s counsel, but immediately after an unrecorded bench conference, the trial judge stated on the record:
. . . the defendant objects to the 7.02(b) charge with regard to parties. The Court, at the request of the State, is including the 7.02(b) language. . . . The Court understands the reasons and the objection lodged by the defendant. It will be overruled on the request of the State. The 7.02(b) language from the statute will be included in the Court=s charge.
Thereafter, appellant=s counsel stated that he had no further requests or objections to the jury charge. The court recessed, returned with the jury, and read the charge. Although appellant apparently objected to the 7.02(b) charge and obtained a ruling, we do not know from the record on what ground or grounds he objected. At best, it appears that appellant objected to the inclusion of a 7.02(b) instruction, but nothing in the record suggests appellant objected to the trial court=s failure to apply the abstract law to the facts of the case. Therefore, a reversal of the conviction is not warranted unless the error is so egregious that appellant was denied a fair and impartial trial.
As we have already observed, a 7.02(b) instruction on the law of parties was authorized by the evidence. Thus, the trial court did not err in charging the jury on the abstract provisions of 7.02(b). Moreover, abstract provisions of the charge were correctly stated by the trial court.
Although the State=s attorney briefly mentioned the foreseeablity of the murder, she exhorted the jury in closing argument to find appellant guilty under a 7.02(a) parties theory. The 7.02(a) instruction was properly applied to the facts.
Finally, there is nothing in the record to suggest that the jury utilized the abstract provisions regarding 7.02(b) in reaching their verdict because (1) these provisions were not included in an application paragraph and (2) there was sufficient evidence to support a conviction under an alternate 7.02(a) theory which was included in an application paragraph. Moreover, even if the jury relied on 7.02(b) in reaching its verdict, there is nothing in the record to suggest the jury misapplied the abstract instruction to the facts of the case. The charge is neither particularly difficult nor readily subject to misinterpretation. Accordingly, we do not find the error presented here was so egregious as to deny appellant a fair and impartial trial.
Appellant=s first and second points of error are overruled.
Lesser-Included Offenses
In his third point of error, appellant argues the trial court erred by failing to provide an instruction on the lesser-included offenses of felony murder, robbery, and kidnapping in the jury charge. To determine whether a jury should be charged on a lesser-included offense, we must first decide whether the crime is, in fact, a lesser-included offense of the offense charged. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). We then determine whether some evidence exists from which a jury could rationally acquit the defendant of the charged offense and convict him of the lesser-included offense. Id. at 750B51. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a charge on the lesser-included offense or offenses, regardless of whether that evidence is weak, impeached, or contradicted. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992); Stadt v. State, 120 S.W.3d 428, 438 (Tex. App.CHouston [14th Dist.] 2003), aff=d 182 S.W.3d 360 (Tex. Crim. App. 2005). The charge must be given if evidence from any source indicates appellant is guilty only of the lesser‑included offense, regardless of the strength or weakness of that evidence. Stadt, 120 S.W.3d at 438.
Appellant was indicted for capital murder on grounds he intentionally caused the shooting death of Elder Chavez Romero while in the course of committing and attempting to commit the kidnapping and robbery of Elder Chavez Romero. Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003). Murder, kidnapping and robbery are, necessarily, lesser-included offenses of the capital murder charge against appellant. Id. at ' 19.03(a)(2) (Vernon Supp 2004B05). The first prong of the test has been met. We must now determine whether there is some evidence that appellant is not guilty of capital murder and guilty only of murder, robbery, or kidnapping.
Appellant did not testify at his trial, but argues that his statement to police provides some evidence that he never intended the complainant=s death and, thus, he was entitled to a jury instruction on the lesser-included offenses of felony murder, kidnapping, and robbery. However, appellant never requested a charge on felony murder; rather, the record reveals he requested an instruction on the lesser‑included offense of murder. Accordingly, appellant has not preserved any argument for the inclusion of a felony murder jury instruction. Tex. R. App. P. 33.1.
As for the lesser-included offense of kidnapping, appellant denied any participation in the kidnapping. Appellant told the police that he was merely an observer, not a participant, in the kidnapping. Having denied his participation in the lesser-included offense of kidnapping, appellant presented no evidence that if guilty, he was guilty only of the lesser-included offense of kidnapping. See Eldred v. State, 578 S.W.2d 721, 723B24 (Tex. Crim. App. [Panel Op.] 1979) (stating a defendant is not entitled to an instruction on a lesser-included offense if the evidence indicates appellant was not guilty of that offense). Just because a jury may choose to disbelieve appellant=s denial story does not, of itself, create a right to a lesser‑included‑offense charge. Johnson v. State, 84 S.W.3d 726, 731 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Accordingly, appellant was not entitled to a lesser-included-offense charge on kidnapping.
With respect to his request for a lesser-included offense instruction on robbery, appellant did not deny his participation in the robbery; rather, appellant denied to police that he intentionally or knowingly abducted and murdered the complainant. Thus, appellant essentially told police he was an unwitting bystander from the time Gonzalez forced the complainant to drive.[4] However, the very statement appellant contends shows him to be guilty only of robbery, actually shows him to be guilty as a party to the offense of capital murder. By his own admission, appellant willingly participated in an aggravated robbery. He then accompanied his accomplices with an unwilling complainant to a remote location for the express purpose of Aditching@ the complainant. Appellant admitted that he then assisted Nicasio in escorting the complainant deep into a wooded area at the point of a gun. After the complainant was murdered, appellant further admitted that he returned with Nicasio to the stolen vehicle. Moreover, he remained with his accomplices until captured by the police. Even if appellant did not intentionally or knowingly kill the complainant, his statement to the police shows him to have been an active conspirator in an armed robbery under circumstances where it was foreseeable that the complainant would be killed. Thus, there is no evidence in the record from which a rational fact finder could find that if appellant were guilty, he was guilty only of the lesser-included offense of robbery. See Feldman, 71 S.W.3d at 750B51.
Therefore, the trial court did not err in denying appellant=s requested charge on the lesser-included offense of robbery. Appellant=s third point of error is overruled.
Defining Reasonable Doubt During Voir Dire
In his fourth point of error, appellant claims the trial judge committed reversible error by giving his own definition of reasonable doubt during the voir dire of prospective jurors. During voir dire, the trial judge defined reasonable doubt as follows:
[I]f you go back in the jury room and you think the defendant is probably guilty, that=s not good enough. But if you go back in the jury room and you=re convinced in your heart and in your mind, then that=s proof beyond a reasonable doubt.
Appellant did not object to this definition. Therefore, he cannot complain of any error on appeal. See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (finding appellant waived complaint about trial court=s explanation of reasonable doubt given to venire as belief in one=s heart and conscience based upon an evaluation of the evidence when appellant did not object). Appellant=s fourth point of error is overruled.
Ineffective Assistance of Counsel
In his fifth point of error, appellant contends he was denied effective assistance of counsel when his trial attorney failed to object to victim impact testimony. During the guilt-innocence phase of trial, the State=s attorney called the victim=s cousin, Alex Castro, to testify. Mr. Castro testified to background information, namely, the complainant was twenty-one years old when he died; he moved to the United States to better himself; he had a degree in business administration; he worked from twelve to fourteen hours a day as a tile setter and sent money to his family in Honduras; he never smoked or drank; and, in his free time, he stayed at home and watched cartoons. Defense counsel did not object to this testimony. Appellant argues this Avictim impact evidence@ was irrelevant and severely prejudicial to his case, and that his trial counsel=s failure to object rendered his performance ineffective.
To prevail on a claim of ineffective assistance of counsel, an appellant must show: (1) his attorney=s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability the result of the trial would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 693B94 (1984); Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001). A reasonable probability is one sufficient to undermine confidence in the proceedings= outcome. Strickland, 466 U.S. at 694; Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). This test shows whether counsel=s actions so compromised the proper functioning of the process as to render the result unreliable. Mallett, 65 S.W.3d at 63. Review of counsel=s performance is highly deferential. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). There is a strong presumption counsel=s work fell within a wide range of reasonable professional assistance. Hernandez, 988 S.W.2d at 772. Appellant must rebut this presumption by a preponderance of the evidence showing what supported trial counsel=s actions or inactions. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An appellant=s claim of ineffective assistance on a record silent as to trial counsel=s motivations will generally fail, as the presumption that the attorney=s conduct was reasonable has not been overcome. Mallett, 65 S3 at 63; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 771.
We do not find counsel=s actions fell below an objective standard of reasonableness. The record is silent as to why appellant=s counsel failed to object, and, therefore, is insufficient to overcome the presumption that counsel=s actions were part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (finding no ineffective assistance on direct appeal when counsel failed to object to improper impact testimony of an extraneous offense when record was silent as to counsel=s motivations). Accordingly, appellant=s fifth point of error is overruled.
The trial court=s judgment is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed April 6, 2006.
Panel consists of Justices Hudson, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Section 7.02(b) states:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Tex. Pen. Code Ann. ' 7.02(b) (Vernon 2003).
[2] Section 7.02(a)(2) establishes party liability as follows:
A person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
Tex. Pen. Code Ann. ' 7.02(a)(2).
[3] The nine-page charge instructed the jury on the law of parties for both co-conspirator responsibility and for directly aiding the commission of the offense. It then applied the law to the facts in four paragraphs. The application paragraphs authorized the jury to convict appellant of capital murder either as a primary actor or as a party under Texas Penal Code 7.02(a)(2) as to both the kidnapping and robbery offenses. There was no application paragraph for the 7.02(b) instruction.
[4] See Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003) (stating a person acts intentionally Awith respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.@); id. at ' 6.03(b) (holding a person acts knowingly Awith respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.@); id. at ' 20.03(a) (Vernon 2003) (stating a person Acommits kidnapping if he intentionally or knowingly abducts another person.@); id. at ' 20.01(2) (Vernon Supp. 2004B05) (defining abduct to mean restraining a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found, or using or threatening to use deadly force); id. at ' 19.02(b)(1) (stating a person Acommits murder if he intentionally or knowingly causes the death of an individual.@).