Affirmed and Memorandum Opinion filed June 21, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00339-CR
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NELSON DEJESUS GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1029602
M EM O R A N D U M O P I N I O N
Appellant Nelson DeJesus Gomez challenges his conviction for murder asserting that he was denied effective assistance of counsel. We affirm.
I. Factual and Procedural Background
On June 5, 2005, around10:00 p.m., Enrique Leija was standing outside his home waiting for a ride, when a yellow convertible pulled up and fell partly into a drainage ditch, accidentally damaging the front of the vehicle. Leija=s friend, Manuel Davila was a passenger in the car and appellant was the driver. Davila introduced appellant as APelon.@ After drinking a couple of beers and socializing, Davila and Pelon left in the convertible. Approximately three hours later, Elden Robles was driving home when he spotted Davila stumbling down the stairs from his apartment. Robles stopped his vehicle and rushed over to Davila, who had been shot at least twice. As Davila remained on the ground bleeding, he told Robles that APelon@ shot him and ran away, and that he was scared of dying. Robles called the police.
Houston Police Officer J.C. Hamilton arrived at the scene shortly thereafter. Davila, still on the ground, again stated that APelon@ had shot him. Davila later died from three fatal gunshot wounds.
A search of Davila=s apartment yielded evidence of gunshots, as well as appellant=s cell phone and a set of car keys. The cell phone contained photographs of appellant. One of the detectives exited the apartment and activated the alarm button on the set of keys. A responsive noise came from a damaged yellow Ford Mustang convertible. The officers ran a search on the license plate number and found that the vehicle was registered to appellant. The officers drove to the address listed on the vehicle registration. There, they were confronted by two angry pit bull dogs that prevented access to the front door. An unidentified male heard the commotion and exited the house. When the officers asked him if he was Nelson Gomez, he responded that he was not but that Gomez was in the house, and he would get him. Appellant appeared and stated: AIt=s me. I am Nelson. I=ve been waiting for you to show up. . .Manuel started a fight with me. He had a gun and tried to shoot me. I tried to get away. I got the gun and I think I shot him. I ran out.@ In addition to admitting he shot Davila, appellant also admitted that he owned the yellow Mustang convertible.
Appellant was charged with the offense of murder. He pleaded not guilty. At his jury trial that followed, appellant gave a far different version of the events than he gave to police on the day of the murder.
At trial, appellant testified that he met Davila at a friend=s house about three weeks before the incident. During their second encounter, appellant took Davila to the store. Davila thereafter frequently called appellant in an attempt to become friends. Davila also called appellant to request help in looking for employment.
One afternoon, after appellant had spent the night at the hospital where his sister was receiving treatment, Davila called and asked appellant to go with him to look for a job. Appellant went to Davila=s home, but Davila was not there. Davila arrived a few minutes later and informed appellant that he was late because he had to help his friend APelon@ move. Appellant stated that while he was waiting for Davila, Davila=s friend APelon@ arrived. Appellant and Davila (without APelon@) went to a taqueria to eat. After they finished eating, Davila told appellant that he wanted to wait until Monday to apply for a job at a local WalMart. The men then proceeded to Davila=s cousin=s apartment, where they drank several beers. Appellant stated that when they tried to leave, Davila pulled a gun on some other men, who also were attempting to leave. Davila told appellant that he had killed people before, and forced appellant at gunpoint to take him to a dance hall.
When the men arrived at the dance hall, Davila took appellant=s cell phone away from him. The two men then drank more beers, and met up with Davila=s friends. After leaving the dance hall, they went to a another apartment. Appellant stated that he wanted to leave but Davila threatened him with the gun. Appellant managed to escape, but heard a gunshot as he ran away. Appellant ran until he found a pay phone to call his wife, who picked him up. Soon thereafter, the police (after tracing his vehicle) arrived at his home and took him into custody.
A jury found appellant guilty of murder and assessed punishment at twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division. In a single issue, appellant claims on appeal that he was denied effective assistance of counsel.
II. Analysis
Appellant contends his trial counsel failed to (1) object to hearsay testimony offered by the state and (2) request a mistrial following an allegedly improper jury argument.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy. See Andrews, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). There was no motion for new trial filed in this case.
Failure to Object to Testimony
Appellant bases his first ineffective-assistance claim on his trial counsel=s failure to object to the admission of the following individual pieces of testimony, which he asserts constitute inadmissible hearsay:
(1) Houston Police Officer D.C. Lambright=s testimony that when the police arrived at appellant=s house, an unidentified male came outside and informed the police that he was not the appellant, but that the appellant was inside the house.
(2) Officer D.C. Lambright=s testimony that when appellant came outside, he stated that he had been in fight and changed clothes, but could not remember much of what happened because he had been intoxicated.
(3) Officer D.C. Lambright=s testimony that appellant informed him that he was right-handed.
(4) Elden Robles=s testimony that while Davila was lying bleeding on the ground after being shot, Davila exclaimed that he had been shot by APelon,@ and that he was scared of dying.
(5) Elden Robles=s testimony that while Davila was lying on the ground, Robles informed the emergency technicians that Davila had been shot by APelon.@
(6) Houston Police Officer Phillip Yochum=s testimony that when appellant exited the house, he stated, AIt=s me. I am Nelson. I=ve been waiting for you to show up. . . Manuel started a fight with me. He had a gun and tried to shoot me. I tried to get him away. I got the gun and I think I shot him. I ran out.@
(7) Houston Police Officer Jose Selvera=s testimony that, during the interview at the police station, appellant stated that he could not remember all of the details of the incident because he drank about twenty beers earlier that day.
Statements in (1)B(3), (6), and (7), are appellant=s own statements. A party=s own statements inculpating himself are admissible as non‑hearsay, a rule grounded on the rationale that a party is estopped from challenging the fundamental reliability or trustworthiness of his own statements. Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999); see also Tex. R. Evid. 801(e)(2)(A) (concluding that a statement is not hearsay if the statement is offered against a party and is his own statement in either an individual or representative capacity). A failure to object to admissible evidence is not ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). Therefore, as to these statements, appellant has failed to show counsel=s performance was deficient.[1]
As to the testimony by Robles set forth in (4) and (5), above, we conclude that these statements are dying declarations, and therefore admissible. A dying declaration is A[a] statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what he believed to be his impending death.@ Tex. R. Evid. 804(b)(2). The declarant=s belief that his death is imminent may be proved by express language or inferred from the circumstances of the case, such as the nature of the injury, medical opinions stated to the declarant, or the declarant=s conduct. Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985). The length of time the declarant lives after making the dying declaration is immaterial. Herrera v. State, 682 S.W.2d 313, 320 (Tex. Crim. App. 1984). In determining the applicability of the rule, the focus is on the declarant=s state of mind when the statement is made, not on the eventual outcome of the patient=s injuries. In connection with Davila=s statement that APelon@ shot him, Davila expressed that he was Ascared of dying,@ a statement which clearly demonstrated that he thought his death was imminent. Thus, this statement was admissible as a dying declaration. Because the failure to object to admissible evidence is not ineffective assistance of counsel, appellant has failed to show his counsel=s performance was deficient in this respect. See McFarland, 845 S.W.2d at 846.
Failure to Seek a Mistrial
Appellant also asserts that his counsel was ineffective for failing to move for a mistrial when the State engaged in an allegedly improper jury argument. During the State=s closing argument, the following exchange occurred:
[The State]: You can use your common sense in understanding when what Mr. Banker says is that a witness out there saw a [P]elon leave from the crime scene and my investigator and I are the ones desperately searching for that witness. You can use your common sense to ask why.
It=s not because that person has something that we=re trying to hide from you. We tried. But unfortunately in that community, people move in and out and they=re gone. But we looked and we looked hard. And Mr. Banker gave you some idea of why we looked hard. So, let=s go back to these rules.
The rules of interrogation say a person=s arrested, they must be given their warnings and then they can be interrogated once they voluntarily waive them. The rules also say, however, that=s going to be an admissible piece of evidence, it must be recorded in some way, shape or form if it=s going to go to you as an exhibit.
That=s what Selvera did. He let him talk. He took notes on what he said to the defendant, [sic] Can we put this on video now, the defendant, knowing his rights, changed his mind, and wouldn=t go there.
[Defense Counsel]: Judge, I=m going to object. There is no evidence to that effect.
[The Court]: Stay in the record, please, sir.
Appellant contends that his trial counsel should have moved for a mistrial. Even presuming the State=s argument were improper, based on the discussion under the first point of error regarding the Strickland requirements for ineffective assistance of counsel, appellant=s argument is still without merit. The isolated failure to object to improper argument does not constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).[2] Moreover, the record is silent as to counsel=s trial strategy with respect to the actions and omissions in question. Under these circumstances, an appellate court may not speculate about why counsel acted as he did. See Toney v. State, 3 S.W.3d 199, 210 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). In the absence of such testimony, it is difficult to meaningfully address appellant=s claims. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d). In the face of this silent record, we can only conclude that appellant has failed to carry his burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002) (refusing to reverse on appellant's claim of ineffective assistance of counsel in the absence of evidence explaining counsel's decisions); Thompson, 9 S.W.3d at 813 (stating that unfounded allegations will not support a claim of ineffective assistance of counsel). Furthermore, the record does not show that the conduct of appellant=s trial counsel in failing to move for a mistrial was Aso outrageous that no competent attorney would have engaged in it@ because appellant would not have been entitled to a mistrial. See Goodspeed, 187 S.W.3d at 392. Mistrials should be granted only when an objectionable event is Aso emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.@ Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.CHouston [14th Dist.] 2000, pet. dism=d). Appellant has not shown that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s alleged ineffectiveness in failing to seek a mistrial. Accordingly, we find no merit in this claim.
We overrule appellant=s sole issue, and we affirm the trial court=s judgment.
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Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed June 21, 2007.
Panel consists of Justices Anderson, Frost, and Mirabal (Senior Justice sitting by assignment).
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Even assuming that the unidentified male=s statement that he was not the appellant, but that the appellant was in the house, was inadmissible hearsay, appellant has not shown how this statement changed the outcome of the proceedings. Immediately after the man disappeared, appellant came outside, identified himself, and made statements against his own interest.
[2] Although appellant contends that his counsel made several errors by failing to object to various statements allegedly constituting inadmissible hearsay, we conclude that these statements were admissible; thus, appellant=s counsel was not ineffective for failing to object. Under these circumstances, the isolated failure to object to allegedly improper jury argument does not constitute ineffective assistance of counsel.