NUMBER 13-10-00493-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
FRANCISCO EMMANUEL DOMINGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Francisco Emmanuel Dominguez, was indicted for capital murder.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). He appeals his conviction for the
lesser-included offense of murder, a first-degree felony. See id. § 19.02 (b)(1). Based
on a jury’s verdict, appellant was found guilty of murder and sentenced to twenty years
of confinement in the Texas Department of Criminal Justice, Institutional Division. By
eight issues, including a challenge to the voluntariness of his confession and a claim of
ineffective assistance of trial counsel, appellant argues that his conviction should be
reversed.1 We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
After failing to arrive for work at the high school where he taught, John Edward
Farr, the murder victim, was found dead in his apartment. There was no sign of forced
entry and nothing in the apartment appeared to be out of order. Farr was lying in his
bed on his back, dead. Farr was wearing pajamas and had been stabbed over twenty
times. Farr died of severe stab wounds to the left and right internal jugular. There were
no definitive defensive wounds on his body. A toxicology report revealed that Farr was
intoxicated at the time of his death.
Police who arrived at the murder scene noticed that Farr’s cellular phone and a
laptop computer were missing. Farr’s car was also missing from outside the apartment.
Texas Rangers attempted to determine the location of Farr’s phone in the hope that the
phone would lead them to the person who killed Farr.
In the meantime, appellant’s aunt contacted the Harlingen Police Department
and reported that appellant admitted to killing someone. Police were dispatched to
1
In his prayer for relief, appellant asks this Court to reverse his conviction and enter a judgment
of acquittal or, in the alternative, to remand the case to the trial court for a new trial. We note, however,
that appellant has not presented a challenge to the sufficiency of the evidence which would entitle him to
an acquittal in the event the State’s evidence was found insufficient to sustain his conviction. See e.g.,
Villani v. State, 116 S.W.3d 297, 307 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), noting the sufficiency-review standard ensures that a
judgment of acquittal is reserved for instances in which the State actually fails to prove the crime).
2
Because 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.
2
speak with appellant’s aunt. When they arrived, appellant was with his aunt, and he told
one of the officers, “You’re going to find out anyway. I was stopped and arrested driving
Mr. Farr’s car.” The officer confirmed with the Texas Department of Public Safety that
one of its troopers stopped appellant while he was driving Farr’s car. Shortly thereafter,
appellant was arrested on suspicion of murder.
The police learned from appellant’s aunt that Farr was one of appellant’s
teachers and that Farr would give appellant money. At the time of his arrest on June
16, 2008, appellant was sixteen years old. Appellant was placed in a juvenile-detention
facility until August 2008, when at age seventeen, he was certified to stand trial as an
adult and transferred to an adult-detention facility. After being transferred, he gave law-
enforcement officers a written statement in which he admitted to killing Farr.
A. The Relevant Contents of Appellant’s Written Statement
Appellant’s statement was admitted into evidence at trial. The beginning of
appellant’s statement includes a written warning and waiver of both his Miranda rights
and his rights under article 38.22, section 2 of the Texas Code of Criminal Procedure.
In his statement, appellant explained that he was giving his statement “voluntarily,
without fear of duress or threat, and without promise of leniency.” He also explained
that prior to making the statement, he was advised that he was “suspected of or
charged with the offense of capital murder.”
Appellant described Farr’s murder and the surrounding circumstances. Appellant
explained that in January 2008, he started the second semester of his freshman year at
Harlingen High School South. Farr was his speech teacher. About a week into the
semester, Farr arranged for appellant to be in his “Theatre Tech” class. Farr would ask
3
him if he worked out, and he would ask him to flex his muscles. Farr said appellant
could be a model or a stripper. Appellant stated that some time before spring break
2008, Farr called him on his cellular phone and told him to skip school to meet a friend
of his who was a male stripper. According to his statement, appellant did so. Appellant
visited Farr’s apartment about ten times, and Farr would give appellant alcohol and
money.
On the night of June 16, 2008, appellant called Farr and asked to borrow twenty
dollars. Farr answered “yes” and told appellant to come to his apartment. After
appellant drank about four mixed drinks and eight beers, Farr made multiple overt
sexual advances to appellant while appellant was lifting weights. Appellant declined the
advances and Farr offered him cocaine. After consuming the cocaine, appellant asked
Farr if he was going to give him the twenty dollars. Farr told appellant to wait in his
bedroom for the money and appellant did so. According to appellant, Farr then entered
the bedroom holding a pointed object with a brown handle. Farr then attempted to
molest appellant and during a struggle, appellant stabbed Farr with the pointed object.
Appellant then stole some liquor from the apartment and fled in Farr’s car.
Appellant attached to his written statement a drawing he made of the pointed
object. It looks like an ice pick, though appellant did not use this term. On his drawing,
appellant identified the “brown handle” and noted that the pointed portion measured four
inches in length. Appellant signed beneath the drawing and wrote the date and time,
“8-11-08 10:42 p.m.”
4
B. The Circumstances Surrounding Appellant’s Written Statement
The transcript of the hearing on appellant’s motion to suppress his written
statement shows that law-enforcement officers did not attempt to interrogate appellant
after his arrest on June 16, 2008, because an attorney arrived at the Harlingen Police
Station, stated he represented appellant, and stated no one could speak to appellant. 3
On August 11, 2008, Lieutenant Rolando Castañeda of the Texas Rangers was
informed that appellant had been certified to stand trial as an adult and was not
represented by counsel.4 He traveled to the adult-detention facility and asked appellant
if he would give a statement. Detective Frank Rolph of the Harlingen Police Department
and Lieutenant Victor Escalon, Jr. of the Texas Rangers accompanied Lieutenant
Castañeda when he interviewed appellant. They were present during the entire
interview.
Lieutenant Castañeda testified that appellant said he wanted to talk to the law-
enforcement officers the night he was arrested, but that his attorney would not let him.
After being read his Miranda warnings and the warnings required under Texas Code of
Criminal Procedure article 38.22, appellant spoke with the officers and gave his written
statement. The record shows appellant also initialed and signed a written copy of both
sets of rights. Appellant was interviewed and gave his written statement in a law library
and appellant, though handcuffed, was advised he was free to take a break any time
3
Lieutenant Castañeda testified that in June 2008 an attorney named Trey Garza appeared at
the police station and made that statement. Trey Garza, however, did not represent appellant in the trial
court.
4
The appellate record does not include a copy of any motion to withdraw as counsel or any
order permitting counsel to withdraw from representing appellant immediately following his certification to
stand trial as an adult. After filing appellant’s notice of appeal, appellant’s trial counsel, Anthony P.
Troiani, filed a motion to withdraw as counsel which the trial court granted before appointing appellate
counsel.
5
during his three to three-and-a-half hour conversation with the officers. Appellant was
very talkative and remained calm, though not emotionless, during the conversation.
Lieutenant Castañeda testified that if appellant had told him he did not want to
speak, he would not have continued the conversation. Lieutenant Castañeda admitted
that at one point in the conversation he probably did tell appellant he would “talk to the
District Attorney’s Office without promising anything and see what happens because of
his cooperation.” But when asked whether he told appellant this at the outset of the
conversation, Lieutenant Castañeda responded that he could not recall at what point
during the interview he made this statement. In response to questioning from defense
counsel about when he made the statement, Lieutenant Castañeda clarified that the
start of his conversation with appellant consisted of Lieutenant Castañeda introducing
himself, telling appellant he was present to hear appellant’s side of the story, and
reading appellant his rights after appellant said he had wanted to give a statement from
the “get-go.” Lieutenant Castañeda testified that he did not promise appellant a
reduced sentence in exchange for his statement, and that appellant was not threatened
or coerced in any way to make a statement.
Detective Rolph testified that there was no conversation with appellant about how
his confession would affect his case. Lieutenant Escalon testified that he did not
remember anyone telling appellant that the officers would talk to the district attorney
about his cooperation.
Appellant testified at the suppression hearing and, in several respects, gave a
different account of the events that preceded his statement. Appellant testified that on
the day of his arrest, June 16, 2008, he told law enforcement and a magistrate judge
6
that he did not want to talk to any of them. He was not interrogated at that time.
Appellant testified that no law-enforcement officer attempted to talk to him again until
August 11, 2008, after he was certified to stand trial as an adult. When asked whether
he had an attorney at the time he was certified to stand trial as an adult, appellant
testified, “No, sir. Well, at that time it was a juvenile court-appointed attorney.”
Appellant testified that when the law-enforcement officers came to talk to him on
the night of August 11, 2008, the officers told him that they wanted to know the truth and
that if he spoke to them, they would tell the district attorney to give him “less time” or
“help” him “out.” Appellant testified that he initially told the officers he did not want to
speak, but because of their offer, he “just told them what happened from the beginning.”
C. The Trial Court’s Ruling on Appellant’s Motion to Suppress
At the end of the suppression hearing, the trial court denied appellant’s motion to
suppress his written statement. The trial court found in open court that the statement
was obtained in compliance with Texas Code of Criminal Procedure article 38.22, and
its findings are included in the reporter’s record. See TEX. CODE CRIM. PROC. ANN. art.
38.22, § 6 (West 2011) (requiring the trial court to enter the specific findings of fact that
support its conclusion that the written statement made by an accused as a result of
custodial interrogation was voluntarily made); Drake v. State, 123 S.W.3d 596, 601–02
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding trial court’s oral findings that
were dictated to a court reporter and made part of the record satisfied the article 38.22
requirement that the trial court enter findings); Garza v. State, 915 S.W.2d 204, 211
(Tex. App.—Corpus Christi 1996, pet. ref’d) (explaining it is mandatory for the trial court
to file findings under article 38.22, section 6). The court also found appellant was read
7
his warnings, made a voluntary statement, and understood the consequences of giving
his statement. See e.g., Drake, 123 S.W.3d at 601–02.
II. ISSUES
In his brief, appellant asserts the following eight issues for review:5
(1) Did the trial court reversibly err by not suppressing appellant’s written
statement because it was obtained in violation of his Fifth and Sixth
Amendment rights under the United States Constitution?
(2) Did the trial court reversibly err by not suppressing appellant’s written
statement under Texas Code of Criminal Procedure article 38.21 because the
statement was induced by a promise from a law-enforcement officer that the
statement would be beneficial to him?
(3) Did appellant receive ineffective assistance of trial counsel?
(4) Did the trial court err by allowing the State to introduce evidence of
appellant’s prior juvenile adjudications?
(5) Did the trial court reversibly err by refusing to instruct the jury to disregard
improper jury argument concerning extraneous offenses?
(6) Did the trial court reversibly err by its failure to instruct the jury on the issue of
extraneous offenses?
(7) Under Texas Rule of Evidence 403, did the trial court err in admitting
photographs of the murder victim into evidence over appellant’s objection?
(8) Did the trial court err in denying appellant a mistrial when the State improperly
argued that appellant failed to make a statement to law-enforcement officers
at the time of his arrest?
III. ANALYSIS
A. Appellant’s Motion to Suppress His Written Statement
In the trial court, the focus of appellant’s motion to suppress was that he lacked the
intelligence to validly waive his rights and give a knowing, voluntary statement to the
law-enforcement officers. Appellant also argued in his motion to suppress that: (1) his
5
In the interest of judicial economy, we paraphrase appellant’s issues as necessary. See id.
47.1.
8
written statement was inadmissible because it was obtained in violation of his rights
under the Fifth and Sixth Amendments to the United States Constitution; and (2) the
statement was induced by an improper promise from a law-enforcement officer.
1. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). At a suppression hearing, the trial court is the sole finder of fact and is free to
believe or disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d
17, 24 (Tex. Crim. App. 2007). We give almost total deference to the trial court’s
determination of historical facts that depend on credibility and demeanor, but we review
de novo the trial court’s application of the law to the facts because resolution of those
ultimate questions does not turn on the evaluation of credibility and demeanor.
See Guzman, 955 S.W.2d at 89. We review a trial court’s ruling on a motion to
suppress in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24.
If supported by the record, a trial court’s ruling on a motion to suppress will not be
overturned. Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.]
2007, no pet.).
2. Admissibility of the Statement under the Fifth and Sixth Amendments
By his first issue, appellant argues that the trial court erred by admitting his
written statement into evidence because it was obtained in violation of his rights under
the Fifth and Sixth Amendments to the United States Constitution. See U.S. CONST.
amends. V, VI. Specifically, appellant argues that his statement was inadmissible under
Michigan v. Jackson and Edwards v. Arizona because he was represented by counsel
9
when he gave the statement, counsel had previously advised law enforcement that no
one was to speak to appellant, and counsel was not present when appellant was taken
from his cell just after 10:00 p.m. and interrogated for over three hours. See Michigan v.
Jackson, 475 U.S. 625, 636 (1986), overruled by Montejo v. Louisiana, 556 U.S. 778
(2009); Edwards v. Arizona, 451 U.S. 477, 485 (1981).
The Supreme Court of the United States has held that in deciding whether an
accused actually invoked his right to counsel, reviewing courts must use an objective
standard and determine whether an accused unambiguously requested counsel during
custodial interrogation. See Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012)
(citing Davis v. U.S., 512 U.S. 452, 458–59 (1994)). This approach avoids difficulties of
proof and provides officers guidance in conducting interrogations. Id. Thus, we review
the totality of the circumstances from the viewpoint of the objectively reasonable police
officer conducting a custodial interrogation.6 Id.
In Pecina v. State, the Texas Court of Criminal Appeals considered how the Fifth
and Sixth Amendment rights to counsel are invoked and how they apply to custodial
interrogation. See id. at 74–75. The Fifth Amendment prohibits the government from
compelling a criminal suspect to incriminate himself. Id. (citing U.S. CONST. amend. V
which states, “No person . . . shall be compelled in any criminal case to be a witness
against himself.”). Before questioning a suspect who is in custody, police must give the
suspect Miranda warnings. Id. at 75 (citing Miranda v. Arizona, 384 U.S. 436 (1966)).
6
This objective standard applies to a child’s invocation of his constitutional right to have counsel
present during custodial interrogation. In re H.V., 252 S.W.3d 319, 333 (Tex. 2008) (citing Davis v. U.S.,
512 U.S. 452, 459 (1994)). The federal Miranda rights “apply to juveniles just as they do to adults.” Id. at
325. In Texas, a person who is seventeen at the time of making a statement to law enforcement is
treated as an adult. See Ramos v. State, 961 S.W.2d 637, 639 (Tex. App.—San Antonio 1998, no pet.)
(citing Griffin v. State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989) and applying TEX. FAM. CODE ANN. §
51.095).
10
Only if the person voluntarily and intelligently waives his Miranda rights, including his
right to have an attorney present during interrogation, may his statement be introduced
into evidence against him at trial. Id. Under Edwards, once a person has invoked his
right to have counsel present during custodial interrogation, police may not re-initiate
interrogation; police may not badger a person into waiving his previously asserted
Miranda rights. Id. (citing Edwards, 451 U.S. at 485). But Miranda rights can only be
invoked within the context of custodial interrogation. Id. at 75–76. The Supreme Court
of the United States has never accepted anticipatory invocation of Miranda rights (1)
given by someone other than law-enforcement officers or other state agents; or (2)
outside the context of custodial interrogation. Id. at 76 (citing McNeil v. Wisconsin, 501
U.S. 171, 182 n.3 (1991)).
The Sixth Amendment right to counsel attaches once the adversary judicial
process has been initiated, and it guarantees a defendant the right to have counsel
present at all critical stages of the criminal proceedings, including custodial
interrogation. Id. at 77 (citing Montejo, 556 U.S. at 786). Under Montejo, if an accused
who requested counsel at an arraignment or other initial appearance also wishes to
invoke his Sixth Amendment right to counsel during post-arraignment custodial
interrogation, he may do so by invoking his Miranda rights at the outset of custodial
interrogation. Id. at 78. A defendant’s invocation of his right to counsel at the time of
magistration says nothing about his possible invocation of his right to counsel during a
subsequent police-initiated custodial interrogation. Id.
In Pecina, paramedics responded to a 911 call and found Pecina and his wife in
their apartment bleeding from stab wounds. Id. at 71. Pecina’s wife died before the
11
paramedics arrived and police believed Pecina had killed his wife, then stabbed himself.
Id. While Pecina was still in the hospital, an arrest warrant was obtained and a
magistrate visited Pecina in his room. Id. The magistrate arraigned Pecina and then
asked him if he wanted a court-appointed attorney and if he wanted to talk to the
Arlington Police Department detectives who were waiting outside his hospital room. Id.
at 72. Pecina stated he wanted a court-appointed attorney. Id. Pecina also responded
that he wanted to speak with the detectives and never indicated to the magistrate that
he wanted an attorney present when he spoke with the detectives. Id. The magistrate
then exited the room. Id. The detectives entered Pecina’s hospital room, and after
Pecina received his Miranda warnings and waived his Miranda rights, he gave the
police a recorded statement. Id. Later, trial counsel was appointed to represent him.
Id. at 73. The Court of Criminal Appeals concluded that because the defendant never
invoked his right to counsel during the custodial interrogation, the trial court properly
denied his motion to suppress the admission of his statement into evidence at trial. Id.
at 81.
In this case, as in Pecina, there is no evidence appellant ever invoked his right to
counsel in the context of a custodial interrogation. Neither appellant’s own testimony
(that in June 2008, he told law enforcement and the magistrate he did not want to talk)
nor Lieutenant Castañeda’s testimony (that an attorney arrived at the Harlingen police
station and stated no one could speak to appellant) showed that appellant invoked his
Miranda rights during a custodial interrogation. Therefore, the trial court properly denied
appellant’s motion to suppress his written statement because the record did not show
that appellant’s statement was obtained in violation of his rights under the Fifth and
12
Sixth Amendments to the United States Constitution. See id. (citing Montejo); see also
Montejo, 556 U.S. at 689 (explaining the Sixth Amendment does not categorically
prohibit law-enforcement officers from approaching a defendant and asking him to
consent to custodial interrogation solely because he is represented by counsel);
Montelongo v. State, 681 S.W.2d 47, 53–54 (Tex. Crim. App. 1984) (explaining the trial
court may reject the accused’s testimony at a suppression hearing and believe the
police officers’ testimony instead; holding that absent an accused’s clear invocation of
the right to counsel during custodial interrogation, an attorney’s unsolicited advice to not
give a statement is not an invocation of the right to have counsel present during
custodial interrogation). Accordingly, we overrule appellant’s first issue.
3. Admissibility of the Statement under the Code of Criminal Procedure
By his second issue, appellant argues that his written statement was
inadmissible under article 38.21 of the Texas Code of Criminal Procedure because it
was induced by Lieutenant Castañeda’s alleged promise to help appellant if he made a
statement to the law-enforcement officers.7 See TEX. CODE CRIM. PROC. ANN. art. 38.21
(West 2005). We disagree.
Article 38.21 provides that a statement of an accused may be used in evidence
against him if it appears that the same was freely and voluntarily made without
compulsion or persuasion. Id. To decide whether a statement meets this standard, a
court of appeals must examine the totality of the circumstances surrounding the
7
In the trial court, appellant cited Texas Code of Criminal Procedure article 38.22 in support of
his contention that a promise may have rendered his statement involuntary, but on appeal he cites article
38.21. See TEX. CODE CRIM. PROC. ANN. arts. 38.21, 38.22 (West 2005). Notwithstanding this
discrepancy, we will address the merits of appellant’s second issue because under both articles, the
Texas Court of Criminal Appeals has used the same test in determining whether a promise rendered a
confession involuntary. Compare Joseph v. State, 309 S.W.3d 20, 26 n.8 (Tex. Crim. App. 2010)
(analyzing the voluntariness of a statement under article 38.22), with Martinez v. State, 127 S.W.3d 792,
794 (Tex. Crim. App. 2004) (analyzing the voluntariness of a statement under article 38.21).
13
acquisition of the statement to determine whether it was given voluntarily. Delao v.
State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007); Creager v. State, 952 S.W.2d 852,
856–57 (Tex. Crim. App. 1997). For a promise to render a confession invalid under
article 38.21, the promise must be: (1) positive; (2) made or sanctioned by someone in
authority; and (3) of such an influential nature that it would cause a defendant to speak
untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) (citing
Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997)). However, the
relevant inquiry under state law is not whether the defendant spoke truthfully or not, but
whether the officially sanctioned, positive promise would be likely to influence the
defendant to speak untruthfully. Id. at 794–95.
In Masterson, the Court of Criminal Appeals held that a police officer’s statement
to a defendant that he would “pass along” information if the defendant admitted to
owning certain drugs, did not amount to a positive promise. Masterson v. State, 155
S.W.3d 167, 171 (Tex. Crim. App. 2005). Similarly, in Martinez, the Court of Criminal
Appeals concluded that no positive promise was made when a police detective testified
that he made no promises to the defendant, he told the defendant he needed to know
who owned the drugs, and that the defendant “could have gathered” from that statement
that his brother and father would not be charged if the defendant accepted responsibility
for the drugs. Martinez, 127 S.W.3d at 793, 795.
In considering appellant’s motion to suppress, the trial court was free to believe
the law-enforcement officers’ testimony and to disbelieve appellant’s testimony. See
Delao, 235 S.W.3d at 238; Masterson, 155 S.W.3d at 171. With regard to whether a
promise was made, Lieutenant Castañeda testified that he did not promise appellant
14
anything, but testified that he probably did tell appellant he would talk to the district
attorney’s office and see what happened based on appellant’s cooperation. Lieutenant
Castañeda’s testimony also showed that while he could not recall the point in the
conversation at which he would have made this statement to appellant, it was not at the
beginning of the conversation or before appellant agreed to give a statement.
Conversely, Lieutenant Escalon and Detective Rolph testified respectively that they did
not recall any conversation about how the statement would affect appellant’s case and
that there was no such conversation with appellant. Considering the totality of the
circumstances, the evidence supports the trial court’s implied finding that no positive
promise was made to induce appellant to give his statement. See Martinez, 127
S.W.3d at 795; Masterson, 155 S.W.3d at 170. We overrule appellant’s second issue.
B. Appellant’s Claim of Ineffective Assistance of Trial Counsel
By his third issue, appellant argues that his trial counsel rendered ineffective
assistance under the United States and Texas Constitutions because counsel failed to
request a psychological examination to “check [a]ppellant’s competency to stand trial;
and . . . [a]ppellant’s IQ to establish diminished capacity in [a]ppellant’s thought
process.” Appellant also argues that his trial counsel failed to object to the admission of
multiple extraneous offenses, but he does not provide record citations in support of this
argument. To the extent appellant has failed to support his ineffective-assistance claim
with citations to the record showing trial counsel’s failure to object to the alleged
admission of multiple extraneous offenses, appellant fails to present anything for
appellate review. See TEX. R. APP. P. 38.1(i); Castillo v. State, 186 S.W.3d 21, 24 (Tex.
App.—Corpus Christi 2005, pet. ref’d).
15
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. ANN. art. 1.051 (West 2011). This right necessarily includes the right to
reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,
686 (1984). To prove ineffective assistance of counsel, a defendant must show, (1) by
a preponderance of the evidence, that counsel’s performance was so deficient that he
was not functioning as acceptable counsel under the Sixth Amendment; and (2) there is
a reasonable probability that, but for counsel’s error or omission, the result of the
proceeding would have been different. Strickland, 466 U.S. at 687–96; Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must overcome the
strong presumption that the challenged action might have been sound trial strategy.
Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when
the record is silent as to counsel's reasoning or strategy. Godoy v. State, 122 S.W.3d
315, 322 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
When, as in this case, there is no 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); Aldaba v.
State, No. 14-08-00417-CR, 2009 WL 1057685, at *5 (Tex. App.—Houston [14th Dist.]
April 16, 2009, pet. ref’d). 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, 208–09 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d). The Texas Court of Criminal Appeals has stated
that it should be a rare case in which an appellate court finds ineffective assistance on a
16
record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d 98,
103 (Tex. Crim. App. 2005). On a silent record, this court can find ineffective assistance
of counsel only if the challenged conduct was so outrageous that no competent attorney
would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005).
Appellant’s ineffective-assistance claim fails because he has not met his burden
under either prong of the Strickland test. The record contains multiple psychological
evaluations of appellant and reflects that trial counsel was aware of appellant’s
intelligence quotient based on a professional evaluation. For example, the record shows
that on July 3, 2008, a psychological evaluation was performed on appellant to
determine whether he could be certified to stand trial as an adult. The psychologist
concluded and explained in his report that appellant could knowingly participate in the
judicial process, converse, and make agreements with full comprehension. The
psychologist wrote appellant “is well aware of what he is doing” and recommended that
appellant was certifiable to stand trial as an adult.
On this record we cannot conclude that appellant has shown by a preponderance
of the evidence that trial counsel’s performance was so deficient that he was not
functioning as acceptable counsel by not requesting further psychological or intelligence
evaluation. See Strickland, 466 U.S. at 687–96. Moreover, appellant offers no
explanation, let alone an explanation rooted in the record, of how the outcome of the
proceeding would have been different had trial counsel not been deficient as alleged and
thus, appellant has not met his burden to show prejudice. See id. Appellant’s third issue
is overruled.
17
C. Appellant’s Remaining Issues
Appellant’s remaining issues (issues four through eight) present nothing for
appellate review because appellant has failed to support these issues with appropriate
citations to the record.8 See TEX. R. APP. P. 38.1(i) (providing the brief must contain a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record); Castillo, 186 S.W.3d at 24; see also Cook v. State, 611
S.W.2d 83, 87 (Tex. Crim. App. [Panel Op.] 1981) (“This court with its tremendous
caseload should not be expected to leaf through a voluminous record hoping to find the
matter raised by appellant and then speculate whether it is that part of the record to
which appellant had reference.”); see also Rodriguez v. State, No. 13-05-00522-CR,
2006 WL 2382768, at *1 n.2 (Tex. App.—Corpus Christi, Aug. 17, 2006, no pet.) (mem.
op., not designated for publication) (concluding defendant’s sub-issue that the trial court
omitted extraneous-offense instruction from jury charge presented nothing for review
because it was inadequately briefed). Appellant’s fourth through eighth issues are
overruled.
D. Response to Dissenting Memorandum Opinion
The dissent argues that because the juvenile court had not yet signed its order
waiving jurisdiction and transferring appellant’s case to the trial court when appellant
gave his written statement, law-enforcement officers improperly obtained appellant’s
written statement and the trial court reversibly erred by failing to suppress the written
statement sua sponte. We cannot agree with the dissent’s analysis because it fails to
8
By his eighth issue, appellant argues the trial court erred by denying him a mistrial when the
State improperly argued that appellant failed to make a statement to law-enforcement officers at the time
of his arrest. In support of his eighth issue, appellant provides a single record citation to a portion of the
State’s closing argument during the punishment phase of trial. However, nowhere in the pages cited, nor
in the pages immediately preceding or following it, is there any argument concerning appellant’s failure to
make a statement at the time of his arrest or any denial of a request for a mistrial made on this basis.
18
explain why its transfer-order argument is not subject to waiver and because it does not
adequately address either the legal significance of appellant’s age (seventeen) when he
gave his written statement to law enforcement or the legal significance of appellant’s
physical transfer to an adult-detention facility prior to giving his statement. In addition,
the dissent’s reliance on dicta from Vasquez v. State is misplaced because Vasquez is
not about the signing or timing of a juvenile court’s transfer order. See 739 S.W.2d 37,
43 (Tex. Crim. App. 1987) (en banc).
Procedurally, we note that even if appellant’s statement was improperly obtained
because the juvenile court’s transfer order was not signed before appellant gave the
statement, the dissent fails to explain how this Court could consider the argument when
it was not raised in the trial court or on appeal. See TEX. R. APP. P. 33.1, 38.1. In the
trial court, there was no dispute about whether appellant was an adult at the time he
gave his written statement to law enforcement. Instead, appellant argued his motion to
suppress his written statement on the premise that he was an adult at the time he gave
the statement. At the outset of the suppression hearing, the State urged the trial court
to dismiss appellant’s motion because it was too vague. In response, appellant’s
counsel explained his suppression argument to the trial court, stating, among other
things, that even though appellant had been certified to stand trial as an adult, had
turned seventeen, and had been transferred to an adult-detention facility before giving
his written statement, appellant lacked the intelligence to validly waive his rights and
voluntarily give law-enforcement officers a statement.
On appeal, appellant has not changed his position concerning whether he was
an adult when he gave his written statement. In other words, even assuming for the
19
sake of argument only that appellant was entitled to the protections of Family Code
section 51.095 when he gave his written statement, appellant waived this complaint by
not raising it in the trial court and by not briefing it on appeal. See Ponce v. State, 985
S.W.2d 594, 595 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding defendant
failed to preserve for appellate review her claim that her statement was taken in
violation of Family Code section 51.095 when she did not obtain a ruling on this claim in
the trial court); see also TEX. R. APP. P. 33.1, 38.1; Geter v. State, No. 05-95-00775-CR,
1996 WL 459767, at *3 (Tex. App.—Dallas July 31, 1996, no pet.) (not designated for
publication) (holding appellant failed to preserve for appellate review his complaint that
his confession was inadmissible because it was not given in accordance with the Family
Code requirements pertaining to admissibility of a child’s statement).
We further note that there is no evidence in the record that law-enforcement
officers attempted to interrogate appellant on June 16, 2008, after appellant’s arrest. At
the suppression hearing, appellant testified as follows about his interaction with law-
enforcement officers at the time of his arrest. Appellant gave the following testimony on
direct-examination:
Q. Okay. Back in June of 2008, how old were you?
A. I was 16.
Q. Okay. On June 16th, 2008, were you arrested?
A. Yes, sir.
Q. Okay. At that time, were you approached by officers of the—well, law
enforcement officers?
A. Yes, sir, I was.
Q. Okay. Did you at that time agree to speak with law enforcement officers?
20
A. No, sir, I did not. I refused.
Q. Okay. Do you remember what the officers—did the officers speak to you
at all?
A. No, sir.
Q. Okay.
A. They just asked me if I wanted to speak to them, and I said no, I did not.
Q. Okay. And where were you taken?
A. To Harlingen PD.
Q. Okay. And at Harlingen PD, were you placed in a cell?
A. No, sir. It was in, I believe it was like a little office.
Q. Okay.
A. It was in a room, yeah.
Q. Okay. And at that time what happened?
A. I was there for a while, about an hour, and they told me if I wanted to
speak to anybody. I said, “No, I don’t want to speak to anybody.” And
then I believe it was a, Judge Sallie Gonzalez, she came and told me that
if I want to speak to her. I said no, I refused, and I signed the paper.
Q. Okay. And so when you spoke with the officers, you told them you didn’t
want to speak to them; and then when you spoke, when Judge Gonzalez
asked you about it, you told her you didn’t want to speak to the officers
either?
A. No, sir.
Q. Okay. Between that time, between speaking with Judge Gonzalez and
August 11th of 2008, did anyone attempt to speak with you or talk to you
about this case?
A. No, sir.
Q. From law enforcement?
A. No, sir.
21
Lieutenant Castañeda testified that there was no attempt to interrogate appellant
after his arrest on June 16, 2008, because an attorney arrived at the Harlingen Police
Station, stated he represented appellant and no one could speak to appellant. As the
sole fact finder at the suppression hearing, the trial court was free to believe Lieutenant
Castañeda’s testimony. See Wiede, 214 S.W.3d at 24.
The dissent would hold that section 54.02 of the Texas Family Code required the
juvenile court to sign its transfer order before appellant made his statement in order for
the statement to be admissible. Section 54.02 of the Family Code is titled “Waiver of
Jurisdiction and Discretionary Transfer to Criminal Court.” See TEX. FAM. CODE ANN. §
54.02 (West 2008). Section 54.02 addresses the circumstances under which a juvenile
court is authorized or required to waive its jurisdiction and transfer a case to a criminal
court. See id. § 54.02(a),(m); see also Miller v. State, 981 S.W.2d 447, 449 (Tex.
App.—Texarkana 1998, pet. ref’d) (discussing section 54.02). Section 54.02 also sets
forth certain required contents of an order waiving jurisdiction and transferring a person
to the appropriate court for criminal proceedings. See TEX. FAM. CODE ANN. § 54.02(h).
However, the Legislature has not made section 54.02 the legal standard for the
admissibility of a statement given by a seventeen year old incarcerated in an adult-
detention facility.
Neither Family Code section 51.095 (“Admissibility of a Statement of a Child”)
nor section 54.02 (“Waiver of Jurisdiction and Discretionary Transfer to Criminal Court”)
makes the date the transfer order is signed dispositive of whether the admissibility of a
statement is governed by Family Code Section 51.095. See id. §§ 51.095, 54.02.
Section 51.02 of the Family Code defines a “child” as someone who is “ten years of age
22
or older and under 17 years of age.” See id. § 51.02. The protections of Family Code
section 51.095, pertaining to the admissibility of statements, apply only to “the
statement of a child.” See id. § 51.095. Appellant was not a child when he made his
written statement because he had already turned seventeen. See id.; see also Griffin v.
State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989) (explaining the admissibility of a
statement made at age sixteen and before juvenile court relinquished jurisdiction was
properly analyzed under the Family Code); Lovell v. State, 525 S.W.2d 511, 514 (Tex.
Crim. App. 1975) (same); Ramos v. State, 961 S.W.2d 637, 639 (Tex. App.—San
Antonio 1998, no pet.) (citing Griffin, 765 S.W.2d at 427 and applying TEX. FAM. CODE
ANN. § 51.095).
Our interpretation is supported by the following language in section 54.02 which
the dissent did not include as pertinent to its analysis: “[o]n transfer of the person for
criminal proceedings, the person shall be dealt with as an adult and in accordance with
the Code of Criminal Procedure. . . . The transfer of custody is an arrest.” TEX. FAM.
CODE ANN. § 54.02(h). Appellant had been transferred to an adult-detention facility
when he made his statement. Without ruling on the issue of the precise timing of a
transfer order, the Court of Criminal Appeals has interpreted the arrest language in the
statute to mean that once a person is transferred to adult custody from juvenile custody,
he is arrested “as an adult suspect.” See Vasquez, 739 S.W.2d at 40.9 While the
Vasquez Court stated in dicta, “[u]ntil the moment transfer is ordered, the juvenile is
cloaked with the trappings of a non-criminal proceeding with attendant safeguards such
9
The issue before the Court of Criminal Appeals in Vasquez v. State was whether a defendant
arrested as a juvenile, but later certified to stand trial as an adult, was entitled to the protections of the
adult-arrest statute in Texas Code of Criminal Procedure article 14.04 at the time of his initial detention.
739 S.W.2d 37, 40 (Tex. Crim. App. 1987) (en banc). The court held he was not. Id. at 43.
23
as greater protections in the areas of confession law and notice requirements[,]”
Vasquez does not contemplate, in dicta or otherwise, the proper procedure and timing
for signing a transfer order under section 54.02 of the Family Code. See id. at 44.
Thus, the dissent’s emphasis on Vasquez is misplaced.
IV. CONCLUSION
We affirm the trial court’s judgment.
______________________________
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
26th day of July, 2012.
24