MEMORANDUM OPINION
No. 04-10-00003-CR
Luis Martin GONZALEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2009-CRN-000227-D1
Honorable Jose A. Lopez, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 8, 2010
AFFIRMED
A jury found appellant Luis Martin Gonzalez guilty of murder, and sentenced him to
ninety-nine years confinement in the Texas Department of Criminal Justice-Institutional
Division. On appeal, Gonzalez contends he received ineffective assistance of counsel, the trial
court erred in allowing improper jury argument by the State, and the trial court erred in allowing
the motion for new trial hearing to proceed in his absence. We affirm the trial court=s judgment.
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BACKGROUND
Gonzalez and Jose Alberto Melecio were neighbors and friends for approximately two
years. The record shows that on the evening of September 6, 2008, Gonzalez and Melecio were
drinking alcohol and using cocaine at a house owned by Gonzalez’s grandmother. Over the
course of the evening, an argument ensued between Gonzalez and Melecio over the lack of
cocaine, which escalated to a physical confrontation that led to Melecio’s death.
In the early morning of September 7, 2008, Officer Juan Gilberto Perez of the Laredo
Police Department was dispatched to investigate a welfare concern reported by Gonzalez’s aunt,
Sylvia Rojas. She asked police to check on Gonzalez. When Officer Perez arrived at the house
owned by Gonzalez’s grandmother, he knocked and Gonzalez peeked through a broken window.
Initially, Gonzalez did not want Officer Perez to enter the house. Rojas, who was also at the
house, approached Gonzalez and noticed he was covered in dried blood. She advised Officer
Perez about the blood. When Officer Perez asked Gonzalez if anyone else was with him,
Gonzalez admitted there was another person in the house, but he stated he was dead. Officer
Perez then entered the house, noticed the place was covered in blood and found Melecio lying on
the bathroom floor. Gonzalez was arrested and charged with murder. He was taken to the
Laredo Police Department.
Sergeant Carlos Adan, the lead homicide investigator, interviewed Gonzalez. Gonzalez
told Sergeant Adan that Melecio was assaulted by three individuals while Gonzalez hid
underneath the bed. Gonzalez denied killing Melecio. Gonzalez also told Sergeant Adan he had
been on an alcohol and cocaine binge for several days prior to the murder.
At trial, Gonzalez testified he and Melecio consumed alcohol and cocaine on the night of
the murder. Gonzalez also stated he and Melecio argued over the lack of cocaine. Contrary to
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what he told Sergeant Adan, Gonzalez testified Melecio attacked him and he fought back.
Gonzalez admitted striking Melecio several times with his hands, with a candle, and with a mop
handle, but stated it was never with the intention of killing Melecio.
Dr. Corrine E. Stern of the Webb County medical examiner’s office conducted Melecio’s
autopsy. She testified Melecio suffered “defensive-type” wounds to his forearm and the back of
his hands. Dr. Stern testified Melecio suffered multiple injuries and died from blunt force
injuries to the head.
Based on the foregoing evidence, the jury found Gonzalez guilty of Melecio’s murder.
Gonzalez then perfected this appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
Gonzalez first contends he received ineffective assistance of counsel when his trial
attorney failed to investigate, question, or present: (1) material witnesses, and (2) evidence of
Gonzalez’s mental illness.
To prevail on an ineffective assistance of counsel claim, an appellant must show: (1)
deficient performance by trial counsel, and (2) prejudice arising from the deficient performance.
Strickland v. Washington, 466 U.S. 668, 688 (1984); Garza v. State, 213 S.W.3d 338, 347 (Tex.
Crim. App. 2007). To establish counsel’s performance was deficient, an appellant must prove by
a preponderance of evidence that his counsel’s representation fell below an objective standard of
professional norms. Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347–48. To establish the
defense was prejudiced, an appellant must show there is a reasonable probability that but for trial
counsel’s errors, the outcome of the trial would have been different. Mitchell v. State, 68 S.W.3d
640, 642 (Tex. Crim. App. 2002); Ruiz v. State, 293 S.W.3d 685, 690 (Tex. App. San Antonio
2009, pet. ref’d).
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We must presume trial counsel provided effective assistance. Mallett v. State, 65 S.W.3d
59, 63 (Tex. Crim. App. 2001). There is a strong presumption that trial counsel’s decisions and
actions were motivated by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005). To overcome this presumption, counsel’s ineffectiveness must be “firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999). Even so, rarely
will a reviewing court be able to make a determination in an ineffective assistance of counsel
claim on direct appeal because the record is generally undeveloped. Id. Thus, a substantial risk
of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.
Id. at 813–14.
Trial counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). Trial counsel’s performance will be deemed sufficient if any strategy can be ascribed to
his actions or decisions, and his performance will be found deficient only if “the conduct was so
outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d
98, 101 (Tex. Crim. App. 2005).
Gonzalez first contends he received ineffective assistance of counsel because his trial
counsel failed to investigate, question, or present witnesses material to his defense. Specifically,
Gonzalez claims his trial counsel failed to present witnesses who would testify Melecio was the
aggressor and Gonzalez acted in self-defense. This assertion is not supported by the record.
Trial counsel testified at the motion for new trial hearing that he conducted his own investigation
in search of witnesses who would testify about Melecio’s alleged aggressive character in order to
support Gonzalez’s self-defense claim. However, trial counsel was unable to find such
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witnesses. Counsel testified as to one specific allegation he investigated–that Melecio was
involved in an altercation with a police officer, Sergeant Gomez, ten years before the murder.
This allegation, however, could not be substantiated. In fact, at the motion for new trial hearing,
Sergeant Gomez testified he vaguely remembered the incident, recalling he was pushed by a
subject during a criminal mischief investigation. However, Sergeant Gomez could not remember
whether Melecio had been the aggressor.
Based on the evidence from the hearing on the motion for new trial, as well as the trial
record, we hold Gonzalez failed to prove his trial counsel was ineffective. See Thompson, 9
S.W.3d at 814. Rather, the record shows trial counsel conducted an investigation, but was
unable to find any witnesses who could testify to Melecio’s alleged aggressive behavior.
Gonzalez also argues trial counsel failed to investigate Melecio’s assaults on his wife.
There is no evidence in the record suggesting the assaults ever occurred. Trial counsel’s
investigation revealed that, other than the isolated incident with Sergeant Gomez, Melecio had
no pattern or reputation for being aggressive. Thus, trial counsel’s performance was not outside
objective professional norms, see Garza, 213 S.W.3d at 347–48, and was not so outrageous that
a competent attorney would not have made the same decision. See Andrews, 159 S.W.3d at 101.
Gonzalez also asserts his trial counsel failed to investigate, question, or present mitigating
witnesses. Gonzalez argues trial counsel erred in not calling several lay witnesses to testify
about Gonzalez’s good character. However, trial counsel testified in the motion for new trial
hearing that he chose not to use these character witnesses because he did not want to make
reputation and character traits an issue during trial. Accordingly, trial counsel’s actions can be
ascribed to a specific trial strategy. See id. Gonzalez has therefore failed to overcome the strong
presumption that counsel’s conduct fell within a wide range of reasonable representation, see
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Salinas, 163 S.W.3d at 740, and we hold the record does not affirmatively demonstrate the
alleged ineffectiveness. See Thompson, 9 S.W.3d at 814.
Gonzalez next argues he received ineffective assistance of counsel because his trial
counsel failed to investigate, question, or present evidence of Gonzalez’s mental illness. At the
motion for new trial hearing, trial counsel testified he did investigate Gonzalez’s prior mental
health history, but decided not to raise any mental health issues in trial because he was worried
Gonzalez “would be portrayed as a walking time bomb capable of going off any time and killing
somebody.”
At the same hearing, Dr. Homero Sanchez, a licensed psychiatrist who previously
examined Gonzalez, testified Gonzalez had pathological reactions such as getting into fights
while drinking. Production of this mental health evidence would have been prejudicial to
Gonzalez’s self-defense claim, as it would support the State’s argument that Gonzalez’s
aggression was triggered by his dependence on cocaine and alcohol. Thus, the decision not to
present the alleged mental health evidence can be ascribed to trial strategy. See Andrews, 159
S.W.3d 101.
Gonzalez argues trial counsel failed to investigate previous evidence of Gonzalez’s
mental state or seek an independent psychiatric evaluation. We find no evidence in the record to
suggest Gonzalez suffered from insanity, incompetence, or any other mental health issue that
would warrant an independent psychiatric evaluation. As noted above, the only evidence was
that Gonzalez was perhaps a “time bomb,” and that Gonzalez’s use of controlled substances
triggered violence. Both Dr. Sanchez and Dr. Orlando Rodriguez, a qualified psychiatrist
testifying for Gonzalez, stated Gonzalez knew the difference between right and wrong.
Therefore, we again find trial counsel’s performance can be ascribed to a trial strategy. See
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Andrews, 159 S.W.3d at 101. There simply was no evidence suggesting Gonzalez suffered from
insanity or incompetence.
Finally, Gonzalez contends his trial counsel failed to introduce medical testimony as a
mitigating factor. It was within Gonzalez’s counsel=s discretion to decide what evidence to
present at trial. See Bone v. State, 77 S.W.3d 828, 834–35 (Tex. Crim. App. 2002). Given the
evidence presented at the hearing on the motion for new trial, we hold Gonzalez’s counsel’s
performance was not “so outrageous that no competent attorney would have engaged in it”
because his actions represent a trial strategy. See Andrews, 159 S.W.3d at 101.
Even if trial counsel was ineffective for any of the reasons asserted by Gonzalez, we hold
he has failed to establish his defense suffered any prejudice as a result of counsel=s alleged
failures, i.e., that there is a reasonable probability that but for the alleged error, the outcome of
the trial would have been different. See Strickland, 466 U.S. at 688; Mitchell, 69 S.W.3d at 642;
Ruiz, 293 S.W.3d at 690. When reviewing an ineffective assistance claim, “[a]n appellate court
looks to the totality of the representation and the particular circumstances of each case.”
Thompson, 9 S.W.3d at 813. In this case, there was extensive testimony to prove Gonzalez
assaulted Melecio and caused his death, justifying the conviction. Because Gonzalez failed to
establish his trial counsel’s performance was deficient and failed to establish prejudice to his
defense, his claim of ineffective assistance of counsel must be overruled. See Strickland, 466
U.S. at 688; Garza, 213 S.W.3d at 347.
IMPROPER JURY ARGUMENT
Gonzalez also contends the trial court erred in allowing the State to make an improper
jury argument. We first address whether Gonzalez properly preserved the issue for our review.
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To preserve error for appellate review with regard to an improper jury argument, a timely
and specific objection must be made, and the complaining party must have obtained an adverse
ruling from the trial court. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); Turner
v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); TEX. R. APP. P. 33.1(a); see also
Hernandez v. State, 171 S.W.3d 347, 358 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
(explaining that objection must be specific enough to alert trial court of legal basis for objection).
Gonzalez argues the State made an improper jury argument during the guilt/innocence phase of
the trial when it asked the jury to send a message to the community of Laredo. Gonzalez
specifically points to the State asking the jury to send a message that “Laredo is not going to
tolerate this.” Gonzalez’s counsel objected stating, “I’m going to object insofar that he’s asking
the jury to make an example of my client.” This objection is not a specific legal objection. See
Turner, 805 S.W.2d at 431 (requiring specific objection to preserve error for appellate review).
Moreover, Gonzalez failed to obtain the required adverse ruling from the trial court on his
objection. See Lovill, 319 S.W.3d at 691; Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App.
2005) (en banc); Bishop v. State, 308 S.W.3d 14, 18 (Tex. App.—San Antonio 2009, pet. ref’d).
Thus, we hold Gonzalez waived his right to raise the improper jury argument claim on appeal.
Even if the issue was preserved for appeal, we hold the State’s argument does not
constitute improper jury argument. A plea for law enforcement is one of the general areas of
proper jury argument. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Lemon v.
State, 298 S.W.3d 705, 707 (Tex. App.—San Antonio 2009, pet. ref’d). And, remarks made
during jury argument must be considered in context. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.
Crim. App. 1988); Rivera v. State, 82 S.W.3d 64, 68 (Tex. App.—San Antonio 2002, pet. ref’d).
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Although the State may not refer directly to the demands or expectation of the
community for a particular verdict, simply mentioning the community is not necessarily
improper during jury argument. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990)
(noting State may argue impact of jury’s verdict on community); Harris v. State, 122 S.W.3d
871, 888 (Tex. App.—Fort Worth 2003, pet. ref’d) (stating that mere reference to “the
community” does not constitute improper appeal to community expectations. Moreover, the
State is entitled to remind the jury that it is representative of the community and request the jury
send a message. Hawkins v. State, 278 S.W.3d 396, 404–05 (Tex. App.—Eastland 2008, no pet.)
(holding that argument asking jury “to send these type of people a message to tell them we’re not
tolerating this type of behavior in our county” was proper plea for law enforcement); Wilson v.
State, 179 S.W.3d 240, 247 (Tex. App.—Texarkana 2005, no pet.) (holding that it is proper
argument for State to ask jury to send message that community will not tolerate violence). The
State may also argue the relationship between the jury’s verdict and the deterrence of crime and
the impact of the jury’s verdict on the community. Borjan, 787 S.W.2d at 56; Rivera, 82 S.W.3d
at 69 (referring to argument requesting jury to send message that behavior in question will not be
tolerated in community as proper argument).
Accordingly, we hold the statement Gonzalez complains of is a proper plea for law
enforcement. The State’s argument focused on the jury as a representative of the Laredo
community and the deterrence of crime. The State did not ask the jury to return a verdict of guilt
because the community expected it. See Borjan, 787 S.W.2d at 56. Rather, the State asked the
jury to represent the community and send a message, which is proper jury argument. See
Hawkins, 278 S.W.3d at 404–05; Wilson, 179 S.W.3d at 247. We therefore overrule Gonzalez’s
complaint regarding improper jury argument.
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MOTION FOR NEW TRIAL HEARING
Finally, Gonzalez argues the trial court erred in allowing the motion for new trial hearing
to proceed in his absence. A defendant has a statutory right to appear in trial, and this right
extends to a hearing on a motion for new trial. TEXAS CODE CRIM. PROC. ANN. art. 33.03 (West
2006); Phillips v. State, 288 S.W.2d 775, 776 (Tex. Crim. App. 1956). However, in this case, the
record reflects no objection was made to Gonzalez’s absence from the hearing. To the contrary,
the record reflects that Gonzalez’s trial counsel was present, acknowledged Gonzalez’s absence,
yet affirmatively announced ready to proceed without him.
We recognize that prior to the hearing trial counsel asked to have Gonzalez present at the
hearing, and that the request was not processed. Gonzalez argues the hearing proceeded out of
necessity because the following day the court would have lost its plenary power. See TEX. R.
APP. P. 21.8 (stating trial court must rule on defendant’s motion for new trial within seventy-five
days after imposing sentence). We agree the trial court would have lost plenary power of the
matter the next day. See id. Nevertheless, trial counsel made no effort to request a reset for the
next day, insist his client be present, or object to having the hearing in Gonzalez’s absence.
Instead, trial counsel, who we presume was aware of the time limitations relevant to a trial
court’s plenary power, affirmatively requested to proceed with the hearing in Gonzalez’s
absence:
Based on all the knowledge and communication with the family, we are ready to
proceed without him because there are some important matters that we need to
establish for the record.
Trial counsel’s failure to object to Gonzalez’s absence at the motion for new trial hearing
and his request to proceed constitute an affirmative waiver of this issue on appeal. See Lacy v.
State, 374 S.W.2d 244, 245 (Tex. Crim. App. 1964) (denying appellant’s contention that trial
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court erred in having hearing on motion for new trial in his absence when trial counsel was
present, announced ready, and made no objection to his absence from the hearing); see also
Gates v. State, 332 S.W.2d 333. 334 (Tex. Crim. App. 1960) (holding judgment of conviction
was not void when defendant was not present when his motion for new trial was overruled
because motion would have been overruled by operation of law if the court had not acted on it);
see also Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988) (noting statement of no
objection constitutes an affirmative waiver of issue on appeal). Accordingly, we overrule
Gonzalez’s last issue.
CONCLUSION
In sum, we overrule Gonzalez’s issues and affirm the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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