Loera v. State

Full title: ALFONSO VILLA LOERA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 10, 2004

No. 05-03-00490-CR (Tex. App. Mar. 10, 2004)

Opinion

No. 05-03-00490-CR.

Opinion Filed March 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 199^th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81096-01. Affirmed.

Before Justices MOSELEY, FITZGERALD, and FRANCIS.

OPINION

Opinion By Justice FRANCIS.

A jury convicted Alfonso Villa Loera of sexual assault of a child and assessed punishment at twenty years in prison. In two points of error, appellant complains (1) the trial court improperly commented on the weight of the evidence and (2) he was denied effective assistance of counsel. We affirm. Appellant was charged in a multi-count indictment. In one of the allegations, appellant was accused of sexually assaulting his stepdaughter, S.L., with an unknown object. During the State's case in chief, the prosecutor called the foreperson of the grand jury, T.J. Johnson, to testify about the grand jury's efforts to obtain the information about the unknown object. A portion of Johnson's testimony concerned the grand jury's practice of evaluating the credibility and motives of children who have alleged they have been sexually abused. This testimony was not objected to by the defense. On cross-examination, the defense focused on the level of proof needed for an indictment as opposed to a conviction and the grand jury's relationship to the district attorney's office. The defense also elicited Johnson's acknowledgment that she did not know S.L. "had a pretty serious drug problem at the time." After Johnson testified and left the courtroom, the trial judge made the following comments to the jury:

I can't help but comment on the testimony you just heard.

We appreciate our grand jurors, and they do a good job and they're very careful, but they're applying a different standard and a different process, and they go until they find reasonable cause and they stop. And they're — they're just indictments. There's not a gold-plated indictment; there's not a Grade-A indictment.

And I think Ms. Johnson was called because the State wanted to explain some of the wording in the indictment; but when we get into how credible they found the witness or anything, I — I really — I've got to tell you, none of that is relevant. The indictment is not evidence of guilt; it's just evidence they found probable cause. And we're starting all over here.

I respect this lady a lot. She — but we're going to determine if the evidence presented here proves this case beyond a reasonable doubt. Okay?

In his first point of error, appellant contends he is entitled to reversal of his conviction because the above-highlighted comments constituted improper comments on the weight of the evidence. In particular, he argues the comments conveyed to the jury the judge's opinion of the witness and revealed his impartiality. As a general rule, trial counsel must object to preserve error, even if it is "incurable" or "constitutional." See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Hooper v. State, 106 S.W.3d 270, 273 (Tex. App.-Austin 2003, no pet.); Rabago v. State, 75 S.W.3d 561, 562 (Tex. App.-San Antonio 2002, pet. ref'd). Here, appellant acknowledges that he did not object to the comments, but he argues the comments constituted fundamental error requiring reversal. For support, he relies on Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000). In Blue, the trial judge apologized to the venire for its long wait, stated the delay was because the defendant was indecisive on whether to accept a plea bargain, and expressed his preference that the defendant plead guilty. Id. at 130. A plurality of the court of criminal appeals held that a trial judge's comments "which tainted [the defendant's] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection." Id. at 132. A plurality opinion is not binding precedent. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001) (acknowledging Blue as plurality opinion that court was not bound to follow); Rabago, 75 S.W.3d at 562 (same); Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.-Houston [14^th Dist.] 2002, pet. ref'd) (same). Even if we were persuaded to follow the plurality opinion and were to conclude the complained-of remarks in isolation were objectionable, reversal would not be mandated. Reading the trial judge's comments as a whole, it is clear the judge wanted the jury to understand that the jury's role was much different than that of the grand jury. He explained that the grand jury stopped once it found "reasonable cause" but that the jury must find guilt "beyond a reasonable doubt." While acknowledging appreciation for the grand jury and "respect" for Johnson, the judge specifically instructed the jury that the grand jury's credibility determinations were not relevant. Clearly, the judge's remarks do not rise to such a level as to taint the presumption of innocence. This case simply is not of the same nature as Blue. We overrule the first point of error. In his second point of error, appellant complains he was denied effective assistance of counsel when his lawyer (1) failed to object the above comments and (2) failed to object to Johnson's testimony. The standard for reviewing ineffective assistance of counsel claims is well-established. In brief, it is an appellant's burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 688 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance, i.e., that the challenged action might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of 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, 812 (Tex.Crim. App. 1999). The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex Crim. App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. An application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Because appellant did not file a motion for new trial, there is no record to explain the motivation behind counsel's actions or inactions and whether they resulted from strategic design or negligent conduct. Under these circumstances, we conclude appellant has not met his burden of demonstrating by a preponderance of the evidence that counsel's performance was deficient. We overrule the second point of error. We affirm the trial court's judgment.