No. 01-04-00718-CR
Opinion issued June 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court Harris County, Texas, Trial Court Cause No. 976178.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
LAURA CARTER HIGLEY, Justice.
Appellant, Enrique Magallon, was charged by indictment with delivery of a controlled substance, namely cocaine weighing at least 400 grams. See Tex. Health Safety Code Ann. § 481.112 (Vernon 2003). Appellant pleaded not guilty. A jury convicted him and assessed punishment at 40 years' confinement with a $1.00 fine. In two issues, appellant contends that his conviction should be set aside and a new trial ordered because (1) the trial court erred in admitting testimony concerning appellant's citizenship status and (2) appellant's counsel was ineffective. We affirm.
Facts
On February 2, 2003, Harris County narcotics officers Craig Full and Richard Fernandez met with appellant's brother, Ignacio Magallon, and a paid informant to arrange a purchase of 10 kilograms of cocaine. After the meeting, police surveillance followed Ignacio to a body shop, where Ignacio was seen meeting with appellant. Ignacio and appellant then drove in a green van to a laundromat, where the transaction was to take place. Full and Fernandez arrived to find Ignacio and appellant in the parking lot. Fernandez approached appellant, asked if appellant had the cocaine, and asked if he could see it. Appellant walked Fernandez to the van, opened the door, pulled out a duffel bag, and unzipped it. Inside the duffel bag were several small bags of cocaine. Immediately thereafter, officers arrested appellant and Ignacio. A Houston Police Department chemist identified the substance recovered as 8.7 kilograms of powder-form cocaine. Citizenship Status
In his first issue, appellant contends the trial court erred in overruling appellant's objection to "a question" concerning his citizenship status asked during cross-examination of appellant. Appellant raises two bases on appeal: (1) relevance and (2) the impropriety of indirectly raising national origin. Specifically, appellant complains of the emphasized portions of the following colloquy: [State]: Where are you from, sir?
[Defense Counsel]: Objection, relevance, Your Honor. Have [sic] no relevance.
THE COURT: Overruled.
[Appellant]: I'm from Reynosa, Tamaulipas.
[State]: Is that in Mexico?
[Appellant]: Yes.
[State]: When did you move to the United States?
[Appellant]: 1977.
[State]: So you've lived here since 1977, which is approximately going on 30 years?
[Appellant]: Well, I have come over, I have come back to Mexico, you know, back and forth. I be [sic] living here for over 20 years, you know, something like that, more or less.
[State]: So you've lived here for over 20 years, correct?
[Appellant]: Yes, more or less.
[State]: Are you a citizen of the United States?
[Appellant]: No.
[Defense Counsel]: Objection, Your Honor. No relevance to the case whatsoever whether he was a citizen or not.
THE COURT: It's overruled.
[Appellant]: No, I have a working permit.
[State]: So then you are not a citizen?
[Defense Counsel]: Objection, asked and answered.
THE COURT: Overruled.
[Defense Counsel]: Thank you, Your Honor.
[Appellant]: No.
[State]: Mr. Magallon, did you notice that you began answering my question a moment ago before the translator had even begun translating it, so you obviously understand some English?
[Appellant]: No. I don't understand English. I don't understand English. One of the few words [sic], I do.
Appellant contends that his objections should have been sustained because appellant's citizenship status was not relevant to a determination of guilt and constituted constitutional error. Further, appellant contends that he was harmed by this line of questioning because, when taken in the context of the current climate concerning "the war on drugs, the war on illegal immigration, and the war on terrorism," showing that the defendant is not a United States citizen was "calculated to arouse prejudices, such as those based on race or national origin." Appellant postulates that the questioning infected the deliberations and increased the willingness of the jury to return a conviction. Appellant contends that, although the State did not emphasize the citizenship aspect at any other point in the trial, the collateral effects of this line of questioning were sufficient to rise to harmful error. Appellant, who testified through an interpreter at trial, maintains that he does not understand more than a few words in the English language and, due to the language barrier, he could not have knowingly participated in the delivery of cocaine to Officer Fernandez. The State contends that appellant does indeed understand English and, therefore, he did knowingly participate in the transaction. The State asserts that it asked appellant about his citizenship status in an attempt to impeach appellant by showing that he has lived in the United States for over 20 years and understands English more than he led the jury to believe. A. Waiver
The State contends that appellant failed to timely object to the questioning concerning his citizenship at trial and therefore failed to preserve error. The rules require that, in order to preserve a complaint for appellate review, there must have been a timely objection to the trial court, specifically stating the grounds for the objection, and a ruling obtained. Tex.R.App.P. 33.1. The record shows that appellant entered an objection to relevance in response to questioning concerning appellant's citizenship. When the State first asked appellant, "Are you a citizen of the United States?" defense counsel did not enter its objection before appellant replied, "No." Generally, in a jury trial, objections made after questions are answered do not preserve error for appeal. Polk v. State, 729 S.W.2d 749, 753 (Tex.Crim.App. 1987); Guajardo v. State, 870 S.W.2d 667, 668-69 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). It is incumbent upon a party to object, if he can, before the harm is done. Polk, 729 S.W.2d at 755. Here, however, defense counsel maintains that he objected as soon as possible. The record shows that appellant responded to the objectionable question with a single word, "No." It also appears from the prosecutor's comment that appellant answered before the translator had even begun translating, indicating that defense counsel did not have time to interpose an objection before appellant answered. Once defense counsel immediately objected, the objection was overruled. The purposes of the rule that an objection must be timely are (1) to apprise the trial court and opposing counsel of the issue taken at a time when it can still be addressed and (2) to prevent counsel from "gambling that the answer to a question calling for objectionable matter will be favorable, and then objecting when it proves not to be." Id. at 753-54. Here, the slight delay in objecting after the single-word answer was uttered, before waiting for the translator to translate, sufficiently apprised the court that defense counsel took issue with the questioning and does not appear to involve any lying in wait. See id. at 755. Accordingly, we conclude that error as to relevance was preserved. Nevertheless, as to appellant's contention raised on appeal that such questions concerning his citizenship were akin to inquiring about his national origin and were thus prejudicial, we find that appellant has waived such contention. Appellant never objected on this basis in the trial court. Under Rule 33.1, an appellant may not assert an error that he failed to raise in the trial court. Tex.R.App.P. 33.1(a). Even constitutional errors may be waived by failure to object. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). B. Relevance
We consider appellant's contention that the testimony concerning his citizenship status was inadmissible because it was irrelevant to a determination of his guilt. Whether evidence is admissible is a question for the trial court to resolve. Moyer v. State, 948 S.W.2d 525, 528 (Tex.App.-Fort Worth 1997, pet. ref'd). We allow the trial court broad discretion concerning the admissibility of evidence and will only reverse upon a showing of a clear abuse of discretion. Williams v. State, 535 S.W.2d 637, 639-40 (Tex.Crim.App. 1976); Spradlin v. State, 100 S.W.3d 372, 381 (Tex.App.-Houston [1st Dist.] 2002, no pet.). An abuse of discretion occurs when a trial court's decision lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). In determining whether a trial court has abused its discretion, we consider whether the court acted arbitrarily or unreasonably, or without reference to guiding rules or principles. Id. at 380. "'Relevant evidence'" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. The evidence shows that appellant maintains that he does not understand the English language. The State asserts that it asked appellant about his citizenship status in an attempt to impeach appellant by showing that he has lived in the United States for over 20 years and understands English more than he led the jury to believe. The Court of Criminal Appeals has held that "[c]learly, language ability does not equal national origin or race." Flores v. State, 904 S.W.2d 129, 130 (Tex.Crim.App. 1995). The rationale is that a person is free to choose the language he or she speaks. Id. While national origin and alienage are distinct concepts, the rationale that a person can be a citizen of a particular country and yet choose to speak a foreign language clearly applies. However, in order to become a citizen of the United States, one must demonstrate the ability to read, write, and speak the English language. 8 U.S.C. § 1423(a)(1) (1998). Hence, United States citizenship status is relevant to an objective determination of the ability to understand English because, if it can be established that a person is a United States citizen, it is more probable that he knows the English language. Indeed, the context of the citizenship question surrounded appellant's ability to understand English. Within such context, the State pointed out that appellant was answering questions before the interpreter had a chance to rephrase them in Spanish. We hold that the trial court did not abuse its discretion in overruling appellant's objection to the testimony based on relevance. Appellant's first issue is overruled. Ineffective Assistance of Counsel
In his second issue, appellant contends that he was denied a fair trial due to the conduct of his counsel. Appellant urges the following: 1. Trial counsel failed to object to inadmissible hearsay introduced by the State that implicated appellant as the source of the cocaine. 2. Trial counsel permitted the State's witnesses to speculate and give improper opinion evidence throughout trial. Counsel did not object when Officer Richard Fernandez speculated regarding the trust relationship between the informant and appellant's brother, Ignacio Magallon. In addition, counsel "improperly objected and allowed evidence that constituted hearsay speculation and improper expert testimony suggesting appellant was the source of and 'in control' of the cocaine." 3. Trial counsel failed to object when Officer Full "offered improper expert testimony, hearsay, and speculation regarding significant legal issues." Appellant apparently complains that Officer Full was allowed to testify that, in his opinion, appellant "owned" and "controlled" the cocaine. 4. Counsel elicited testimony from state witnesses that constituted de facto expert opinions on legal conclusions. Counsel asked an open ended question that allowed Fernandez to "confidently conclude" that appellant offered to sell him cocaine. Counsel also asked a question that presupposed that someone who drives a vehicle is presumed to know its contents. 5. Trial counsel failed to secure the presence of the confidential police informant at trial. 6. Trial counsel erred in calling police witness, Officer Full, concerning the absence of the informant because Full established the credibility of the informant and explained his absence. 7. Trial counsel asked Fernandez whether co-defendant, Ignacio Magallon, had pled guilty in the case. 8. Trial counsel allowed co-defendant, Ignacio Magallon, to testify. 9. At the punishment phase of trial, trial counsel failed to prepare appellant and a family member as witnesses because the testimony appeared inconsistent, demonstrated a lack of remorse, and suggested that the "whole family is involved with drugs." A. Standard of Review
Appellant was entitled to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. In considering whether counsel's assistance was so defective that a reversal of the conviction is warranted, we follow the federal standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999). Under the Strickland standard, we determine (1) whether counsel's performance was deficient and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Hernandez, 988 S.W.2d at 770 n. 3. The Strickland standard applies to both guilt and punishment phases. Id. at 772. To prevail, appellant must show ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In addition, appellant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" or might reasonably be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. As the reviewing court, we consider the adequacy of assistance as viewed at the time of trial, not through hindsight. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983). We cannot speculate as to the reasons why trial counsel behaved as he did; rather, we must be highly deferential and presume that counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). The Court of Criminal Appeals has held that, normally, trial counsel should be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Otherwise, "the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Id. at 110-11 (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001)). B. Analysis
As to the first prong of the Strickland standard, appellant must show errors "firmly founded in the record" to support his claim of deficient performance. Thompson, 9 S.W.3d at 813. The State argues that appellant did not bring forth an adequate record to allow us to address these complaints. First, we note that appellant raises several claims (enumerated above as errors 1-4) by stating his contentions in conclusory terms and by generally referring to conversations in the record by volume and, at times, multiple page numbers. Some of the record references are apparently in error as they do not appear to correlate to the discussion in the brief. The Court of Criminal Appeals has held that mere reference to a page number in the record does not sufficiently identify complained of testimony and will not constitute a ground of error. Thiel v. State, 676 S.W.2d 593, 595 (Tex.Crim.App. 1984); Alexander v. State, 458 S.W.2d 656, 657-58 (Tex.Crim.App. 1970). Appellant does advance an apparent contention (enumerated above as error 6) that trial counsel was ineffective because he failed to capitalize on the State's failure to produce the confidential informant at trial. Appellant argues that his trial counsel erred in deciding to call Officer Full as a witness and asking him about the failure to produce the informant. Appellant claims he was harmed because the tactic "backfired" in that Full ended up bolstering the credibility of the informant and explaining away his absence. However, appellant fails to cite any specific testimony. Further, appellant argues in his brief as to what he believes the informant would have said and asserts a strategy that, he believes, would have been more prudent. Again, we cannot consider the adequacy of assistance through speculation or hindsight. Hawkins, 660 S.W.2d at 75. We conclude that, even if any of these claims (including error 9) may reasonably raise questions as to the wisdom and rationale for certain trial preparations or strategic decisions, the record is silent as to trial counsel's strategy and thus too underdeveloped to discern. See Rylander, 101 S.W.3d at 110-11; Thompson, 9 S.W.3d at 814. As to the errors enumerated above as 5, 7, and 8, we conclude that appellant cannot show the requisite prejudice under the second prong of Strickland. Under the second prong of Strickland, we consider whether, but for counsel's deficient performance, the result of the proceeding would have been different. Hernandez, 988 S.W.2d at 770 n. 3. The Court of Criminal Appeals has held that the failure to make a showing under either of the required prongs of Strickland defeats a claim for ineffective assistance of counsel. Rylander, 101 S.W.3d at 110-11. When appellant fails to meet the prejudice prong, the reviewing court need not address the question of counsel's performance on these points. Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App. 1991). The evidence shows that both Fernandez and Full testified as to appellant's role in the transaction. Hence, appellant cannot show that a failure to bring in the informant or having "allowed" Ignacio's testimony, or the circumstances surrounding his plea, resulted in prejudice to appellant. The informant and Ignacio were not the sole sources of evidence that could have resulted in appellant's conviction. We conclude that appellant has not met his burden to show ineffective assistance of counsel by a preponderance of the evidence. See Thompson, 9 S.W.3d at 813. Accordingly, appellant's second issue is overruled. Conclusion
We affirm the judgment of the trial court.