No. 04-04-00376-CR
Delivered and Filed: June 15, 2005. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-10008, Honorable Teresa Herr, Judge Presiding. Affirmed As Reformed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
CATHERINE STONE, Justice.
Ralph Noriega was convicted of two counts of aggravated sexual assault and eight counts of indecency with a child after he abused his girlfriend's daughters, A.R. and S.R. Noriega was sentenced to thirty years confinement for each count of aggravated sexual assault and twenty years confinement for each count of indecency. Noriega challenges his conviction, claiming he was denied effective assistance of counsel. In the alternative, Noriega asks this court to reform the trial court's judgments to reflect the correct dates for each of his offenses. After reviewing Noriega's contentions, we believe the trial court's judgments should be affirmed as reformed.
Ineffective Assistance of Counsel
In his first issue, Noriega alleges he was denied effective assistance of counsel. The United States and Texas Constitutions guarantee the right to reasonably effective counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. The Strickland standard applies to both the guilt/innocence and punishment phases of a trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). On review, we give great deference to counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). We look to the totality of the representation at trial, not isolated acts or omissions of counsel in hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant's burden is even more difficult when, as in this case, the defendant does not file a motion for new trial asserting ineffective assistance of counsel. Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Thompson, 9 S.W.3d at 813-14. Voir Dire
Noriega claims defense counsel's performance during voir dire amounted to ineffective assistance of counsel. His contention is based on several of defense counsel's comments during voir dire. First, defense counsel informed the jury that "my last name is Adams, like in Adam and Eve. My first name is Ray, like a ray of sunshine." Second, when counsel introduced Noriega to the jurors, he commented that Noriega "lives over with his dad and brother and a couple of other people." Lastly, when defense counsel was informing the venire panel about the presumption of innocence, defense counsel told the panel: [I]f you listen to my dad, and my dad's a great man. I love my dad. My dad will say this, though. He told me this years ago . . . If a guy gets charged with a crime, you just take him out back and hang him. Why are we wasting time? And I said, Dad, you know, that just ain't the way it is here in America, you know.
Now my dad has an absolute right to his opinion. Okay. This is America. He can think any way he wants to. And that's the way he thinks. Okay. So if you ever get charged with anything, parking ticket or whatever the offense might be, you do not want my dad on your jury. Because he's going to be sitting there, What do you have me here for? You don't need to hear evidence. You got charged didn't you?
Now is there anybody here that feels that way?
At the conclusion of voir dire, venireperson No. 9, who was eventually struck from the jury, approached the trial court outside the presence of the jury panel and told the court that she detected a lack of professionalism from defense counsel and that she did not feel Noriega would get fair representation from counsel. Noriega argues that defense counsel's behavior during voir dire had a significant impact on the jury, as evidenced by the effect on venireperson No. 9. In support of his proposition, Noriega relies on Miller v. State, in which the Fourteenth Court of Appeals held that defense counsel's inflammatory comments, including those made during voir dire, constituted ineffective assistance. 728 S.W.2d 133, 134-35 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). In Miller, defense counsel was callous and appeared to have deliberately angered the jurors. Id. at 134-35. When questioning one of the prospective jurors, counsel not only accused him of attempting to avoid jury duty, but also refused to allow him to respond to these accusations. Id. In addition to defense counsel's comments during voir dire, counsel made several racial remarks at the close of trial that were likely to inflame the jury. Id. at 135. The court concluded that defense counsel's comments, when considered together with all of the other errors in the case, amounted to ineffective assistance of counsel. Id. After reviewing the record and the facts in Miller, we cannot say defense counsel's voir dire performance amounted to ineffective assistance of counsel. While it is unusual for a venireperson to seek out the trial judge to comment on the professionalism and competency of defense counsel during trial, we simply do not believe defense counsel's comments rise to the level of offensiveness as demonstrated in Miller. See id. at 134-35. We therefore hold defense counsel's voir dire performance did not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 687. Failure to Understand the Rules of Evidence
Noriega also argues with regard to his claims of ineffective assistance of counsel that his counsel generally appeared to be unfamiliar with the rules of evidence. As support for his contention, Noriega cites that defense counsel made improper objections, used leading questions, was unable to introduce an exhibit, forced the trial court to discuss the hearsay rule with counsel, and attempted to introduce inadmissible evidence. "A criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance to his client — in or out of the courtroom." Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982). Under our system of justice, however, a defendant is not guaranteed two perfectly matched opponents with equal levels of skill and experience in the practice of criminal law. Morris v. State, 696 S.W.2d 616, 622 (Tex.App.-Houston [14th Dist.] 1985), aff'd, 739 S.W.2d 63 (Tex.Crim.App. 1987). A defendant is only guaranteed counsel with a level of competence adequate to protect the defendant's right to a fair trial. Id. Here, the record reveals defense counsel made numerous objections throughout Noriega's trial, some of which were sustained by the trial court and others overruled. At times, the prosecution withdrew its question in response to defense counsel's objection. On several occasions, defense counsel successfully argued his response to the prosecutor's objections, resulting in the trial court overruling the State's objections. Defense counsel also successfully introduced several defense exhibits over the prosecution's objections. Clearly, defense counsel possessed more than the minimum level of competence contemplated by law. The fact that defense counsel committed certain errors in judgment or experienced some brief lapses during trial does not detract from the underlying certainty that he defended Noriega with reasonable effectiveness. See Hernandez, 726 S.W.2d at 58 (recognizing that the constitutional right to effective assistance does not mean errorless counsel). Proving the Prosecution's Case
Noriega further alleges defense counsel was ineffective because he elicited witness testimony that proved the State's case. Specifically, Noriega complains defense counsel elicited testimony from one of the victims, A.R., that Noriega inserted his penis into her anus and vagina. Noriega contends defense counsel's line of questioning provided the jury with the evidence needed to convict him of aggravated sexual assault of A.R. Although it is true that defense counsel asked A.R. specific questions concerning Noriega's sexual conduct, counsel's questioning did not involve any information that had not already been elicited by the prosecution on direct examination. Thus, we cannot conclude counsel's performance was deficient in this regard. See Strickland, 466 U.S. at 687. Failure to Understand the Law Relating to Community Supervision
Noriega claims he was denied effective assistance of counsel based on counsel's failure to understand the law concerning community supervision. Noriega argues defense counsel was unaware that, pursuant to article 42.12 of the Texas Code of Criminal Procedure, the judge may not grant community supervision for the offenses with which he was charged. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g (Vernon Supp. 2004-2005). Even if we assume defense counsel misunderstood the law relating to community supervision, Noriega has not articulated how he was prejudiced by counsel's alleged misunderstanding of the law. Absent proof of prejudice, we cannot conclude Noriega received ineffective assistance of counsel based on defense counsel's misunderstanding of the law. See Strickland, 466 U.S. at 687; see also State v. Recer, 815 S.W.2d 730, 731 (Tex.Crim.App. 1991) (holding that there must be more apparent from the record than trial counsel's mere mistake for the defendant's ineffective assistance of counsel claim to succeed). Failure to Introduce Evidence
Noriega also contends defense counsel was ineffective because he failed to introduce evidence that Noriega had no prior felony convictions. He claims such evidence was necessary for him to receive community supervision for his offenses. Once again, Noriega does not show how he was prejudiced by defense counsel's omission. The record indicates that Noriega was sentenced to thirty years confinement for each count of aggravated sexual assault and twenty years confinement for each count of indecency with a child. When a defendant is sentenced to a term of imprisonment that exceeds ten years, the defendant is ineligible for community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 § 3(e). Consequently, we cannot say there is a reasonable probability that but for defense counsel's failure to introduce the evidence in question, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687. Additional Trial Errors
Lastly, Noriega complains that defense counsel was ineffective because he: (1) introduced an exhibit that undermined Noriega's defense that he had no access to S.R. at the time several acts of abuse were alleged to have occurred; (2) questioned A.R. about the number of times she was sexually abused by Noriega; (3) elicited testimony from several witnesses that Noriega's victims had to seek counseling after they were abused; (4) failed to anticipate that a representative of Child Protective Services would testify as to CPS's findings regarding the abuse of A.R. and S.R.; (5) failed to review a videotape of the victims made by CPS; (6) failed to review A.R.'s and S.R.'s medical records; and (7) called a defense witness without first checking whether the individual had a criminal record. The record, however, contains no evidence regarding defense counsel's trial preparation or the reasoning behind counsel's trial decisions. Therefore, to know defense counsel's reasoning concerning the aforementioned matters would require us to speculate, which we cannot do. Accordingly, we hold the presumption of sound trial strategy has not been overcome by Noriega as to these alleged deficiencies. See Thompson, 9 S.W.3d at 813-14. Noriega's first issue is overruled. Reformation
In his second issue, Noriega argues the trial court entered incorrect dates for his offenses when it entered its judgments. Noriega contends that the trial court's judgments should be reformed to show the correct dates for his offenses. The State does not challenge this contention. The record reveals the following: both of Noriega's aggravated sexual assault counts and two of the counts of indecency stem from his conduct toward A.R. on January 15, 1999; three counts of indecency stem from Noriega's conduct toward A.R. on January 15, 1998; one count of indecency stems from Noriega's conduct toward S.R. on January 27, 2001; and the remaining two counts of indecency stem from Noriega's conduct toward S.R. on March 27, 2001. The judgment, however, erroneously shows that each of Noriega's offenses occurred on September 13, 2001. An appellate court has the power to reform an incorrect judgment when it has the necessary information to do so. McCoy v. State, 81 S.W.3d 917, 920 (Tex.App.-Dallas 2002, pet. ref'd). We believe reformation is proper in this instance because we have all of the information we need to reform the judgment. Noriega's second issue is therefore sustained. Conclusion
We reform the trial court's judgments to show the following: (1) the offenses charged in counts I through IV of the indictment occurred on January 15, 1999; (2) the offenses charged in counts V through VII of the indictment occurred on January 15, 1998; (3) the offense charged in count VIII of the indictment occurred on January 27, 2001; and (4) the offenses charged in counts IX and X of the indictment occurred on March 27, 2001. The trial court's judgments, as reformed, are affirmed.