Summary
concluding counsel's failure to call witnesses did not constitute ineffective assistance of counsel because the record was silent as to why counsel chose not to call any witnesses, whether any uncalled witnesses were available for trial, and whether the witnesses' testimony would have benefitted the appellant
Summary of this case from Schilling v. State No. 04-04-00363-CR
Delivered and Filed: June 15, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-6024, Honorable Mark R. Luitjen, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
PHYLIS J. SPEEDLIN, Justice.
James Salazar was convicted by a jury of aggravated robbery and sentenced to forty years imprisonment. He presents several issues on appeal. Based on a thorough review of the record and briefs, we affirm the trial court's judgment.
Background
During the lunch hour on April 24, 2003, Salazar entered a Cash America Pawn Shop and attempted to pawn some ladies' jewelry. When the manager informed him of the store's policy that he had to be the owner of the jewelry, he pulled out a revolver from his pocket and demanded all the store's money. The manager and clerk directed Salazar to the cash drawers, which he emptied. He instructed the manager and clerk to lie on the floor, took two shotguns and left the store. The robbery was recorded on a security videotape. Salazar was indicted for aggravated robbery. His first trial ended in a hung jury and mistrial. His second trial commenced approximately one month later. A jury convicted him of aggravated robbery and he was sentenced to forty years imprisonment. This appeal followed. Analysis
On appeal, Salazar raises the following issues: (1) ineffective assistance of counsel; (2) the court abused its discretion in denying his motion for continuance; (3) the trial court abused its discretion in admitting evidence as a business record; (4) the evidence is factually insufficient to support his conviction; and (5) the court erred in failing to hold a hearing on his pro se motion to dismiss his appointed counsel and in failing to appoint new counsel. We address each of the issues below. Denial of Motion for Continuance In his second issue, Salazar asserts the trial court erred in denying his motion for continuance. The State argues that Salazar has failed to preserve any error because his motion for continuance was not sworn. We agree. Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure require a motion for continuance to be in writing and sworn to by a person having personal knowledge of the facts relied on in the motion. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 1989). While the motion for continuance filed by Salazar's counsel was in writing, it was not sworn. An unsworn motion for continuance presents nothing for appellate review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999); see also Legate v. State, 52 S.W.3d 797, 806 (Tex.App.-San Antonio 2001, pet. ref'd); Woodall v. State, 77 S.W.3d 388, 401 (Tex.App.-Fort Worth 2002, pet. ref'd). Having found that Salazar failed to preserve the issue presented in his motion for continuance, we overrule his second issue on appeal. Admission of Self-Authenticating Business Record In his third issue, Salazar asserts that the trial court abused its discretion by admitting vehicle impound records as self-authenticating business records under Rule 902(10) of the Texas Rules of Evidence. Tex. R. Evid. 902(10). Specifically, Salazar argues there is nothing in the record to show the impound records and authenticating affidavit were filed fourteen days before trial as required by Rule 902(10)(a). See Tex. R. Evid. 902(10)(a) (providing that business records are admissible upon the affidavit of the custodian of records if such affidavit and records are filed fourteen days prior to trial and prompt notice is given to the other party). The State responds that Salazar did not object that the affidavit was untimely filed or that he lacked proper notice in the trial court, and has thus failed to preserve error. We agree. At trial, Salazar objected to the admission of the impound records through the testimony of Detective Wayne Davis with the Castle Hills Police Department. Salazar's specific objection was that, ". . . they need to be presented through the proper person as a business record. I don't think the officer here is acquainted with the business record (sic) of the San Antonio Police Department." When the State responded that the records had been "put . . . on file through a business records affidavit," no further objection was made by Salazar. The court overruled Salazar's objection, reviewed the custodian's affidavit, and admitted the records into evidence. In order to preserve error for appellate review, a timely and specific objection must be raised and ruled on by the trial court. Tex.R.App.P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004). Except for complaints involving systemic requirements and rights that must be expressly waived, which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are forfeited by failure to comply with Rule 33.1. Mendez, 138 S.W.3d at 342. By failing to object to the admission of the impound records in the trial court on the ground now raised on appeal, Salazar has failed to preserve the issue for appellate review. Tex.R.App.P. 33.1; Routier v. State, 112 S.W.3d 554, 586 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 1040 (2004) (when the objection at trial does not comport with the complaint raised on appeal, the complaint is not preserved for appellate review). Salazar's third issue is overruled. Factual Sufficiency In his fourth issue, Salazar contends that the evidence is factually insufficient to support his conviction for aggravated robbery. He asserts that inconsistencies between different witnesses' testimony at the second trial, and between testimony at the first and second trials renders the evidence factually insufficient. He also asserts the witnesses' testimony was tainted and unreliable. In conducting a factual sufficiency review, an appellate court looks at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). Appropriate deference must be given to the jury's decision to "prevent an appellate court from substituting its judgment for that of the fact finder." Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). "[A]ny evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Id. At Salazar's second trial, the State presented the testimony of both clerks who were working in the pawn shop at the time of the robbery, a witness who described the robber's vehicle, and the two investigating officers. There was no defense evidence presented. Lynda Mullins, the manager of the pawn shop, testified that she noticed a young Hispanic male enter the store around noon and wander around the shop without looking at any merchandise. After she finished helping a female customer, the man approached, placed some ladies' jewelry on the counter and asked how much she could give him for it. Mullins informed him of the store policy that only the owner could pawn items. He picked up the jewelry and pulled out a revolver from his pocket. He jumped over the counter, stuck the gun in her face, and demanded she give him all the store's money. Anabelle Hernandez, a clerk at the pawn shop, had backed away, and the robber grabbed her and placed the gun on the back of her neck, again demanding the money. Mullins told him the keys were inside the cash drawers; he used his shirt to open the two drawers and took the cash. The robber then told the two women to lie down on the floor, and they complied. He stepped over them, took two shotguns out of an unlocked case and walked out of the store. Mullins described the robber as wearing "a baseball cap with sunglasses down on the end of his nose," a black and silver FUBU shirt like a jersey, and jeans. She described the cap as an "orangey-red color." On cross-examination, Mullins admitted that contrary to her prior sworn testimony, she was now able to identify the color of the baseball cap because she had viewed the store videotape before testifying. Annabelle Hernandez testified to the same sequence of events as Mullins. However, she testified that the robber also picked up the till in one of the cash drawers with his bare hands to see if there was more money underneath. Hernandez described the robber as a Hispanic male wearing a baseball cap, a long FUBU baseball-type shirt, baggy jeans and sunglasses "dropped . . . down over his mouth." Both Mullins and Hernandez identified Salazar as the robber by picking him out of a photo line-up that was shown to them separately several weeks after the robbery. Each woman testified that she was "100% sure" the perpetrator was Salazar, and each identified him in court. James Pembroke testified he was driving through the pawn shop's parking lot during the lunch hour when he noticed a woman with a child jogging toward him from the direction of the pawn shop. She was yelling for somebody to "call the cops." Pembroke looked around to see what was happening and noticed a young man in the driver's seat of a car parked away from the building. He then observed another young man in a light colored jersey-type shirt come from the direction of the pawn shop carrying something that was covered up; he got into the car and they drove off. Pembroke followed the car for a few seconds in order to write down the license plate number and get a mental picture of the vehicle. Pembroke then returned to the store and gave an officer the license plate number and a description of the vehicle. At trial, Pembroke described the vehicle as a bluish-gray "late 80's, or early 90's model, . . . Pontiac or [a] Cougar or like a Cadillac, El Dorado[s]" four-door coupe with Bondo, primer, and dents all over, and a cracked windshield. Six weeks after the robbery, Pembroke met with a detective who showed him photographs of a Cadillac which he positively identified as the vehicle used in the robbery. The photographs were admitted into evidence without objection. On cross-examination, Pembroke conceded that in his prior sworn testimony he had not identified the vehicle as potentially being a Cadillac. Detective Wayne Davis testified that when he received the robbery dispatch, he promptly ran the license plate number "TZU 172" that was broadcast, but it did not match any registered vehicle. The detective stated that he then changed the "U" to a "V" and the "2" to a "Z" because those letters and numbers are commonly mistaken for each other. The modified plate number matched a 1989 Cadillac registered to an individual, Paul Davila, whose father, when contacted, stated the vehicle had been sold. Over the ensuing one-month period, Detective Davis periodically ran the modified license plate number "TZV 17Z." On May 26, 2003, he found the vehicle had been registered to Maria Salazar at 135 Paul Street. The same address was listed on the driver's license for James Salazar. Detective Davis and Agent Pardaen both testified that when they arrived at the Salazar home, there was a Cadillac matching Pembroke's description of the vehicle used in the robbery. The officers entered the home with Maria Salazar's consent, and observed a FUBU shirt hanging in the hallway that matched the description of the shirt worn by the robber. Ms. Salazar gave the officers permission to collect the shirt. Finally, the security videotape of the robbery was admitted into evidence, as well as impound records from the San Antonio Police Department. The impound records showed James Salazar as the designated driver of the 1989 Cadillac when it was impounded on unrelated traffic violations in February 2002 and in May 2003, shortly after the robbery. Deferring to the jury's assessment of the witnesses' credibility and the weight to be given their testimony, we hold that based on the record before us, the evidence is factually sufficient to support Salazar's conviction. See Martinez v. State, 129 S.W.3d 101, 106 (Tex.Crim.App. 2004). His fourth point of error is overruled. Motion to Dismiss Appointed Counsel In his fifth issue, Salazar asserts the trial court erred in failing to hold a hearing on his pro se motion to dismiss his appointed counsel that was filed after his first trial. Salazar also contends the court erred in failing to appoint substitute counsel. The State responds that Salazar did not request a hearing or otherwise bring the motion to the trial court's attention; therefore, there was no error. Once the trial court has appointed an attorney to represent an indigent defendant, he has been afforded all the constitutional and statutory protections to which he is entitled. See U.S. Const. amend. VI, XIV; Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon Supp. 2004-05); Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982) (panel op.). The trial court has no duty to search until it finds an attorney that is agreeable to the defendant. Malcom, 628 S.W.2d at 791; Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Crim.App. 1992) (defendant has no right to appointment of particular attorney). If a defendant is displeased with his appointed counsel, he must bring the matter to the court's attention, which means more than merely filing a motion to dismiss counsel. Malcom, 628 S.W.2d at 791-92 (trial court is under no duty to sua sponte hold a hearing); Garner v. State, 864 S.W.2d 92, 100 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). The defendant bears the burden of making the trial court aware of his dissatisfaction with counsel, stating the grounds for the dissatisfaction, and substantiating the grounds. Hill v. State, 686 S.W.2d 184, 187 (Tex.Crim.App. 1985); see also Thomas v. State, 550 S.W.2d 64, 68 (Tex.Crim.App. 1977) (defendant bears the burden of showing adequate cause for the appointment of a different attorney). Salazar's motion to dismiss counsel does not bear a file-stamp indicating the date, or the fact, that it was filed with the trial court. Assuming the motion was in fact filed, the motion does not contain a request for a hearing. No oral or written motion for a hearing or request for a ruling appears in the record. In fact, there is nothing in the record to indicate the trial judge was made aware of Salazar's dissatisfaction with his counsel, the grounds for such dissatisfaction, or his desire to have new counsel appointed. Before jury selection began for his second trial, the court held a bench conference with Salazar, his counsel, and the prosecutor in which Salazar rejected the State's plea offer on the record. Salazar had an opportunity at that time to direct the trial court's attention to his request to dismiss counsel and have new counsel appointed. He did not bring the matter to the court's attention. Because there is no indication in the record that the trial court was made aware of Salazar's displeasure with his appointed counsel and desire for new counsel, or any grounds to warrant appointment of new counsel, we hold the court did not abuse its discretion in failing to hold a hearing on Salazar's motion to dismiss or in failing to appoint new counsel. See Hill, 686 S.W.2d at 187. Salazar's fifth issue is overruled. Ineffective Assistance Finally, in his first issue, Salazar asserts that he received ineffective assistance of counsel because his attorney (1) failed to file any pre-trial motions; (2) was not prepared for trial as evidenced by his motion for continuance filed the day before trial and his announcement of "not ready" on the day of trial; (3) failed to challenge the admissibility of the photo identifications by Mullins and Hernandez and to cross-examine them regarding the order in which they viewed the photos and whether they conferred; (4) failed to cross-examine Davis about the number of license plate combinations he checked; (5) failed to object to the affidavit used to authenticate the impound records; (6) failed to call any defense witnesses or present any evidence during both phases of trial; (7) failed to object to improper jury argument by the prosecutor; and (8) failed to object to hearsay. Salazar argues these alleged errors independently and cumulatively constitute ineffective assistance. Based on the record before us, we hold that Salazar has failed to establish ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel in a non-capital criminal trial, a defendant must prove by a preponderance of the evidence that: (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland, 466 U.S. at 687; see Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999); see also Harling v. State, 899 S.W.2d 9, 12 (Tex.App.-San Antonio 1995, pet. ref'd). The Strickland standard applies to claims of ineffective assistance during both the guilt/innocence and punishment phases of trial. Hernandez, 988 S.W.2d at 772. To establish deficient performance, the first prong of the Strickland standard, Salazar must show that his counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. A silent record usually cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We do not look at isolated acts or omissions to determine the effectiveness of counsel, but review the totality of the representation. Thompson, 9 S.W.3d at 813; Harling, 899 S.W.2d at 12. The allegations of ineffective assistance of counsel were not raised in Salazar's motion for new trial, and no evidence was developed in support of the claim. Therefore, the record contains no evidence from defense counsel's perspective concerning the complained-of actions and inactions. In the absence of a developed evidentiary record which adequately reflects the motives behind counsel's action or inaction, it is extremely difficult to prove that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Neither the failure to file pre-trial motions nor the failure to call any witnesses constitutes ineffective assistance per se. Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref'd) (failure to file pre-trial motions is not categorically deemed ineffective assistance because such decision may be part of trial strategy); King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983) (to show defense counsel was ineffective for failing to call any witnesses, the record must show the witnesses were available and the defendant would benefit from their testimony). Here, the record is silent as to why counsel chose not to file any pre-trial motions, raise certain objections and pose certain questions on cross-examination. Likewise, the record is silent as to why counsel chose not to call any witnesses, whether any uncalled witnesses were available for trial, and whether their testimony would have benefitted Salazar. Finally, the fact that counsel filed a motion for continuance requesting more time to prepare for trial, and announced "not ready," does not in itself establish that counsel rendered deficient performance as a request for a continuance may be a matter of trial strategy. See Brown v. State, Nos. 2-02-442-CR, 2-02-443-CR, 2003 WL 21940905, at *2 (Tex.App.-Fort Worth Aug. 14, 2003, pet. ref'd) (not designated for publication) (where record does not show counsel's reasons for requesting continuance, appellate court may not speculate and must rely on presumption that counsel's action was based on sound trial strategy). Absent record evidence to the contrary, we must presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14 (record that is silent on trial counsel's reasons for particular action or inaction will rarely suffice to rebut presumption that decision was reasonable). To conclude that the representation by Salazar's counsel was deficient without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. Without evidence in the record to both establish deficiency and rebut the presumption of reasonable assistance, Salazar is unable to satisfy the first prong of Strickland. See id. at 814; Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (record on direct appeal is often particularly inadequate to reflect the failings of trial counsel when the errors complained of are errors of omission). Failure to make the required showing of either Strickland prong, deficient performance or sufficient prejudice, will defeat a claim for ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. Because we hold that Salazar has failed to establish deficient performance by his trial counsel, we overrule his first issue on appeal. Conclusion
Based on the foregoing reasons, the trial court's judgment is affirmed.