Opinion
No. 05-09-00376-CR
Opinion Filed January 13, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F-08-60770-Y.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
OPINION
Appellant Raul Medina Sanchez was convicted of aggravated assault and sentenced to 20 years in prison after a jury trial and after the court made affirmative findings that the offense involved the use of a deadly weapon and family violence. On appeal, appellant argues that he was denied effective assistance of counsel. We modify the trial court's judgment to correct a clerical error and affirm the judgment as modified.
Background
The State's witnesses included the victim in this case, appellant's wife, Martha Medina. During the guilt phase of appellant's trial, Medina testified that after she arrived home from work around 7:30 p.m. on September 15, 2008, appellant poured gasoline on her hair and face and tried to ignite a lighter near her face because he was upset that she arrived home late. He screamed that he was going to kill her, and told her that she "had escaped once before" and "was not going to escape from him" this time. After the lighter failed to ignite, appellant told Medina to take a shower. Her body was covered in gasoline and felt like it was "going to explode." In the shower, she passed out from the fumes. When she regained consciousness, the couple's daughter was screaming for her, and their son asked why the whole house smelled like gasoline. Appellant did not testify during the guilt phase of his trial, but according to appellant, his defense theory at trial was that his wife was not a credible witness. After the close of the evidence, the jury found appellant guilty of aggravated assault.Issues on Appeal
In two related issues, appellant argues that he was denied effective assistance of counsel during the guilt phase of his trial because his trial counsel (1) elicited testimony from Medina about a prior incident of domestic violence, and (2) did not object when the State offered into evidence State's Exhibits 22 and 23, two photographs showing Medina's injuries after the prior incident of domestic violence. Appellant appears to argue that the evidence was inadmissible under rules of evidence 403 and 404(b), and that it unduly influenced the jury's verdict in this case. In response, the State argues that appellant has not met his burden to demonstrate that his counsel provided constitutionally ineffective assistance. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To obtain reversal on grounds of ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced him; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). An appellate court's review of counsel's performance is highly deferential and begins with the assumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Because a silent record provides no explanation for counsel's actions, the record on direct appeal is usually not sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, the Texas Court of Criminal Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more appropriate vehicle to raise claims of ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110. Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion and did not have a hearing on the motion. Consequently, the record is silent as to the reasons for counsel's actions. Based on the totality of this record, we cannot conclude that appellant has established that his trial counsel's performance fell below an objective standard of reasonableness. As a result, we cannot conclude that appellant has satisfied the first prong of Strickland. Although there are rare cases in which a record on direct appeal is sufficient for an appellate court to make a decision on the merits, we cannot conclude this is one of those rare cases. See Cannon, 252 S.W.3d at 349-50. We conclude that appellant did not meet his burden under Strickland. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."). We resolve appellant's two issues against him.Judgment Modification
In its appellee's brief, the State asks this Court to modify the trial court's judgment to include an affirmative finding of family violence, citing our opinion in Anderson v. State, No. 05-08-00864-CR, 2009 WL 3740783, at *3-5 (Tex. App.-Dallas Nov. 10, 2009, no pet.) (mem. op.) (not designated for publication). To support its request, the State notes that appellant's indictment included a paragraph alleging that the offense involved family violence, and the trial court made an affirmative finding of family violence on the record at the conclusion of appellant's trial. Article 42.013 of the Texas Code of Criminal Procedure provides that in the trial of an offense under title five of the Texas Penal Code, which includes aggravated assault, "if the court determines that the offense involved family violence, as defined by Section 71.004 of the Family Code, the court shall make an affirmative finding of that fact" and enter it in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006); see also Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). In other words, if during the guilt phase of trial, the court determines that the offense involved family violence as defined by the family code, "the trial court is statutorily obligated to enter an affirmative finding of family violence in its judgment." Butler, 189 S.W.3d at 302. In section 71.004(1) of the family code, family violence is defined as:[A]n act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself[.]Tex. Fam. Code Ann. § 71.004(1) (West 2008). Spouses are family members for the purposes of section 71.004. See id. § 71.003; Tex. Gov't Code Ann. § 573.024(a)(1) (West 2004). Martha Medina testified that appellant is her husband, and that they have been married since 2000. This testimony was not disputed. Therefore, on this record, we conclude that the trial court was statutorily obligated to enter an affirmative finding of family violence in its judgment. See Tex. Code Crim. Proc. Ann. art. 42.013; Butler, 189 S.W.3d at 302. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Here, as discussed above, this Court has the necessary information to correct the judgment. Accordingly, we modify the trial court's judgment in this case to include an affirmative finding of family violence. Anderson, 2009 WL 3740783, at *3-5 (trial court's judgment modified to reflect finding of family violence pursuant to article 42.013 because trial court had necessary evidence before it to warrant that finding).