ROBERTO TORRES, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion Filed November 29, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00691-CR
............................
ROBERTO TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-54718-TR
.............................................................
MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted Roberto Torres of murder and found he used or exhibited a deadly weapon during the commission of the offense. It assessed appellant's punishment, enhanced by a prior conviction, at forty years in prison. On appeal, appellant complains the trial court erred by admitting impeachment evidence, the evidence is factually insufficient to support an element of the offense, and his counsel was ineffective. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.
        Appellant shot Jorge Cruz while Cruz was standing outside his apartment. Cruz's wife, Maria, heard the shot, looked out the window, and saw appellant holding her husband by the neck and pointing a gun to his head. Appellant let Cruz fall to the ground and walked away.         During the investigation, Dallas police officer Elvira Rivera and detective Brent Maudlin questioned Jose Rosas about his involvement in the murder. Rosas denied involvement, said he was in jail at the time, and told them appellant confessed to shooting Cruz. Rosas signed a statement to that effect. Police confirmed Rosas was in jail at the time of the murder and began investigating appellant, resulting in his indictment and conviction for the crime.
 
Impeachment Evidence
 
        Appellant raises several related errors in his first issue. First, he argues the trial court erroneously allowed the State to call witness Rosas for the sole purpose of impeaching him with a prior inconsistent statement. Next, he argues the trial court erroneously admitted testimony of Officer Rivera and Detective Maudlin to impeach Rosas. Finally, he argues he suffered egregious harm because his counsel failed to object to and waived an instruction limiting the jury's consideration of this impeachment evidence.
        The court held a pretrial hearing because defense counsel said Rosas was going to refuse to testify. The trial court determined Rosas had no basis on which to refuse to testify and advised Rosas he would be held in contempt if the State called him to testify and he refused. He also told counsel the only way to know if Rosas would refuse to testify would be to call him as a witness. Defense counsel objected, arguing it would be highly prejudicial to appellant's defense if the court required Rosas to state his refusal in front of the jury. The court overruled the objection and the State called Rosas to the stand. He did not refuse to testify but denied making the statement that appellant confessed to the murder.
        Appellant objected twice during Rosas's testimony. Both times the objection was to the form of the question as improper impeachment.   See Footnote 1  However, he did not object on the ground he now raises on appeal. Because appellant's complaint on appeal does not comport with the complaint he made in the trial court, no error is preserved for our review. See Tex. R. App. P. 33.1(a); Garcia v. State, 887 S.W.2d 862, 873-74, n.5 (Tex. Crim. App. 1994), overruled in part on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001).
        Appellant also argues the trial court erroneously admitted the testimony of Officer Rivera and Detective Maudlin to impeach Rosas's trial testimony. They testified Rosas told them appellant confessed to the crime. Appellant argues this testimony was inadmissible hearsay and improper impeachment under rule 613. However, appellant objected to portions, but not all, of Officer Rivera's testimony about Rosas's prior inconsistent statement and did not object at all to Detective Maudlin's testimony. As a result, appellant has not preserved error for our review. Tex. R. App. P. 33.1(a).
        Appellant further argues he was egregiously harmed by his counsel's failure to object to the State's impeachment of Rosas and waiver of an instruction limiting the jury's consideration of this evidence. Because appellant raises this same argument under his third issue alleging ineffective assistance of counsel, we address these points under issue three.
        We overrule appellant's first issue.
 
Factual Sufficiency of Identification Evidence
 
        In his second issue, appellant disputes the factual sufficiency of the evidence to prove he was the person who shot the victim.
        In a challenge to the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272 at *8-10 (Tex. Crim. App. Oct. 18, 2006). The jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). It is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex. App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex. Crim. App. 2001). We will only reverse a jury's verdict if the record clearly shows a different result is required to prevent a manifest injustice. See Watson, 2006 WL 2956272 at *10; see also Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000).
        Appellant attacks the factual sufficiency of the evidence by pointing out inconsistencies in the witnesses' testimony, the lack of physical evidence connecting him to the crime, the identification of other suspects, and Rosas's criminal record. He specifically attacks Maria's testimony by pointing out inconsistencies in her oral and written statements; her failure to give a description of the shooter's face prior to her identification of appellant; her limited opportunity to see the perpetrator; and her limited ability to see the crime because of poor lighting. He argues the State's only evidence was the inadmissible hearsay statements of Rosas and the “questionable identification” by Maria.
        Maria Cruz testified she was bathing her one-year-old daughter while her husband was standing outside their apartment waiting for their son to return from the store. Just as she finished the child's bath, she heard a shot. She went to the window, looked outside, and saw appellant with his left arm around her husband's neck. Appellant had a gun in his right hand pointed at her husband's head. Appellant let her husband fall to the ground and then he walked away.
        Maria told police the man who shot her husband was “moreno.” Detective Maudlin testified “moreno” can mean a black person or a dark-skinned Hispanic and he thought she meant a black male. But when he showed Maria a photo array of six black males, she told him the shooter was Hispanic. Detective Maudlin showed Maria two more photo arrays, one of black males and one of Hispanic males, but she did not identify any as the shooter. Over a year later, after police talked to Rosas and learned appellant said he shot the victim, Detective Maudlin showed Maria a different photo array of six Hispanic males, including a photograph of appellant. She immediately identified appellant as the person who murdered her husband.
        Maria's testimony that appellant is the person who shot her husband is direct evidence of appellant's identity. She testified she looked at four photo arrays without identifying anyone as the person she saw shoot her husband until she saw appellant's photograph. Defense counsel cross- examined her on every aspect of her identification of appellant as the shooter. The jury heard and weighed the testimony. We conclude a reasonable jury could find from this evidence that appellant was the person who shot Jorge Cruz. See Garcia, 887 S.W.2d at 869.
        We overrule appellant's second issue.
 
Ineffective Assistance of Counsel
 
        In his third issue, appellant argues his counsel's trial performance was deficient and he did not receive his constitutionally guaranteed right to a fair and impartial trial.
        We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An ineffective assistance of counsel claim must be firmly founded in the record. Goodspeed, 187 S.W.3d at 392. And our review of counsel's performance is highly deferential-we presume counsel provided reasonable assistance. Id.; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836.
        When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Goodspeed, 187 S.W.3d at 392; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Absent an opportunity for counsel to explain his actions, we will not find deficient performance unless the conduct is so outrageous that no competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Failure to Object to Impeachment Evidence
        Appellant contends the State called Rosas for the sole purpose of impeaching him with his prior inconsistent statement and his counsel was ineffective when he did not object to the State's evidence as inadmissible hearsay.
        The credibility of a witness may be attacked by any party, including the party calling the witness. Tex. R. Crim. Evid. 607. A witness may be impeached with a prior statement when he gives testimony at trial that is inconsistent with the prior statement. See Ayers v. State, 606 S.W.2d 936, 939 (Tex. Crim. App. 1980). However, the State may not call a witness that it knows will testify unfavorably for the sole purpose of impeaching that witness with otherwise inadmissible hearsay. Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999); Kelly v. State, 60 S.W.3d 299, 301 (Tex. App.-Dallas 2001, no pet.). To preserve error on this ground, defense counsel must object under rule 403. See Hughes, 4 S.W.3d at 4-5; Kelly, 60 S.W.3d at 300. A key factor under the rule 403 analysis is whether the State had knowledge, before it called the witness, that the witness would testify unfavorably. Hughes, 4 S.W.3d at 5; Kelly, 60 S.W.3d at 301.
        In the pretrial hearing, Rosas's attorney told the court that Rosas intended to invoke his right to remain silent although he was unaware of any basis Rosas had for refusing to testify. The State called Rosas as a witness in the hearing and began to question him about his interview with Officer Rivera and Detective Maudlin. Before the prosecutor asked Rosas any questions about his statement to police, defense counsel objected to the questions, arguing the sole purpose of the hearing was to determine whether Rosas was going to refuse to testify in front of the jury. Rosas was not questioned further. The trial court determined Rosas did not have a basis upon which to invoke the right to remain silent. The trial court and counsel had a brief discussion about whether the State could impeach Rosas with a prior inconsistent statement if Rosas refused to testify or if he testified inconsistently with what he said in the past. The court said they would “cross that bridge when we come to it.”
        The State called Rosas as its first witness at trial. In response to the prosecutor's questions, Rosas denied he told Officer Rivera that appellant confessed the murder to him. He also denied that he signed a written statement in which he detailed what appellant told him and that he picked appellant's photograph from an array. The State then called Officer Rivera as a witness. She testified Rosas told her appellant described to him how he murdered Cruz. Later, Detective Maudlin testified he showed Rosas a photo array and Rosas picked appellant's photograph as the person who confessed the murder to him and signed and dated the back of the photograph. Detective Maudlin also testified that Rosas described how appellant said he murdered Cruz.
        The record shows Rosas was not asked about his prior statement to police in the pretrial hearing and did not deny that he gave the statement. The record shows the State knew Rosas might refuse to testify for reasons unknown, but not that he might refuse to testify because he had recanted his earlier statement. See Barley v. State, 906 S.W.2d 27, 37 n.11 (Tex. Crim. App. 1995) (discussing cases where State charged with knowledge because witness had recanted in previous hearing). From this record, we cannot conclude the State knew Rosas was going to deny his earlier statements to police. Appellant has not shown the State called Rosas with the primary intent of placing inadmissible substantive evidence in front of the jury. See id.; Kelly, 60 S.W.3d at 302. As a result, appellant has not shown the impeachment evidence should have been excluded. See Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987) (witness's prior inconsistent statements admissible to impeach witness). Failure to object to admissible evidence is not ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).
        Even if the evidence had been inadmissible hearsay, whether to object to hearsay is optional with each defendant. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997); Tapia v. State, 933 S.W.2d 631, 633 (Tex. App.-Dallas 1996, pet. ref'd). Defense counsel may have had strategic reasons for not objecting in these instances, but we may not speculate on counsel's motives in the face of a silent record. See, e.g., Thompson, 9 S.W.3d at 812, 814 (declining to speculate on counsel's failure to object to hearsay in light of silent record).
Failure to Request/Waiver of Limiting Instruction
        It is undisputed that defense counsel did not request a limiting instruction when the State offered Rosas's prior inconsistent statement. And the record shows the trial court, upon request by defense counsel, deleted a limiting instruction concerning that evidence from the court's charge.
        The record does not disclose defense counsel's specific motives for his actions. However, the record does show defense counsel requested the court delete the limiting instruction for “trial strategy reasons.” Appellant did not request a motion for new trial on this ground so that he could develop the record to reflect defense counsel's motives for his actions. See Rylander, 101 S.W.3d at 110-11. Defense counsel may have based his decision to request deletion of the limiting instruction on the same strategy reason he based his decision not to object to the State's impeachment evidence. But we will not speculate on defense counsel's specific trial strategy reasons. See id.
        Based on the totality of the record, we conclude appellant has not established that defense counsel's performance was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. As a result, appellant did not carry his burden under the first prong of Strickland to show his counsel's performance fell below an objective standard of reasonableness.
        We overrule appellant's third issue.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
050691f.u05
 
 
Footnote 1 The first objection was “improper impeachment. It's alleging that the statement was made instead of the defendant stating that he did not make any statements.” The second objection was “improper impeachment - form of the question.”

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