Avila, Omar Ali v. The State of Texas--Appeal from 262nd District Court of Harris County

Appellant s Motion for Rehearing Overruled; Opinion issued January 23, 2003 Withdrawn; Affirmed and Memorandum Opinion on Moti

Appellant s Motion for Rehearing Overruled; Opinion issued January 23, 2003 Withdrawn; Affirmed and Memorandum Opinion on Motion for Rehearing filed April 17, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01244-CR

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OMAR ALI AVILA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 871,776

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M E M O R A N D U M O P I N I O N

O N M O T I O N F O R R E H E A R I N G

Appellant s motion for rehearing is overruled; the opinion issued in this case on January 23, 2003 is withdrawn; and the following opinion is issued in its place.

Omar Ali Avila appeals a conviction for injury to a child[1] on the grounds that: (1) the evidence was legally insufficient to prove that he acted with intent or knowledge in committing the offense; (2) the trial court erred in using a stair-step method to describe the different grades of the offense in the jury charge; (3) he was denied effective assistance of counsel; (4) the trial court erroneously admitted an involuntary custodial statement into evidence; (5) the trial court erroneously admitted extraneous offense evidence; (6) the trial court failed to instruct the jury on the meaning of beyond a reasonable doubt ; and (7) the jury s affirmative finding that appellant used a deadly weapon, i.e., his hands, was inconsistent with the jury s general verdict of guilt. We affirm.

Sufficiency of the Evidence

Appellant s first issue argues that there was no evidence that he caused the complainant s serious bodily injury intentionally or knowingly.[2]

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002). We apply this same standard of review to both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001). However, in a sufficiency review, a jury s inference of intent is afforded more deference than the evidence supporting proof of conduct. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Injury to a child is a result-oriented offense. See Schultz v. State, 923 S.W.2d 1, 2 (Tex. Crim. App. 1996). That means the culpable mental state relates to effectuating the specified result, i.e., rather than merely engaging in the conduct.[3] See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994); Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990). Mental culpability usually must be inferred from circumstances of the act or words. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). It may be inferred from the extent of injury and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

In this case, there is evidence that: (1) the complainant suffered bruising underneath the scalp and massive retinal hemorrhages[4] without any external injuries to his face, eyes, or eyelids; (2) if the complainant had hit the dashboard or floorboard of the car, there would have been evidence of external trauma to the face, eyes, and eyelids, and the retinal injuries would have reflected trauma on one side of the retinas as opposed to hemorrhage on both sides, as the complainant suffered; (3) each of the complainant s eyes had the same severe amount of hemorrhage which is indicative of, and very consistent with, violent shaking; (4) the complainant s injuries could not have been inflicted by improperly performing CPR or any of the other mechanisms appellant described; (5) the severity of retinal hemorrhage found in the complainant could not have been caused by a nonimpact car accident, but only by a high speed collision and would involve severe external injury to the head; and (6) the amount of force required to produce such injuries by shaking is so great that any reasonable person would know that a child would sustain severe injuries from it. In addition, two days earlier, appellant had pressed the complainant s face into a mattress and had indicated that he only wanted the complainant s mother but not the baby. Viewing this evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that appellant caused the complainant s serious bodily injuries intentionally or knowingly. Accordingly, appellant s first issue is overruled.

Jury Charge

Appellant s second issue contends that he was egregiously harmed by the trial court s presenting the respective grades of the offense in the jury charge in stair-step fashion, such that the lesser grades are not reached by the jury unless it has a reasonable doubt as to each higher grade, and as contrasted from presenting a single choice among all of the grades at the outset. Appellant asserts that this charge method, which obscures the jury s duty to evaluate each grade of offense relative to a higher level of offense in order to determine whether it is supported by proof beyond a reasonable doubt, is at odds with the United States Supreme Court s holding in Apprendi. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that a defendant has a right to have any fact that increases the maximum penalty for a crime, other than a prior conviction, submitted to a jury and proven beyond a reasonable doubt).

Appellant does not challenge the content of the charge with regard to containing correct statements of applicable law, but only the manner in which that information is organized, i.e., presenting the grades one-at-a-time versus all together. Because appellant has not demonstrated that the stair step method obscures the meaning of the respective grades, presents them in a misleading manner, or otherwise creates a risk of an erroneous conviction, his second point of error fails to establish error, let alone egregious harm, and is overruled.

Ineffective Assistance of Counsel

Appellant s third issue asserts that he was denied effective assistance of counsel in that his trial counsel failed to: (1) adequately prepare for, and effectively cross-examine, the State s expert witnesses; (2) object to the prosecutor s leading questions; (3) advise appellant that his testimony could be useful for the motion to suppress; (4) object to a portion of the State s closing argument to the jury; and (5) object to the trial court permitting the jury to deliberate late at night.

To prevail on a claim of ineffective assistance of counsel, an appellant must show, first, that counsel s performance was deficient, i.e., it fell below an objective standard of reasonableness, and, second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To be sustained, an allegation of ineffective assistance of counsel must be affirmatively demonstrated in the record. Bone, 77 S.W.3d at 835. In reviewing ineffectiveness claims, scrutiny of counsel s performance must be highly deferential. Strickland, 466 U.S. at 689. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel s perspective at the time. Id. Thus, the presumption that an attorney s actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney s reasons for his conduct. Mallett v. State, 65 S.W.3d 59, 67 (Tex. Crim. App. 2001).

Inadequate Preparation

Appellant contends that his counsel was ineffective in failing to: (1) request exclusion of some of the State s more aggressive expert opinions under Texas Rule of Evidence 702 based on lack of reliability; and (2) cross-examine the State s experts with ample and available scholarly research suggesting that the complainant s injuries could have occurred from mere recklessness, as appellant claimed.

Appellant has cited no cases in which any of the areas of expert testimony offered by the State have been excluded for lack of reliability. Nor does his brief demonstrate the unreliabilty of those opinions. Similarly, the possible effect of the cross-examination he asserts based on hindsight is purely a matter of speculation. Under these circumstances, we have no basis to conclude that there is a reasonable probability that, but for the challenged omissions by counsel, the result of the proceeding would have been different.

Failure to Object

Appellant also complains of defense counsel s failure to object to three leading questions the State asked its expert witnesses. However, in the absence of evidence of counsel s reasons for the challenged conduct, we will assume a strategic motivation if any can possibly be imagined, and we will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), petition for cert. filed (U.S. Jan. 8, 2002) (No. 02-5551). Appellant has not shown that the testimony elicited from the leading questions was outcome determinative or that it could not have been elicited by non-leading questions. Nor has appellant shown that a failure to object could not have been reasonable trial strategy to avoid calling attention to damaging evidence that was otherwise admissible.

Appellant further complains of his counsel s failure to object to a portion of the State s closing argument, allegedly redefining the mens rea for the offense: The only thing the question is whether or not he knew what he was doing. However, appellant fails to explain how this argument changed the applicable mens rea or how it prejudiced appellant s recklessness defense. The record is also silent on counsel s reasons for failing to object.

Appellant also asserts that his counsel s failure to object to the jury being allowed to deliberate late at night was ineffective assistance of counsel. Again, however, the record is silent on counsel s reason for not objecting to the jury s late deliberation, and appellant has failed to cite authority holding that any such objection must have been sustained or to otherwise demonstrate a reasonable probability that, but for this failure, the result of the proceeding would have been different.

Right to Testify

Appellant next contends that he was denied effective assistance of counsel by his counsel s failure to advise him to testify at the suppression hearing about the use of the polygraph examiner as an interrogator. However, appellant cites no authority showing that any actions by the polygraph examiner would have caused his statement to be inadmissible. Appellant similarly complains that, during his testimony before the jury, his attorney failed to ask him any of the questions that were most pertinent to the suppression issues. Again, however, appellant does not indicate what testimony he could have given or how it would demonstrate the inadmissibility of any evidence. Because appellant has thus failed to show a reasonable probability that the result of the proceeding would have been different but for his counsel s complained of omissions, we overrule his third point of error.

Involuntary Custodial Statement

Appellant s fourth issue argues that his videotaped statement should not have been admitted into evidence because it was custodial and involuntary. Appellant contends that the statement was involuntary because he was subjected to lengthy interrogation without access to legal counsel and the police used the psychologically coercive Mutt and Jeff method of interrogation, used the polygraph as an interrogation tool, and exploited his emotional weakness and his lack of sleep and sophistication. However, appellant cites no evidence supporting his allegations of coercive actions by the police and cites no case holding that such actions render a statement involuntary. Because appellant has thus failed to demonstrate that the trial court erred in admitting his confession, his fourth issue is overruled.

Extraneous Offense Evidence

Appellant s fifth issue asserts that the trial court erroneously admitted extraneous offense evidence of appellant biting the complainant s mother on a previous occasion.

Evidence of a person s character is not admissible for the purpose of showing that he acted in conformity with it. See Tex. R. Evid. 404(a); Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002). Therefore, extraneous offense evidence is not admissible to show a person s character, but may be admissible to rebut a defensive theory. See Tex. R. Evid. 404(b); Robbins, 88 S.W.3d at 259. A trial court s decision regarding the admissibility of extraneous offense evidence is reviewed for abuse of discretion. Robbins, 88 S.W.3d at 259-60.

In this case, the State introduced evidence of appellant biting the complainant s mother after appellant s counsel elicited testimony from the complainant s mother suggesting that appellant was not violent with her or the complainant. Because the extraneous offense evidence rebutted appellant s evidence suggesting he was not violent with the complainant or his mother, the trial court did not err in admitting it.[5] Moreover, other extraneous offense evidence also showing appellant s violent nature was admitted (to which appellant assigns no error on appeal). This includes the testimony of complainant s mother that, two days before the charged offense, appellant forced the complainant s head into a mattress to prevent him from crying. In light of such evidence, appellant was not further harmed by the admission of the complained of testimony.[6] Accordingly, his fifth issue is overruled.

Charge Definition of beyond a reasonable doubt

Appellant s sixth issue contends that the trial court erred by failing to instruct the jury in the charge on the meaning of beyond a reasonable doubt. However, no such definition is required. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Thus, appellant s sixth issue is accordingly overruled.

Affirmative Finding of Deadly Weapon

Appellant s seventh issue claims that the jury s affirmative deadly weapon finding, which specified appellant s hand as a deadly weapon he used or exhibited in the offense, was inconsistent with its general verdict of guilt in which one or more of the jury members could have found that the injury was instead caused by other means, including manner or means unknown. [7]

The verdict form in this case instructed the jury that their verdict was to be unanimous. The affirmative finding verdict page was right behind the guilt verdict page and both are file stamped at 10:35 p.m. on October 4, 2001. The reporter s record reflects that the verdict of guilt was read in court a few minutes before the court adjourned at 10:45 p.m. that evening. Appellant seems to suggest that the jury could have reached a unanimous verdict on his guilt, despite a lack of unanimity on the alternative manner and means allegations, but nevertheless then proceeded to promptly reach a unanimous verdict on the special issue, which specified only appellant s hands as the deadly weapon. If this is indeed appellant s position, it can be sustained only if we could speculatively presume the jury to have behaved in a highly illogical manner. Because he has cited no authority to support doing so, appellant s seventh issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion on Motion for Rehearing filed April 17, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury found appellant guilty and sentenced him to 50 years confinement.

[2] Appellant does not challenge the sufficiency of the evidence to prove that he caused the injury, but only that he did so intentionally or knowingly. Appellant was the only person who could have caused the complainant s injuries because the complainant was in appellant s sole care when he was injured.

[3] However, intent to injure a child does not require the intent or knowledge to apply to the victim s age. Zubia v. State, 998 S.W.2d 226, 227 (Tex. Crim. App. 1999).

[4] The ophthalmologist and pediatric care specialist each testified that this was one of the worst cases of retinal hemorrhages that she had seen in her career.

[5] See, e.g., Phelps v. State, 5 S.W.3d 788, 794, 796 (Tex. App. San Antonio 1999, pet. ref d) (holding extraneous offense evidence admissible to rebut claim of nonviolent nature).

[6] See Tex. R. App. P. 44.2(b).

[7] Although appellant does not assert that the charge was erroneous, his contention would suggest that an affirmative weapon finding would always be inconsistent with a guilty verdict that includes alternatives other than that on which the affirmative finding was based.