Moreno, Wilson Caicedo v. The State of Texas--Appeal from 405TH District Court of Galveston County

Affirmed and Memorandum Opinion filed May 29, 2003

Affirmed and Memorandum Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00636-CR

NO. 14-02-00637-CR

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WILSON CAICEDO MORENO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston  County, Texas

Trial Court Cause Nos. 00CR1950 & 00CR1951

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

The jury convicted appellant, Wilson Caicedo Moreno, of two counts of aggravated robbery. In one point of error, appellant contends he received ineffective assistance of counsel. We affirm.

Background

The complainants, Pong Yuen and Nancy Bailey, testified that they closed the Szechuan Garden restaurant in Kemah at approximately 11:00 p.m. As they were walking to their cars, they were followed by two men who pointed guns at them and robbed them. The men took Bailey=s purse and cellular telephone, and took a white plastic bag and keys from Yuen. The plastic bag contained two steaks, a jar of peanut butter, garlic bread, a banana, and a Chinese videotape. The robbers left the scene with a woman in a white Nissan Maxima. After the men left, Yuen dialed 911 on his cellular telephone and Bailey described the men and the car to the 911 dispatcher.

Carl Stoddard, a League City police officer, testified that he heard the dispatch and attempted to stop a car meeting the description. When he turned on his emergency lights, the car did not immediately stop. Stoddard chased the car for some distance before it finally stopped. After the car stopped, two men jumped out and ran toward a wooded area. Several police departments including a Houston helicopter unit and a Webster K-9 unit were dispatched to help catch the men. Stoddard identified appellant as one of the men who had run into the woods.

The men were eventually arrested and their car was impounded. Officer William Macdonald searched the car and recovered three dark jackets, a plastic bag containing two pieces of meat, a Glock pistol, a red stocking cap, keys to a Lexus vehicle, Bailey=s purse, rubber gloves, and a videotape with Asian writing on it.

The jury found appellant guilty and assessed punishment at twenty-five years=confinement in each case. Appellant filed a motion for new trial, but later withdrew the motion.

Ineffective Assistance of Counsel

In a single point of error, appellant asserts his trial counsel was ineffective for (1) failing to object to the complainants=identifications, (2) failing to ensure that the 911 tape was preserved, and (3) failing to obtain a pretrial ruling on the admissibility of appellant=s prior conviction.

We review a claim of ineffective assistance of counsel using the standard set forth in Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show trial counsel was ineffective, appellant must demonstrate: (1) trial counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Appellate review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s conduct was reasonable and professional. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Thompson, 9 S.W.3d at 813-14.

Suppression of complainants= identifications

Appellant first contends trial counsel failed to seek to suppress the complainants=identifications of appellant. Appellant contends his counsel should have sought a pretrial ruling suppressing the complainants= identifications. The failure to file a pretrial motion does not constitute ineffective assistance of counsel. Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.CHouston [14th Dist.]1992, no pet.). A review of the record reveals appellant=s counsel attempted to discredit the complainants=descriptions by extensively cross-examining each complainant about his or her identification of appellant. Appellant introduced videotapes of the complainants=statements taken at the police station and attempted to discredit their in-court testimony with inconsistencies in the videotape. Further, in her closing argument, trial counsel emphasized the unreliability of eyewitness testimony and suggested the complainants were confused because they had been robbed once before and were describing the previous robbers. Finally, appellant has failed to show that a pretrial attempt to exclude the complainants= identifications would have been successful.

Preservation of 911 call

Appellant next contends his trial counsel was ineffective in that she failed to act to preserve the 911 call. After the State rested, trial counsel informed the trial judge that she was unable to determine which agency received the 911 call and would have preserved it. Appellant contends the complainants= descriptions of the robbers were suspect because the complainants had been robbed before and the descriptions of the robbers in that case were similar to those in this case. Appellant speculates that counsel=s failure to preserve the 911 call Aresulted in the loss of what could have been powerful exculpatory evidence for the defense.@ However, appellant fails to show what evidence could have been presented through the 911 call that was not presented at trial. Officer Stoddard testified that the dispatch described a white Nissan Maxima being driven by three people. This description is consistent with the complainants= testimony at trial. Further, trial counsel introduced videotaped statements of the complainants taken at the police station following the robbery in an attempt to discredit the complainants=identification testimony. Therefore, appellant fails to show how preservation of the 911 call would have affected the outcome of his trial.

Pretrial motion to allow appellant to testify free from impeachment

Finally, appellant contends trial counsel was ineffective in failing to seek a ruling that appellant=s prior conviction could not be used to impeach him if he testified at the guilt-innocence stage of trial. Appellant testified during the punishment phase of trial and stated that he wanted to testify at the guilt-innocence phase, but chose not to testify because his prior conviction would have been used against him. Appellant contends his trial counsel was ineffective because she failed to request, pursuant to Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992), that appellant be allowed to testify free from impeachment by prior convictions.

The record shows that appellant had been previously convicted of carrying a weapon in a place of business with a liquor license. A trial court has wide discretion in determining whether to admit a prior conviction for impeachment purposes, and its decision will be reversed only upon a clear abuse of discretion. Id. at 881. The five factors to be used in balancing the probative value of a prior conviction against its prejudicial effect are: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime to the charged offense and the witness=s subsequent history; (3) the similarity between the prior offense and the charged offense; (4) the importance of the defendant=s testimony; and (5) the importance of the defendant=s credibility.

With regard to the impeachment value of the prior conviction, crimes involving deception have a higher probative value than those involving violence, and violent crimes have a higher potential for prejudice. Id. Appellant=s prior conviction falls between these two extremes because it was neither violent, nor deceptive. The temporal proximity factor favors admission if a prior conviction is recent, and the witness has demonstrated a propensity for running afoul of the law. Id.; Jackson v. State, 11 S.W.3d 336, 340 (Tex. App.CHouston [1st Dist.]1999, pet. ref=d). Appellant=s prior conviction occurred on January 27, 1999, less than two years before the aggravated robbery. Because appellant was convicted of carrying a weapon and less than two years later was accused of using a weapon in an aggravated robbery, this factor favors admission. See Theus, 845 S.W.2d at 881. (five years held recent enough to favor admission under temporal proximity factor). Similarity between the past crime and charged crime increases the likelihood that a jury might convict based on a perceived pattern of past conduct, rather than on the facts of the charged offense. Id. In this case, the aggravated robbery charge is distinct from the weapon possession charge, but similar in that a weapon is involved in each offense. On balance, this factor does not weigh strongly for or against admission.

The last two factors, importance of the defendant=s testimony and credibility, are related because both depend on the nature of the defendant=s defense and the means available to him of proving that defense. Id; Dale v. State, 90 S.W.3d 826, 831 (Tex. App.CSan Antonio 2002, pet. ref=d). In a case such as this, where only the State=s witnesses and defendant=s potential testimony is involved, the importance of the defendant=s credibility increases, and with it, the State=s need to impeach him. Theus, 845 S.W.2d at 881. Here, appellant=s defense was that the State had not proved beyond a reasonable doubt that he was one of the people who robbed the complainants. The only evidence presented by appellant on his behalf was the videotape of the complainants=statements at the police station. In this instance, appellant=s reliability and the need to impeach him were important; therefore, the probative value of the prior convictions was higher than if appellant had presented other witnesses in his defense. Accordingly, the last two criteria favor admission.

Because the issue of the admissibility of appellant=s prior conviction is so close, we cannot say that any trial judge, if presented with the appropriate motion, would have been obliged to grant the motion. When an ineffective assistance claim alleges that counsel was deficient in failing to file a pretrial motion, the defendant must show, as part of his claim, that the motion would have been granted. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). Because reasonably effective trial counsel could not have been expected to know whether the trial court would have granted her motion, we cannot, in hindsight, find that the failure to file such a motion constituted ineffective assistance.

Conclusion

Here, the record is silent as to the reasons for counsel=s actions. While appellant points to three instances where he contends trial counsel was ineffective, he presents no evidence to rebut the presumption that trial counsel=s actions were the result of a reasonable strategic decision. In assessing appellant=s claims, we presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence that shows why trial counsel did what he did. See id. The record in this case contains no evidence of the reasoning and strategy underlying appellant=s trial counsel=s actions. From this record, one could conclude there were legitimate and professionally sound reasons for trial counsel=s conduct or one could speculate that there were not. As an appellate court, we cannot engage in such speculation. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Appellant has failed to demonstrate his trial counsel was ineffective under the first prong of Strickland, and also has failed to demonstrate that counsel=s errors, if any, prejudiced the defense. Accordingly, we overrule his sole point of error.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

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