Eloy Garcia v. The State of Texas--Appeal from 38th Judicial District Court of Uvalde County

No. 04-99-00101-CR
Eloy GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 38th Judicial District, Uvalde County, Texas
Trial Court No. 97-09-9578-CR
Honorable A.D. Azios, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: December 22, 1999

AFFIRMED

A jury convicted Eloy Garcia for the attempted murder of Nelson Elemen, Sr.(hereinafter referred to as Senior). Garcia was also indicted for the murder of Nelson Elemen, Jr. (hereinafter referred to as Junior) in a case that arose from the same transaction as this case, but tried subsequently. The jury in this case sentenced Garcia to 10 years in prison. Garcia appeals his conviction. Because we find no reversible error, we affirm the judgment of the trial court.

Background of the Appeal

On August 23, 1997, Garcia and his brother, Martin, were at home, working on a car. The Garcia brothers began working on the car early in the day, drinking beer as they worked. The brothers were still in the yard working on the car by late afternoon when a truck with three men stopped in front of the house. Senior was driving the truck. Junior and another man, Joseph Villanueva, were passengers. Junior and Joseph got out of the truck, and a fight ensued between Martin and Junior. Ultimately, Junior knocked Martin to the ground and turned to leave. Garcia then pulled a pistol out of the waistband of his pants and shot Junior several times. Senior rushed to Junior's aid, and Garcia then shot Senior in the leg and face. Guadalupe Torres and his two sons, who live directly across the street from the Garcia house, observed the shooting incident from their front porch. Junior died as a result of his injuries--hence, the murder case.

Garcia obtained a change of venue from Uvalde to Nueces County. Once in Nueces County, the prosecutors proceeded on the charge of attempted murder of Senior, ostensibly to avoid jeopardizing the State's ability to try the murder case. As a result, the most problematic aspect of the case was controlling the evidence of Junior's death to avoid prejudicing and inflaming the jury. Garcia raises five issues on appeal.

Defendant in Shackles

At the conclusion of the first day of trial, and after the jury was released for the day, Garcia's attorney objected as follows:

[M]y client has been in shackles all this time, and he has been paraded in front of the jury with them. I object to that. I need for him to have off those shackles, or at least where they cain't [sic] be seen.

After hearing argument from the State and defense counsel, the trial judge overruled the objection and ordered that Garcia remain in shackles.

In his first issue, Garcia complains that the jury observed him during voir dire wearing shackles. Garcia maintains that this observation infringed upon his presumption of innocence. Because the presumption of innocence is a basic constitutional right, Garcia argues that this court must reverse his conviction because the court cannot conclude beyond a reasonable doubt that the jury's observation of the shackles did not contribute to his conviction.

Because the jury's observation of shackles seriously infringes upon the defendant's presumption of innocence, the Court of Criminal Appeals has indicated that a defendant should not ordinarily be shackled during trial. Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992) (stating that defendant should be shackled in rare circumstances). Rare circumstances exist, however, that require the shackling of the defendant. See Long v. State, 823 S.W.2d 259, 282-83 (Tex. Crim. App. 1991). Where ever these circumstances exist, the decision to shackle the defendant during trial is within the discretion of the trial judge. Long, 823 S.W.2d at 282. If the trial judge determines that the defendant should be shackled during trial, the trial judge must specify the reasons for restraining the defendant. Cooks, 844 S.W.2d at 722. Additionally, all efforts must be made to ensure the jury does not view the defendant in shackles. Long, 823 S.W.2d at 282. The trial judge's decision to shackle the defendant during trial is never reversible absent evidence that jurors actually viewed the defendant in shackles. Id. at 283. Even where evidence indicates that the jurors saw the defendant in shackles, the decision to shackle the defendant is subject to harm analysis. Cooks, 844 S.W.2d at 723.

The record in this case does not clearly indicate whether jurors saw Garcia in shackles. For one reason, Garcia and his attorney sat at a desk that was closed on three sides. Also, the trial judge indicated on the record that no member of the jury observed Garcia in shackles. The judge stated:

The record will reflect that at no time has this defendant been moved in my presence when the jurors were present in the courtroom, potential jurors, the panelists. No one has seen him walking in or out of this courtroom in shackles, because I've been here every time he's moved out. And every time he has been moved out, the jurors, or potential jurors have not been in the courtroom.

Nonetheless, Garcia's attorney responded to the judge's declaration as follows:

Judge, for the record, he went back with me to select the panel, the jurors, and he was walked [sic] and the panel was still setting [sic] there.

To this statement, the State commented:

I would point out to the Court that these three people who were in the position to see the defendant in shackles aren't on this jury.

The record does not indicate which three veniremen could have possibly observed Garcia's feet during voir dire. As a result, we cannot conclude with certainty whether jurors saw Garcia in shackles.

Despite the uncertainty about whether a juror[s] actually observed Garcia in shackles, the record clearly indicates that the trial judge considered whether jurors viewed Garcia in shackles and ordered the proper precautions to protect Garcia's presumption of innocence. In ruling on Garcia's objection, the trial judge stated:

The only order I can issue is this, which has been followed here in this trial, earlier: This defendant is not to be brought in when the jury's present in the courtroom. He will remain in shackles, because I'm not going to interfere with the sheriffs . . . in the security of this defendant. They know the defendant and they know what they're doing. As long as the jury-the present jury and the alternate do not see this defendant in shackles, I see no violation of the defendant's rights.

Thus, the trial judge acted properly to protect Garcia's presumption of innocence.

Even if a juror had observed Garcia in shackles, the shackles could not have contributed to Garcia's conviction in any way. During trial, Senior testified in detail about how Garcia shot him in the face and leg. Three neighbors who observed the incident also testified, each confirming that Garcia shot Senior. Additionally, Garcia himself testified about the incident, albeit as an act of defending his brother, Martin. In this case, the State's evidence of guilt was so overwhelming that the presence of shackles would not have had any impact on the outcome of the trial. As a result, we overrule Garcia's first issue.

Absence of Jury Charge from Clerk's Record

In his second issue, Garcia complains about the omission of the jury charge from the clerk's record. Garcia relies on Rule 34.5(a)(4) of the rules of appellate procedure that provides that "the record must include copies of . . . the court's charge and the jury's verdict," Tex. R. App. P. 34.5(a)(4), and Rule 34.6 which entitles the defendant to a new trial when a significant portion of the reporter's record is lost, id. R. 34.6. Since making this argument, however, the trial court supplemented the clerk's record with a copy of the court's charge and the jury's verdict. Because Garcia does not complain of a charge error, we consider this issue as moot.

Prosecutorial Misconduct

After the State announced that it would proceed on the attempted murder case, the trial judge admonished the prosecutors to limit the evidence of the murder case to that evidence needed to facilitate the jury's understanding of the events involved in the attempted murder charge. The judge further admonished the prosecutors to instruct the State's witnesses not to discuss the murder during their testimonies. In his third issue, Garcia maintains that the State engaged in prosecutorial misconduct by continually soliciting evidence of Junior's murder. Specifically, Garcia complains about: (1) the testimony of Esdula Cardona, a nurse, when she testified that she found Junior dead, (2) a photograph showing where Cardona found Junior's body, (3) the fire examiner's report which reflected the annotation "Murder," (4) Joseph Villanueva's testimony that Junior was dead, and (5) the prosecutor's references during closing argument that there was no need for Garcia to kill Junior.

The Court of Criminal Appeals has identified three factors for considering a claim of prosecutorial misconduct: "(1) whether the defendant objected to the conduct of the prosecutor, (2) whether the prosecutor deliberately violated a court order, and (3) whether the prosecutorial misconduct was so blatant as to border on being contumacious." Stoker v. State, 788 S.W.2d 1, 14 (Tex. Crim. App. 1989); see Stahl v. State, 749 S.W.2d 826, 831 (Tex. Crim. App. 1988). Applying these factors here, there is no question that Garcia's attorney objected every time evidence of Junior's murder surfaced, but the record does not reflect that the prosecutors deliberately violated the court's order to limit the State's evidence of the murder.

Esdula Cardona was the State's third witness. Cardona testified that she came upon the Elemen's truck parked in the middle of the street on her way home from work. She stated that she observed an individual lying in the street alongside the truck and two other people standing over the person. She further testified that she exited her vehicle to determine what was wrong with the person on the ground and that she turned him over to see if he was breathing. At this point, Cardona stated, "he wasn't [breathing]." She continued to describe the events that transpired, ultimately stating, "I mean, that was after he didn't have a pulse. That's when I started CPR." Thus, rather than testifying that she found Junior dead, Cardona's testimony implied that Junior was dead when she arrived. In the context these statements were made, Cardona's testimony does not suggest a deliberate violation of the court's order.

After the statements were made, the trial judge admonished Cardona, outside the presence of the jury, not to volunteer information that the person she found in the street was dead and admonished the prosecutor not to belabor the issue. Once Cardona's testimony resumed, the prosecutor showed Cardona a photograph of the Elemen's truck and asked her if the photograph fairly and accurately represented the truck. When Cardona confirmed that it did, the State sought to admit the photograph and Garcia's attorney objected. The basis of the objection was that the photograph clearly reflected bloodstains that related to the murder case. After considerable discussion, the trial judge admitted the photograph. The photograph was then provided to the jury with no further explanation. Under these circumstances, the State's efforts to introduce the photograph do not constitute a deliberate violation of the court's order. During the course of her testimony, Cardona also stated that an individual with blood on his face was present when she arrived at the scene, and the blood in the photograph was never identified as Junior's blood. Although the jury could have logically inferred from Cardona's testimony that the blood was Junior's blood rather than Senior's blood, the photograph did not reflect Junior's body and clearly indicated where Cardona discovered the truck.

Later in the trial, the State sought to introduce the forensic firearms report that covered the firearm Garcia used during the shooting, six fired cartridge cases, one live round, and a bullet recovered during Junior's autopsy. The report confirmed that the six fired cartridges and the recovered bullet came from the gun. The report was annotated as follows: "REFERENCE: Murder (ME # 97-1305)."

In arguing for admission of the exhibit, the prosecutor reasoned that admitting the unaltered report with a proper limiting instruction would be less prejudicial than altering the report to redact the references to the murder case. The prosecutor's reasoning is sound in this regard. Although redacting the reference to "murder" could have easily been done, the following references still needed deletion to effectively redact the references to Junior's death: "V: Elemen, Nelson Jr.," "Autopsy bullet," and "recovered at autopsy." As same contextual evidence, the State was entitled to have the report admitted. The State recognized the potential for prejudicing the jury, but suggested a limiting instruction to control the jury's use of the evidence. As a result, the prosecutor did not engage in misconduct.

Joseph Villanueva was one of the State's last witnesses. Recalling his version of the events, Joseph testified as follows:

JOSEPH: After that I saw Nelson, Jr. coming around [the truck], so I tried to help him out and bring him around the truck.

PROSECUTOR: He wasn't-was he walking, or what?

JOSEPH: No. He was on the floor. He was probably already dead.

The last statement prompted a defense objection. In the context of Joseph's testimony, this statement was an isolated reference to Junior's death. At this point, the trial judge personally instructed Joseph to refrain from referring to Junior's death and the mistake was not repeated.

Lastly, Garcia complains about prosecutor's comment during closing argument: "That man sitting right there had no reason whatsoever to kill or shoot Nelson Elemen Jr." Taken out of context,(1) this statement appears to be a deliberate violation of the court's order. Viewed in the entirety of the prosecutor's closing argument, it is apparent that the comment was at most a mistake.

The complaints discussed above do not reflect prosecutorial misconduct. Instead, this evidence and the prosecutor's statement reflects the difficulty involved in limiting evidence of an extraneous offense that is so indivisibly intertwined with the offense being tried. As a result, we overrule this issue.

Ineffective Assistance of Counsel

In his fourth issue, Garcia contends that his trial attorney was ineffective because he failed to request a reasonable-doubt instruction for the punishment charge. Garcia relies in part on Huizar v. State, wherein this court determined that failure to include a reasonable-doubt instruction during the punishment phase of trial where the State relied on evidence of an extraneous and unadjudicated offense was fundamental error. See Huizar v. State, 966 S.W.2d 702, 710 (Tex. App.--San Antonio, 1998), rev'd No. 794-98, 1997 WL 974272 (Tex. Crim. App. Oct. 27, 1999) Since the filing of this appeal, however, the Court of Criminal Appeals overruled Huizar, see Huizar v State, No.794-98, 1997 WL 974272 (Tex. Crim. App. Oct. 27, 1999), at *1, so we will consider Garcia's complaint without consideration of our previous decision.

A claim of ineffective counsel is reviewed under the standard set out in Strickland v. Washington, 104 S. Ct. 2052 (1984). To prove ineffective assistance of counsel under Strickland, the appellant must prove that his lawyer's conduct was deficient, and that the result of the proceeding would have been different but for the lawyer's deficient performance. Strickland, 104 S. Ct. at 2064, 2068. This standard applies to both phases of trial.(2) Whether this standard has been met is judged by the totality of representation rather than by isolated acts or omissions by trial counsel. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Despite Garcia's complaint about his attorney's performance, the record does not reflect ineffective assistance of counsel.

Instead, the record reflects that Garcia's attorney provided effective representation. He obtained a change of venue to avoid the prejudice that could have resulted from trying Garcia in his home town. He demonstrated a thorough understanding of the rules of evidence and used his knowledge to minimize the admission of evidence of Junior's death. He took extraordinary steps to preserve error. He exposed inconsistencies in the testimonies of the States's witnesses through cross-examination and he presented Garcia's theory of defense of third persons. Nonetheless, Garcia's attorney should have requested a reasonable-doubt instruction because the State relied on a very significant, adjudicated extraneous offense in this case--Junior's murder--to argue for the maximum punishment. Despite this failure, Garcia's attorney did an exemplary job in defending his client and served as a zealous advocate throughout Garcia's trial. Instead of reflecting error, the jury's sentence reflects the attorney's exceptional performance: ten years for an offense with a punishment range of two-to-twenty. We overrule Garcia's issue concerning ineffectiveness of counsel.

Punishment Charge

Garcia also relies on Huizar in his fifth issue wherein he contends that fundamental error occurred when the trial court failed to provide the jury with a reasonable-doubt instruction during punishment. In overruling Huizar, the Court of Criminal Appeals indicated that the trial court is not required to instruct the jury on the burden of proof for extraneous offenses absent a request from the defendant. Huizar, No. 974-98, 1997 WL 974272, at *1. As indicated above, Garcia did not request an instruction here. As a result, we overrule this issue.

Conclusion

The indivisibility of Junior's death and the attempted murder of Senior created inherent difficulties in this case. Despite the difficulties, Judge Azios ensured that Garcia received a fair trial by skillfully limiting the evidence of Junior's murder and taking the steps needed to ensure that Garcia was not prejudiced by being shackled during trial. We are convinced that Garcia was not unfairly prejudiced by evidence of Junior's death nor by the presence of shackles. Accordingly, we affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

1. A fuller description of the prosecutor's remarks makes it clear that the prosecutor did not intend to refer to Junior. The prosecutor stated:

That man sitting right there had no reason whatsoever to kill or shoot Nelson Elemen Jr.-Sr., no reason, whatsoever. Nelson Sr. did nothing to him. No one did anything . . . .

2. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (stating that Strickland applies to punishment phase of trial and overruling Ex Parte Duffy which was previously used to evaluate effectiveness of counsel during punishment phase).