Eloy M. Garcia v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

99-00530 Garcia v State of Texas.wpd No. 04-99-00530-CR
Eloy M. GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CR-3030(1)
Honorable A.D. Azios, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 5, 2000

AFFIRMED AS REFORMED

Eloy M. Garcia ("Garcia") appeals his conviction for murder. In three issues, Garcia complains of ineffective assistance of counsel during voir dire, trial court error in the admission of testimony from a prior trial, and trial court error in entering a cumulative sentence. Because the record fails to support Garcia's claims, we affirm the judgment of the trial court.

Factual and Procedural Background

Nelson Elemen Sr., his son Nelson Elemen Jr., and Joseph Villanueva drove in Elemen Sr.'s pick-up truck to the street where Garcia lived. The men stopped the truck in the middle of the street in front of Garcia's house, and Elemen Jr. approached Garcia's brother. According to eyewitness testimony, a fight between the two erupted and Garcia's brother fell to the ground. When Elemen Jr. turned to leave, Garcia shot him several times. As Elemen Sr. ran to assist his son, Garcia shot him in the face and leg. Garcia was arrested in a neighbor's backyard after he fled the scene. Garcia's own statement confirmed these facts. At the trial on the charge of murder of Elemen Jr., the jury returned a guilty finding, from which Garcia now appeals.

Ineffective Assistance of Counsel

In his first issue, Garcia complains he received ineffective assistance of counsel during the voir dire stage of trial. He contends defense counsel improperly commented on his failure to testify and planted the seed of doubt about his innocence in the minds of potential jurors.

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 686, 687 (1984). Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance, a defendant must demonstrate that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Whether a defendant has received ineffective assistance of counsel is to be judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

After a careful examination of the record we conclude that Garcia misinterprets what defense counsel said and focuses on isolated portions of dialogue to reach an erroneous conclusion. The following interchange demonstrates defense counsel's attempt to ascertain any potential bias among the venire:

JUROR EUGENE ESTRADA: Well, it would be like if I was being accused of murder and if I was innocent, I would want to say I was innocent.

****

DEFENSE COUNSEL: That's what I was talking about. There are certain people that are going to say, "I wish you would have said something," or "If it would have been me, I would have gotten up there and said something." The reason I'm covering this is because I already know that you guys have said, "Yes, he has got that right and I'm not going to have any problem with that," but this is my reason for that. It's like the judge mentioned awhile ago.

Well, let's just say you are deliberating back there and you start feeling that little bias that you have towards someone wanting them to take the stand. You might say, "If it was me, I would have taken the stand. I would have cleared myself," and so forth. See, we don't want that interjected into this because the law is so clear about it. You can't even allude to it. You can't even discuss it. You can't speculate on that at all, and the law is stone clear on that."

When we consider the context in which counsel discussed Garcia's right to remain silent, we hold counsel made a zealous attempt to eliminate any potential bias from the panel. Accordingly, we overrule Garcia's first issue.

Prior Testimony

In his second issue, Garcia argues the trial court erred in admitting the record testimony from three of the State's eyewitnesses who testified at Garcia's previous trial for attempted murder of Elemen Sr. At the previous trial, the jury heard testimony from Guadalupe Torres Sr., and his sons, Guadalupe Torres Jr., and Fidencio Torres, who witnessed Garcia shoot both Elemen Sr. and Elemen Jr. At the trial for murder of Elemen Jr., the focus of this appeal, the court held the witnesses were unavailable and admitted their prior recorded testimony into evidence.

The Texas Rules of Evidence permit the admission of testimony given by an unavailable declarant at another hearing of the same or different proceeding if the party against whom the testimony is offered had the opportunity and similar motive to develop the testimony. Tex. R. Evid. 804(b)(1). A declarant is "unavailable" if he is absent from the hearing, and if the proponent of the statement has been unable to procure the attendance or testimony by process or other reasonable means. Tex. R. Evid. 804(a)(5). To introduce previous testimony of an unavailable witness, the proponent of the testimony must demonstrate that a good faith effort was made prior to trial to locate and present the witness. Reyes v. State, 845 S.W.2d 328, 331 (Tex. App.-El Paso 1992, no pet.). The mere issuing of unserved subpoenas is insufficient to establish a good faith effort to locate a witness. Otero-Miranda v. State, 746 S.W.2d 352, 355 (Tex. App.-Amarillo 1988, pet. ref'd). At the same time, the rules do not require the proponent to perform every improbable effort that, in hindsight, might have produced the witness. Urbano v. State, 808 S.W.2d 519, 522 (Tex. App.-Houston [14th Dist.] 1991, no pet.). We review the trial court's determination of unavailability under an abuse of discretion standard. Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986).

Garcia concedes in his brief the testimony given by the Torres witnesses at his prior trial for aggravated assault of Elemen Sr. arose from the same criminal episode as the instant trial for murder of Elemen Jr. Garcia makes no claim that he was unable to thoroughly cross-examine these witnesses at the former trial. Thus, the focus of our inquiry is whether the State as proponent, demonstrated a good faith attempt to procure the witnesses at trial.

The State introduced testimony from three individuals to demonstrate good faith. First, the court heard testimony from Uvalde County Deputy Sheriff Hector Olivarez. Olivarez testified that the last time he saw the three Torres witnesses was the week after the trial for attempted murder of Elemen Sr. He stated that although he attempted to serve them three or four times, he met with no success. On cross-examination, he further stated that he tried to issue the subpoenas two weeks prior to trial because the case was given a Bexar County setting only three weeks prior to these service attempts.

Second, the court considered testimony from Miguel Hernandez, an investigator for the Uvalde Police Department. Hernandez stated that the day prior to trial, he instructed a fellow investigator to travel to Eagle Pass to pick up the three Torres witnesses from Mexico. He testified that at his instruction, he arranged for an officer to meet the witnesses at six o'clock at the INS office at the international bridge in Eagle Pass. The officer waited until ten o'clock but the witnesses never arrived. Additionally, on the day prior to his testimony, Hernandez authorized another officer to meet the witnesses at the same building at eight-thirty in the evening. Again, the witnesses failed to arrive. Hernandez testified on cross-examination that he was placed on notice about one month prior to trial of his responsibility in procuring the witnesses at trial. He stated that at that time he began looking for them. Hernandez stated that he believed the witnesses reside somewhere in Mexico.

Finally, the court heard testimony from Nita Salazar, the Secretary and Administrative Assistant to the Uvalde District Attorney's office. Salazar confirmed that arrangements were made for lodging for the witnesses in the United States. She testified that she spoke with Minerva Torres, the mother and wife of the witnesses, who understood and relayed the arrangements to the witnesses. Salazar further testified that she spoke with Minerva the day prior to trial and Minerva indicated that Guadalupe Torres Sr. would not appear, and that she would need a permit to bring her son Guadalupe Torres Jr. across the border. Salazar stressed that she gave Minerva the location three or four times during this conversation. On the day of trial, Salazar attempted to call Minerva three times, but Minerva failed to return her calls.

In light of the multiple failed attempts made by the State to procure the presence of the Torres witnesses, we cannot hold that the trial court abused its discretion in concluding that they were unavailable. See Urbano, 808 S.W.2d at 522 (noting Rule 804(a)(5) does not require a proponent to "butt his head against a wall just to see how much it hurts"). We overrule Garcia's second issue.

Cumulation Order

In his final issue, Garcia complains the trial court erred in entering a cumulative sentence. He specifically complains the order is void because it fails to identify the date, the length of sentence, and nature of the offense related to his prior conviction for aggravated assault of Elemen Sr.

A cumulation order must be sufficiently specific to allow the Texas Department of Criminal Justice -Institutional Division (TCJC-ID), to identify the prior conviction with which the new conviction is cumulated. Ex Parte San Migel, 973 S.W.2d 310, 311(Tex. Crim. App. 1998). A proper cumulation order should contain: (1) the cause number of the prior conviction; (2) the correct name of the court in which the prior conviction occurred; (3) the date of the prior conviction; and (4) the term of years assessed in the prior case. Id. at 311. The absence of one or more of these elements, however, is not fatal as these requirements are not absolutes. Id; Linton v. State, 15 S.W.3d 615, 621 (Tex. App.-Houston [14th Dist.] 2000, pet. filed).

The trial court's cumulation order and sentence identifies the cause number of Garcia's prior conviction, the name of the county, and the court that presided over the prior trial. Although the order fails to give the date and the term of years assessed, it nevertheless sufficiently identifies the prior conviction and county, giving both the TCJC-ID and Garcia ample notice of the cumulated prior conviction. Garcia makes no showing of how he was harmed by the lack of specificity, nor is there a claim that the order failed to afford Garcia with notice of the prior conviction with which the instant conviction was cumulated. See Ex Parte San Migel, 973 S.W.2d at 311 (requiring a showing of harm due to lack of specificity in cumulation order). Moreover, the reporter's record reveals defense counsel informed the trial court of the date of the prior conviction, the term of the sentence imposed, and the nature of Garcia's prior conviction for aggravated assault of Elemen Sr. Because evidence of the necessary elements of a cumulation order exists in the reporter's record and is before this court, we may reform the judgment and sentence on appeal to reflect the missing elements. See Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). Accordingly, we affirm the judgment as reformed to reflect that the punishment of twenty-years confinement imposed on Garcia for his instant conviction of murder in Cause No. 99-CR-3030, from the 226th Judicial District Court in Bexar County, shall begin when Garcia has completed the sentence of ten-years confinement imposed in the judgment and sentence of September 11, 1998 in Cause No. 97-09-9578-CR, from the 105th Judicial District Court of Nueces County. We overrule Garcia's third issue and affirm the judgment as reformed.

Catherine Stone, Justice

DO NOT PUBLISH

1. This cause originally styled No. 97-09-9577-CR in the 38th Judicial District Court of Uvalde County, Texas was transferred to Bexar County and re-styled 99-CR-3030.