Raymond Salas, Jr. v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-98-00895-CR
Raymond SALAS, Jr.,

Appellant

v.

STATE of Texas,

Appellee

From the187th Judicial District Court, Bexar County, Texas

Trial Court No. 96-CR-4315

Honorable Stanton B. Pemberton, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: May 31, 2001

AFFIRMED

Raymond Salas, Jr. was convicted of serious bodily injury to a child and sentenced to forty years imprisonment. On appeal, Salas claims he received ineffective assistance of counsel and the trial court erred in denying his motion to suppress and motions for mistrial. We affirm the conviction.

Background

In the early morning hours of June 1, 1995, Salas's nine-month old daughter, Amber, was admitted to the hospital. A CAT scan revealed a severe brain injury. Salas and his wife, Katherine, told doctors Amber had fallen and hit her head at church the previous evening. They told the doctors Amber seemed fine the rest of the night, and after Katherine put Amber down for bed, Katherine left with her brother to pick up a pizza, leaving Amber home alone with Salas. Upon their arrival home, Katherine found Salas standing outside the house holding an unconscious Amber. When they could not wake her by running water over her head, they took her to the hospital. The treating doctors, noting Amber's severe brain trauma was inconsistent with a child falling down, suspected child abuse. A second CAT scan done a week later revealed Amber was approaching brain death. On June 22, 1995, Amber was removed from life support and died.

The State indicted Salas for serious bodily injury to a child. The jury returned a verdict of guilt, and finding Salas had used a deadly weapon, the jury sentenced him to forty years imprisonment. Salas filed a motion for new trial, which was denied.

Ineffective Assistance of Counsel

In points of error one and two, Salas argues he is entitled to a new trial because he received ineffective assistance of counsel. Salas's counsel presented the theory that Salas injured Amber accidentally. Specifically, Salas complains his attorney failed to: (1) seek and controvert expert testimony; (2) interview trial witnesses and investigate the case; (3) introduce exculpatory evidence; (4) request a limiting instruction on Salas's extraneous offenses; (5) introduce mitigating evidence; and (6) have a firm command of the facts and law.

Standard of Review

To review an ineffective assistance of counsel claim, we use the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). The Strickland test requires a defendant demonstrate by a preponderance of the evidence: (1) defense counsel's performance was deficient; and (2) the deficient performance prejudiced the defendant's case to such a degree the defendant was deprived of a fair trial. Phillips v. State, 992 S.W.2d 491, 494 (Tex. Crim. App. 1999); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). To prove prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Phillips, 992 S.W.2d at 494.

The totality of the representation is evaluated from counsel's perspective at trial, not isolated acts or omissions in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). On review, great deference is given to counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Further, allegations of ineffective assistance of counsel must be firmly founded in the record, and the defendant must overcome the strong presumption counsel rendered adequate assistance and counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Expert Testimony

Salas argues his counsel was ineffective for failing to: (1) seek the appointment of a defense expert under Ake v. Oklahoma, 470 U.S. 68 (1985); (2) interview or voir dire State experts before trial; and (3) properly cross-examine State experts. In Ake, the Supreme Court held that due process entitles an indigent defendant to the appointment of an expert to assist in his defense. (1) Generally, a threshold showing on an Ake motion requires evidence supporting a defensive theory and demonstrating why expert assistance would effectuate that theory, or a showing there is reason to question the State's expert and proof. Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997); Taylor v. State, 939 S.W.2d 148, 151-52 & n.3 (Tex. Crim. App. 1996). In short, the request for an expert must be based on more "than undeveloped assertions that the requested assistance would be beneficial." Caldwell v. Miss., 472 U.S. 320, 323 (1985).

Because the cause of death was an issue in the case, Salas may have been entitled to an expert if his counsel had filed an Ake motion. However, Salas presented no evidence of what a defense expert would have concluded or how that conclusion, if available, would have changed the outcome of the case. Phillips, 992 S.W.2d at 494; Holland, 761 S.W.2d at 314. Further, other than conclusory statements, Salas presents no evidence demonstrating what prejudice resulted from his counsel's failure to voir dire the State experts or how cross-examination on the issues raised would have led to a different result. See Brown v. State, 974 S.W.2d 289, 292 (Tex. App.- San Antonio 1998, pet. ref'd) (holding counsel's failure to voir dire State expert was not ineffective assistance).

Failure to Interview & Investigate

Salas's counsel did not interview State witnesses before trial or investigate incidents leading to damaging testimony. Specifically, Salas's counsel did not investigate an incident where Salas allegedly assaulted Elizabeth Morales at Amber's funeral. Although Salas claims an investigation "would have cast considerable doubt on Ms. Morales' testimony, so that the jury would have been unable to believe her beyond a reasonable doubt," Salas does not reveal what evidence would have resulted from witness interviews or investigations. See Phillips, 992 S.W.2d at 494. Further, Salas elicited testimony from Porfirio Hernandez, who stated Morales, rather than Salas, initiated the funeral incident.

Salas also complains his counsel failed to obtain the arrest and conviction records of State witnesses, and consequently, did not impeach the witnesses with evidence admissible under Tex. R. Evid. 609. Other than making conclusory statements about potential impeachment opportunities lost, Salas points to no evidence demonstrating what arrests or convictions could have been used to impeach State witnesses. See Phillips, 992 S.W.2d at 494. Salas fails to demonstrate what prejudice occurred by his counsel's failure to prepare defense witnesses until the day of trial. See id.

Exculpatory Evidence

Salas complains his counsel failed to introduce evidence of how other individuals could have injured Amber. In his motion for new trial, Salas presented affidavits of individuals, who, if called to testify, would have discussed Katherine's abuse and mistreatment of Amber. When the record is silent as to counsel's trial strategy, we cannot speculate about why counsel acted as he did. Jackson, 877 S.W.2d at 771; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). If defense counsel's strategy was to argue Salas injured Amber accidentally rather than intentionally, evidence regarding Katherine's alleged abuse of Amber has little probative value. Salas fails to overcome the presumption that counsel's actions represented sound trial strategy. Jackson, 877 S.W.2d at 771.

Extraneous Offense Instruction

After the State introduced Salas's unadjudicated extraneous offenses during the punishment phase, Salas's counsel failed to request a limiting instruction informing the jury it should not consider them as evidence unless it finds they were committed beyond a reasonable doubt. Ernster v. State, 308 S.W.2d 33, 34 (Tex. Crim. App. 1957). However, any prejudice resulting from the lack of a limiting instruction was remedied because the charge properly set forth the State's burden of proof. Coble v. State, 871 S.W.2d 192, 208 (Tex. Crim. App. 1993); Marquez v. State, 725 S.W.2d 217, 226 (Tex. Crim. App. 1987).

Mitigating Evidence

During the punishment phase, Salas's counsel called one witness, Porfirio Hernandez, a part-time pastor at Salas's church. Salas complains his counsel was ineffective for failing to: (1) speak to witnesses before trial; (2) rebut evidence of his violent character; and (3) call other available witnesses. Hernandez testified he has known Salas since Salas was eight years old and that Salas is currently a youth minister, a Sunday School teacher, and a happily married man. Salas's father testified on cross-examination that he and Salas planned to start a business together and ministered together in the church. Again, Salas fails to demonstrate how the lack of preparation prejudiced his case. See Phillips, 992 S.W.2d at 494.

The State elicited testimony from Salas's father and a paramedic regarding an argument between father and son, where Salas allegedly pushed his mother to the ground, rendering her unconscious. However, Salas's counsel rebutted this evidence by cross-examining Salas's father, who stated Salas's mother tripped and that Salas never hit his mother. Salas's mother also testified she fell because she tripped.

Salas complains his counsel failed to call Salas's current wife, who could have testified Salas was a good husband, responsible father, and Sunday School teacher. Also, Salas complains his counsel did not call Antonio Palacios, who could have testified about the three years he has known Salas and how he has left his children in Salas's care. According to the record, much of what Salas's current wife and Palacios would have testified to is cumulative of the testimony elicited from Hernandez and Salas's parents. Consistent with Strickland, we must presume trial counsel made the decision not to introduce this evidence in the exercise of reasonable professional judgment. See Strickland, 466 U.S. at 690; Harner v. State, 997 S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.). Salas has not satisfied his burden to rebut that presumption. We overrule Salas's first and second points of error.

Motion to Suppress

In his third point of error, Salas complains the trial court erred in denying his motion to suppress his police statement. Salas argues that because the police did not give him Miranda warnings before taking the statement, his constitutional right against compelled self-incrimination was violated. The appropriate standard of review for a suppression ruling is bifurcated, giving almost total deference to the trial court's findings of fact, but conducting a de novo review of the court's application of law to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) and Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). We afford such deference to the findings because the trial court is the exclusive judge of credibility, and the judge may disbelieve any part of a witness's testimony even if the testimony is uncontroverted. Id. at 855; Castro v. State, 914 S.W.2d 159, 162 (Tex. App. - San Antonio 1995, pet. ref'd).

The voluntariness of a statement is at issue only if Miranda warnings were not given and the statement resulted from custodial interrogation. Fiedler v. State, 991 S.W.2d 70, 80 (Tex. App.-San Antonio 1998, no pet.) (citing Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.-Austin 1997, no pet.)). "Custody" occurs when: (1) the suspect is physically deprived of freedom of action in a significant way; (2) law enforcement officers tell the suspect he cannot leave; (3) law enforcement officers create a situation leading a reasonable person to believe his freedom of movement has been significantly restricted; or (4) there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Id. at 81-82 (citing Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)).

In this case, an officer approached Salas at the hospital, telling Salas he was investigating the case. The officer asked Salas to come to the station to give a statement at his earliest convenience. The next day, Salas came voluntarily to the police station with his father-in-law. Salas gave the statement and then left the station. He was never told he was required to give a statement or not allowed to leave. Affording proper discretion to the trial court, we do not find Salas's statement was the product of custodial interrogation, and therefore, the police were not required to give Miranda warnings before taking his statement. We overrule Salas's third point of error.

Motions for Mistrial

In points of error four through seven, Salas complains the trial court erroneously denied his motions for mistrial. During the trial, Salas moved for a mistrial after: (1) the admission of hearsay; (2) the State's comments on Salas's refusal to testify; and (3) the State's closing argument during the punishment phase.

Standard of Review

We review rulings on motions for mistrial under an abuse of discretion standard. Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); State v. Gonzalez, 855 S.W.2d 692, 693 (Tex. Crim. App. 1993). In cases where error occurs in front of the jury, it is presumed that judicial admonishments are efficacious, and consequently, a mistrial is an extreme remedy permissible only when a judicial admonishment cannot cure the prejudice. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). If we determine a mistrial should have been granted, we reverse the trial court's judgment unless we determine the error did not contribute to the proceeding's result. See Tex. R. App. P. 44.2(a).

Hearsay Evidence

In point of error four, Salas argues the trial court abused its discretion in denying his motion for mistrial after hearsay testimony was admitted. At trial, the State admitted Salas's Grand Jury testimony. The testimony included hearsay evidence of Katherine and Salas's plan to tell police they were together when Amber passed out. The trial court sustained Salas's hearsay objection. Although the trial court denied Salas's motion for mistrial, it instructed the jury to disregard the hearsay evidence, presumptively curing any error. Waldo, 746 S.W.2d at 754. Later, the State elicited the same evidence from Katherine, without objection, rendering the previous hearsay evidence harmless. Kirvin v. State, 575 S.W.2d 301, 303 (Tex. Crim. App. 1978). We overrule Salas's fourth point of error.

State's Comment on Salas's Refusal to Testify

In his fifth point of error, Salas complains the trial court abused its discretion in denying his motion for mistrial after the State commented on Salas's refusal to testify. During the guilt-innocence phase, the State argued to the jury:

The defendant was not forthcoming with regard to what happened in his Grand Jury testimony. . . . You didn't get the story about what happened at this apartment from the defendant's Grand Jury testimony. . . . He didn't tell you what happened to cause these injuries in that Grand Jury testimony. You didn't hear it.

The State was commenting on Salas's lack of candor before the Grand Jury, not on his refusal to testify at his trial. Cf. Varughese v. State, 892 S.W.2d 186, 190-02 (Tex. App.- Fort Worth 1994, pet. ref'd). The trial court cleared up any potential misunderstanding by instructing the jury on Salas's constitutional right to not testify and that his refusal is no evidence of guilt. This instruction presumptively cured any error. Moore v. State, 999 S.W.2d 385, 405-06 (Tex. Crim. App.1999); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Hammond v. State, 799 S.W.2d 741, 747-48 (Tex. Crim. App. 1990). We overrule Salas's fifth point of error.

State's Comments During the Punishment Phase

In his sixth and seventh points of error, Salas complains the trial court abused its discretion in denying his motions for mistrial after the State interjected personal opinion into closing argument. Specifically, Salas complains of the following:

It's going to be hard for me to hide my anger. So if it comes out, I apologize. But I have to talk to you bluntly.

. . .

I want you to consider probation, if, after thinking about the full range, you determine that the appropriate sentence is 10 years or less, but I'm allowed to have an opinion; probation is not appropriate.

Again, any error in the argument was cured by a proper instruction to disregard. Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim. App. 2000); Hammond, 799 S.W.2d at 748-49; Hughes v. State, 563 S.W.2d 581, 587 (Tex. Crim. App. 1978). We overrule Salas's sixth and seventh points of error.

Conclusion

Having overruled Salas's points of error, we affirm the conviction.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995). An indigent defendant is entitled to an expert to help evaluate the strengths of his defense, offer an opinion at trial, and identify any weaknesses in the State's case by testifying or preparing defense counsel to cross-examine opposing experts. De Freece v. State, 848 S.W.2d 150, 159 (Tex. Crim. App. 1993). In determining whether an expert is necessary to a fair proceeding, courts consider the probable value of the expert assistance sought and the risk of error if expert assistance is not provided. Matchett v. State, 941 S.W.2d 922, 939 (Tex. Crim. App. 1996).