Juan Carlos Rangel v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-01-00797-CR
Juan Carlos RANGEL,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th District Court of Bexar County, Texas
Trial Court No. 1999-CR-3349
Honorable Bill M. White, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen A. Angelini, Justice

Delivered and Filed: January 22, 2003

AFFIRMED

A jury found appellant, Juan Rangel ("Rangel"), guilty of aggravated robbery with a deadly weapon. Rangel was sentenced to fifty years imprisonment. In four points of error, Rangel contends that he is entitled to a new trial because of error in (1) convicting him on factually insufficient evidence; (2) admitting extraneous offense testimony and a photocopied lineup; (3) denying his right to sever related offenses; and (4)violating his right to counsel under the Sixth and Fourteenth amendments of the United States Constitution and Article I, 10 of the Texas Constitution. (1) We affirm the trial court's judgment.

BACKGROUND

Carmen Medina testified that at 4:00 a.m. on September 26, 1998, she sat in her car parked in a lot waiting for her boyfriend to get off from work. A vehicle pulled up, partly blocked her truck, and two men got out the car. As they headed for her truck, they yelled, "it's all right. It's okay." When Rangel approached the passenger side of Medina's car, he pointed a gun at her and shouted, "give me everything you've got bitch." Medina reached behind her seat to get her purse, but she told the assailants that she did not have anything. The person standing behind Rangel yelled "Blow her away, man, just shoot her. Blow her away." Medina heard the glass of the passenger side window shatter, and she screamed. Medina realized that she had been shot when she felt something wet and saw blood on her leg. Medina drove a short distance to her mother's house where her brother called the police and EMS.

Police arrived and took Medina's statement. Medina described the car that the suspects drove as a dark, possibly blue colored, vehicle which was possibly a Honda Civic or Toyota. She described the shooter as a man wearing a white shirt with a shaved head.

At trial, Medina testified that she went to the police station a few weeks after the shooting where she was shown two photo arrays, each containing six photographs of various individuals. She stated that she identified Rangel's photograph in the bottom portion of the second photo array. Medina stated that she told the officer conducting the photo lineup that Rangel and the person next to Rangel's photo looked very much alike. She signed her name under Rangel's photograph and placed her initials under the photograph that she identified as looking similar to Rangel. Medina insisted that she positively identified Rangel as the person who shot her. Following Medina's testimony, the State admitted a copy of the photographic lineup into evidence at trial.

Officer Richard Floores testified that he responded to a shooting and took Medina's statement as she sat wounded in her vehicle. Medina gave the location of the shooting, a description of the perpetrators and their vehicle. Medina also described the gun as a 9-millimeter. After receiving this information, Floores went to the scene of the shooting to continue the investigation.

At the scene, Officer Floores and Officer Morris found shattered glass from a vehicle window and a 9-millimeter shell casing. Floores testified that he collected the casing and placed it in an envelope. During the investigation, the officers were alerted by the sounds from a car speeding off and screeching tires. Officer Floores pursued the vehicle and subsequently stopped the car. Floores testified that the vehicle matched the description of a car stolen in a robbery that occurred earlier that night and that it also matched the description of the car used in Medina's shooting.

Factual Sufficiency

Rangel contends in his first issue that the evidence presented at trial was factually insufficient to support a conviction of aggravated robbery, deadly weapon. Rangel argues that the State's witnesses gave inconsistent, contradictory testimonial evidence insufficient to prove that he robbed Medina.

In reviewing the factual sufficiency of the evidence to support a criminal conviction, we must view all the evidence without the prism of "in the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In conducting our review, we must give deference to jury findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We are not free to reweigh the evidence and set aside the verdict merely because we feel that a different result is more reasonable. Id. Our evaluation must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App.1997). We may find evidence factually insufficient only where necessary to prevent manifest injustice. Cain v. State, 958 S.W.2d at 407.

Rangel contends that Medina's in-court identification contradicts her initial identification during the photo lineup. Accordingly, Rangel asserts that the evidence was factually insufficient to show that he committed the offense.

At trial, Medina identified Rangel as the assailant that got out of a vehicle, walked up to the passenger side of her car, asked her to give him everything and then shot her as she sat in her car. Medina stated that she got a good look at Rangel because the parking lot was well lit and that she constantly kept her eyes on Rangel during the robbery as he stood approximately four to five feet away from her. Medina stated that she identified the car that Rangel drove as a dark four-door vehicle, a small one, that looked like a Honda Civic or Toyota. Medina further testified that she identified Rangel during a photographic lineup. She stated that she did not recognize anyone in the first array that the detective showed her, but that she pointed to Rangel in the second array and told the detective, "That's him." After Medina identified Rangel, however, she noticed that the photo next to Rangel's looked very similar. She told the detective that they had similar eyes and eyebrows, but she again pointed at Rangel's photo and told the detective, "No, that's him."

Although the State insists that Medina unequivocally identified Rangel in the photo lineup, Rangel presented testimony from the detective that conducted the photo lineup to contradict Medina's testimony. Detective Mat Herden testified that Medina did not positively identify Rangel as her assailant since she stated that Rangel and the person next to Rangel "looked very much alike." On cross-examination, Detective Herden admitted that Medina signed Rangel's picture in accordance with procedure when a witness identifies a suspect. He further stated that she initialed the similar photograph to indicate that she identified someone else as another possible suspect.

We must give due deference to the jury about the weight and credibility given to a witness's testimony. Santellan, at 155. The jury was, therefore entitled to believe Medina's testimony that she had been robbed by Rangel. Appellant's first issue is overruled.

Extraneous Offenses Testimony

1. Prior Robbery Offenses

Rangel's second issue concerns the testimony of Alex Aguillon and Juan Garcia. Rangel contends that the trial court erred in admitting testimony about his two prior robbery convictions as extraneous offense testimony. Specifically, Rangel complains of evidence introduced through Aguillon and Garcia about Rangel's involvement in two robberies that also occurred the night of Medina's robbery. Rangel contends that the trial court erred when it permitted Aguillon and Garcia to testify that Rangel was one of the persons that robbed them and stole Aguillon's car that was later used in robbing Medina. Rangel argues that the trial court erred by admitting this evidence since it denied Rangel the opportunity to pursue a valid defense strategy.

At trial, Rangel argued that the Aguillon and Garcia testimony should be excluded because it would be unduly prejudicial under Rule 403 of the Texas Rules of Evidence. The trial court denied Rangel's motion and overruled his objection. The State claims Rangel did not properly preserve this point for review because Rangel did not obtain an adverse ruling on an objection at trial that comports with the complaint raised on appeal. We agree.

To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. Tex. R. App. P. 52(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim App. 1995). In addition, the issue must correspond to the objection made at trial. Id. In other words, "An objection stating one legal theory may not be used to support a different legal theory on appeal." Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App.1990). Even constitutional errors may be waived by failure to object at trial. Id.

The record reflects that Rangel filed a motion in limine and objected to the testimony regarding two extraneous robberies pursuant to Rule 403. However, after the trial court denied his motion and overruled his objection, Rangel raised no further objections to the extraneous offense testimony alleging that he was denied the right to present a valid defense and to a fair trial under the Sixth and Fourteenth Amendments of the United States Constitution. Because Rangel's complaint on appeal does not correspond to his objection raised at trial, the issue is not preserved for our review. Tex. R. App. P. 52(a).

2. Admission of Copy of Photo Array

Rangel also argues at the end of issue number two that the trial court violated his right to a fair trial when it admitted a photocopy of the original lineup used when the victim identified him after the robbery.

The State argues that Rangel did not properly preserve error because the record does not show that the trial court ever denied Rangel the opportunity to obtain the photo array. We disagree. The record indicates that at trial, Rangel objected to the State's offer of the array into evidence as Exhibit 1. Rangel objected stating, "I think that it is important for the jury to have the exact photographs that she looked at, not a photocopy." Although Rangel objected to the photocopy and preserved error on appeal, the admission of the photocopied array by the trial court was harmless error.

The Court of Criminal Appeals recently held that "presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error." Montilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). The Court stated that the court should "examine the record as a whole when conducting a harm analysis." Id. at 358. Finally, the court held that the evidence of the defendant's guilt is a factor to be considered in any harm analysis. Id.

Even if we assume that the photocopied lineup was improperly admitted, we find no harm under Rule 44.2(b) because, "given all of the evidence before the jury, it was unlikely that the admission of the evidence had a substantial effect on the jury's verdict." Id. at 357. "Since the evidence of the defendant's guilt is a factor to be considered in any harm analysis," we conclude that the admission of the photocopied array, as opposed to the original, was harmless error. Id. at 358. We overrule Appellant's second issue.

Misjoinder

In Appellant's third issue, Rangel asserts that the trial court improperly denied him an absolute right to sever three related offenses by admitting extraneous offense testimony. Specifically, Rangel contends that by allowing the extraneous offense testimony, the trial court joined the three cases of Carmen Medina, Alex Aguillon, and Juan Garcia for purposes of evidence, testimony, and punishment.

The State contends that Rangel's third issue was waived because at trial, Rangel failed to preserve his complaint of misjoinder. Tex. R. App. P. 33.1.; Milligan v. State, 764 S.W.2d 802, 803 (Tex. Crim App. 1989). We agree.

Even if Rangel had preserved error, he incorrectly relies upon section 3.04(a) of the Penal Code. See Tex. Penal Code Ann. 3.04(a) (Vernon 1974). This section provides:

Whenever two or more offenses have been consolidated under Section 3.02 of this code, the defendant shall have a right to a severance of the offenses.

Tex. Penal Code Ann. 3.04(a) (Vernon 1994) (emphasis added). Section 3.02 of the Penal Code provides, in pertinent part:

(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.

(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.

Tex. Penal Code Ann. 3.02 (Vernon 1994); Wedlow v. State, 807 S.W.2d 847, 850 (Tex. App-- Dallas1991, no pet.). This statute authorizes several offenses to be joined in a single trial if the State files a written notice at least thirty days prior to trial and if the offenses arose out of the same criminal episode. See Smith v. State, 575 S.W.2d 41 (Tex. Crim. App.1979) (emphasis added).

When reviewing the indictment, we find that it contains one count of aggravated robbery alleging the commitment of an offense against Carmen Medina. The indictment makes no mention of additional offenses against Aguillon and Garcia. Furthermore, the State did not file a written motion to join the three offenses under section 3.02. Accordingly, because the indictments here were not "consolidated or joined for trial under Section 3.02 of this code," appellant's right to a severance under section 3.04 was not triggered. Wedlow, 807 S.W.2d at 851. Appellant's third issue is overruled.

Ineffective Assistance Of Counsel

In his fourth and fifth issues, Rangel claims that his trial counsel rendered ineffective assistance of counsel. Rangel alleges five instances of ineffective assistance of counsel to show that his counsel's ineffective assistance violated his Sixth and Fourteenth Amendment rights under the United States Constitution and his Texas constitutional rights pursuant to Article I, Section 10 of the Texas Constitution's right to a fair trial. Specifically, Rangel contends that his trial counsel: (1) failed to obtain hearings and rulings on his pretrial motions; and (2) failed to request a competency examination of Rangel.

It is well established that in order to prove that his attorney rendered ineffective assistance of counsel, Rangel must overcome the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1964). We will consider Rangel's fourth and fifth issues together since the Strickland test has been adopted in Texas and recently applied in Bone v. State, 77 S.W.3d 828 (Tex. Crim App. 2002). See Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W. 53, 56-57 (Tex. Crim. App.1986). First, Rangel must show that his trial counsel made such serious errors as to render his performance deficient. Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833; Mitchell, 68 S.W.3d at 642. To overcome this prong, Rangel must prove that his counsel's performance fell below an objective standard of reasonableness applied to the particular facts of his case, viewed at the time of the counsel's conduct. Strickland, 466 U.S. at 688-690. Second, Rangel must show that his counsel's performance prejudiced him to the extent that, but for the deficient performance, the trial outcome would have been different. Strickland, 466 U.S. at 687; Mitchell, 68 S.W.3d at 642 ; Mares v. State, 52 S.W.3d 886, 890 (Tex. App.--San Antonio 2001, pet. ref'd). An appellate court must review the totality of representation in light of the facts of a particular case to determine an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 812. However, Rangel has the burden to prove ineffective assistance of counsel by a preponderance of the evidence that his counsel's performance fell outside the wide range of reasonable professional assistance. Id.

Generally, "a record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical and strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833. When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. Therefore, "any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.1996).

1. Failure to Obtain Hearings and Rulings on Pretrial Motions

Rangel contends that trial counsel was ineffective in failing to obtain timely hearings and rulings on the pretrial motions he filed. The State responds that the record reflects that these issues were covered in a pre-trial hearing conducted prior to voir dire. Even if trial counsel failed to obtain hearings and rulings on the various pretrial motions, "the failure to file pretrial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy." Mares, 52 S.W.3d at 891. Here, the court noted at the hearing that it previously heard and ruled upon Rangel's motion in limine. Trial counsel then re-urged his objection at the hearing which the court denied. During trial, counsel again objected when the State moved to introduce the extraneous offense testimony. The court granted a hearing outside the presence of the jury and subsequently overruled counsel's objection and admitted the testimony. Also, during the pre-trial hearing, counsel informed the court that his complaint regarding discovery was resolved since the State provided him with full discovery of the State's file. Trial counsel also informed the court that he had received notice of the extraneous offense evidence. Lastly, the trial court stated during the pre-trial hearing that the motion for "the production of witness statements and so forth, that will be granted and complied with and given to you at the proper time...." Although the record does not reflect that counsel obtained the witness statements at trial, counsel may have decided that the witness statements and writings used to refresh the recollection of witnesses would not have assisted with the defense. See Mares, 52 S.W.3d at 891. Accordingly, the record does not affirmatively demonstrate that the failure to obtain the hearings, rulings, or production of evidence was due to counsel's ineffectiveness. Thompson, 9 S.W.3d at 813.

2. Failure to Obtain A Competency Examination

Rangel also contends that counsel was deficient in not requesting a competency examination. Rangel's primary contention is that counsel was charged with notice of Rangel's incompetency in a previous trial not contained in the record before this court.

The record contains no basis for a challenge to Rangel's competency to stand trial. Rangel attempts to point outside the record to prove incompetency. The issue before us is whether counsel was or should have been aware of an issue of insanity or incompetency to stand trial. Rangel does not point to any other evidence of incompetency. Therefore, we find nothing in the record to support Rangel's claim of incompetency. Even if Rangel did point to evidence of incompetency in the record, "the fact that another attorney might have pursued a different course of action or tried the case differently does not support a finding of ineffective assistance of counsel." Mares, 52 S.W.3d at 891; Owens v. State, 916 S.W.2d 713, 717 (Tex. App. --Waco 1996, no pet.).

After reviewing the record as a whole, we hold that Rangel failed to overcome the presumption of reasonable professional assistance. Strickland, 466 U.S. at 689. We overrule Rangel's fourth and fifth issues.

CONCLUSION

We affirm the judgment of the trial court.

Alma L. L pez, Chief Justice

Do Not Publish

1. In issue number five, Rangel contends that the trial court "stacked his sentence on top of his previous convictions in a manner not according to law." Rangel lists this additional issue in his brief under the summary of the argument. However, Rangel fails to support this contention with any argument and authority as required under the Texas Rules of Appellate Procedure 38.1(h) and presents nothing for review. Ford v. State, 870 S.W.2d 155, 157 (Tex. App.--San Antonio 1993, pet ref'd).