Ricardo Vargas v. The State of Texas--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-02-00667-CR
Ricardo VARGAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. 01-CR-20
Honorable Ricardo H. Garcia, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

Ricardo Vargas ("Vargas") was convicted by a jury of unlawful restraint of a child. In his first two issues, Vargas alleges the trial court erred by denying his request for a jury shuffle and by admitting extraneous offense evidence. In his third issue, Vargas claims his trial counsel was ineffective in failing to file a request for the jury to assess punishment. Because the issues in this appeal are settled by existing precedent, we affirm the trial court's judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

1. In his first point of error, Vargas claims that the trial court erred when it denied his request for a jury shuffle. The request was denied because the State had already requested and been granted a shuffle. Vargas contends the shuffle requested by the State was performed before he had a chance to see the panel seated in order. "The jury shuffle is designed to ensure the compilation of a random list of jurors. Either party can ask for a shuffle, and only one shuffle is required, regardless of which party makes the request." Ford v. State, 73 S.W.3d 923, 926 (Tex. Crim. App. 2002). Even assuming Vargas wanted to view the panel seated in order before deciding to request a jury shuffle, nothing prevented the State from making its request for the shuffle, and "only one shuffle is required." Id. Furthermore, even if we were to hold the trial court erred in denying Vargas's request for a jury shuffle, the error would be harmless because nothing in the record indicates that the "process of assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the venire." Id.

2. In his second point of error, Vargas contends that the trial court erred in admitting extraneous offense evidence. Vargas's defensive theory was that the complainant was lying. Generally, evidence of extraneous acts is not admissible to prove that a defendant has a criminal character and has acted in conformity with that character. Tex. R. Evid. 404(b). Extraneous offense evidence may be admitted, however, to refute a defensive theory of the case raised by the accused. Robbins v. State, 88 S.W.3d 256, 258 (Tex. Crim. App. 2002).

Vargas called a witness, Cynthia Garza, who testified that the complainant told her that she had lied to police about what happened because she was afraid her mother would be angry. In response, the State called Cynthia Garza's daughter, Belen, who was a friend of the complainant. Belen denied that the complainant ever told Cynthia that she had lied to the police and also testified that Vargas attempted to persuade her to tell a story similar to Cynthia's. This testimony was admissible because it refuted Vargas's theory that the complainant was lying. In addition, the State also called Rogelio Cantu who testified that Vargas had asked him to have his wife contact the complainant to ask her not to show up for trial. This testimony raises an inference that Vargas did not want the complainant to testify because she was not lying about what happened, thereby refuting Vargas's defensive theory. Accordingly, the trial court did not err in admitting the testimony of Belen and Cantu.

3. In his third point of error, Vargas claims ineffective assistance of counsel by his first appointed trial counsel. The trial court retained the jury after Vargas was found guilty of unlawful restraint of a child, believing that the jury would assess punishment. A motion requesting that the jury assess punishment, however, had never been filed. Vargas told the trial court that he had asked the previous trial counsel to file the motion. The trial court dismissed the jury and assessed punishment at fifteen years confinement taking into consideration Vargas's nine prior felony convictions.

Vargas contends that the jury would have given him the minimum two year sentence because the jury only convicted him of a lesser included offense, showing that the jury had serious doubts about his culpability in the incident. To prevail on a claim of ineffective assistance of counsel, Vargas must show that the act or omission of his counsel fell below the wide range of reasonable professional assistance, and that but for the deficiency, there is a reasonable probability the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 690 (1984). Trial counsel is given wide discretion in using his professional judgment regarding decisions which may not produce a successful outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Although a single egregious error by trial counsel may be sufficient to constitute ineffective assistance, such an error must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 812, 814.

In this case, the record is silent as to whether or not the failure to file a motion requesting that the jury assess punishment was a strategic decision on the part of trial counsel or merely a negligent omission. Vargas's motion for new trial did not raise ineffective assistance as an issue, and his original trial counsel was not questioned regarding the omission. Because the record is silent with regard to the reason trial counsel did not file a jury request, the presumption that Vargas's original trial counsel acted within the wide range of professional competence has not been defeated. See Thompson, 9 S.W.3d at 814. "Recourse for [Vargas's] claim is still available" because Vargas "can resubmit his claim via an application for writ of habeas corpus," which "would provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at that juncture of trial." Id. at 814-15.

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH