Manuel Romero v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-02-00154-CR
Manuel ROMERO,
Appellant
v.
STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6573A
Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 25, 2003

AFFIRMED

Manuel Romero appeals the judgment convicting him of possession of heroin, four to two hundred grams, and sentencing him to eighteen years in prison. We affirm.

1. Romero argues he received ineffective assistance of counsel at trial. To prevail on his ineffective assistance claims, Romero must establish that his attorney's performance fell below an objective standard of reasonableness and prejudiced his defense to such a degree he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). To rebut the presumption of competence, the record must affirmatively demonstrate the alleged ineffectiveness; in making this determination, we do not look to individual acts but to the totality of the representation. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997).

a. Romero claims the police seizure of the heroin was illegal because the officers did not have a warrant, "reasonable suspicion to detain" him, or "probable cause of a crime being committed." He thus argues his trial counsel was ineffective in failing to file and pursue a motion to suppress the heroin seized outside Romero's residence and, relatedly, in failing to voir dire the jury on their "feelings about illegally seized evidence." To prevail on this claim, Romero was required to prove that the motion to suppress would have been granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).

At trial, Officer Hunter testified that he had made ten previous drug related arrests outside Romero's residence, which was a known drug location; often drugs are sold while standing next to a vehicle. Therefore, when Officer Hunter observed Romero standing in the street in front of his residence talking to someone in an illegally parked car, Hunter approached to investigate whether a crime was being committed. At that point Romero disregarded the order to stop and fled on foot towards his house. While running towards the house, Romero threw down a velvet bag. The contents of the bag tested positive for heroin.

Under these circumstances, the trial court would have denied a motion to suppress. Since Romero did not submit to police authority but instead fled from police, disposing of a velvet bag containing heroin while he did so, there was no seizure under the Fourth Amendment to the United States Constitution or article I, section 9 of the Texas Constitution. See California v. Hodari D., 499 U.S. 621, 626 (1991); Johnson v. State, 912 S.W.2d 227, 235-36 (Tex. Crim. App. 1995) (both holding that an investigative detention occurs when law enforcement officers confront a citizen, who then yields to the display of authority and is temporarily detained for the purposes of an investigation; thus, the seizure of a citizen does not occur until a reasonable person would believe he or she was not free to leave and yields, or is physically forced to yield, to the officer's show of authority). Absent a motion to suppress, there was no reason to voir dire the jury on the issue of their feelings about illegally obtained evidence. We therefore overrule Romero's first point of error.

b. Romero next argues his trial counsel was ineffective because he "informed the jury panel that [Romero] had made no application for probation when the range of punishment for a second-degree felony included probation." Relatedly, Romero argues the trial court erred in ordering the State and defense to inform the jury panel that Romero was not eligible for probation. However, the body of Romero's argument presents no argument or authority to support his contentions. We therefore overrule his second and third points of error. See Tex. R. App. P. 38.1 (h).

c. Romero also argues his trial counsel was ineffective because he prevented Romero from making an intelligent election between sentencing by the jury or by the Court by admonishing him that if the jury found him guilty he would not be eligible for probation when in fact he was eligible for probation from the trial court. However, Romero makes this assertion without any citation to the record or affidavits proving this admonishment was actually made. Because the record does not affirmatively demonstrate what, if any, misinformation was given to Romero by his trial counsel, we overrule his fourth point of error.

d. Romero also argues his trial counsel was ineffective in failing to offer the jury mitigating evidence at the sentencing phase. He states that "[c]learly from the trial counsel's closing argument, he had failed to investigate and interview potential witnesses or talk with [] Romero concerning possible mitigation witnesses." However, Romero did not file a motion for new trial and the record contains no evidence that there were witnesses available and willing to testify as mitigating witnesses. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (holding that, while failing to produce witnesses may be a basis for an ineffective assistance claim, appellant must show that the witnesses were available and willing to testify). And, contrary to Romero's assertions, trial counsel's urging the jury not to speculate about Romero's background does not necessarily demonstrate a failure to investigate. Because Romero has not demonstrated his trial counsel was ineffective, we overrule this point of error. See Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).

e. In his sixth point of error, Romero argues his trial counsel was ineffective because he improperly commented in closing argument on Romero's failure to testify during the punishment phase of trial. The complained of comments are trial counsel's urging the jury not to speculate about Romero's background: "But we don't know what Mr. Romero's background is. We don't know what his circumstances are. We don't know anything about him I would suggest that it certainly would make it easier for you if you knew a lot more, if we had a thorough background investigation of Mr. Romero. But we don't have that and, therefore, I would urge you not to speculate about it." Romero argues these comments made him sound "like some West Side San Antonio kid whose life and motives were so bad, he was unwilling to testify about it."

Argument constitutes a comment on a defendant's failure to testify only if the language used is manifestly intended or is of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify. See Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App. 1991), cert. denied, 503 U.S. 990 (1992), overruled on other grounds, Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). If the language used can be reasonably construed to refer to the defendant's failure to produce evidence other than his own testimony, it is not an improper remark. See Banks v. State, 643 S.W.2d 129, 135 (Tex. Crim. App. 1982), cert. denied, 464 U.S. 904 (1983); Smith v. State, 65 S.W.3d 332, 339 (Tex. App.-Waco 2001, no pet.).

Here, defense counsel's comments can be reasonably construed to refer to the failure to present witnesses other than Romero to testify as to his background. Because the comments are subject to an interpretation other than one commenting on Romero's failure to testify, we overrule Romero's sixth point of error.

2. In his seventh point of error, Romero argues he was harmed during the guilt/innocence phase by several instances of improper jury argument by the prosecutor. However, the only objection to the prosecutor's argument at trial was when the prosecutor alluded to Romero selling drugs. This objection was sustained and the jury was instructed to disregard the remark. Romero received all the relief he requested and he failed to pursue his objection to an adverse ruling. Thus nothing has been preserved for appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Tex. R. App. P. 33.1(a). We therefore overrule Romero's seventh point of error and affirm the trial court's judgment.

Sarah B. Duncan, Justice

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