Ruben E. Gonzales v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00120-CR
Ruben E. GONZALEZ,
Appellant
v.
STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-1346-C
Honorable Sharon MacRae, 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: July 23, 2003

AFFIRMED

Ruben Gonzalez appeals the judgment convicting him of aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon and sentencing him on each count to fifteen years imprisonment in the Texas Department of Criminal Justice - Institutional Division.

1. In his first and second points of error, Gonzalez argues he received ineffective assistance of counsel in violation of the United States and Texas Constitutions. To prevail on his ineffective assistance claims, Gonzalez 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 Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997).

Gonzalez first complains that his trial counsel was ineffective by eliciting testimony about prior bad acts after the State closed its evidence and thus "opening the door" for the prosecution to cross-examine him on his criminal history and admit evidence of his prior convictions. Gonzalez argues there is no plausible strategy for the defense to bring in evidence of prior convictions. We disagree. The record establishes that Gonzalez referred to his jail time throughout his testimony in an effort to demonstrate that he is now very careful and law abiding. Thus, introduction of the prior convictions may have been part of the defensive theory that Gonzalez was rehabilitated and would not risk his freedom by participating in the robbery.

Gonzalez next argues his counsel was ineffective in eliciting a comment from the arresting officer regarding Gonzalez's exercise of his right to remain silent and in failing to object to the prosecutor's comment in closing argument that Gonzalez was silent after his arrest "[a]nd then he [did] not bring an alibi forward until suddenly at this trial." We again disagree. Trial counsel's cross-examination of the arresting officer regarding Gonzalez's silence was apparently designed to impeach the officer with statements previously made to the press and to give the impression that the officer somehow did not respect Gonzalez's rights. Any prejudicial effect of the examination or of counsel's failure to object to the prosecution's comment was negated by the officer's agreement that the fact that Gonzalez waited until trial to tell his story was not an indication of culpability. Based on the totality of the representation, we hold Gonzalez did not receive ineffective assistance of counsel and overrule his first and second points of error.

2. In his third point of error, Gonzalez argues the evidence is factually insufficient to place him at the scene of the robbery. We disagree. The testimony of Charity Boeglin and Deborah Lugo identifies Gonzales as one of the trio of men who committed the robbery. Although Gonzalez argues this testimony is unreliable for several reasons, in a factual sufficiency review, we must give deference to the jury's determinations of credibility and demeanor and the weight to be given contradictory testimony. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Applying this deference in a neutral review of the evidence, we cannot say that the evidence establishing Gonzalez's guilt is so patently weak as to undermine confidence in the jury's verdict. We therefore overrule Gonzalez third point of error and affirm the judgment.

Sarah B. Duncan, Justice

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