Alberto Aguirre v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

OPINION
No. 04-02-00418-CR
Alberto AGUIRRE,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court of Bexar County, Texas
Trial Court No. 2001-CR-4919
Honorable Mary Roman, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 20, 2003

AFFIRMED

Appellant Alberto Aguirre was indicted for murder. Aguirre filed a pretrial motion to suppress the statement he gave to police. The trial court denied his motion. Following a jury trial, he was convicted and sentenced to sixty-eight years' imprisonment. He now appeals this conviction, citing five issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.4 for the following reasons:

1. In his first issue, Aguirre argues that the statement he gave to the police was not voluntary. Therefore, contends Aguirre, the trial court erred in failing to grant his pretrial motion to suppress the statement. Specifically, Aguirre asserts that he was not in his right mind at the time he made his statement to the police because (1) he was intoxicated and (2) he had not taken the medication necessary to control his schizophrenia on the day in question.

Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In reviewing the trial court's ruling on a motion to suppress, we afford deference to the trial court's determination of the historical facts and rulings on mixed questions of law and fact. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997); Morfin v. State, 34 S.W.3d 664, 666 (Tex. App.--San Antonio 2000, no pet.). However, we decide de novo whether the trial court erred in misapplying the law to the facts. Carmouche, 10 S.W.3d at 327; Morfin, 34 S.W.3d at 666.

An accused's statement may be used against him if it is made freely and voluntarily. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). We determine the voluntariness of the statement by examining the totality of the circumstances surrounding the taking of the statement. Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989). Intoxication alone is insufficient to render a confession involuntary. Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim App. 1994). "The central question is the extent to which appellant was deprived of his faculties due to the intoxication." Id.

In spite of his contentions, the record indicates that Aguirre was not intoxicated at the time of his confession. Both the officer who took Aguirre to the station and the detective who interviewed him stated that he was coherent during his statement and had no trouble concentrating or communicating. In addition, both officers said that, although Aguirre smelled like alcohol and admittedly had been drinking that morning, he did not exhibit any signs that he was under the influence of alcohol or drugs. Further, the detective was of the opinion that Aguirre did not appear to have been influenced by his paranoid schizophrenia.

Aguirre, himself, also testified at the pretrial hearing. He stated that he was pressured to confess by his family, that he had been heavily drinking and smoked marijuana the morning he confessed, that he was intoxicated when he approached the officer who took him to the station, and that he did not remember signing the statement. Aguirre, however, contradicted himself on the stand, admitting that his ability to recall and communicate the details of the incident was not impaired by alcohol, marijuana, or his depression problems.

Deferring to the trial court's findings of fact and finding no misapplication of the applicable law, we hold the statement Aguirre gave to the police was voluntary and trial court did not err in denying Aguirre's motion to suppress. Aguirre's first issue is overruled.

2. In his second issue, Aguirre contends the trial court erred in allowing the prosecutor to make an improper jury argument. However, Aguirre has failed to preserve any possible error for review. Before a defendant will be permitted to complain on appeal about an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Jenkins v. State, 948 S.W.2d 769, 779 (Tex. App.--San Antonio 1997, pet. ref'd). Because Aguirre failed to object to the State's allegedly improper jury arguments at trial, he has forfeited his right to complain on appeal. Aguirre's second issue has been waived.

3. In his third issue, Aguirre asserts the jury's rejection of his self defense argument was contrary to the evidence. Aguirre contends the jury should have found the stabbing of the victim to be in self-defense because the evidence was uncontroverted that the victim had pulled out a knife.

When reviewing the legal sufficiency of evidence, we use the traditional standards of review. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). In resolving this type of legal sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted the appellant's self-defense testimony, but rather we determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against the appellant on the self-defense issue beyond a reasonable doubt. See Tex. Penal Code Ann. 2.03(d)(Vernon 2003); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

The record shows the following evidence was presented to the jury. Following a verbal confrontation, the victim, who may or may not have been carrying a knife, was hit by Aguirre, a former boxer, and overpowered. The victim was knocked down and unable to defend himself while Aguirre squatted over him and either stabbed or punched him repeatedly. The victim was stabbed five times, with one of his wounds being defensive in nature and another proving fatal. This evidence is sufficient for the jury to have found the elements of murder beyond a reasonable doubt and to have found against Aguirre on the self-defense issue beyond a reasonable doubt. We overrule Aguirre's third issue.

4. In his fourth issue, Aguirre contends he was denied effective assistance of counsel as required under the United States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, 10. Specifically, Aguirre raises sixteen instances of what he believes amounts to ineffective assistance, including his attorney's failure to object to leading questions, hearsay testimony, and compound questions, as well as failure to present certain evidence, failure to ask certain questions of witnesses, failure to impeach specific witnesses, failure to subpoena a specific witness, failure to request an instruction on the voluntariness of Aguirre's statement, failure to move for mistrial, and failure to timely file a motion for new trial.

In determining whether a criminal defendant has been denied effective assistance of counsel, this court follows the standard iterated in Strickland v. Washington. 466 U.S. 687, 688 (1984); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

The record is silent regarding any explanation for counsel's actions in all situations complained of by Aguirre. In the absence of an explanation of the motivation behind counsel's decisions, we find that Aguirre has failed to overcome the strong presumption of reasonable assistance. Aguirre has not shown that his counsel's actions fell below an objective standard or that but for these actions the outcome of his trial would have been different. Strickland, 466 U.S. at 687. We overrule Aguirre's fourth issue.

5. Aguirre's fifth issue complains the trial court erred in overruling his objection under Texas Rule of Evidence 403 and requiring him to remove his shirt. During the punishment phase of the trial, Aguirre attempted, on cross examination, to discredit an officer who had arrested him in the past, questioning the officer's ability to identify him from an arrest that had taken place 16 years earlier. The officer stated that he remembered the individual he had arrested had several tattoos. On re-direct, the officer stated that the tattoos were described in detail in his police report and proceeded to read the descriptions. The State then requested Aguirre to stand and remove his shirt in order to display his tattoos. Aguirre objected, questioning the relevance of the action and arguing against its prejudicial nature. The jury was then removed from the courtroom. The trial court overruled the objection, finding the evidence admissible because Aguirre had opened the door with his questions regarding the officer's knowledge of the tattoos. Aguirre agreed that he did open the door and the tattoos were used in front of the jury as a means of corroborating the officer's identification.

A trial court's ruling on a Rule 403 objection is reviewed under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). As long as the trial court's ruling was within the zone of reasonable disagreement, the appellate court should affirm. Moses, 105 S.W.3d at 627; Montgomery, 810 S.W.2d at 391. Rule 403 provides "although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. A trial court should consider several factors in determining whether the prejudicial effect of evidence substantially outweighs its probative value, including (1) how probative the evidence is, (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way, (3) the time proponent needs to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

We conclude the trial court did not abuse its discretion in admitting the evidence in question. Because Aguirre put into question the officer's ability to properly identify him, the evidence was both probative and necessary to refute that assertion. We overrule Aguirre's fifth issue.

6. In his sixth and final issue, Aguirre complains that the findings of fact and conclusions of law are not found in the clerk's record. Aguirre fails, however, to make a proper argument under Texas Rule of Appellate Procedure 38.1, presenting no issue for appeal.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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