Ruben Jaramillo v. The State of Texas--Appeal from 218th Judicial District Court of Wilson County

MEMORANDUM OPINION
No. 04-02-00544-CR
Ruben JARAMILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Wilson County, Texas
Trial Court No. 02-03-044-CRW
Honorable Stella Saxon, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

Ruben Jaramillo appeals the judgment convicting him of possession of a controlled substance with intent to deliver and sentencing him to sixty years in prison. Jaramillo argues that his "trial counsel provided ineffective assistance of counsel under the Sixth Amendment to the United States Constitution." We disagree and affirm the trial court's judgment.

To prevail on his ineffective assistance of counsel claim, Jaramillo must prove, by a preponderance of the evidence, "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); see Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). On appeal, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;" hence, Jaramillo "must overcome the presumption that, under the circumstances, the challenged action[s] 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689 (citation omitted); see Greene v. State, 928 S.W.2d 119, 122 (Tex. App.-San Antonio 1996, no pet.). Also, "[t]he adequacy of an attorney's assistance is based upon the totality of the representation." Johnson v. State, 629 S.W.2d 731, 736 (Tex. Crim. App. 1981); see Macri v. State, 12 S.W.3d 505, 508-09 (Tex. App.-San Antonio 1999, pet. ref'd).

1. Jaramillo first argues that his trial counsel's performance was ineffective because he failed to object to extraneous offense evidence elicited by the State from arresting officer John Gutierrez, who testified that Jaramillo's criminal history included "six charges of dangerous drugs, one charge of traffic offense[,]" that Jaramillo also had one other pending drug offense, and that he was awaiting sentencing on three additional offenses "involv[ing] either possession or delivery of drugs[.]" We disagree.

Generally, evidence of extraneous acts or offenses is inadmissible at trial. Ex parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App. 2001); Tex. R. Evid. 404(b). "However, the failure to object to inadmissible evidence, even extraneous offense evidence, does not necessarily constitute ineffective assistance." Greene, 928 S.W.2d at 123. The record reflects that it was trial counsel's strategy to allow the jury to be aware of Jaramillo's prior offenses. According to trial counsel: "I normally would object to that. In this case I do not. I want this jury to know everything that's happened in this man's life." In fact, throughout the trial, defense counsel repeated the theme that Jaramillo wanted to be honest about his prior bad acts to prove to the jury that he was being honest in his assertion that he did not commit the charged offense. In assessing Jaramillo's trial counsel's actions, we "must be highly deferential[,]" and "eliminate the distorting effects of hindsight[.]" Strickland, 466 U.S. at 689. Although trial counsel's strategy proved to be unsuccessful, we cannot say that it was unreasonable under the circumstances. See Jones v. State, 37 S.W.3d 552, 555 (Tex. App.-Beaumont 2001, no pet.). Hence, Jaramillo fails to rebut the presumption that "[t]he actions of trial counsel ... have been reasonably effective and to have been exercises of strategy or professional judgment." Greene, 928 S.W.2d at 122; see Murphy, 112 S.W.3d at 601.

2. Jaramillo next complains about trial counsel's failed attempt to elicit testimony from Officer Gutierrez "that all of the previous history that you have had with Mr. Ruben Jaramillo has absolutely nothing to do with this case[.]" According to Jaramillo, this resulted in Officer Gutierrez being "allowed to basically tell the jury that because of Mr. Jaramillo's prior history of drug dealing he must be guilty in the instant case of drug dealing." However, upon further cross-examination, Jaramillo's trial attorney elicited testimony from Officer Gutierrez that the jury could only "rely on the evidence for this case[.]" Therefore, Jaramillo fails to establish that his trial attorney's performance was "deficient" in this regard. See Murphy, 112 S.W.3d at 601.

3. Jaramillo next argues that his trial counsel rendered ineffective assistance by allowing evidence of the punishments he could receive for the extraneous offenses as compared to the charged offense. On cross-examination, Jaramillo testified that he faced a maximum of two years imprisonment for two of the pending offenses and a maximum of seven years imprisonment for the third offense. Jaramillo further testified that he understood the maximum penalty for the charged offense was "99 years to life[.]" According to Jaramillo, his trial counsel was ineffective for failing to object to this testimony because "[p]unishment should not be discussed by either side until and unless the defendant has been convicted." See Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1021 (1995). We again disagree.

Allowing details regarding the extraneous offenses was clearly part of trial counsel's strategy. Additionally, the State did not elicit this testimony to "enrage[]" the jury because Jaramillo "had never served time[,]" as Jaramillo now contends. Rather, the prosecutor elicited the testimony to show his possible motivation to lie about his innocence in order to avoid the penalty for the charged offense. Cf. Norris v. State, 902 S.W.2d 428, 441 (Tex. Crim. App. 1995) (holding that evidence of prior extraneous offense was admissible to show defendant's motive to lie to avoid maximum punishment for the charged offense), cert. denied, 516 U.S. 890 (1995). Furthermore, with regard to the penalty for the charged offense, the trial court had previously informed the jury of the maximum penalty range during voir dire. We cannot conclude that trial counsel's choice not to object to the prosecutor repeating information the jurors already knew indicates ineffective assistance of counsel. See Strickland, 466 U.S. at 689; Murphy, 112 S.W.3d at 601.

4. While failing to specifically connect the alleged error to his argument on appeal, Jaramillo apparently argues that his trial counsel also rendered ineffective assistance by failing to object to the prosecutor's references to the extraneous offense evidence during her closing argument. However, the prosecutor's closing was within areas permissible for jury argument. See Bell v. State, 724 S.W.2d 780, 802-03 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1046 (1987) ("Though not an exhaustive list, there are four general categories of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or, (4) plea for law enforcement."). Therefore, Jaramillo has not proved "that his lawyer's conduct was deficient" in failing to object. See Macri, 12 S.W.3d at 508.

5. Finally, Jaramillo argues that "[t]hese errors were compounded by defense counsel's failure to request any limiting instructions regarding [the] extraneous offenses[;]" hence, the jury likely "convicted Mr. Jaramillo because he was a criminal in general." We again disagree.

Typically, "[o]nce an extraneous act has been ruled admissible, the jurors must be instructed about the limits on their use of that extraneous act if the defendant so requests." Ex parte Varelas, 45 S.W.3d at 631. In other words, the jury should be instructed to consider the extraneous evidence only for the purpose for which it was admitted. Tex. R. Evid. 105(a). Nevertheless, the failure to request such an instruction does not necessarily render counsel ineffective. See Abbott v. State, 726 S.W.2d 644, 649 (Tex. App.-Amarillo 1987, pet. ref'd) ("Although hindsight speculation may suggest a limiting instruction of some nature, it is reasonable that, as a trial tactic, counsel did not wish to remind the jury of [the extraneous] matters. In this light, the omissions did not render counsel ineffective."). Because the record indicates it was Jaramillo's trial counsel's strategy that the jury consider the existence of the extraneous offenses, we cannot conclude that his performance was deficient in failing to request a limiting instruction. See Ex parte Varelas, 45 S.W.3d at 632 (trial counsel's performance was deficient for failing to request a limiting instruction where counsel admitted his failure to do so was not trial strategy).

Based on the totality of the representation, we hold that Jaramillo has "failed to overcome the presumption that trial counsel's actions were part of a reasonable, albeit unsuccessful, trial strategy." Jones, 37 S.W.3d at 555. Furthermore, "[a]ssuming arguendo that counsel's strategy was so implausible as to fall below the level of competent professional assistance," id. at 556, we conclude Jaramillo has failed to show "that, but for counsel's deficient performance, the result of the proceeding would have been different." See Murphy, 112 S.W.3d at 601 (citing Strickland, 466 U.S. at 687).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

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