Santiago Alvarado v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00289-CR
Santiago ALVARADO,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1190
Honorable Raymond Angelini, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 19, 2004

ABATED

Santiago Alvarado ("Alvarado") was convicted by a jury of aggravated assault with a deadly weapon. On appeal, Alvarado raises numerous complaints, including that trial counsel was ineffective in failing to conduct an independent factual investigation and that the trial court erred in denying his request for a hearing on his motion for new trial. Because Alvarado's motion for new trial raised issues that were not determinable from the record, the trial court abused its discretion in failing to grant Alvarado an evidentiary hearing. Accordingly, we abate the appeal and remand the cause to the trial court for an evidentiary hearing on Alvarado's motion for new trial.

Even though we abate the appeal, we also address Alvarado's issue regarding the motion for mistrial and his sufficiency complaint since they would require a reversal of the judgment if we sustained either issue. In addition, the evidence presented at the evidentiary hearing on Alvarado's motion for new trial will not affect our disposition of these issues.

Background

Alvarado was charged with aggravated assault with a deadly weapon in connection with the shooting of his live-in girlfriend's ex-husband, Sandro Salgado ("Salgado"). Salgado was the only person who could identify Alvarado as the shooter. Alvarado's defense was that the evidence showed that he did not have sufficient time to shoot Salgado after leaving work given the time that he returned home.

Salgado testified that Stephanie Watts-Lea ("Watts-Lea") is his ex-wife and the mother of his two children. Alvarado helped Watts-Lea move from the home she shared with Salgado into an apartment. Salgado was upset when he discovered that Watts-Lea and Alvarado were living together, and he attempted to fight with Alvarado on various occasions. On one occasion, Salgado went to Watts-Lea's apartment and attempted to kick in her door. He was arrested but released the next day.

On the night he was shot, Salgado and Watts-Lea began arguing when he was returning their children to her. Salgado stated that he "lost it," and he pushed Watts-Lea away from him by her face. In his statement, Salgado stated that he slapped Watts-Lea. Salgado left when Watts-Lea went to call the police. Salgado went to a friend's house and later met a co-worker, Jesse Trevino, at a pool hall. After leaving the pool hall around 2:00 a.m., Salgado dropped Trevino off at his apartment and returned home around 2:45 a.m. As Salgado was unlocking his door, he noticed a four-door, dark gray car parked in his driveway and heard someone call his name. Salgado stated that he could see the occupants of the car because of his front porch light. Someone told him that "Jimmy," which is Alvarado's nickname, wanted to fight with him. Salgado took his jacket off and noticed that Alvarado was walking toward him with a gun. Salgado heard gunshots and felt shots on his chest, his leg, and his side. Salgado testified that he saw the driver of the car, who was a light-skinned, heavy Hispanic male with a big face. Salgado identified photographs of the car and the driver. Salgado testified that he had seen Alvarado on numerous occasions, and he had seen Alvarado without glasses on several occasions. Salgado testified that he consulted with a lawyer about obtaining custody of the children because Alvarado continued to live with Watts-Lea; however, the lawyer was not encouraging. Salgado admitted that he drank and, in the past, used drugs; however, he stated that he no longer used drugs and never sold drugs.

Curtis Pape, Salgado's neighbor, testified that he was awakened by gunshots. As he looked out his window, he saw a car driving by that looked like a gray family car. Pape testified that the shooting occurred between 2:00 and 3:00 a.m. Although Pape could not identify the car from the picture that had been identified by Salgado, Pape stated that he would consider the picture to be of a family car.

James Gonzales, a paramedic called to assist Salgado, testified that he was dispatched at 2:56 a.m. Gonzales arrived on the scene at 3:02 a.m. Salgado told Gonzales that his ex-wife's boyfriend had shot him. Gonzales stated that he did not recall there being a lot of light at the scene.

Melva Harper, the evidence technician, testified that she recovered three shell casings, two bullets, a black coat, and a sample of the blood from the driveway. Harper also recovered a cigarette butt from the driveway. Harper took pictures of the scene using a flash because of the darkness.

Officer James Estrada, the primary detective on the case, was unable to talk to Salgado at the hospital because he was in surgery. The following day, Alvarado came to the homicide office unannounced and gave Officer Estrada a written statement. In the statement, Alvarado stated that he helped Watts-Lea move from the home she shared with Salgado. Alvarado stated that when he visited Watts-Lea, Salgado would show up intoxicated. Alvarado and Salgado would exchange words. Alvarado stated that he went to work around 3:30 p.m. and got off work at 2:00 a.m. Alvarado stated that he left work around 2:15 a.m. because his truck took a few minutes to warm up. Alvarado stated that he went to a friend's house, Alex Hernandez, and stayed there about fifteen or twenty minutes. After Alvarado returned home, Watts-Lea's cousin phoned and told Watts-Lea that something had happened at Salgado's house. Watts-Lea phoned Salgado's house, and an officer answered. The police picked Watts-Lea up for questioning. Alvarado stated that he was aware that Salgado had slapped Watts-Lea earlier that night.

During the course of his investigation, Officer Estrada contacted Alvarado's supervisor and determined from his time sheet that he left work at 2:02 a.m. Officer Estrada asked the night detective to check the times of routes that Alvarado could possibly have taken. Salgado identified Alvarado as the shooter from a photo line-up. Officer Estrada stated no testing was performed on the cigarette butt located at the scene because he believed he had a very strong positive identification. Officer Estrada attempted to contact Alex Hernandez; however, Hernandez was uncooperative and refused to give a statement. In attempting to contact Hernandez, Officer Estrada also spoke with Hernandez's sister, Crystal Gonzales. Gonzales told Officer Estrada that she had been given a vehicle matching the description of the car used in the shooting. Officer Estrada located the vehicle at a city pound. The vehicle was fingerprinted but no fingerprints were recovered.

On cross-examination, Officer Estrada testified that blood was discovered in the driveway, around the front yard, and down the street. Officer Estrada did not inquire about the blood in the street, and he never tested any of the blood at the scene.

On re-direct examination, Officer Estrada read the statement given by Watts-Lea. Watts-Lea testified that she had spoken with Alvarado on the night of the shooting at length about her altercation with Salgado. Alvarado wanted Watts-Lea to press charges. When Watts-Lea refused because she needed Salgado to take care of the children, Alvarado "got mad at [her] and was telling [her] that [she] liked [Salgado] treating [her] like this." Watts-Lea stated that Alvarado had never been mad before about Salgado hitting her. When Watts-Lea told Alvarado that she was not going to press charges, Alvarado became very quiet, and they hung up. Watts-Lea stated that Alvarado arrived home around 3:06 a.m.; however, because her clock was slow, it was actually about 3:16 a.m. After Watts-Lea received the phone call from her cousin, she asked Alvarado what he had done, and Alvarado swore that he was at work.

Maricela Herrera stated that she was the previous owner of the car Salgado identified from the photograph. Herrera sold the car to Hernandez, who was her nephew. Herrera stated that she was not aware that Hernandez and Alvarado had been arrested together for possession of a sawed-off shotgun.

Officer Edward Giddings was assigned to time the various routes requested by Officer Estrada. Assuming Alvarado allowed his car to warm up for fifteen minutes, Officer Giddings stated that Alvarado would have arrived at Salgado's home at 2:37 a.m. Leaving Salgado's home at 2:37 a.m., Alvarado would have arrived at Watts-Lea's home at 2:54 a.m. Assuming Alvarado allowed his car to warm up for fifteen minutes and he went to Hernandez's home, Alvardao would have arrived at 2:30 a.m. Leaving Hernandez's home, he would have arrived at Salgado's home at 2:45 a.m. Leaving Salgado's home and returning to Hernandez's home, he would have arrived at 3:00 a.m. Leaving Hernandez's home and returning to Watts-Lea's home, he would have arrived at 3:03 a.m.

Watts-Lea testified that Salgado slapped her when he dropped the children at her home. Watts-Lea testified that Alvarado called her after her confrontation with Salgado. Watts-Lea stated that Salgado had gone to her apartment on a prior occasion and kicked in the wall trying to get inside the apartment. Watts-Lea stated that Alvarado remained in a back room with the children when this occurred. Watts-Lea testified that her cousin called her a few minutes after Salgado arrived home. Watts-Lea phoned Salgado's house and spoke with a police officer, who questioned her about Alvarado. When the police officer arrived to pick Watts-Lea up to take her to the station, Alvarado answered the door, but the officer did not question him. Watts-Lea testified that she was terrified when she was giving her statement because the police accused her of being at the scene and told her that she was heard arguing with Salgado. Watts-Lea admitted that she and Alvarado had argued on the night Salgado was shot because Alvarado wanted Watts-Lea to press charges.

Alvarado testified that he arrived at work at 3:30 p.m. Later that night, Alvarado called Watts-Lea. Watts-Lea told him that she had been in an argument with Salgado, and Salgado had slapped her. Alvarado told her that she had to press charges so she could get a restraining order. Alvarado stated that he had never physically confronted Salgado, but Salgado had physically confronted him on a number of occasions. Alvarado testified that after he left work, he went to Hernandez's home and stayed for about fifteen minutes, returning to Watts-Lea's house around 2: 52 a.m. With regard to the time given in Watts-Lea's statement, Alvarado stated that their clocks were always running ten minutes fast, not ten minutes slow.

Sufficiency

To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). For a factual sufficiency review, an appellate court looks at all of the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence.Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). Appropriate deference must be given to the jury's decision to "prevent an appellate court from substituting its judgment for that of the fact finder." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). "[A]ny evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Id.

In this case, the jury had the positive identification provided by Salgado. The jury also had the time line showing that Alvarado had sufficient time to commit the offense. Salgado identified Hernandez as the driver of the car in which Alvarado arrived. Salgado also positively identified the vehicle that Hernandez had recently purchased for his sister as the vehicle Hernandez was driving. The jury also had evidence of a motive, given the earlier altercation between Salgado and Watts-Lea. Although the jury was required to take into consideration the animosity between Salgado and Alvarado, we must not, in our review, substantially intrude on the weight and credibility the jury could give to Salgado's testimony, particularly in light of the other evidence presented.

Accordingly, we hold that the evidence is legally and factually sufficient to support the conviction.

Motion for Mistrial

Alvarado contends that the trial court erred in denying his motion for mistrial. The basis for Alvarado's motion was the questioning during voir dire regarding the range of punishment. At the time of the questioning, the parties assumed that the State would use the enhancement allegation in the indictment to enhance punishment. Before trial began, however, the State abandoned the enhancement because Alvarado had received shock probation for the offense, and the offense could not be used for enhancement. Alvarado's attorney stated that he relied on the enhancement during voir dire, and "kind of pulled away from my punishment phase because it was so high." Alvarado's attorney stated, "If I had done the voir dire looking at two to twenty, it would [have] been different, focusing more on the punishment than what I did."

In this case, the questions posed to the venire were hypothetical questions based on the possibility that the sentence could be enhanced. The information was first disclosed when the trial judge stated, "In the State of Texas, one can be given anywhere from two to twenty years in prison for this type of offense. And sometimes, if something else is proven later on in the case, one can be given anywhere from five to ninety-nine years or life in prison for this case. So, there's a big wide range of punishment that can go anywhere from as little as two years up to ninety-nine years or life, depending on the facts and circumstances." The trial judge later repeated, "And there's certain facts and circumstances that may come out in punishment, it may not, where the punishment range is raised. ... But it all depends, once again, on the facts and circumstances of the case, as well as the background of the person involved." During questioning by the State, the State indicated that the range of punishment was two to twenty years, and the State asked the venire members if they could consider the full range of punishment. The State then discussed the enhancement possibility in hypothetical terms, stating, "If somebody is convicted and we proceed to the punishment phase, if it is shown that somebody has one prior felony conviction, the range of punishment changes. The minimum then becomes five years in the Texas Department of Criminal Justice, up to a maximum of ninety-nine years or life." The State asked the venire members if they could consider the full range of punishment. Defense counsel also discussed the potential punishment, stating "As part of this, you heard the range of punishment is two years minimum up to twenty years." Defense counsel asked whether each venire member could consider giving Alvarado the minimum sentence of two years. One of the venire members clarified that defense counsel was asking if she could consider the two year minimum only if Alvarado did not have a previous conviction, and she responded that she could.

A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is appropriate for only highly prejudicial and incurable errors. Id. It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. Whether a trial court abuses its discretion in denying a motion for mistrial based on questioning during voir dire generally depends on whether the court's instruction to disregard cured any prejudicial effect. Woodall v. State, 77 S.W.3d 388, 399 (Tex. App.--Fort Worth 2002, pet. ref'd). Generally, an instruction to disregard will cure any prejudicial effect. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995);Woodall, 77 S.W.3d at 399-400.

After the panel was sworn but before the commencement of trial, Alvarado's attorney moved for a mistrial; however, Alvarado's attorney did not ask the trial court to instruct the jury to disregard the questions relating to the enhanced punishment range. During the voir dire questioning, the enhanced punishment range was discussed as a possibility; however, the trial judge repeatedly emphasized that the increased range depended on the facts and circumstances and depended on something being proven later. Under these circumstances, we believe that an instruction to disregard the questioning about the enhanced punishment range would have been effective to remove any possible prejudice. This is unlike the case relied upon by Alvarado in which the venire panel was questioned about the possibility of the enhanced punishment range when the jury was not to consider punishment. See Johnson v. State, 766 S.W.2d 559, 559-60 (Tex. App.--Beaumont 1989, pet. ref'd). In this case, Alvarado elected to have the jury assess his punishment, and the parties were mistaken that he was eligible for enhancement based on a prior offense. Because the venire members were questioned in terms of possibilities and an instruction to disregard could have cured any possible prejudice, the trial court did not abuse its discretion in denying Alvarado's motion for mistrial. (1)

Hearing on Motion for New Trial

In his first issue on appeal, Alvarado contends trial counsel was ineffective in various respects, including his failure to conduct an independent factual investigation. In response to this contention, the State asserts that the record contains no evidence that trial counsel failed to investigate. (2) Alvarado responds that the record lacks evidence only because the trial court did not conduct an evidentiary hearing on his motion for new trial. In his third issue, Alvarado contends that the trial court abused its discretion in failing to conduct the evidentiary hearing. Because we sustain Alvarado's third issue and remand the cause for an evidentiary hearing on Alvarado's motion, we do not address the merits of Alvarado's ineffective assistance of counsel claim in this opinion.

When an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses its discretion in failing to hold a hearing. Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002); Rodriguez v. State, 82 S.W.3d 1, 2 (Tex. App.--San Antonio 2001, pet. dism'd). The purpose of the hearing is to fully develop the issues raised in the motion. Martinez, 74 S.W.3d at 21. As a prerequisite to obtaining a hearing, the motion must be supported by an affidavit either by the accused or someone else specifically showing the truth of the grounds for attack. Martinez, 74 S.W.3d at 21; Rodriguez, 82 S.W.3d at 2. The affidavit need not reflect each and every component legally required to establish relief, but rather must merely reflect that reasonable grounds exist for holding that such relief could be granted. Martinez, 74 S.W.3d at 21-22. We review the trial court's denial of a hearing on a motion for new trial under an abuse of discretion standard. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).

Trial counsel is charged with making an independent investigation of the facts of the case. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) An attorney has a professional duty to present all available testimony in support of the client's defense. In re I.R., 124 S.W.3d 294, 299 (Tex. App.--El Paso 2003, no pet.). In Rylander v. State, 75 S.W.3d 119, 124 (Tex. App.--San Antonio 2002), rev'd, 101 S.W.3d 107 (Tex. Crim. App. 2003), this court held that trial counsel was ineffective because his failure to investigate undermined the appellant's defense. Although the Texas Court of Criminal Appeals reversed our decision, it noted that the incidents cited by this court could reasonably raise questions as to the wisdom of and rationale for certain trial preparation and trial strategy decisions. Rylander, 101 S.W.3d at 110. The reversal of our decision was based on the absence of a record giving trial counsel an opportunity to respond to these areas of concern. Id. As is clear from the decision in Rylander, a hearing on Alvarado's motion was critical to having his ineffective assistance claim considered on direct appeal. See Rylander, 101 S.W.3d at 110; see also Martinez v. State, 74 S.W.3d at 21 (holding trial court abused its discretion in failing to conduct a hearing on a motion for new trial raising ineffective assistance of counsel claim); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (same); Rodriguez, 82 S.W.3d at 3 (abating appeal for evidentiary hearing on motion for new trial raising ineffective assistance claim based on failure to investigate); Ruiz v. State, No. 04-98-01082, 2000 WL 863088, at *2 (Tex. App.--San Antonio June 28, 2000, no pet.) (same) (not designated for publication); Ditto v. State, 898 S.W.2d 383, 385 (Tex. App.--San Antonio 1995, no pet.) (same).

The State contends that Alvarado was not entitled to a hearing on his motion because the ineffective assistance allegations were determinable from the record and the affidavits attached to his motion were insufficient. In briefing its argument, the State does not set forth the reasons it contends that the allegations were determinable from the record. Furthermore, this response appears to be directly contrary to the State's response to Alvarado's first issue in which the State contends, "there is nothing in the record establishing that counsel failed to investigate." With regard to the affidavits, we hold that they are sufficient to support the motion for new trial and to require an evidentiary hearing.

Trial counsel provided an affidavit, stating that he was "inundated with an inordinate number of cases" around the time of Alvarado's trial. Trial counsel further stated, "It is my belief that if I had more time to prepare for Mr. Alvarado's trial and to conduct an independent investigation of the facts of Mr. Alvarado's case, I would have been more prepared for the jury trial." (emphasis added). Accordingly, this is an admission by trial counsel that he did not conduct an independent investigation. See Paz v. State, 28 S.W.3d 674, 676 (Tex. App.--Corpus Christi 2000, no pet.) (relying on trial counsel's affidavit to support ineffective assistance claim); Moore v. State, 983 S.W.2d 15, 23 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (same).

Other affidavits reveal the nature of the information trial counsel could have discovered that might have been helpful to Alvarado's defense. For example, Watts-Lea stated that she was picked up by police and transported to the police station at 3:06 a.m., conflicting with the State's time line. The time line was important in supporting the State's position that Alvarado had sufficient time to commit the offense after leaving work and before arriving home. In addition, Watts-Lea stated that Salgado's neighbor told the police that she heard a female voice arguing with the complainant before the shooting. Although the State contends that this statement was hearsay, it was not offered to prove the truth of the statement but as evidence of additional information that an investigation would have revealed. Watts-Lea further stated that Salgado told her that a person named Ted was driving the car; however, the State's position was that Hernandez was driving the car. Watts-Lea also stated that Salgado told her mother that he had been followed from the pool hall as he was driving home. Again, this statement is not offered to prove the truth of the matter asserted but as evidence of additional information that an investigation would have revealed. Although Watts-Lea was called as a witness at trial, trial counsel did not ask any questions that would elicit the foregoing information which could have assisted in Santiago's defense. In addition, trial counsel did not call Watts-Lea's mother as a witness.

Another witness, Rosemary Pargas, stated in her affidavit that she was present in the courtroom for a docket call and reviewed the file with Alvarado and his trial counsel. Pargas stated that trial counsel did not appear to be interested in reviewing the files. Pargas stated that she saw a statement in the file about someone hearing a woman arguing with Salgado before he was shot. The record does not reflect whether trial counsel was aware of the statement, and the reason for not pursuing this evidence.

Alvarado's sister, April Avila, stated in her affidavit that on the first day of trial, trial counsel thought the shooting took place at a bar, not at Alvarado's home. Trial counsel apologized to Avila regarding his mistakes and for not being prepared for trial. Avila further stated that Alvarado told trial counsel about witnesses he should contact, including Hernandez, who could have provided Alvarado with an alibi.

These affidavits are sufficient to raise a particular matter not determinable from the record and reflect that reasonable grounds exist for holding that relief could be granted. See Martinez, 74 S.W.3d at 21-22; McFarland, 928 S.W.2d at 501. The affidavits sufficiently raise the issue of whether trial counsel conducted an independent investigation of the facts of the case. McFarland, 928 S.W.2d at 501. Accordingly, we hold that the trial court abused its discretion in failing to conduct a hearing on Alvarado's motion for new trial.

Conclusion

We abate this appeal and remand the cause to the trial court to conduct an evidentiary hearing on Alvarado's motion for new trial.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. We note that during closing argument, the prosecutor made reference to the questioning during voir dire, stating, "Now, also in voir dire, we talked a lot about punishment ranges; two to twenty. And there was some discussion about five to life. This case is two to twenty because his prior felony conviction, as you will see from the evidence [the State] has, he received probation for that. And when one receives probation for a felony, it is not considered a conviction for the purposes of enhancing it up to the five to ninety-nine year range. So, we're not saying that he doesn't have the conviction. We're saying that he had the conviction, but received probation for it. Therefore, your range is two to twenty." Alvarado's attorney did not object to this explanation. Although the explanation was not as effective as an instruction to disregard, it did provide the jury with guidance regarding the references made during voir dire.

2. The State correctly notes that the affidavits attached to Alvarado's motion for new trial cannot be considered as evidence because they were not introduced as evidence at a hearing on the motion. See Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973).