Jose Angel Rivera v. The State of Texas--Appeal from 381st Judicial District Court of Starr County

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MEMORANDUM OPINION
No. 04-02-00576-CR

Jose Angel RIVERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. 01-CR-77
Honorable Ricardo Garcia (1), Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 22, 2004

AFFIRMED

Jose Angel Rivera pleaded guilty to the murder of Jessica Martinez. After a jury trial, Rivera was sentenced to sixty-five years in prison and assessed a fine of $5,000.00. The trial court denied Rivera's motion for new trial. We affirm.

1. In Rivera's first issue, he argues that he was denied effective assistance of counsel because his counsel failed to: (a) request a jury instruction defining reasonable doubt; (b) object to hearsay testimony; (c) object to the admission of evidence of Rivera's prior bad acts and extraneous offenses; and (d) request limiting instructions. We disagree.

To establish ineffective assistance of counsel during either the guilt/innocence or the punishment phase of a non-capital criminal trial, a defendant must show (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). To establish deficient performance, a defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's trial decisions were based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Id. at 813. The court does not look to isolated acts or omissions but reviews the totality of the representation. Id.

Rivera argues that his trial counsel was ineffective in failing to request a jury instruction defining the reasonable doubt standard. However, a jury instruction on the definition of reasonable doubt is not required; and the court of criminal appeals has noted that the better practice is to give no definition at all. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Therefore, Rivera's trial counsel's failure to request a jury instruction on the definition of beyond a reasonable doubt did not result in ineffective assistance. See Rodriguez v. State, 89 S.W.2d 658, 668 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 946 (1995) (counsel is not ineffective for failing to request an instruction that the trial court could have properly refused).

Rivera also argues that his trial counsel was ineffective because he failed to object to the admission of the deceased's hearsay statements and request limiting instructions on the evidence of Rivera's prior bad acts and extraneous offenses. However, as noted above, counsel's conduct is presumed to fall within the wide range of reasonable professional assistance; and to defeat this presumption, an allegation of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813-14. Here, there is no evidence regarding Rivera's trial counsel's reasons for not objecting to the admission of the statements or requesting limiting instructions. Therefore, Rivera failed to overcome the presumption that counsel's actions were part of a strategic plan. See Id.

Rivera argues that his trial counsel was ineffective in failing to object to prior bad act and extraneous offense evidence that was introduced without providing the defense with the requisite notice. "Whether a defendant has received adequate assistance is to be judged by 'the totality of the representation,' rather than isolated acts or omissions of trial counsel." Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 930 (1987). The record establishes that counsel requested notice of any evidence of prior bad acts and extraneous offenses that the State planned on introducing during the punishment phase of the trial. See Tex. Code Crim. Proc Ann. art. 37.07 (Vernon 2003); Tex. R. Evid. 404(b). Counsel also filed and obtained rulings on several pre-trial motions. He called witnesses for the defense and effectively cross-examined the State's witnesses. Counsel presented evidence to support the theory that the murder was done in sudden passion in an attempt to reduce the range of possible punishment. Throughout trial, counsel objected to the State's evidence; and most of his objections were sustained. However, counsel did not object to all of the evidence of prior bad acts and extraneous offenses that the State introduced without notice, and he testified at the hearing on Rivera's motion for new trial that this failure was a mistake and not part of his trial strategy. We are not convinced that counsel's failure to object rose to the level of ineffective assistance. See Wilkerson, 726 at 551. Rather, based on the totality of trial counsel's representation, we hold that counsel's representations did not fall below objective standards of reasonableness.

2. In Rivera's second issue, he argues that the trial court erred in limiting his cross-examination of one of the State's witnesses and thereby violated his Sixth Amendment right to confrontation. However, for a complaint concerning the exclusion of evidence to be considered by an appellate court, the record must show what the excluded testimony would have been. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2; Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985). Without either a showing of what the testimony would have been or an offer of a statement concerning what the excluded testimony would show, there is nothing presented for review. See Stewart, 686 S.W.2d at 122. The record in this case does not establish what information Rivera's counsel wanted to elicit from the witness. We therefore hold the alleged error was not preserved for review.

3. In his third issue, Rivera argues that the trial court abused its discretion in refusing to hear evidence regarding jury misconduct during the hearing on Rivera's motion for new trial. Texas Rule of Evidence 606(b) precludes a juror from testifying as to any matter occurring during the jury's deliberations, including the effect of anything on any juror's mind, emotions, or mental process. There are only two exceptions to Rule 606(b): "(1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve." Tex. R. Evid. 606(b). Neither the record nor the bill of exceptions in this case indicates that an outside influence was improperly brought to bear upon a juror or that a juror was not qualified to serve. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000); In re S.P., 9 S.W.3d 304, 308-09 (Tex. App-San Antonio, 1999); Hines v. State, 3 S.W.3d 618, 621-22 (Tex. App-Texarkana 1999, pet. ref'd); Therefore, Rule 606(b) precludes juror testimony. Accordingly, we hold the trial court did not err in refusing to hear the evidence of jury misconduct.

Rivera also contends that Rule 606(b) works an unconstitutional denial of his right to due process under the Texas and United States Constitutions. However, the supreme court and our courts of appeals have upheld Rule 606(b) under both the Texas and federal Constitutions against just such a challenge. See Golden Eagle Archery, Inc., 24 S.W.3d at 362; Richardson v. State, 83 S.W.3d 332, 362 (Tex. App-Corpus Christi 2002, pet. ref'd.); Glover v. State, 110 S.W.3d 549 (Tex. App.-Waco, 2003, pet ref'd); Hines, 3 S.W.3d at 621-22; Ozuna v. State, No. 04-99-00382-CR, 2001 WL 303322, at *5 (Tex. App.-San Antonio Mar. 30, 2001, pet. ref'd)(not designated for publication). We likewise hold that Texas Rule of Evidence 606(b) is constitutional. The judgment is affirmed.

Sarah B. Duncan, Justice

Do Not Publish

1. Sitting by assignment.

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