Alula Fantaye Hagos v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00140-CR
Alula Fantaye HAGOS,
Appellant
v.
State of TEXAS,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-2024
Honorable Sharon MacRae, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: April 18, 2007

 

AFFIRMED

Appellant Alula Fantaye Hagos was convicted by a jury of robbery, and sentenced to eight years confinement in the Texas Department of Criminal Justice - Institutional Division and assessed a $2000.000 fine. On appeal, Hagos asserts he was denied effective assistance of counsel at his trial in violation of his U.S. and Texas constitutional rights.

Factual Background

On January 17, 2005, San Antonio Police were called to the scene of a fight. At the scene were Paul Fred Williams, Edward Lee Parks, Jose Mu oz, Paul Gorman, and appellant Hagos. According to the witnesses, Hagos approached them at a bus stop and attempted to rob Mu oz. A fight ensued between Mu oz and Hagos. At trial, Williams and Parks (1) testified Hagos resembled the man who attempted to rob Mu oz. Mu oz positively identified Hagos as the perpetrator. Hagos received a sentence of eight years' confinement and was assessed a fine. He now brings this direct appeal.Ineffective Assistance of Counsel

The Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution guarantee the right to effective assistance of counsel at trial. U.S. Const. amends. VI, XIV; Tex. Const. art. I 10. Hagos claims his trial counsel failed to: conduct meaningful voir dire; object to the admission of extraneous evidence; conduct an effective cross-examination of witnesses; and object to an improper jury argument.

A. Strickland

To prove ineffective assistance of counsel, Hagos must demonstrate, by a preponderance of the evidence, that trial counsel's performance was deficient because it fell below an objective standard of reasonableness, and there is a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 695 (1984). The failure to satisfy either prong negates an appellate court's need to consider the other prong. Id. at 697.

We review the record in light of all the circumstances, but are highly deferential to trial counsel and presume counsel's actions fell within the range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson v. State, 9 S .W.3d 808, 813-814 (Tex. Crim. App. 1999). The appellant must produce affirmative proof in the record which rebuts the presumption that counsel's performance resulted from sound or reasonable trial strategy. Id. at 313. Trial counsel should be afforded an opportunity to explain his actions before we declare his actions ineffective. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Hagos did not file a motion for new trial or adduce any evidence regarding the trial strategy of his counsel. Therefore, we are limited to the trial record for our review.

B. Meaningful voir dire

"The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it." Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995). Hagos contends that counsel failed to conduct a meaningful voir dire. Contrary to Hagos' assertion, counsel was not obligated to ask questions during voir dire. Goodspeed, 187 S.W.3d at 392. In Goodspeed, the "[d]efense counsel's articulated reason for declining to ask questions - that the prosecution's questioning adequately covered the defense's concerns - could be a legitimate trial strategy under the appropriate circumstances." Id. at 392. See also Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994).

Here, the State conducted an extensive voir dire. Defense counsel asked questions to some individual jurors and stated he thought "all the ground was already covered" by the State. Counsel is not required to ask questions that have already been asked and answered. McCain v. State, 995 S.W.2d 229, 244 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd, untimely filed). Counsel for Hagos made a lengthy statement to the panel discussing the burden of proof and elements of the alleged offense. He inquired as to bias, and whether the jurors could be fair. He asked if any veniremember would have a problem with being a "hold out" juror if the other jurors disagreed with him. Additionally, he discussed and clarified a veniremember's question on the elements of robbery.

We conclude Hagos did not overcome his burden of demonstrating counsel's performance during voir dire was ineffective. Because we hold Hagos has not satisfied the first prong of Strickland, we need not discuss the second prong regarding a different outcome.

C. Extraneous conduct

Hagos asserts his counsel's failure to object to the alleged extraneous conduct evidence presented by the arresting officer and seek a limiting instruction establishes his counsel's ineffectiveness. Specifically, the officer testified that Hagos was: abusive during his arrest; smelled of alcohol; may have been under the influence of drugs; and attempted to kick out the window of the police car. Trial counsel did not object to this testimony as extraneous acts evidence nor as unfairly prejudicial under Rule 403. Tex. R. Evid. 403. The State argues that such evidence was admissible "contextual" evidence under Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990) (en banc).

The Rules of Evidence prohibit evidence of extraneous bad acts to prove the defendant's character in order to show conformity therewith. Tex. R. Evid. 404(b). Although the State may show circumstances surrounding an arrest, the extraneous matters must be relevant to the arrest. See Couret, 792 S.W.2d at 107; Tex. R. Evid. 404(a). Even assuming the officer's testimony of events occurring after the arrest was irrelevant to the attempted robbery, the failure to object to its admission cannot form the basis of an ineffective assistance claim. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (en banc) (refusing to deem counsel's failure to seek a limiting instruction ineffective assistance without providing counsel the opportunity to defend or explain his actions). Similarly, we are hesitant to speculate why counsel failed to seek a limiting instruction regarding the extraneous acts. Hagos failed to demonstrate that counsel's lack of objection was not part of counsel's trial strategy. Accordingly, we need not discuss whether Hagos met the second prong of Strickland.

D. Ineffective cross-examination

Hagos contends counsel failed to conduct an effective cross-examination of the State's witnesses when he asked questions which implied Hagos' guilt and invited hearsay. Hagos asks us to follow Ex parte Walker, 777 S.W.2d 427, 432 (Tex. Crim. App. 1989) (en banc), wherein the Court of Criminal Appeals held trial counsel's performance was so unreasonable that it affected the punishment phase of the trial. (2)

In the instant case, Hagos' counsel asked the arresting officer what the State's other witnesses reported to him at the time of the incident. Hagos specifically complains that counsel bolstered the State's case and implicitly admitted Hagos' guilt by asking, "And he - How did the robbery come into play here?" This single incident cannot support a finding of ineffective assistance. To conclude counsel's actions were so deficient without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning. The fact another attorney might try the case differently does not establish ineffective assistance of counsel. Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.--San Antonio 2002, no pet.). Hagos failed to satisfy the first prong of Strickland; thus we will not address the second prong.

E. Improper jury argument

Hagos next asserts the State made an improper jury argument regarding parole during the punishment phase. Hagos contends trial counsel should have objected to and asked for an instruction to disregard when the State argued: "But what you need to understand, no matter what sentence you give the defendant today, he becomes eligible for parole after he has served one-fourth of it. Doesn't mean he's going to get parole." For the purpose of determining effectiveness of counsel in the punishment phase, we apply the same Strickland two-prong test. See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999) (en banc).

During jury argument, it is improper for either party to apply parole laws to the defendant. Tex. Code Crim. Proc. Ann. art. 37.07 4 (Vernon 2005). It is Hagos' burden to demonstrate how counsel was deficient in this regard. Hagos argues counsel had "no conceivable trial strategy" in failing to object to the argument, and that counsel's omission resulted in a harsher sentence.

Hagos directs us to Chester v. State, 167 S.W.3d 935, 937 (Tex. App.--Amarillo 2005, pet. ref'd) (concluding improper application of parole law to defendant was harmful error), and argues that merely summarizing the court's instruction regarding parole is not error. In this case, the prosecutor only restated the parole law contained in the court's charge and referenced Hagos, as opposed to actually calculating how long Hagos would serve before becoming eligible for parole. Regardless of whether the argument was error, the record does not affirmatively show a reasonable probability that, but for counsel's failure to object to the argument or seek a limiting instruction, the outcome would have been different. See Strickland, 466 U.S. at 687; Hernandez, 988 S.W.2d at 770 n.3; Harling v. State, 899 S.W.2d 9, 12 (Tex. App.--San Antonio 1995, pet. ref'd). In this case, the jury was allowed to assess between two and twenty years' confinement. The State requested ten years' confinement, half of the maximum sentence. Counsel produced two character witnesses and made a closing statement asking for two years' confinement. The jury assessed punishment at eight years, which was less than the State's request. We are not persuaded Hagos demonstrated he was prejudiced under Strickland.

Conclusion

After reviewing the totality of representation, Hagos failed to prove that trial counsel's actions violated his right to effective assistance of counsel. Hagos did not produce any affirmative proof in the record to rebut the presumption that counsel's decisions were based on sound or reasonable trial strategy. Accordingly, we affirm the judgment of the trial court.

 

Rebecca Simmons, Justice

 

Do Not Publish

1. Paul Gorman could not be located at the time of trial.

2. Walker was decided under Ex Parte Cruz, 739 S.W.2d 53 (Tex. Crim. App. 1987) (en banc), before Texas adopted the Strickland two-prong test for all parts of a trial, including the punishment phase. Under Cruz, an appellate court would evaluate counsel's assistance under the "reasonably effective" standard. Id. at 58.