Felix Benitez v. The State of Texas--Appeal from Crim Dist Ct 5 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-147-CR

FELIX BENITEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 5

Dallas County, Texas

Trial Court # F-92-44123-L

O P I N I O N

Appellant Benitez appeals his conviction for murder for which he was sentenced to life in prison and a $5,000 fine.

Appellant and the deceased, Richard Garza, Jr., were among some twenty people attending a birthday party in an apartment parking lot on August 22, 1992. Appellant broke a bottle. He denied breaking the bottle and said that Garza did it. Appellant then pulled a gun, commenced to speak obscenities, and shot Garza twice. Appellant then pulled Garza to the floor, continued to shoot him, and then ran away.

Appellant testified that he and Garza both were drunk; that he and Garza argued; that Garza reached under his shirt; that Appellant thought Garza was trying to pull a weapon; that he shot Garza with a .38 super; that he was out of control, more than drunk, and if he had not been drinking he would probably have walked away. Appellant was indicted for knowingly and intentionally causing the death of [Garza] by "shooting him with a firearm, a deadly weapon." The jury found Appellant guilty "of murder as charged in the indictment." At the punishment phase, it was shown that Appellant had prior convictions for carrying a weapon and a DWI. The jury assessed his punishment at "life" and a $5,000 fine.

Appellant appeals on six points of error.

Point one: "Defendant's right to counsel, due process, and a fair trial under both the Texas and U.S. Constitutions were denied because his trial counsel was ineffective for having a conflict of interest between himself and his client which he fail to disclose to defendant."

Point two: "Defendant's right to counsel under both the Texas and U.S. Constitutions was denied because his trial counsel was ineffective."

Point three: "Defendant's right to counsel, right to a fair trial, and due process under both the Texas and U.S. Constitutions were denied because his trial counsel was selected and paid by the trial judge."

The standard of review where ineffective assistance of counsel is alleged is set out in Strickland v. Washington, 466 U.S. 688, and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980). The burden of proving ineffective assistance of counsel is on the appellant and must be proved by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

A claim of ineffective assistance of counsel should not be sustained unless it is firmly founded in the record. Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981). Matters not present in the record of the trial provide no basis upon which an appellate court may make a decision. Tex. R. App. P. 50(a). Mere allegations of the existence of facts may not be considered. Williams v. State, 485 S.W.2d 274 (Tex. Crim. App. 1972). Where an alleged inadequacy of trial counsel are errors of omission or dehors the record, rather than error of commission revealed in the trial record, the proper vehicle for complaint is a habeas corpus collateral attack which permits the development of facts concerning the alleged ineffectiveness. Barrera v. State, 664 S.W.2d 372, 375 (Tex. App. Corpus Christi 1983); Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980).

Appellant claims that his trial counsel and the trial judge had a previously undisclosed relationship based on the trial judge choosing which attorneys to appoint and how much to pay them; that this causes appointed attorneys to dispose of their cases quickly in order to please the trial judge; that appointed attorneys can contribute to the trial judge's campaign fund; and that trial counsel was loyal to the trial judge and not to Appellant in order to preserve his own financial well being. Appellant argues that trial counsel did not effectively represent him because he did not want to annoy the trial judge by working too hard for him; and that the alleged conflicts of interest prejudiced his case.

Specifically, Appellant asserts that trial counsel was ineffective in a tardy submission of subpoenas for defense witnesses; that he waited until after the jury was sworn to have his motion for the appointment of an investigator granted; that he did not properly prepare for the case; and that he switched strategies at trial.

Appellant requests either (1) a reversal and remand for a new trial, or (2) an abatement of the appeal and remand for an evidentiary hearing on his conflict of interest claims.

Appellant's claim of conflict of interest with trial counsel is in no way supported by the record. Appellant attaches, as exhibits to his brief, various documents which purportedly show trial counsel's vested financial interest in pleasing the trial judge. None of these documents were in evidence at trial or by way of a motion for a new trial. This court cannot accept as fact allegations in an appellate brief which are not supported by the record. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985).

There is no evidence in the record which supports Appellant's claim that trial counsel was loyal to the trial judge and did not look after Appellant's interests.

Appellant claims trial counsel ineffective because he subpoenaed defense witnesses on the day the trial started. Voir dire was on March 15, 1994. The guilt-innocence phase did not begin until March 18, 1994. Appellant has failed to prove that trial counsel's subpoena requests were in any way untimely. Further it must be presumed that trial counsel made a strategic decision to request the subpoenas when he did. Miniel v. State, 831 S.W.2d 310, 323. Moreover, Appellant has not established that the outcome of the trial would have been different. Appellant claims trial counsel ineffective because he did not get an investigator appointed until after trial began. The record reflects that Appellant had an investigator who was a good investigator and worked diligently. The order appointing him was signed the morning of the trial so that the investigator would be paid.

Appellant claims trial counsel ineffective because he did not visit him in jail and did not properly prepare his case. Appellant has failed to show that either assertion is true or was an unprofessional error which changed the outcome of the case.

Finally, Appellant claims trial counsel ineffective because he initially pursued the strategy that someone else committed the murder, then switched to the strategy of self-defense. The record does not bear this out. Defense counsel pursued his self-defense strategy throughout the trial. Moreover, choice of and any changes in trial strategy is a strategic matter which may not be second guessed on appeal. Miniel, supra.

Trial counsel presented motions, lodged objections, selected a jury, cross-examined the State's witnesses, presented defense witnesses, and presented closing argument on Appellant's behalf. From the totality of the record we hold that Appellant received effective assistance of counsel.

Appellant asserts his right to due process under the Texas and U.S. Constitutions was denied because trial counsel was selected and paid by the trial judge. Texas Code of Criminal Procedure art. 26.04 mandates the trial court to appoint attorneys to represent indigent criminal defendants and art. 26.05 provides for the compensation of court-appointed attorneys by the county, with court approval, according to a fee schedule adopted by the county and district judges. Appellant's complaints are without merit.

Points one, two and three are overruled.

Point four: "Defendant's right to a fair trial and to a presumption of innocence under the Texas and U.S. Constitutions were infringed upon because he was required to wear physical restraints in the court room in the presence of the jury."

Appellant was seated in the court room with leg restraints at the beginning of voir dire. When voir dire was half over Appellant's counsel, out of the presence of the jury, objected to [Appellant] being in shackles on his legs. "We feel they are going to be seen by someone on the panel or one of the jurors during the course of the trial." The judge inquired of the bailiff if there was a reason for having the defendant shackled in his judgment. The bailiff responded, "Yes." The court then stated that Appellant was seated with his legs under the table with the interpreter between him and the jury and said, "I don't think they are in view of anybody unless they crawl under the table. We will be careful in moving him at any time the jury or a juror is present. I overrule the objection."

At the close of voir dire the court excused the jury panel. After the panel was excused, counsel for Appellant renewed [his] objection to the defendant being in shackles, and the court ordered the shackles removed.

By failing to object at the earliest opportunity, which was as soon as Appellant was seated with the shackles on his legs in the court room, any error was waived. Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990).

At the conclusion of the voir dire, defense counsel renewed his objection to the shackles, and the trial court ordered that the leg shackles "be removed for the remainder of the trial unless a problem arose."

The record does not reflect that any of the jurors ever saw the leg shackles. Any error in shackling a defendant is harmless under Rule 81(b)(2) if the record does not show that the jury actually saw the shackles. Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991).

Point four is overruled.

Point five: "The trial court erred in admitting State's Exhibit #48."

During punishment phase the court admitted into evidence, over objection, Exhibit #48, which was a jail card containing Appellant's fingerprints. Appellant claims the jail card inadmissible hearsay because the State did not establish under Texas Rules of Criminal Evidence 803(6) that the employees of the Dallas County Sheriff's office had personal knowledge of the information recorded on the jail card.

This issue has been decided adversely to Appellant. In Webb v. State, 840 S.W.2d 543 (Tex. App. Dallas 1992), the court held that Rule 803(6), Tex. R. Crim. Evid., does not require that the records custodian or anyone in the sheriff's office have personal knowledge of how information on the jail card was generated because that is information transmitted to them by others as allowed by the rule. The court held that jail cards are admissible under Rule 803(6) and are not subject to a lack of personal knowledge objection.

Point five is overruled.

Point six: "The trial court erred when it made an affirmative finding of a deadly weapon."

The indictment alleged Appellant "knowingly and intentionally caused the death of Richard Garza, Jr., by shooting [him] with a firearm, a deadly weapon." The jury found Appellant "guilty of murder as charged in the indictment." The trier-of-facts' verdict on the indictment may constitute an affirmative finding of a deadly weapon. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985); Ashberry v. State, 813 S.W.2d 520 (Tex. App. Dallas 1991). Article 42.12, 3(g)(a)(2) requires upon an affirmative finding that a deadly weapon was used or exhibited, the court shall enter the finding in the judgment. This is what the trial court did.

Point six is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 12, 1995

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